State v. Dewberry

2020 Ohio 691

• Court: Ohio Court of Appeals
• Decided: February 28, 2020
• Docket: 27434
• Status: Published

Opinion

[Cite as State v. Dewberry, 2020-Ohio-691.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY

STATE OF OHIO : : Plaintiff-Appellee : Appellate Case No. 27434 : v. : Trial Court Case No. 2015-CR-2994 : GEORGE L. DEWBERRY, SR. : (Criminal Appeal from : Common Pleas Court) Defendant-Appellant : :

...........

OPINION

Rendered on the 28th day of February, 2020.

MATHIAS H. HECK, JR., by SARAH E. HUTNIK, Atty. Reg. No. 0095900, Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, 301 West Third Street, 5th Floor, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee

LUCAS W. WILDER, Atty. Reg. No. 0074057, P.O. Box 574, Dayton, Ohio 45409 Attorney for Defendant-Appellant

.............

FROELICH, J. -2-

{¶ 1} George L. Dewberry, Sr., was found guilty after a jury trial in the Montgomery

County Court of Common Pleas of aggravated murder, murder, 2 counts of felonious

assault, attempted murder, and having weapons while under disability, along with

numerous firearm specifications. After merging several charges and specifications, the

trial court sentenced Dewberry to an aggregate term of life without parole plus 20 years

in prison. For the following reasons, the trial court’s judgment will be affirmed.

I. Factual and Procedural History

{¶ 2} Shortly before midnight on August 20, 2015, Jesse Pierce and his girlfriend,

Laura Castro, were shot multiple times while seated in Castro’s vehicle. Pierce, seated

in the driver’s seat, died from his injuries at the scene. Castro, seated in the front

passenger seat, was shot twice in the face, but survived her injuries. An extensive police

investigation ensued.

{¶ 3} On the morning of the shooting, Detective William Geiger went to the hospital

and met with Castro, who could communicate in writing. Castro did not identify her

shooter at that time. By August 25, the police had identified Dewberry as a suspect.

Castro then was shown a photographic lineup containing Dewberry’s photo, but she did

not identify anyone as the shooter. After Castro was released from the hospital, she left

the Dayton area and decided to contact the police about the shooting. In September

2015, Castro met with Detective Brad Daugherty and showed him a photograph from

Facebook of the person who shot her; the photo was of Dewberry. Subsequently, on

September 25, Castro was shown another photographic lineup, which contained the

same individuals as the prior lineup but in a different order. Castro identified Dewberry

as the shooter and indicated that she was 100 percent positive of her identification. -3-

{¶ 4} The police spoke with Dewberry prior to Castro’s identification. On

September 8, Detective Daugherty and Detective Tom Cope went to Dewberry’s

residence and spoke with Dewberry on his back patio. The conversation was recorded.

On September 22, after Castro identified Dewberry as the shooter based on the Facebook

photo, Daugherty obtained and executed a search warrant for Dewberry’s residence.1

Just prior to executing the search warrant, the police arrested Dewberry outside his home.

Dewberry requested an attorney at the police station, so no interview occurred.

However, as he was being taken to the jail, Dewberry repeatedly asked what Castro was

saying, and he made a comment to the officers that “you’ll never get her [Castro] on the

stand to testify against me.” Dewberry also made another comment as he passed by

television cameras.

{¶ 5} On October 1, 2015, Dewberry was indicted for aggravated murder (prior

calculation/design), attempted murder, felonious assault (deadly weapon), felonious

assault (serious physical harm), murder, and having weapons while under disability. All

of the charges, except for the charge of having weapons while under disability, included

a firearm specification.

{¶ 6} Dewberry subsequently moved to suppress statements he made and any

evidence obtained as a result of the search of his residence and of his warrantless arrest.

He separately filed a motion to suppress the photospread identification by Castro. The

1 The search warrant was admitted at the suppression hearing as State’s Exhibit 3. After the trial court’s suppression decision and upon the State’s motion, the State’s suppression hearing exhibits were returned to the State in anticipation of their use at trial. The search warrant was not offered or admitted at trial nor was it otherwise resubmitted to the trial court, and it is not part of the record. -4-

court held a hearing on the statements and the search warrant issues on March 18, 2016,

and a separate hearing on the photospread identification on March 29, 2016.

{¶ 7} At the beginning of the first hearing on March 18, the court addressed

whether Dewberry would be able to call the witness who made an identification (Castro);

the court stated, “unless I determine a certain way, the complaining witness will not be

required to come here for the motion to suppress.” At the end of the first hearing, the

court stated that the hearing on the identification would occur on March 29 and that “if, in

fact, based upon the law in Ohio, I felt that the witness who identified the defendant in the

photospread needed to be brought in, that would be after that. That would clearly

continue the hearing. But I could probably make that decision on that date * * *.” (Tr.

at 44-45.) On March 29, the court heard from four police officers regarding the

photospread identifications.

{¶ 8} At defense counsel’s request, the trial court permitted the parties to file

simultaneous post-hearing memoranda by April 8 on whether it would be appropriate for

defense counsel call the witness who made the photospread identifications. Both parties

filed memoranda on April 8, focusing primarily on whether the procedures were unduly

suggestive. Defense counsel asked the court to suppress Castro’s identification or,

alternatively, to require Castro to give testimony at a later suppression hearing regarding

the photospread process and her identification of Dewberry. The State asked the court

to overrule the motion to suppress because the procedures were not unduly suggestive.

The State indicated that, if the court were to find something unduly suggestive, then the

State would request a hearing regarding the reliability of the identification, at which time

the State would anticipate calling Castro to testify. -5-

{¶ 9} On April 18, 2016, the trial court overruled Dewberry’s motions in their

entirety, including Dewberry’s request to call Castro as a suppression hearing witness.

{¶ 10} The court conducted a jury trial over several days in January 2017. The

jury convicted Dewberry of all counts and specifications. After merging some of the

charges and firearm specifications, the trial court sentenced Dewberry to a mandatory

term of life in prison without parole for the aggravated murder, 11 years in prison for

attempted murder, and 36 months in prison for having weapons while under disability, all

of which were to be served consecutively to each other. The court also imposed an

additional 3 years each for two firearm specifications. As stated above, Dewberry’s

aggregate sentence was life without parole plus 20 years in prison.

{¶ 11} Dewberry’s original appellate counsel filed a brief pursuant to Anders v.

California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Upon an initial review,

we found that non-frivolous issues existed. We rejected the Anders brief and appointed

new counsel for Dewberry. Dewberry now raises seven assignments of error, which we

will address in an order that facilitates our analysis.

II. Sufficiency and Manifest Weight of the Evidence

{¶ 12} Dewberry’s second assignment of error claims that his convictions were

based on insufficient evidence and against the manifest weight of the evidence.

{¶ 13} “A sufficiency of the evidence argument disputes whether the State has

presented adequate evidence on each element of the offense to allow the case to go to

the jury or sustain the verdict as a matter of law.” State v. Wilson, 2d Dist. Montgomery

No. 22581, 2009-Ohio-525, ¶ 10, citing State v. Thompkins, 78 Ohio St.3d 380, 386, 678

N.E.2d 541 (1997). The relevant inquiry is whether any rational finder of fact, after -6-

viewing the evidence in a light most favorable to the State, could have found the essential

elements of the crime proven beyond a reasonable doubt. State v. Dennis, 79 Ohio

St.3d 421, 430, 683 N.E.2d 1096 (1997). A guilty verdict will not be disturbed on appeal

unless “reasonable minds could not reach the conclusion reached by the trier-of-fact.”

Id.

{¶ 14} In contrast, when reviewing an argument challenging the weight of the

evidence, an appellate court may not substitute its view for that of the trier of fact, but

reviews the entire record, weighs the evidence and all reasonable inferences, considers

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

the finder 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, 485 N.E.2d 717 (1st Dist.1983).

{¶ 15} Because the trier of fact sees and hears the witnesses at trial, we must defer

to the factfinder’s decisions whether, and to what extent, to credit the testimony of

particular witnesses. State v. Lawson, 2d Dist. Montgomery No. 16288, 1997 WL

476684 (Aug. 22, 1997). The fact that the evidence is subject to different interpretations

does not render the conviction against the manifest weight of the evidence. Wilson at

¶ 14. A judgment of conviction should be reversed as being against the manifest weight

of the evidence only in exceptional circumstances. Martin at 175.

