State v. Burgos-Delgado

2023 Ohio 1817, 216 N.E.3d 69

• Court: Ohio Court of Appeals
• Decided: June 1, 2023
• Docket: 111992
• Status: Published

Opinion

[Cite as State v. Burgos-Delgado, 2023-Ohio-1817.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, : No. 111992 v. :

JUAN A. BURGOS-DELGADO, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: June 1, 2023

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-18-625204-B

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Kevin R. Filiatraut, Assistant Prosecuting Attorney, for appellee.

P. Andrew Baker, for appellant.

MICHAEL JOHN RYAN, J.:

Defendant-appellant, Juan A. Burgos-Delgado, appeals from his

judgment of conviction, which was rendered after a jury trial on two joined

indictments. After a thorough review of the facts and pertinent law, we affirm. Procedural History

The first incident giving rise to indictment occurred on January 7, 2018,

and was charged in Cuyahoga C.P. No. CR-18-625204. In that case, Burgos-Delgado

and a codefendant, Wilfredo Garcia-Rodriguez, were charged with the following

crimes relative to the homicide of James Dowell: Count 1, aggravated murder in

violation of R.C. 2903.01(B); Count 2, aggravated murder in violation of R.C.

2903.01(A); Count 3, aggravated burglary in violation of R.C. 2911.11(A)(1); Count

4, aggravated robbery in violation of R.C. 2911.01(A)(3); Count 5, kidnapping in

violation of R.C. 2905.01(A)(2); Count 6, kidnapping in violation of R.C.

2905.01(A)(3); Count 7, aggravated robbery in violation of R.C. 2911.01(A)(1); and

Count 8, kidnapping in violation of R.C. 2905.01(A)(2). Counts 1 through 8 all

contained one- and three-year firearm specifications, notices of prior conviction,

and repeat violent offender specifications. A final count, Count 9, related solely to

codefendant Garcia-Rodriguez being charged with having weapons while under

disability.1

The second incident occurred on January 18, 2018, just days after the

homicide, and was charged in Cuyahoga C.P. No. CR-20-647651. The charges in

1 Garcia’s case proceeded to a separate jury trial on all charges except Count 9, having

weapons while under disability, which was tried to the bench. The jury found him guilty of murder, a lesser-included offense of Count 1, guilty of Count 3, aggravated burglary, and not guilty on the other charges. The trial court found him guilty of Count 9, having weapons while under disability. The trial court sentenced Garcia-Rodriguez to 29 years to life. His conviction and sentence were upheld on appeal. See State v. Garcia-Rodriguez, 2022- Ohio-4283, 202 N.E.3d 729 (8th Dist.). that case resulted from a traffic stop of a vehicle Burgos-Delgado was driving and

consisted of one count of tampering with evidence in violation of R.C. 2921.12(A)(1)

and one count of drug possession in violation of R.C. 2925.11(A).

The state filed a motion to join the indictments for one trial. Defense

counsel agreed to the joinder and the cases were heard together in a single jury trial.

The state presented 11 witnesses, and after it rested the defense made a Crim.R. 29

motion for judgment of acquittal, which the trial court denied. The defense did not

present any witnesses on its behalf.

After its deliberations, on the homicide charges, the jury found Burgos-

Delgado guilty of Counts 1, 3, 4, 5, 6, 7, and 8, as well as the accompanying one- and

three-year firearm specifications. The jury found him not guilty of Count 2. At

sentencing, Counts 5 and 6 merged with Count 4 and the state elected to proceed on

Count 4; and Counts 7 and 8 merged and the state elected to proceed on Count 7.

The trial court sentenced Burgos-Delgado on Count 1, aggravated murder, to life

without parole, plus three years on the firearm specification, to be served prior to

and consecutive to the underlying charge, and ten years on the remaining counts

after merger, to be served consecutively to each other. The trial court further

ordered that the gun specification on Count 7 be served consecutive to the gun

specification on Count 1.

On the drug charges, the jury found Burgos-Delgado guilty of both

counts (tampering with evidence and drug possession). The trial court sentenced

him to 36 months on Count 1, tampering with evidence, and 12 months on Count 2, drug possession. The sentences were ordered to be served concurrently and

concurrently to the sentence on the homicide charges.