{¶ 16} In reviewing challenges based on the sufficiency and/or manifest weight of

the evidence, we are required to consider all of the evidence admitted at trial, regardless

of whether it was admitted erroneously. State v. Brewer, 121 Ohio St.3d 202, 2009-

Ohio-593, 903 N.E.2d 284; State v. Rosales, 2d Dist. Montgomery No. 27117, 2018-Ohio- -7-

197, ¶ 16, citing State v. Johnson, 2015-Ohio-5491, 55 N.E.3d 648, ¶ 95 (2d Dist.).

{¶ 17} The State’s evidence at trial established the following facts.

{¶ 18} Shortly before midnight on August 20, 2015, Pierce and his girlfriend,

Castro, were shot while seated in Castro’s vehicle on Vina Villa Avenue in Dayton.

Pierce, who was in the driver’s seat, was shot eight times; six of those shots were “in a

line coming from the right temple, down the right neck to the right back” and were likely

fired in quick succession. Pierce was also shot above his right eyebrow and on the top

of his head. Unburned gunpowder particles were found near the entrance wounds to his

eyebrow and scalp, indicating that the shooter was within six inches of Pierce. Pierce

died from his injuries. Castro, who was in the front passenger seat, was shot twice in

the face; her right cheekbone was fractured, her lower left jaw was fractured and

shattered, and she lost several teeth. One bullet went through her thumb and into her

cell phone, which she was holding when she was shot. Castro was taken to the hospital,

where she had facial reconstructive surgery.

{¶ 19} The primary issue at trial was the identity of the shooter. Pierce was the

best friend of Dewberry’s son, George Dewberry Jr., known as “G-Man.” Castro testified

that Pierce and G-Man were like brothers and that Pierce had a father-son relationship

with Dewberry.

{¶ 20} On August 14, 2015, six days before the shooting at issue, G-Man was

murdered. Castro testified that Pierce was in bed with her when he learned that G-Man

had been shot. Castro stated that Pierce told her that he and G-Man had robbed

someone and that the victim of that robbery was possibly coming to “get” him. Castro

testified that Pierce and Dewberry had frequent cell phone contact between August 14 -8-

and August 20, 2015. Castro indicated that, around August 17, Dewberry told Pierce

that they (Dewberry and Pierce) needed to meet so that Dewberry could give Pierce a

gun and money so Pierce could protect himself.

{¶ 21} Castro testified that she and Pierce were bickering on August 20 and that

they spent the day apart until approximately 10:00 p.m. At that time, the two decided to

get food to-go from JJ Chicken & Fish on Gettysburg Avenue. Castro testified that, when

they ordered food, Pierce told her that he needed to meet “Bustdown,” which is

Dewberry’s nickname. There was a substantial delay for the food, so Castro and Pierce

went to a nearby bar for a while.

{¶ 22} After they returned to the restaurant, Castro went inside to check on the

food, which still was not ready. When she came outside, Pierce was using her phone,

because his phone’s battery had died; Pierce had connected his phone to a car charger.

Soon thereafter, Pierce went inside and retrieved the food order and brought it back to

the car. Pierce said, “We’re going to meet ‘Pops’ ” (who Castro testified was Dewberry),

and Castro and Pierce again argued about that. Castro testified that Pierce and

Dewberry were in frequent communication. She stated, “Jesse [Pierce] kept calling him,

and like calling him, and they were talking about meeting. I never hear the name of the

street. I just know once we got the food Jesse was on the phone, and he said, I just got

my food, I’m to pull over here, right there.” (Tr. at 402.)

{¶ 23} According to Castro, Pierce left the restaurant parking lot, turned right onto

Gettysburg, and made another right. (Vina Villa Avenue intersects Gettysburg one block

south of JJ Chicken and Fish.) Castro testified that she saw “Bustdown” (i.e., Dewberry)

standing on the corner, letting them know he was there. She testified, “I knew it was G- -9-

Man’s dad. Me and Jesse had a conversation before we went about who he was meeting

and what he was meeting him for.” (Tr. at 403.) Pierce pulled over, and Dewberry got

into the back seat behind Castro. Castro testified that Pierce called the shooter “Pops”

during the meeting. (Tr. at 492.) Castro stated that Pierce and Dewberry spoke about

G-Man, Pierce introduced Castro to Dewberry, and then Dewberry said, “So do you still

need a strap?” At that juncture, Castro felt herself being shot. After blacking out

momentarily, she saw a gun fire a shot at Pierce’s head. She passed out again and,

upon awaking, tried to play dead.

{¶ 24} After she was sure that the shooter had gone, Castro attempted to perform

CPR on Pierce and she called 911 from Pierce’s phone. Castro attempted to

communicate with the dispatcher, and she accidentally disconnected the call with her

face. The dispatcher called right back and received no answer. The dispatcher called

a second time, and Castro answered. The police located Castro’s vehicle, emergency

medical technicians (EMTs) transported Castro to the hospital, and the police began an

investigation.

{¶ 25} Detective Geiger went to the hospital on the morning of the shooting and

met with Castro in the Intensive Care Unit. Castro was unable to communicate orally,

but she could communicate in writing. Castro stated that she was tired, scared, and in

pain, but she did not identify her shooter.

{¶ 26} By August 25, Detective DeBorde had identified Dewberry as a suspect and

prepared a photographic lineup containing Dewberry’s photo. Detective Geiger, who

was not aware that Dewberry was a suspect, returned to the hospital and showed the

photospread to Castro. Castro did not identify anyone as the shooter. Castro testified -10-

at trial that she knew that Dewberry was the shooter, but she “was scared that he was

going to come and kill me, my kids, my family.” (Tr. at 435.)

{¶ 27} On September 5, Detective Daugherty and Detective Tom Cope spoke with

Dewberry at Dewberry’s apartment. At that time, Dewberry stated that he had spoken

with Pierce every day since his (Dewberry’s) son’s death and that he (Dewberry) was

home at his apartment the entire evening of Pierce’s homicide; Dewberry confirmed his

cell phone number.

{¶ 28} After Castro was released from the hospital, she moved out of Dayton and

decided to contact the police about the shooting. John Smith, an Air Force attorney,

initially contacted Detective Daugherty for Castro. After Castro spoke directly with

Daugherty by phone, she returned to Dayton and met with Detective Daugherty on

September 25, 2015. Castro showed Daugherty a photograph from Facebook of the

person who shot her; the photo was of Dewberry. Castro was shown another

photographic lineup, which contained the same individuals as the prior lineup but in a

different order. Castro identified Dewberry as the shooter and indicated that she was

100 percent certain of the identification. Castro testified at trial that she had met

Dewberry for the first time on the night of the shooting, but she had previously seen photos

of him and had seen him in person at a party when the Webster Station Bar closed in

2013.

{¶ 29} Dewberry was arrested, taken to the police station for an interview, and

subsequently taken to jail. While Detectives Daugherty and Cope walked Dewberry to

the jail, Dewberry repeatedly asked them “what the girl was saying.” The detectives did

not respond. Dewberry then stated, “You’ll never get that girl on the stand to testify -11-

against me.” (Tr. at 657.)

{¶ 30} In September and October of 2016, while Dewberry was in jail on these

charges, he was housed in the same area of the jail as Jason Laraby. Laraby testified

at trial that while playing cards, Dewberry twice said, “As long as I don’t look like I shot

that guy nine times, as long as I don’t look like I shot that woman five times, I can get

away with it.” (Tr. at 611.) Laraby testified that after Dewberry made these statements,

Laraby told his then-defense counsel, who was also Dewberry’s defense counsel, that

counsel had a conflict of interest; Laraby had different counsel at the time of Dewberry’s

trial.2 Laraby was awaiting sentencing in an unrelated case at the time of Dewberry’s

trial, but he testified that no promises had been made for his testimony.

{¶ 31} The State also presented cell phone records in its case against Dewberry.