Trial Testimony

Homicide of Dowell

E.R., who was 14 years old at the time of the crime, testified that at the

relevant time he lived with his mother and her boyfriend, codefendant Garcia-

Rodriguez, who was known as “Jyto.” The victim, Dowell, was a friend of E.R.’s

family and E.R. would buy marijuana from him. E.R. testified that on at least two

occasions prior to Dowell’s murder, he and Garcia-Rodriguez had been together

when purchasing marijuana from Dowell.

E.R. testified that on the day of the murder he had been at his cousin’s

house and he left the house on foot to go home. On his way home, he noticed his

mother’s car parked outside a house. He was surprised to see her car at the house

and knocked on the door of the house to find out why she was there. Garcia-

Rodriguez answered the door. Burgos-Delgado, who E.R. had not previously

known, was in the house. E.R. described Burgos-Delgado as shorter and “chubbier”

than Garcia-Rodriguez and as having a limp when he walked.

Garcia-Rodriguez told E.R. that they were about to rob Dowell. Garcia-

Rodriguez and Burgos-Delgado had two guns — both automatics, one was bigger

and a “regular” color and the other was smaller and light blue. E.R. left with the duo

in his mother’s car, with Burgos-Delgado driving. Burgos-Delgado drove them to

Dowell’s house and parked in an alley behind the house. Burgos-Delgado told E.R. that if he did not do as Burgos-Delgado instructed him, Burgos-Delgado would kill

his mother, aunt, and niece. E.R. testified that he was instructed to go into Dowell’s

house and leave the door unlocked so that Burgos-Delgado and Garcia-Rodriguez

could gain access to the home.

Following Burgos-Delgado’s instruction, E.R. went to Dowell’s side

door and knocked on it. Dowell answered the door, let E.R. in, and E.R. left the door

unlocked. There was a female in the house with Dowell. E.R. asked Dowell for

marijuana.

Shortly after entering Dowell’s house, Burgos-Delgado and Garcia-

Rodriguez entered the house through the door E.R. left unlocked. They were both

wearing masks on their faces — one had a dark one and the other had a blue one.

They also both had gloves on and both had guns, which they pointed at Dowell and

the female as they told them to get on the ground.

Dowell resisted and fought with Garcia-Rodriguez. E.R. testified that

he heard Dowell ask Jyto (Garcia-Rodriguez’s nickname) why he was doing this.

According to E.R., Burgos-Delgado had the light blue gun and used it to hit Dowell

on the head. As Dowell and Garcia-Rodriguez continued to fight, Garcia-

Rodriguez’s gun fell to the ground and Burgos-Delgado retrieved it. Burgos-

Delgado, who was within “arm’s reach” of Dowell, shot Dowell first in the chest and

then in the head.

Burgos-Delgado threw a bag to E.R. and told him to take everything

off of a nearby table. E.R. grabbed a bag of marijuana off the table and he, Burgos- Delgado, and Garcia-Rodriguez fled Dowell’s house and went to Burgos-Delgado’s

house.

A few days after the shooting, a detective came to E.R.’s school and

talked to him. E.R. initially lied to the detective about his knowledge of and

involvement in the shooting. Eventually, after Garcia-Rodriguez had been identified

as a suspect, E.R. told the truth. E.R. testified that he lied because he was scared by

Burgos-Delgado’s threat to kill his family.

The female who E.R. testified was in Dowell’s house was identified as

Savannah Alley. She acknowledged that Dowell was a drug dealer and she was often

with him when he made his sales. She testified that she was at Dowell’s house on

the day of the shooting, and someone called him asking for $5 worth of marijuana.

Later, “a kid” (E.R.) came to purchase the marijuana. While Alley and Dowell were

in the kitchen with E.R., two men ran in. One had a black gun and the other had a

blue gun. The bigger of the two men had her on the ground with his gun to her head,

while the other man fought with Dowell. Dowell said to the man who he was fighting

with, “Jyto, I know it’s you, why would you do this to me?”

Alley further testified that one of the men pistol-whipped Dowell and

put duct tape on his face. She then heard gunshots and was able to run away and

hide in another part of the house. After a few minutes she heard a car pull off. Alley

discovered that the intruders took her cell phone so she alerted the police through

Dowell’s house alarm system. Law enforcement, who responded to the scene, recovered the

following evidence: (1) a spent bullet under Dowell’s body, (2) a spent casing on the

kitchen floor, (3) a spent casing on top of the washing machine in the laundry room,

which was adjacent to the kitchen, (4) a roll of gray duct tape with a crumpled piece

of it with suspected blood still attached to the roll, (5) suspected blood outside in the

snow leading from Dowell’s house towards the alley, (6) a black winter cap, and (7)

a piece of blue duct tape.