Dewberry’s and Pierce’s cell phone records indicated that they had communicated

throughout the day on August 20, 2015, the day of the shooting. At 10:20 p.m. and 10:52

p.m., Pierce received calls from Dewberry’s phone; Dewberry’s number was labeled “Big

G” in Pierce’s phone records. Pierce called Dewberry’s phone at 11:14 p.m. and 11:15

p.m. Dewberry tried to reach Pierce at 11:27 and 11:28 p.m. At 11:47 p.m., a call was

made from Castro’s phone to Dewberry; the call lasted 70 seconds. At 11:51 p.m.,

Castro’s phone received a call from Dewberry’s phone; that call lasted 3 minutes and 41

seconds.

{¶ 32} At 11:59 p.m. on August 20, a call to 911 was placed from Pierce’s phone.

2 Defense counsel’s prior representation of Laraby was the basis of a motion by the State to disqualify counsel. After a hearing on December 6, 2016, the trial court overruled the State’s motion in its entirety. The State did not appeal this ruling. -12-

At midnight, the dispatcher from Montgomery County Sheriff’s Office called back Pierce’s

phone number; that call was not answered. A second call-back from the dispatcher was

answered.

{¶ 33} Detective Daugherty asked FBI Special Agent Kevin Horan to review

Dewberry’s phone records to see where Dewberry’s phone was located on August 20-

21, 2015. Horan analyzed the coverage of the cell towers where the shooting took place

and where Dewberry resided; Horan stated it was “not possible” for Dewberry’s phone to

select the cell tower sector where the homicide occurred and also to be at his residence.

{¶ 34} Horan’s analysis demonstrated that Dewberry’s phone was at or near his

residence between 6:24 and 9:24 p.m. on August 20. Horan analyzed the actual cell

tower coverage area where Dewberry’s phone was located around the time of the

shooting (11:48 p.m. to 11:59 p.m.). During the phone calls between Dewberry and

Castro during that time, the phone was located in a coverage area that included an area

adjacent to the intersection of Vina Villa Avenue and Gettysburg. The location of the

shooting was feet away from the coverage area, but was not inside of it. From 12:03

a.m. to 2:56 a.m. on August 21, Dewberry’s phone was in the coverage area for

Dewberry’s residence, which was located 2.6 miles from the homicide site.

{¶ 35} Dewberry testified on his own behalf and presented eight defense

witnesses. Three of Dewberry’s daughters testified that Pierce was their brother’s best

friend and the two were like brothers, that Dewberry had a good relationship with Pierce,

and that the family had no reason to believe that Pierce was involved in G-Man’s death.

The mother of one of Dewberry’s children testified similarly and stated that Dewberry had

a father-son relationship with Pierce. She also testified that Dewberry was incarcerated -13-

when the Webster Station Bar closed in 2013 (i.e., when Castro allegedly saw Dewberry).

{¶ 36} Jimmie McCray, an employee of the Burger King at Gettysburg and Hoover,

testified that, on August 20, 2015, he was on break outside when he saw a vehicle park

on Gettysburg at the intersection where the “wedding shop” was located (i.e., Vina Villa).

McCray testified that a man got out of the car carrying a gun and a cell phone. The man

walked up the grass and started shooting toward the house also located at the corner.

McCray saw the man drop his hand, turn around (still on the phone), walk down the grass,

walk on the sidewalk alongside of the house, and shoot at the house. McCray further

testified that, while this happened, a car pulled up on the street behind him. McCray

testified that the man turned and shot at the car while still on the phone. McCray heard

six shots toward the house and three shots toward the car. Afterward, the man got back

in his car and drove off slowly. McCray went back inside the Burger King. He stated

that the police and ambulance “were everywhere” about 15 to 20 minutes later. On

cross-examination, McCray indicated that this occurred in the evening, but it was still

daylight.

{¶ 37} Dewberry testified that he had a father-son relationship with Pierce and that

he had no reason to believe that Pierce was involved in his son’s death. Dewberry

indicated that Pierce believed that “trouble was coming his way,” and Dewberry stated

that he gave Pierce $1,000 on August 16 and intended to give him $1,000 more later.

Dewberry testified that Castro was with Pierce when Dewberry gave Pierce money.

Dewberry stated that Castro could not have seen him at the closing party for Webster

Station Bar, because he was incarcerated in a federal prison at that time.

{¶ 38} Dewberry testified that on August 20, 2015, he met with Pierce and Castro -14-

on Lilac Avenue, approximately three to four blocks away from the homicide location.

Dewberry stated that they rolled and smoked marijuana and drank alcohol. At

approximately 10:30 or 11:00 p.m., Pierce and Castro left to meet some people and get

some money (i.e., sell drugs), and Dewberry and Pierce intended to meet again later.

(The police located drugs inside Castro’s vehicle, and Castro testified that Pierce sold

drugs to make money.) Dewberry testified that he drove around for approximately 20

minutes and then went to a location on Kammer Avenue, a couple blocks from the

shooting site, where Dewberry and Pierce had a meeting spot. Dewberry testified that

he received a phone call from Castro and called her back.

{¶ 39} Dewberry testified that Pierce did not show up at the Kammer meeting spot,

and he (Dewberry) returned home. He indicated that he had sent Pierce a text during

the early morning hours of August 21, 2015, to remind Pierce that Pierce, Dewberry, and

Dewberry’s other sons were going to the store to get matching clothes that day (to wear

at G-Man’s funeral the following day).3

{¶ 40} Dewberry testified that, when he spoke with detectives on September 8, he

told them that he had gotten home early on the night of the shooting and that he was

home for the rest of the evening. Dewberry testified that he told detectives that he had

been home by midnight or 12:30 a.m., and that “evening” did not mean sundown to him.

3 Dewberry did not attempt to introduce a copy of the text message. However, State’s Exhibit 84b, which included the time and location of Dewberry’s incoming and outgoing calls and text messages, showed that Dewberry made an outgoing text message to Pierce’s phone at 2:42 a.m. on August 21, 2015. In addition, the content of this text message can be located in an Excel file on the USB drive (State’s Exhibit 55, 152381E01_FMF_Report, SMS/MMS Tab, Lines 2098-2099). The text message read, “See u tomorrow son...so we can get fitted.” -15-

Dewberry explained his statement upon being taken to jail as meaning that Castro would

not get on the stand and testify against him because that would not be the truth.

Dewberry denied that he shot Castro and killed Pierce. He stated, “I didn’t kill my baby.

* * * I helped raise him.”

{¶ 41} Dewberry claims that his convictions were based on insufficient evidence

and against the manifest weight of the evidence. As stated above, the principal question

– and Dewberry’s focus on appeal – was the identity of the perpetrator.4

{¶ 42} Dewberry argues that Castro’s identification of him was not credible; he

emphasizes that Castro twice did not identify him and that she admitted to lying to the

police repeatedly. He further emphasizes that Castro’s statement that she had

previously seen him was not credible given that she testified that she had previously seen

Dewberry at a location where Dewberry, in fact, was not present. Dewberry further

argues that other persons had a motive to kill Pierce or shoot Castro. Dewberry notes

that Pierce’s cell phone records indicated that Dewberry’s cell phone number was

associated with the name “Big G”, but that a different number was associated with the

4 Dewberry does not discuss the elements of each of his offenses. Nevertheless, the evidence at trial, if believed, amply supported the conclusions that Pierce was murdered and that someone attempted to murder Castro. Moreover, the evidence supported a finding of prior calculation and design, i.e., “advance reasoning to formulate the purpose to kill.” State v. Walker, 150 Ohio St.3d 409, 2016-Ohio-8295, 82 N.E.3d 1124, ¶ 18. Pierce made arrangements with the shooter to meet on Vina Villa Avenue. Castro stated that the shooter got into the back seat of the vehicle, and after being introduced to Castro, immediately opened fire on Pierce and her, shooting each victim multiple times at close range. Castro’s description of the incident reasonably indicated that the shooter brought the murder weapon with him with the intention of shooting Pierce at the meeting. Finally, for purposes of the charge of having weapons while under disability, the State presented evidence that Dewberry previously had been convicted of possession of cocaine. (See State’s Exs. 97a and 97b.) -16-

name “Pops.” Finally, Dewberry noted that McCray’s testimony about the events he

observed outside Burger King contradicted the State’s theory of the case.

{¶ 43} Viewing the evidence in the light most favorable to the State, the State

presented sufficient evidence that Dewberry was the perpetrator. Castro testified that

she had previously seen photographs of Dewberry and knew him to be G-Man’s father,

although she did not know his name prior to the shooting. Castro identified Dewberry as

the shooter, and she explained her reasons for not identifying Dewberry to the police

shortly after the shooting. Dewberry’s cell phone records placed him in a cell phone area

that included locations within a block of the murder scene, and Dewberry made potentially

incriminating statements to Laraby and others. In short, the State’s evidence, if believed,

was sufficient to support Dewberry’s convictions.

{¶ 44} Moreover, we cannot conclude that Dewberry’s conviction was against the

manifest weight of the evidence. It was the province of the jury to evaluate Castro’s and

the other witnesses’ credibility. Castro was extensively cross-examined about her failure

to identify Dewberry shortly after the shooting, her inconsistent statements about what

she and Pierce did during the day prior to the shooting, whether she recognized Dewberry

prior to the shooting (including her prior encounter with Dewberry at the Webster Station

bar), her break-up with her boyfriend by text on the evening of the shooting, the nickname

of the person with whom Pierce had arranged to meet, and that Pierce earned money by

selling drugs. In reaching its verdict, the jury was free to believe all, part, or none of the

testimony of each witness, including Castro, and to draw reasonable inferences from the

evidence presented. E.g., State v. Baker, 2d Dist. Montgomery No. 25828, 2014-Ohio-

3163, ¶ 28. -17-

{¶ 45} We recognize that the evidence at trial included evidence that was favorable

to the defense. Castro initially testified that Dewberry was known as “Bustdown” (see

Tr. at 389) and that Pierce told her that he had made arrangements to meet Bustdown.

On cross-examination, Castro testified that Pierce told her that they were going to meet

“Pops,” that Pierce called the man who got into the car “Pops,” and that Pierce referred

to Dewberry as “Pops.” (See id. at 453, 480-481.) The extraction report for Pierce’s cell

phone (State’s Exhibit 56) showed that Dewberry’s phone number was associated with

the nickname “Big G” and that a different phone number was associated with the

nickname “Pops.” (The individual listed as “Pops” in Pierce’s phone contacts was not

identified at trial.)

{¶ 46} Nevertheless, Pierce’s and Castro’s cell phone records further show that

Pierce and Dewberry were in communication throughout the day of August 20, 2015.

Pierce received calls from Dewberry’s phone (“Big G”) at 12:25 p.m., 3:04 p.m., 6:22 p.m.,

7:47 p.m., 10:20 p.m., and 10:52 p.m. Pierce called “Big G” at 11:14 p.m. and 11:15

p.m. Consistent with Castro’s testimony that Pierce’s phone had died and that Pierce

used her cell phone while his charged, a call was made from Castro’s phone to

Dewberry’s number at 11:47 p.m., and her cell phone received a call from Dewberry’s

number at 11:51 p.m. A 911 call was made from Pierce’s phone at 11:59 p.m. The

extraction report contained only one call from Pops, which was a missed call on the

morning after the shooting. Dewberry himself testified that he had communicated back

and forth with Pierce all day on August 20. Based on this evidence, the jury could have

reasonably concluded that the cell phone records supported Castro’s testimony that

Pierce had made arrangements to meet with Dewberry, and that Dewberry was the -18-

individual who entered Castro’s vehicle and shot her and Pierce.

{¶ 47} Dewberry further argues that other persons had a motive to kill Pierce or

shoot Castro. Castro testified on cross-examination that, on the day of the shooting, she

was breaking off her relationship with Jamichael Thompson so that she could pursue her

relationship with Pierce. Castro and Thompson texted throughout the day, and Castro

acknowledged that Thompson was upset about the break-up. Detective Daugherty

testified that he found threatening texts from Thompson on Castro’s phone.

{¶ 48} However, Castro testified that Thompson “always said crazy things” and

that she never felt threatened by him. On redirect examination, Castro expressly stated

that it was Dewberry, not Thompson, who met with Pierce on Vina Villa, that she would

have recognized Thompson if it had been he, and that she would have identified

Thompson if he had been the shooter. Detective Daugherty also testified on redirect

examination that Castro denied that Thompson was a suspect, and Daugherty stated that

Castro was upset when she talked about Dewberry, but not when she discussed

Thompson. The jury could have reasonably concluded that Thompson, although a viable

suspect, was not the shooter.

{¶ 49} Castro further testified that Pierce had told her that he (Pierce) and

Dewberry’s son, G-Man, had committed a robbery and that someone was “possibly

coming to get him [Pierce].” Pierce had told Castro that Dewberry was going to give him

a gun and money to protect himself. Castro further stated that Dewberry and Pierce had

a father-son-type relationship. The fact that someone else may have had a motive to

shoot Pierce and that Dewberry seemingly had a good relationship with Pierce may have

raised questions as to Dewberry’s motive for the shooting. However, motive is not an -19-

element of the offenses of which Dewberry was convicted. See, e.g., State v. Herron,

2d Dist. Montgomery No. 19894, 2004-Ohio-773, ¶ 57 (motive is not an element of

felonious assault or murder).

{¶ 50} Defense counsel elicited testimony from Special Agent Horan that

Dewberry’s phone was located in the cell phone coverage area located near to the

shooting location, but (1) Dewberry’s phone could have been anywhere in that coverage

area, and (2) the shooting location was not actually within that coverage area. In

addition, Horan testified that, at 12:03 a.m., Dewberry’s phone was back near his

residence, which was 2.6 miles from the site of the shooting.

{¶ 51} Nevertheless, the jury received additional evidence from Horan that the site

of the shooting was located within a block of the coverage area within which Dewberry’s

phone was located. Further, Horan had testified that the location information was based

on Dewberry’s phone usage. The jury could have reasonably concluded that Dewberry’s

phone was located within a block of the shooting site when Dewberry spoke with Pierce

(who was using Castro’s phone) at 11:47 p.m. and 11:51 p.m., and that Dewberry also

briefly could have been at the shooting location, which was outside of, but very close to,

that coverage area. The jury heard no evidence that it would be impossible for Dewberry

to have returned to the coverage area for his residence by 12:03 a.m.

{¶ 52} Finally, Dewberry noted that McCray’s testimony contradicted the State’s

version of events. As with Castro’s testimony, the jury was free to believe all, part, or

none of McCray’s testimony.

{¶ 53} Upon review of the entire record, we cannot conclude that the jury lost its

way in crediting the State’s version of events. Although the jury heard evidence from -20-

which it could have concluded otherwise, this is not the exceptional case in which we can

conclude that the convictions were against the manifest weight of the evidence.

{¶ 54} Dewberry’s second assignment of error is overruled.

III. Motion to Suppress

{¶ 55} In his first assignment of error, Dewberry claims that the trial court erred in

denying his motion to suppress Castro’s photospread identification. He argues that

Castro’s eyewitness identification from the second photospread should have been

suppressed, because the photospread procedures failed to comply with the requirements

of R.C. 2933.83. Dewberry further asserts that he should have been permitted to

question Castro at the suppression hearing about her identification.

{¶ 56} In ruling on a motion to suppress, the trial court “assumes the role of the

trier of fact, and, as such, is in the best position to resolve questions of fact and evaluate

the credibility of the witnesses.” State v. Retherford, 93 Ohio App.3d 586, 592, 639

N.E.2d 498 (2d Dist.1994); State v. Knisley, 2d Dist. Montgomery No. 22897, 2010-Ohio-

116, ¶ 30. Accordingly, when we review suppression decisions, we must accept the trial

court’s findings of fact if they are supported by competent, credible evidence. Retherford

at 592. “Accepting those facts as true, we must independently determine as a matter of

law, without deference to the trial court’s conclusion, whether they meet the applicable

legal standard.” Id.