Alley was able to identify both E.R. and Garcia-Rodriguez to the police.

Garcia-Rodriguez was apprehended first. After Garcia-Rodriguez’s interview with

the police, an arrest warrant was issued for Burgos-Delgado. Further, a search

warrant for Burgos-Delgado’s home was issued and during the execution of the

search, blue duct tape, a light blue semiautomatic handgun, and ammunition were

recovered from Burgos-Delgado’s home.

Trace evidence testing was conducted on the blue duct tape recovered

from the crime scene and the blue duct tape found in Burgos-Delgado’s home. The

initial testing tended to show that the blue duct tape found outside of Dowell’s home

was not directly torn from the roll found at Burgos-Delgado’s home, or if it was, there

was a piece missing between. However, further testing revealed that the two blue

duct tapes had a “level III association.” The trace evidence witness testified that

there were no microscopic differences between the backing, the adhesive, and the

fibers on the strip of duct tape found at the scene and the roll found in Burgos- Delgado’s home, which meant that although the ends of the strip and roll did not

match up, the strip could have come from the roll.

A witness testified about the ballistic testing that was performed.

According to the witness, the two spent casings from the crime scene, along with the

spent bullet recovered from under Dowell’s body, were all the same 7.62 by 25-

millimeter rounds and were fired by the same caliber firearm. The witness testified

that the ammunition recovered from Burgos-Delgado’s home was also 7.62 by 25-

millimeter. The witness compared the ammunition from Burgos-Delgado’s home

with the two fired casings from the crime scene and found that the ammunition from

the home had the same ejector and extractor marks on them as did the two fired

casings from the crime scene. Thus, according to the witness, the two live rounds

from Burgos-Delgado’s home were “cycled through” the same firearm that fired the

two spent casings at the crime scene. She explained that “cycling” occurs when

someone loads a round into the chamber of a gun and then racks the slide to eject it

without firing it.

DNA testing was also performed, and a witness testified as to the

results. The roll of gray duct tape recovered from the crime scene contained Dowell

and Garcia-Rodriguez’s DNA on the sides of the roll. The winter cap recovered from

the crime scene had Garcia-Rodriguez’s DNA in it. The blood outside the house

leading toward the alley, as well as blood on the strip of blue duct tape found near

the alley, was Dowell’s. The roll of blue duct tape from Burgos-Delgado’s home contained the DNA of Burgos-Delgado, Garcia-Rodriguez, and Dowell, with the

greatest percentage of the DNA being Burgos-Delgado’s.

The chief deputy medical examiner for Cuyahoga County testified

about the autopsy protocol for Dowell. Dowell was shot twice. One bullet entered

the left back of Dowell’s head and exited around his right eye, passing through the

skull. The second bullet went through Dowell’s right upper arm, entering on the

inside of the bicep area and exiting the tricep area of the right upper arm. Dowell

also suffered injuries to his face and knees, which the deputy medical examiner

opined were caused by blunt trauma suffered during a fight or by being struck with

an object.

The deputy medical examiner testified that unburned gunpowder

caused stipple wounds to the skin by the left back of Dowell’s head, which indicated

that he had been shot at close range. Specifically, the deputy medical examiner

opined that the gun had been less than 18 inches from Dowell’s head when it was

fired. The deputy medical examiner further determined that Dowell had suffered

three separate blows to his head apart from the gunshot wound. Moreover, Dowell

had other stipple wounds on his face from being close to another gunshot that was

fired, separate from the gunshot to the back of his head that killed him. Based on

the stippling to Dowell’s face and the entrance and exit wounds to his arm, the

deputy medical examiner opined that Dowell could have had his arm raised over his

face as a defensive action. The gunshot wound to Dowell’s head would have

immediately caused Dowell to become totally incapacitated. Thus, the deputy medical examiner believed that the shot to Dowell’s arm, in which Dowell had a

defensive posture at the time the bullet was fired, occurred first.

Tampering with Evidence and Drug Possession

Approximately one-and-a-half weeks after the murder of Dowell,

Burgos-Delgado was stopped by an Ohio State Highway trooper for a traffic

infraction. A run of Burgos-Delgado’s license plate revealed an active felony warrant

with an advisement to approach with caution, which caused the trooper to have

Burgos-Delgado exit the vehicle for a patdown search and then placement into the

trooper’s cruiser.2 During the patdown search, the trooper felt what he believed was

a small vial. The trooper suspected what he felt contained illegal narcotics, but the

trooper was by himself at that time and there was another person in Burgos-

Delgado’s vehicle, so he left the vial in Burgos-Delgado’s pocket, intending to recover

it with gloves on after the other occupant was secured.