{¶ 57} Four police officers testified at the hearings on the motions to suppress. At

the beginning of the March 18, 2016 hearing, the trial court told Dewberry that “there are

only certain limited circumstances under which the witness who make [sic] an

identification (indiscernible) in that photospread comes to court for purposes of the -21-

motion. I make that determination. And it is not made yet, and unless I determine a

certain way, the complaining witness will not be required to come here for the motion to

suppress. * * *” (Supp. Tr. at 10-11.) The court later clarified that if it “felt that the witness

who identified the defendant in the photospread needed to be brought in, that would be

after [the March 29 hearing].” (Supp. Tr. at 44-45.)

{¶ 58} Detective Geiger testified that he was “peripherally involved” in the

investigation of the shootings in that he spoke with Castro at the hospital on the day of

the shooting and showed her a photospread lineup a couple of days later. Geiger stated

that he saw Castro at approximately 9:30 a.m. on August 21; Castro had a tube in her

throat and could not speak, but she could communicate by written notes and by moving

her head (yes/no). Castro did not provide the name of a suspect at that time.

{¶ 59} During the course of the investigation, the police identified Dewberry as a

suspect. Detective Michael DeBorde compiled a six-photo photospread using the

Montgomery County Sheriff’s Office’s JusticeWeb system, which searched for photos

similar to Dewberry’s. DeBorde selected five photos (plus Dewberry’s) from more than

100 possible similar photos. After completing the photospread, DeBorde looked at it and

“noticed that every individual [was] fairly like and similar and it wasn’t unduly suggestive.

It was a good photograph in my mind.” (Supp. Tr. at 114.) When the photospread

printed, it included the six-person photospread, a key, and the instruction pages and

forms. DeBorde testified that State’s Exhibit 6 (renumbered as State’s Exhibit 2 at trial)

was the photospread he created and gave to Detective Geiger. DeBorde identified

State’s Exhibit 6A as the key for the photospread, providing names and identifiers for the

individuals in the photospread; he stated that he did not give the key to Geiger. -22-

{¶ 60} On August 25, Geiger and DeBorde went to the hospital and spoke with

Castro. DeBorde told Castro that he wanted her to look at some pictures. DeBorde

stepped out of the room, and Geiger showed the photospread lineup to Castro. Geiger

testified that he (Geiger) was a blind administrator, i.e., he did not know the identity of any

potential suspects, and DeBorde testified that he did not tell Geiger the suspect’s name.

Geiger noted on the photospread form that Castro’s sister was also in the room, but the

sister could not see the photospread and did not interact at all. Geiger noted the location,

date, and time on the form and read the instructions verbatim.

{¶ 61} Geiger handed the photospread to Castro, who “looked at it for a few

minutes” then “handed it back to [him] and shook her head no.” Geiger asked Castro if

she recognized anyone and she again shook her head no. When asked if he did

anything to confirm or deny her failed identification, Geiger testified that he “could not”

because he “didn’t know the identities of the people in the lineup.” Geiger stated that he

was not provided the photospread key. Geiger did not complete section 8 of the form,

which asked for identification/non-identification and confidence statements made by the

witness; Geiger stated that he forgot to mark that she did not make an identification.

Geiger also did not mark whether Castro had viewed the lineup more than once, but he

testified that she did not. Geiger reported the non-identification to Detective DeBorde.

{¶ 62} Detective Daugherty testified that, sometime after Castro had been shown

the initial photospread, he received a telephone call from an attorney (a friend of Castro’s

sister) on Castro’s behalf. The attorney told Daugherty that Castro knew who had shot

her, but she was “scared to come forward because she’s in fear of her life.”

{¶ 63} Later that afternoon, Castro called Daugherty directly. Castro would not -23-

identify her shooter over the phone, but she and the detective made arrangements to

meet the following day at the downtown Dayton police station. When they met, Castro

told Daugherty that Dewberry had tried to friend her cousin on Facebook, and she

(Castro) showed Daugherty a Facebook photo of Dewberry. Castro indicated that the

photo was of the shooter. (Daugherty testified that the conversation was audio and

video-recorded, but no recording of this interview was offered as evidence at the

suppression hearing.) Daugherty prepared a search warrant for the search of

Dewberry’s residence after Castro’s identification.

{¶ 64} After Dewberry’s arrest and the execution of the search warrant, Detective

DeBorde prepared a second photospread (State’s Exhibit 7, renumbered at trial as State’s

Exhibit 3). He used the same photos as the first photospread, but they printed in a

different order. Detective DeBorde met with Castro at the police department, and he

asked Officer Kyle Watts to show the photospread to her. DeBorde retained the key for

the photospread (State’s Exhibit 7A).

{¶ 65} Watts testified that he was asked by Detective DeBorde to show a

photospread on September 25, 2015. Watts had not previously been involved in the

investigation, and he was unfamiliar with Dewberry and Castro. Shortly before noon,

Watts went into an interview room at the police department and introduced himself to

Castro. Watts read Castro the photospread instructions verbatim, initialed that he had

done so, and noted the date, time, and location. Watts also noted on the form that he

was a blind administrator.

{¶ 66} Watts then showed Castro the photospread and told her to circle a photo if

she recognized anyone. Castro immediately circled photo number 6 (Dewberry’s photo) -24-

and initialed below it. Castro wrote that the person “shot me and killed Jesse” and she

indicated that she was 100 percent certain. After the identification, Castro and Watts

signed and dated the bottom of page 4. Watts stated that he was not given the key for

the photospread. Watts testified that he handed the packet to Detective DeBorde, who

noticed that Castro had not signed the bottom of page 3 (the page with six photos).

Watts immediately took the packet back to Castro, and she and Watts signed the page.

Watts then returned the packet to Detective DeBorde.

{¶ 67} Geiger and Watts were asked about the Dayton Police Department’s

photospread policy, which was admitted as State’s Exhibit 5. (That exhibit was returned

to the State and is not part of the record before us.) The officers testified that they

believed that they complied with the policy.

{¶ 68} At the conclusion of the hearing, the trial court allowed the parties to file

simultaneous briefs on whether it would be appropriate for defense counsel to call Castro

as a witness regarding the photospreads. The parties filed memoranda primarily on

whether the photospreads were unduly suggestive; defense counsel did not argue that

Dewberry had a due process right to call Castro or that her testimony was necessary to

establish that the procedures were unduly suggestive.

{¶ 69} The trial court subsequently ruled that the first photospread was conducted

in compliance with R.C. 2933.83 and, even if had not, “any impropriety would not have

been prejudicial as there was no identification made.” With respect with the second

photospread, from which Castro identified Dewberry, the court initially concluded that the

Facebook photo did not result from police action and that the Facebook photo did not taint

Castro’s later identification of Dewberry. It further concluded that there was “no evidence -25-

to suggest that the photo line-up shown to Castro by Watts on September 25, 2015 was

not properly conducted or was unduly suggestive.” The court also concluded that,

because Dewberry did not meet his burden of proving that the pretrial identification by

Castro was unduly suggestive, Castro was not required to provide pretrial testimony

regarding the identification.

{¶ 70} First, Dewberry challenges the denial of his motion to suppress the

identification from the second photospread. He states that he is not challenging the first

photospread, as Castro did not identify him.

{¶ 71} “Due process requires suppression of pre-trial identification of a suspect

only if the identification procedure was so impermissibly suggestive as to give rise to a

very substantial likelihood of misidentification.” Neil v. Biggers, 409 U.S. 188, 196-97,

93 S.Ct. 375, 34 L.Ed.2d 401 (1972).

{¶ 72} The defendant must first show that the identification procedure was unduly

suggestive. “A lineup is unduly suggestive if it steers the witness to one suspect,

independent of the witness’s honest recollection.” (Citations omitted.) State v. Adams,

144 Ohio St.3d 429, 2015-Ohio-3954, 45 N.E.3d 127, ¶ 208. If the pretrial identification

procedure was not unfairly suggestive, any remaining questions as to the identification’s

reliability go to the weight of the identification, not its admissibility, and no further inquiry

into the reliability of the identification is required. Id. at ¶ 209; State v. Williams, 2d Dist.

Montgomery No. 26357, 2015-Ohio-1403, ¶ 13.