The trooper’s cruiser was equipped with a dash camera and an interior

camera, both of which recorded the encounter; recordings from the cameras were

played for the jury. The recordings showed that after Burgos-Delgado exited his

vehicle, he stood in the street and then walked to the rear of the police cruiser

without incident. The recordings further showed that when Burgos-Delgado was in

the rear of the police car, he moved around while his hands were cuffed and was able

to retrieve the vial from his pocket and dump out the contents — a powder — onto

2 After Burgos-Delgado was in the cruiser, the trooper learned that the arrest warrant was for homicide with a weapon. the floor of the cruiser. After dumping the powder, Burgos-Delgado manipulated

the powder with his feet.

Meanwhile, the trooper had been occupied with the other occupant in

Burgos-Delgado’s vehicle. As the trooper came back to his cruiser, Burgos-Delgado

began to groan as if he was in pain. The trooper testified that Burgos-Delgado had

not previously acted in such a manner. The trooper had Burgos-Delgado exit the

cruiser; Burgos-Delgado did so under his own power and was able to stand without

incident. The trooper then directed Burgos-Delgado to get back into the cruiser.

The Cleveland police arrived to take custody of Burgos-Delgado. The

state trooper testified that as Burgos-Delgado was walked to the Cleveland police

vehicle, he “fell to the ground with a sudden inability to walk.” According to the

trooper, that was the first and only time Burgos-Delgado exhibited any such

problems with the use of his legs during the encounter. The trooper testified that

Burgos-Delgado’s vehicle was not handicap-equipped and there was nothing in the

vehicle, such as a wheelchair, to indicate that Burgos-Delgado was handicapped.

After Burgos-Delgado was turned over to the Cleveland police, the

trooper located the broken vial Burgos-Delgado had smashed on the floor of the

cruiser as well as white powder residue on the floor. The powder had snow and ice

from Burgos-Delgado’s shoes mixed in with it, but the trooper collected what he was

able. A drug analyst with the Ohio State Highway Patrol Crime Lab tested the

broken piece of glass recovered from the trooper’s cruiser and determined it

contained cocaine. Burgos-Delgado’s Interview

One of the investigating detectives testified about his interview with

Burgos-Delgado, which was video recorded in its entirety. Burgos-Delgado was in a

wheelchair during the interview. Burgos-Delgado denied being a part of the

homicide of Dowell, mainly citing his alleged inability to walk. He became

emotional when he was told that he was being arrested for murder, reiterating that

he could not have murdered Dowell because of his purported disability. Burgos-

Delgado told the detective, “I don’t even leave my house so how is this possible. I

am always at home because of my handicap.” He told the detective that he had been

shot in the back and was paralyzed. He consented to the police swabbing for his

DNA and told them that none of his DNA would be connected to the crime scene.

In regard to the vehicle E.R. said Burgos-Delgado was driving on the

day of the murder, Burgos-Delgado told the detective that his friends used it to drive

him around. Burgos-Delgado also denied knowing Dowell and claimed he only

knew Garcia-Rodriguez from when he lived in Puerto Rico; he denied being

acquainted with him in Cleveland. Further, Burgos-Delgado denied that he owned

a gun.

The detective testified that in 2021, the police seized a cell phone from

Burgos-Delgado and extracted information from it. On that phone was a video from

July 5, 2021. The video was played for the jury and showed Burgos-Delgado

recording himself talking to his phone. In the video, Burgos-Delgado was walking around his house without issue. Burgos-Delgado was in a wheelchair for the

December 2021 trial.

Assignments of Error

I. Defendant-appellant’s conviction must be reversed due to ineffective assistance of counsel.

II. The trial court erred in imposing consecutive sentences.

III. The trial court erred in instructing the jury as to complicity.

IV. The trial court erred when it permitted the prosecutor to play a video of defendant-appellant that was recorded in 2021.

V. Counts five, six, and eight of the 2018 indictment must be merged.

Law and Analysis

Ineffective Assistance of Counsel

In his first assignment of error, Burgos-Delgado contends that his trial

counsel was ineffective for (1) not objecting to the joinder of the two indictments,

(2) for failing to file a motion to dismiss based on a speedy trial violation, and (3)

eliciting testimony from a state’s witness that codefendant Garcia-Rodriguez

implicated Burgos-Delgado to law enforcement.