{¶ 73} If, on the other hand, the defendant shows that the pretrial identification

procedure was unduly suggestive, the court must then consider whether the identification,

viewed under the totality of the circumstances, was reliable despite the suggestive -26-

procedure. E.g., Williams at ¶ 13. In reviewing the likelihood that the circumstances

resulted in a misidentification, courts have considered the opportunity of the witness to

view the perpetrator at the time of the offense, the witness’s degree of attention, the

accuracy of the witness’s prior description of the perpetrator, the level of certainty

demonstrated by the witness at the confrontation, and the length of time between the

crime and the confrontation.5 Neil at 199-200; Manson v. Brathwaite, 432 U.S. 98, 97

S.Ct. 2243, 53 L.Ed.2d 140 (1977); State v. Bates, 110 Ohio St.3d 1230, 2006-Ohio-3667,

850 N.E.2d 1208, ¶ 8.

{¶ 74} Reliability of the pretrial identification is the linchpin in determining its

admissibility. Manson at 114. “So long as the identification possesses sufficient aspects

of reliability, there is no violation of due process.” State v. Sherls, 2d Dist. Montgomery

No. 18599, 2002 WL 254144, *3 (Feb. 22, 2002).

{¶ 75} We review a trial court’s denial of a motion to suppress a pretrial

identification for an abuse of discretion. State v. Wilson, 2d Dist. Montgomery No.

22624, 2009-Ohio-1038, ¶ 19.

{¶ 76} With the record before us, we find no error in the trial court’s conclusion

5 We have previously noted that some of the factors identified in Neil may bear reconsideration in light of the significant advancement of scientific understanding of memory. See State v. Frazier, 2016-Ohio-727, 60 N.E.3d 633, ¶ 18, fn. 1 (2d Dist.); State v. Moody, 2d Dist. Montgomery No. 26926, 2016-Ohio-8366, ¶ 12, fn. 3. For example, Neil and Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977) direct courts to consider the witness’s degree of certainty in the identification, yet studies have repeatedly shown little relationship between certainty and accuracy. See, e.g., State v. Mabberly, 2d Dist. Montgomery No. 27729, 2019-Ohio-891, ¶ 41, ¶ 44. Nonetheless, as an intermediate court of appeals, this court must continue to follow the factors articulated in Neil and Manson, as required by Ohio Supreme Court precedent. See, e.g., State v. Bates, 110 Ohio St.3d 1230, 2006-Ohio-3667, 850 N.E.2d 1208 at ¶ 9; State v. Gross, 97 Ohio St.3d 121, 2002-Ohio-5524, 776 N.E.2d 1061, ¶ 19, ¶ 25. -27-

regarding the identification procedures employed by the Dayton police during the second

photospread lineup. Upon review of the photospread, the photographs presented to

Castro were not unduly suggestive. Detective DeBorde used JusticeWeb, which

identified numerous photographs using characteristics similar to Dewberry; the

photographs selected by Detective DeBorde closely resembled Dewberry. The same six

photographs were presented to Castro in both the first and second photospreads (albeit

in a different order), minimizing the risk that Dewberry’s photo would be selected over the

other five due to its prior presentation. A different blind administrator presented each

photospread to Castro, and there was nothing in the manner in which Officer Watts

administered the second photospread that made its presentation unduly suggestive.

{¶ 77} Dewberry claims that the second photospread should have been

suppressed, because Watts violated R.C. 2933.83(B) by failing to have Castro

immediately sign the bottom of page three of the photospread packet. R.C. 2933.83,

which was enacted in 2010, provides minimum requirements for live lineup and photo

lineup procedures. Those procedures include that the administrator of the lineup “shall

make a written record that includes * * * [a]ll identification and nonidentification results

obtained during the lineup, signed by the eyewitnesses, including the eyewitnesses’

confidence statements made immediately at the time of the identification.” R.C.

2933.83(B)(4)(a).

{¶ 78} We have noted that, “even if a violation of R.C. 2933.83 occurs, violations

of that statute are not independent grounds for suppression.” E.g., State v. McShann,

2d Dist. Montgomery No. 27803, 2019-Ohio-4481, ¶ 40; State v. Harmon, 2017-Ohio-

8106, 98 N.E.3d 1238, ¶ 23 (2d Dist.). Rather, we focus on whether “the procedure used -28-

in administering the photospread in this case, while not in compliance with R.C. 2933.83,

was ‘not so impermissibly suggestive as to give rise to a substantial likelihood of

misidentification.’ ” Harmon at ¶ 31, quoting State v. Moon, 2d Dist. Montgomery No.

25061, 2013-Ohio-395, ¶ 35. Even assuming that Watts technically violated R.C.

2933.83 when he and Castro initially failed to sign page 3 of the photospread packet, that

error was immediately remedied, and we find, on this record, that the procedure employed

was not impermissibly suggestive as to give rise to a substantial likelihood of

misidentification.

{¶ 79} Dewberry further argues that the trial court erred in precluding him from

calling Castro to testify at the suppression hearing. In its ruling, the trial court concluded

that Castro was not required to testify, because Dewberry did not establish that the pretrial

identification was unduly suggestive.

{¶ 80} In State v. Rivera, 2d Dist. Montgomery No. 18845, 2002 WL 91296 (Jan.

25, 2002), we rejected the notion that an eyewitness’s testimony is relevant only to the

issue of the reliability of an identification. We held that the trial court “abused its

discretion when it denied [Rivera’s] request to call two eyewitnesses to testify at the

suppression hearing in which he was contending that an unduly suggestive photographic

identification procedure was used.” Id. at *1. We noted that the eyewitnesses “would

have been the best witnesses on that issue, and they would not have shared the bias of

the police officer who testified at the suppression hearing, who presumably would have

been interested in avoiding a finding that his police work was flawed.” Id.; see also State

v. Hand, 2d Dist. Montgomery No. 22114, 2008-Ohio-1870, ¶ 20, fn. 1 (commenting that

the trial judge appeared to have the “misimpression” that eyewitness testimony at the -29-

suppression hearing would only be relevant to the issue of reliability).

{¶ 81} The Eighth District held similarly in State v. Glover, 8th Dist. Cuyahoga No.

84413, 2005-Ohio-1984. In holding that the trial court erred in precluding defense

counsel from calling three witnesses to whom a photospread had been shown (and who

were present to testify at the suppression hearing), the appellate court reasoned:

Here, the trial judge apparently believed that the only issue relevant

to the out-of-court identification was whether the photographs contained in

the photo array were impermissibly suggestive. However, the issues

presented by appellant in the hearing on his motion to suppress were not

just the assemblage of the photo array, but also the procedure employed in

presenting the array to the victims.

***

By refusing to hear testimony from anyone other than the police

officers, the trial court denied appellant the opportunity to present testimony

that may have conflicted with that of the police officers regarding the

procedures employed in presenting the photo array to the victims. In

effect, the trial court adopted the premise that a police officer’s testimony

must be accepted as true. An officer’s testimony is obviously subject to the

same tests questions of accuracy and veracity, however, as any other

witness’ [sic] testimony.

Moreover, the defendant bears the burden of proving that the out-of-

court identification was flawed. Here, by refusing to hear testimony from

the witnesses to whom the array had been shown, the trial court denied -30-

appellant a valid opportunity to meet his burden and to confront the

witnesses. Contrary to the State’s argument that only the State determines

who to present as witnesses at a hearing regarding a motion to suppress

an out-of-court identification, the defendant clearly has the right to call

witnesses to testify at such a hearing.

By denying appellant’s request to present testimony from the

witnesses to whom the photo array had been shown, the trial court denied

appellant a full and fair hearing regarding the photo array and identification

procedures. Accordingly, appellant’s conviction is reversed and the matter

is remanded for a new trial.

(Emphasis sic.) (Citation omitted.) Glover at ¶ 18, ¶ 20-22.

{¶ 82} As with Rivera and Glover, we find that there was no reasonable basis to

preclude Dewberry from calling Castro to testify at the suppression hearing. Although

the Dayton police officers’ testimony indicated that their identification procedures for both

photospread lineups were not unduly suggestive, Castro arguably could have

contradicted the officers’ testimony. Castro was in the best position to testify whether an

officer emphasized a particular photo to select or otherwise influenced her identification

(or lack thereof), or that she perceived the officer’s conduct in that manner. Moreover,

as stated in Glover, the trial court denied defense counsel the opportunity to determine

how best to meet Dewberry’s burden to establish that the identification procedures were

unduly suggestive.

{¶ 83} In Rivera, we nevertheless concluded the trial court’s error was harmless in

light of the witnesses’ testimony at trial, during which they were extensively examined -31-

concerning the eyewitness identification procedure, and that their testimony would not

have been helpful to the defendant in establishing that the procedure was unduly

suggestive. Id. In this case, however, Castro’s trial testimony regarding the three

identification opportunities focused on her reasons for twice failing to make an

identification at the hospital. While Castro provided some testimony that officers

presented two photospreads to her -- once while she was hospitalized and again after

she moved from the Dayton area -- her testimony did not detail the identification

procedures used by the officers. Thus, unlike Rivera, Castro’s trial testimony did not

reflect how she might have testified about the photospread identification procedures had

she been called to testify at the suppression hearing.

{¶ 84} Regardless, under the unique facts of this case, we find that the trial court’s

denial of Dewberry’s request to call Castro as a suppression hearing witness was similarly

harmless. Specifically, Castro’s trial testimony indicates that, even if the second

photospread identification procedures were unduly suggestive, her identification of

Dewberry was reliable nonetheless.

{¶ 85} Under certain circumstances, an eyewitness’s identification may be found

sufficiently reliable, despite the use of unduly suggestive identification procedures by law

enforcement. See, e.g., State v. Henderson, 2d Dist. Montgomery No. 28241, 2020-

Ohio-6 (victim’s identification of defendant was sufficiently reliable despite the

suggestiveness inherent in a one-person show-up identification procedure); State v.

Gabriel, 2d Dist. Montgomery No. 24144, 2011-Ohio-4664 (photospread identification

was sufficiently reliable due to victims’ acquaintance with defendant). For example, in

Gabriel, we held that, even if the defendant’s photo in a six-person photospread were -32-

unduly suggestive, the two victims’ immediate identification of the defendant from the

photospread was sufficiently reliable where the victims previously told detectives that they

knew one of the perpetrators by his nickname, informed the detectives of where the

perpetrator went to school, and stated that they knew the perpetrator from a prior

encounter. See also State v. Henderson, 6th Dist. Lucas No. L-10-1122, 2012-Ohio-

1396; State v. Huff, 145 Ohio App.3d 555, 763 N.E.2d 695 (1st Dist.2001) (even assuming

the identification procedure was unduly suggestive, the identification was nonetheless

reliable based upon the witness’s prior familiarity with Huff); State v. Barnett, 67 Ohio

App.3d 760, 768, 588 N.E.2d 887 (4th Dist.1990).

{¶ 86} Similarly, in this case, the evidence at trial indicated that Castro was familiar

with Dewberry prior to the shooting and that her identification of him from the second

photospread was sufficiently reliable due to that familiarity. Castro testified at trial that

she met Pierce approximately a year before the shooting and that Pierce referred to

Dewberry’s son, known as G-Man, as his brother. Castro was friends on Facebook with

G-Man and Pierce. After G-Man was killed on August 14, 2015, there was “a lot of

Facebook traffic” about G-Man, which included the posting of several photographs of G-

Man and his family. Castro testified that she saw “plenty” of photographs of G-Man’s

father (i.e., Dewberry) and that she had seen G-Man’s father “just around town.” Castro

did not know G-Man’s or his father’s first and last names; she knew G-Man’s father by his

nickname, Bustdown, and she knew that Pierce called him “Pops.”

{¶ 87} At trial, Castro also recalled seeing G-Man’s father several years before at

the Webster Station Bar when it had a closing-down party. On cross-examination,

Castro indicated that she was dating someone else at that time and did not know then -33-

who Dewberry or his sons were. Castro explained that her then-boyfriend knew

Dewberry and was speaking with Dewberry at the bar, and that the boyfriend told Castro

who he was. Although Dewberry presented evidence that he was in prison when the

Webster Station bar closed, Castro’s testimony indicated that she became more familiar

with G-Man’s father after she began dating Pierce, G-Man’s best friend.

{¶ 88} Castro testified at trial that, on the night she and Pierce were shot, Pierce

told her that he needed to meet Bustdown after getting food at the restaurant; Castro

testified that Pierce kept calling Bustdown just prior to the shooting. Castro stated that

after getting their food, Pierce drove the car around the corner, and Castro saw Bustdown

standing on the corner. Bustdown got into the rear passenger area of the car, and Pierce

introduced her to Bustdown. Immediately afterward, Pierce and Castro were shot.

Castro testified that she knew who had shot her and Pierce, but she did not tell the police

immediately out of fear for her and her family’s safety.

{¶ 89} When asked when she learned the first and last names of Bustdown,

Castro testified:

A: I knew his name the same day that I was in -- when I first went to the

hospital. Once I got to the hospital I had my sister bring my other cell

phone that I was currently letting my daughter use and I got on Facebook

and I went right to the page.

Q: What page did you go to?

A: George Dewberry, Sr. He was friends with Jesse [Pierce] on there.

{¶ 90} Castro testified that, after being released from the hospital and leaving the

Dayton area, she was willing to identify her shooter. When she returned to Dayton, she -34-

showed Detective Daugherty a Facebook “friend request” from Dewberry, which had his

name and photograph. Castro stated that she had seen the person in the Facebook

photo previously – in Facebook photos, in person, and on the night of the shooting as the

person who got into the car behind her. Following Castro’s identification of Dewberry as

the shooter, the police presented her with the second photospread from which she

identified Dewberry.

{¶ 91} Although there was some evidence at trial that Dewberry was not actually

at the Webster Station bar’s closing party, Castro’s testimony indicated that Dewberry

was not a stranger to her and that she knew who he was, even if she had not spoken with

him personally, prior to the shooting. Even assuming that Castro were to testify that

police procedures during the presentation of the second photospread were unduly

suggestive, the record reflects that Castro’s identification of Dewberry as the shooter was

sufficiently reliable to warrant its admission at trial. Accordingly, the trial court did not

commit reversible error in denying Dewberry’s motion to suppress Castro’s pretrial

identification.

{¶ 92} Dewberry’s first assignment of error is overruled.

IV. Failure to Admit Text Messages

{¶ 93} In his third assignment of error, Dewberry claims that the trial court erred in

not allowing defense counsel to introduce text messages sent to/from Castro’s ex-

boyfriend, Thompson. In his fourth assignment of error, Dewberry argues, alternatively,

that his trial counsel provided ineffective assistance when he failed to present the text

messages during Castro’s testimony. Dewberry argues that the text messages were

relevant and material to his defense. -35-

{¶ 94} Defense counsel cross-examined Castro about the texts that she sent and

received from Thompson throughout the day of the shooting. As stated above, Castro

acknowledged that she was breaking off her relationship with Thompson so that she could

pursue her relationship with Pierce and that Thompson was unhappy about the break-up.

Defense counsel and Castro had the following exchange:

Q Okay. Did you go back and forth with him [Thompson] about this

breaking it off with him?

A Yes, sir.

Q He didn’t like it, did he?

A No, he didn’t.

Q And in fact he threatened you on a text, didn’t he?

A I don’t know remember what the texts were about. But I remember

me telling him that it was over.

Q Did you take it as a threat?

A No. I didn’t take it. I didn’t feel threatened by him at all.

Q Okay. So you didn’t say, “So you saying you gonna kill me n’icca?”6

N-I-C-C-A, kill me? Did you text that?

A I don’t remember. I don’t remember that.

Q With exclamation points?

A I don’t remember.

Q That would be about 11:46 p.m. that night, minutes before you were

6 The text message actually reads, “So u sayin u gone kill me nicca!!😠” (State’s Ex. 55, 152381E02_FMF_Report, Messages Content Tab, Line 1239.) -36-

shot?

A Yes. I mean -- I know we were texting, but I don’t exactly remember

what was in those texts.

Q And then you say, "Really, bye asshole," to him.

Q Okay. But you’re -- it sounds like you’re pretty upset, right?

A No, I mean, I wasn’t upset. It was over with us. So there was no

reason for me to be upset. He always said crazy things.

Q You don’t recall the “kill me” text that you said --

A No, I really don’t.