The test for an ineffective assistance of counsel claim is two-part:

whether trial counsel’s performance was deficient and, if so, whether the deficiency

resulted in prejudice. State v. White, 7th Dist. Jefferson No. 13 JE 33, 2014-Ohio-

4153, ¶ 18, citing Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80

L.Ed.2d 674 (1984); State v. Williams, 99 Ohio St.3d 493, 2003-Ohio-4396, 794 N.E.2d 27, ¶ 107. In order to prove prejudice, “[t]he defendant must show that there

is a reasonable probability that, but for counsel’s unprofessional errors, the result of

the proceeding would have been different. A reasonable probability is a probability

sufficient to undermine confidence in the outcome.” State v. Lyons, 7th Dist.

Belmont No. 14 BE 28, 2015-Ohio-3325, ¶ 11, citing Strickland at 694. The appellant

must affirmatively prove the alleged prejudice occurred. Strickland at 693.

As both prongs of the Strickland test are necessary to prove an

ineffective assistance of counsel claim, if one prong is not met, an appellate court

need not address the remaining prong. Id. at 697. The appellant bears the burden

of proof on the issue of counsel’s effectiveness, and in Ohio, a licensed attorney is

presumed competent. State v. Calhoun, 86 Ohio St.3d 279, 289, 714 N.E.2d 905

(1999).

Joinder of Indictments

The law favors joining multiple criminal offenses in a single trial.

State v. Franklin, 62 Ohio St.3d 118, 122, 580 N.E.2d 1 (1991), citing State v. Lott,

51 Ohio St.3d 160, 163, 555 N.E.2d 293 (1990). “[J]oinder and the avoidance of

multiple trials is favored for many reasons, among which are conserving time and

expense, diminishing the inconvenience to witnesses and minimizing the possibility

of incongruous results in successive trials before different juries.” State v. Torres,

66 Ohio St.2d 340, 343, 421 N.E.2d 1288 (1981). Pursuant to Crim.R. 13,

“[t]he court may order two or more indictments or informations or both to be tried together, if the offenses or the defendants could have been joined in a single

indictment or information.”

Pursuant to Crim.R. 8(A), joinder is permitted if the offenses are: (1)

of the same or similar character; (2) based on the same act or transaction; (3) based

on two or more acts or transactions connected together or constituting parts of a

common scheme; or, (4) part of a course of criminal conduct. The defendant bears

the burden of proving that the trial court abused its discretion in denying a motion

to sever and the burden of proving prejudice if joinder has been granted. State v.

Moore, 2013-Ohio-1435, 990 N.E.2d 625, ¶ 23 (7th Dist.), citing State v. Coley, 93

Ohio St.3d 253, 259, 754 N.E.2d 1129 (2001).

A defendant may move to sever trial of joined offenses pursuant to

Crim.R. 14 if he or she can establish prejudice. Lott at id. The state may counter a

claim of prejudice utilizing two methods. First, the state may demonstrate that the

evidence presented at trial for each offense was simple and direct. Moore at id.,

citing Coley at id. Failing that, the state must show that all of the evidence presented

at the combined trial would have been admissible in each case if tried separately. Id.

If the state can demonstrate that the evidence is simple and direct, then it is not

required to prove the stricter admissibility test. State v. Harris, 7th Dist. Mahoning

No. 13 MA 37, 2015-Ohio-2686, ¶ 29, citing State v. Johnson, 88 Ohio St.3d 95, 109,

723 N.E.2d 1054 (2000).

The crimes charged in both of the two indictments against Burgos-

Delgado were part of a course of criminal conduct. His crimes began on January 7, 2018, when he and Garcia-Rodriguez burglarized Dowell’s home and killed him

under the guise of purchasing marijuana, which they stole during the incident.

Shortly after the incident, an arrest warrant was issued for Burgos-Delgado and on

January 18, 2018, he was arrested on that warrant, during which he was found to be

in possession of drugs that he attempted to destroy. These crimes of January 7 and

January 18 were both drug related and were committed days apart. Further, the

action Burgos-Delgado took of destroying the drugs with his feet during the arrest

on the murder warrant was relevant to his defense in the murder case that he was

disabled and could not have possibly committed Dowell’s murder.

Moreover, the evidence of the crimes in both indictments was simple

and direct. Indeed, Burgos-Delgado concedes the simplicity of the evidence in the

tampering case:

With respect to the charges that were originally the basis of the 2020 indictment (tampering with evidence and drug possession), the facts were essentially uncontested. Defendant-Appellant was driving a vehicle that was stopped by the police, arrested on the warrant for the homicide, and while in the police cruiser, poured a vial of cocaine that was in his possession out and tried to step on the powder that was released to the floor.

Appellant’s brief, p. 7.

The evidence in the murder case was likewise simple and direct. E.R.

testified that Burgos-Delgado shot Dowell in the head. The two spent casings at the

scene were determined to have been fired by the same gun that cycled rounds of

ammunition found in Burgos-Delgado’s home. And although Burgos-Delgado

denied being associated with Garcia-Rodriguez in Cleveland, both of their DNA, along with Dowell’s, were found on a roll of blue duct tape — with the same physical

characteristics as the blue duct tape found at the crime scene — that was recovered

from Burgos-Delgado’s home.

On this record, Burgos-Delgado has failed to demonstrate that his trial

counsel was ineffective for not objecting to the joinder of the two indictments.

Motion to Dismiss

Burgos-Delgado’s second claim of ineffective assistance of counsel is

based on counsel’s failure to file a motion to dismiss the tampering indictment for a

violation of his speedy trial rights. According to Burgos-Delgado, he was arrested

on January 18, 2018, and, thus, by the time of his January 2020 indictment, his right

to a speedy trial had expired. Burgos-Delgado’s contention overlooks that the

January 2018 arrest was not for the tampering case; rather, he was arrested on the

warrant for Dowell’s murder.

To the extent that Burgos-Delgado’s contention is that there was

preindictment delay on the tampering indictment, we note that preindictment delay

violates due process only when it is unjustifiable and causes actual prejudice.

State v. Jones, 148 Ohio St.3d 167, 2016-Ohio-5105, 69 N.E.3d 688, ¶ 12. The Ohio

Supreme Court has established a burden-shifting framework for analyzing

preindictment delay due process claims. State v. Whiting, 84 Ohio St.3d 215, 217,

702 N.E.2d 1199 (1998). Under this framework, a defendant is first required to

present evidence of actual prejudice; if actual prejudice is established, the burden

shifts to the state to produce evidence of a justifiable reason for the delay. Id. Burgos-Delgado has not claimed, much less demonstrated, that he was prejudiced

by the delay in the filing of the tampering indictment and our review of the record

shows none.

On this record, counsel was not ineffective for not filing a motion to

dismiss.

Testimony from Investigating Detective about Codefendant’s Statement

The police apprehended codefendant Garcia-Rodriguez first. During

Garcia-Rodriguez’s interview with law enforcement he implicated Burgos-Delgado.

As the case proceeded through the pretrial process it became apparent that Garcia-

Rodriguez was not going to be a witness in this case. Thus, the defense filed a motion

in limine to exclude testimony based on statements made by Garcia-Rodriguez. As

grounds for the motion, the defense contended that any such testimony would be

inadmissible hearsay and in violation of Burgos-Delgado’s constitutional right to

confront the witness. After a hearing on the motion in limine, the trial court granted

the motion.

At trial, upon cross-examination of the investigating detective,

defense counsel elicited testimony from him that in his interview of Garcia-

Rodriguez, Garcia-Rodriquez implicated Burgos-Delgado. In Burgos-Delgado’s

third contention of ineffective assistance of counsel, he contends that “[i]n a case

involving largely scientific and circumstantial evidence, this testimony is devasting.

That it was brought forth on cross-examination was ineffective and prejudicial and

should be reversible error.” We disagree. A review of the record demonstrates that counsel had a change of

mind as to trial strategy regarding the use of Garcia-Rodriguez’s statements to the

investigating detective. Counsel’s questioning of the detective shows that his

strategy was to paint Garcia-Rodriquez as the “first suspect” in the murder of Dowell

and despite him being the first suspect, Garcia-Rodriguez’s home was not searched

as was Burgos-Delgado’s. The implication was that Garcia-Rodriguez “pinned”

Dowell’s murder on Burgos-Delgado. Further, defense counsel implied that the

investigation was incomplete, or even “sloppy,” given that neither the bag of

marijuana stolen from Dowell’s home nor the gun believed to be the murder weapon

were recovered from Burgos-Delgado’s home, but Garcia-Rodriguez’s home was

never searched.

Judicial scrutiny of defense counsel’s performance must be highly

deferential. Strickland, 466 U.S. at 689, 104 S.Ct. 2052, 80 L.Ed.2d 674. A court

deciding an ineffectiveness claim must judge the reasonableness of counsel’s

challenged conduct on the facts of the particular case, viewed at the time of counsel’s

conduct. Id. at 690. For matters “within the ambit of trial strategy,” ineffective

assistance is not demonstrated by “debatable trial tactics.” State v. Conway,

109 Ohio St.3d 412, 2006-Ohio-2815, 848 N.E.2d 810, ¶ 101, citing State v. Hoffner,

102 Ohio St.3d 358, 2004-Ohio-3430, 811 N.E.2d 48, ¶ 45 (additional citation

omitted).

On this record, we do not find counsel’s performance deficient.

Further, Burgos-Delgado has failed to demonstrate prejudice; that is, that the result of the trial would have been different without the testimony. The forensic, direct,

and circumstantial evidence overwhelmingly supports the conviction. We therefore

find no merit to his third contention of ineffective assistance of counsel.

The first assignment of error is overruled.

Consecutive Sentences

On the homicide charges, the trial court sentenced Burgos-Delgado to

life without parole, plus three years on the firearm specification on Count 1,

aggravated murder, and ten years on the remaining counts after merger, to be served

consecutively to each other. The trial court further ordered that the gun

specification on Count 7 be served consecutive to the gun specification on Count 1.

The court did not make consecutive-sentence findings either at the hearing or in its

journal entry.

In his second assignment of error, Burgos-Delgado contends that the

trial court erred in imposing consecutive sentences without making the statutory

findings. Burgos-Delgado concedes that in State v. Campbell, 8th Dist. Cuyahoga

No. 103982, 2016-Ohio-7613, this court held in similar circumstances as presented

in this case that the issue of consecutive-sentence findings is “moot” because it is

purely “academic” given the imposition of a sentence to life without the possibility

of parole. Id. at ¶ 7; see also State v. Chavez, 8th Dist. Cuyahoga No. 99436, 2013-

Ohio-4700, and State v. Herrington, 8th Dist. Cuyahoga No. 106225, 2018-Ohio-

3049. Burgos-Delgado asks us to reconsider this court’s holding in Campbell

because “[i]t is at least possible that at some date in the future, the Legislature may provide potential relief for those serving sentences of life without the possibility of

parole * * *.” We decline to do so.

Thus, following this court’s precedent, the second assignment of error

is overruled.

Complicity Instruction

The trial court instructed the jury, over the defense’s objection, in

relevant part as to the homicide case, that “[i]t is the contention of the State that the

defendant either committed the offenses charged in the indictment or that he aided

and abetted the person who did directly or personally [commit] the offense.”

In his third assignment of error, Burgos-Delgado contends that “the

instruction should not have been given as the State’s theory of the case was that

Defendant-Appellant was the principal offender.” He argues that “[b]y allowing the

jury to consider a complicity theory which was not part of the indictment in this case

nor presented as evidence to the jury, the opportunity for jury confusion was present

and there was no need for it given the State’s theory of the case.”

The giving of jury instructions is within the sound discretion of the

trial court, and we review it for an abuse of discretion. State v. Jackson, 8th Dist.

Cuyahoga No. 100125, 2014-Ohio-3583, ¶ 42, citing State v. Howard, 8th Dist.

Cuyahoga No. 100094, 2014-Ohio-2176, ¶ 35, and State v. Martens, 90 Ohio App.3d

338, 629 N.E.2d 462 (3d Dist.1993).

Under R.C. 2923.03(F), a charge of complicity may be stated in terms

of this section or in terms of the principal offense. As a result, a jury instruction on complicity is proper as long as “the evidence adduced at trial could reasonably be

found to have proven the defendant guilty as an aider and abettor.” State v.

McKelton, 148 Ohio St.3d 261, 2016-Ohio-5735, 70 N.E.3d 508, ¶ 244.

Here, although the state contended that Burgos-Delgado was the

principal offender in the homicide case and E.R.’s testimony supported that theory,

other evidence could have supported a complicity theory. Namely, the other witness

at the murder scene, Alley, testified that she saw a struggle and heard gunshots, but

she did not testify as to who fired the shots. On this record, the jury could have found

Burgos-Delgado guilty as an accomplice and, therefore, the trial court did not abuse

its discretion in instructing the jury on complicity.

The third assignment of error is overruled.

Playing of 2021 Video Taken by Burgos-Delgado

Over the defense’s objection, the state played a video Burgos-Delgado

made of himself in July 2021. In the video, Burgos Delgado is walking around his

residence. Burgos-Delgado contends that the video, taken in 2021, was not relevant

to his physical status at the time of the homicide, which occurred in 2018. Moreover,

even if it had probative value, according to Burgos-Delgado, the probative value was

outweighed by its prejudicial nature.

Generally, all relevant evidence is admissible. Evidence is relevant

when it has “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.” Evid.R. 401. “Under Evid.R. 403(A), ‘[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.’”

State v. Velez, 3d Dist. Putnam No. 12-13-10, 2014-Ohio-1788, ¶ 122, quoting

State v. Maag, 3d Dist. Hancock Nos. 5-03-32 and 5-03-33, 2005-Ohio-3761, ¶ 71.

However, “Evid.R. 403(A) does not ‘attempt to bar all prejudicial

evidence.’” State v. Scurlock, 6th Dist. Lucas No. L-5-1200, 2017-Ohio-1219, ¶ 32,

quoting State v. Crotts, 104 Ohio St.3d 432, 2004-Ohio-6550, 820 N.E.2d 302, ¶ 23.

“Instead, the rule provides that only unfairly prejudicial evidence is excludable.”

(Emphasis sic.) Scurlock at id., citing Crotts at id.

“‘Unfair prejudice is that quality of evidence which might result in an improper basis for a jury decision. Consequently, if the evidence arouses the jury’s emotional sympathies, evokes a sense of horror, or appeals to an instinct to punish, the evidence may be unfairly prejudicial. Usually, although not always, unfairly prejudicial evidence appeals to the jury’s emotions rather than intellect.’”

Crotts at ¶ 24, quoting Oberlin v. Akron Gen. Med. Ctr., 91 Ohio St.3d 169, 171, 743

N.E.2d 890 (2001), quoting Weissenberger, Ohio Evidence, Section 403.3, at 85-87

(2000).

Generally, the admission or exclusion of evidence lies within the trial

court’s discretion, and a reviewing court should not reverse absent an abuse of

discretion and material prejudice. State v. Conway, 109 Ohio St.3d 412, 2006-

Ohio-2815, 848 N.E.2d 810, ¶ 62, citing State v. Issa, 93 Ohio St.3d 49, 64, 752

N.E.2d 904 (2001). The trial court reasoned as follows in allowing the state to present the

video:

We are at the end of a journey that began on January 7th, 2018, and the visual that the defendant wants to produce is that he is wheelchair bound. And as [the assistant prosecuting attorney] indicated, he has been in a wheelchair every day during the course of the trial, the inference being that he is incapacitated.

We have already seen some video where he’s able to leave the wheelchair. And the next question is, could he have done this crime? And I think that the video from 2021 is relevant because it shows that the condition, which is being inferred, is not permanent, and that the defendant has the ability to be mobile at such times he deems necessary.

Tr. 895-896.

We find no abuse of discretion on this record. The record shows that

Burgos-Delgado’s claim of a physical disability dated back to 2018. Specifically,

when he was stopped by police for a traffic violation days after Dowell’s murder,

Burgos-Delgado acted in a manner suggestive of having a physical impairment that

interfered with him walking. Further, when Burgos-Delgado was interviewed by law

enforcement about Dowell’s murder he claimed that he could not have been involved

because of his physical disability. At his December 2021 trial, Burgos-Delgado sat

in a wheelchair, the inference being that he had a physical impairment that made it

difficult or impossible to walk. Thus, the 2021 video was relevant and it was not

unfairly prejudicial.

The fourth assignment of error is overruled. Merger

At sentencing, the state stated that Counts 5, 6, and 8 of the murder

case should merge. The trial court agreed and did not sentence on those counts.

However, the court’s initial sentencing entry did not reflect the merger. For his final

assignment of error, Burgos-Delgado requests that we order the trial court to issue

a corrected sentencing entry.

After the briefs were filed in this appeal, this court remanded the case

to the trial court for the limited purpose of the court issuing a new sentencing entry

reflecting the merger. See motion No. 561727 (Feb. 6, 2023). The trial court

complied with this court’s mandate and issued a nunc pro tunc sentencing entry on

February 22, 2023.

In light of the above, the fifth assignment of error is overruled as moot.

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 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

ANITA LASTER MAYS, A.J., and MARY EILEEN KILBANE, J., CONCUR