Q -- “you’re going to kill me”?

A I don’t remember, sir.

(Footnote added.) (Tr. at 470-471.)

{¶ 95} On redirect examination, Castro stated that it was Dewberry, not

Thompson, who met with Pierce on Vina Villa, that she would have recognized Thompson

if he had been the person who met them, and that she would have identified Thompson

to the police if he had been the shooter. She repeated on recross-examination that she

“would have told on Jamichael right away.” (Tr. at 498.) She explained, “I know his

family, sir. So I wasn’t scared of his family. * * * If Jamichael would have shot me, I

wouldn’t have had a problem because he has nobody to do dirt for him, like George does.”

(Tr. at 499-500.) Defense counsel brought up Castro’s text again:

Q So when you said, “So you’re going to kill me, n’icca," it was not --

A I don’t remember that -- me texting that. But I did not fear Jamichael -37-

Thompson.

(Tr. at 501.)

{¶ 96} The State’s next witness was Christopher Cox, the forensic examiner who

testified about the data from Pierce’s and Castro’s cell phones. Cox identified a

thumb/USB drive that contained all of the information that he extracted from the two

phones. (See Exhibit 55, Tr. at 510.) The State also presented Exhibits 56 and 57,

which were extraction reports for the two phones, respectively, that contained call logs

for August 20-21, 2015. Cox testified about various phone calls that were made from the

phones on the day of the shooting. The prosecutor did not ask any questions regarding

text messages from Pierce’s or Castro’s phone.

{¶ 97} During cross-examination, defense counsel sought to question Cox about

specific text messages from the two phones. Counsel began by referring to four reports

that he received during discovery. Cox described the first report, saying: “The first report

is based off of the Samsung extraction reports [from Pierce’s phone]. It contains all call

logs, SMS messages, MMS messages, and chat messages between August 20th, 2015

and August 21st, 2015.” When asked if this was the report that “we saw earlier,” Cox

replied, “No. The one that you saw may contain the call logs.” (Tr. at 522.) Cox stated

that there was a similar report containing all call logs, SMS, MMS, and chat messages

between August 20-21, 2015, for the LG phone (Castro’s phone). The record did not

reflect that the extraction report for the LG (Castro’s) phone that contained the text

messages was marked and offered into evidence. Cox indicated that the other two

reports were filtered reports, which had no time restrictions but phone number restrictions.

The Samsung report (Pierce’s phone) was marked as Defense Exhibit A; only the front -38-

page of the report is in the record.

{¶ 98} At this juncture, the prosecutor objected, stating “I believe he’s [defense

counsel] trying to show the jury hearsay statements that were made in text messages.

* * * He [Cox] can authenticate, which is what he did. * * * But I don’t think he [Cox] can

testify about the hearsay statements.” (Tr. at 527.) The trial court permitted defense

counsel to ask Cox about a message sent from Castro’s phone to Pierce’s phone at

8:05:50 p.m. on August 20, 2015 that read, “Okay. On my way.” (Tr. at 530.)

{¶ 99} Defense counsel next attempted to ask Cox about a text message sent from

Castro to Thompson at 9:12 p.m.7 In a sidebar discussion, the State objected on hearsay

grounds. The court sustained the objection. Defense counsel then indicated during the

sidebar discussion that he wished to ask about the text, “So you say you’re going to kill

me n’icca?” The State objected, arguing that Castro had denied making the statement

and defense counsel never showed that text to Castro. The court was unsure that Castro

had actually denied sending the text, but it sustained the State’s objection, reasoning that

Castro was not shown the text. (Tr. at 533.) After the trial court sustained the State’s

objections, defense counsel did not ask Cox any further questions.

{¶ 100} A trial court has broad discretion to admit or exclude evidence, and its

exercise of that discretion will not be disturbed on appeal absent an abuse of discretion.

7 In his appellate brief, Dewberry indicates that the text read, “You know what im so wrong babe i have a boyfriend and I’ve been playing him for you but i gotta cut it out im sorry but im about to go public to make it up i know you won’t speak to me anymore im sorry for hurting u but iont want to hurt anyone else bye babe.” During questioning, defense counsel referred Cox to line 90 on page 10 of a report. There is no printed exhibit that corresponds to that page/line reference, but this text message can be located in an Excel file on the USB drive (Exhibit 55, 152381E02_FMF_Report, Messages Content Tab, Line 1160). -39-

State v. Norris, 2d Dist. Montgomery No. 26147, 2015-Ohio-624, ¶ 14. “A trial court

abuses its discretion when it makes a decision that is unreasonable, unconscionable, or

arbitrary.” State v. Darmond, 135 Ohio St.3d 343, 2013-Ohio-966, 986 N.E.2d 971,

¶ 34.

{¶ 101} Dewberry’s argument rests on his assertion that the text messages were

relevant to his defense. Relevant evidence is generally admissible whereas irrelevant

evidence is not. Evid.R. 402. “Relevant evidence” is defined as “evidence having any

tendency to make the existence of any fact that is of consequence to the determination

of the action more probable or less probable than it would be without the evidence.”

Evid.R. 401. We accept that the text messages between Castro and Thompson were

relevant to Dewberry’s defense theory that another individual (i.e., Thompson) had a

motive to kill Castro and Pierce. However, the statements must also be otherwise

admissible.

{¶ 102} Evid.R. 801(C) defines hearsay as a “statement, other than one made by

the declarant while testifying at the trial or hearing, offered in evidence to prove the truth

of the matter asserted.” A “statement,” as included in the definition of hearsay, is an oral

or written assertion or nonverbal conduct of a person if that conduct is intended by him

as an assertion. Evid.R. 801(A). “An ‘assertion’ for hearsay purposes ‘simply means to

say that something is so,’ e.g., that an event happened or that a condition existed.”

(Emphasis and citations omitted.) State v. Leonard, 104 Ohio St.3d 54, 2004-Ohio-6235,

818 N.E.2d 229, ¶ 97. Assertions can generally be proven true or false. Id. In general,

hearsay is not admissible. Evid.R. 802.

{¶ 103} Neither of the two excluded text messages from Castro to Thompson -40-

constituted hearsay. Both were offered for the fact that the content of text messages

were said, but not for the truth of the content of the messages. In addition, Castro’s

question to Thompson was not an assertion. Accordingly, the trial court erred to the

extent that it precluded defense counsel from questioning Cox regarding the messages

on that basis.

{¶ 104} The trial court apparently perceived defense counsel’s attempt to offer the

text, “So you say you’re going to kill me n’icca?” for impeachment purposes as a prior

inconsistent statement. Evid.R. 613(B) contemplates the use of extrinsic evidence of a

prior inconsistent statement, provided that certain circumstances exist. See State v.

McKelton, 148 Ohio St.3d 261, 2016-Ohio-5735, 70 N.E.3d 508, ¶ 125. Under that Rule,

extrinsic evidence of a prior inconsistent statement is admissible:

(1) If the statement is offered solely for the purpose of impeaching the

witness, the witness is afforded a prior opportunity to explain or deny the

statement and the opposite party is afforded an opportunity to interrogate

the witness on the statement or the interests of justice otherwise require;

(2) The subject matter of the statement is one of the following: (a) A fact

that is of consequence to the determination of the action other than the

credibility of a witness; (b) A fact that may be shown by extrinsic evidence

under Evid.R. 608(A), 609, 616(A), or 616(B); (c) A fact that may be shown

by extrinsic evidence under the common law of impeachment if not in

conflict with the Rules of Evidence.

{¶ 105} “ ‘When extrinsic evidence of a prior inconsistent statement * * * is offered

into evidence pursuant to Evid.R. 613(B), a foundation must be established through direct -41-

or cross-examination in which: (1) the witness is presented with the former statement; (2)

the witness is asked whether he [or she] made the statement; (3) the witness is given an

opportunity to admit, deny or explain the statement; and (4) the opposing party is given

an opportunity to interrogate the witness on the inconsistent statement.’ ” State v.

Robinson, 2d Dist. Montgomery No. 26441, 2015-Ohio-1167, ¶ 27, citing State v. Mack,

73 Ohio St.3d 502, 514-515, 653 N.E.2d 329 (1995). If the witness admits making the

conflicting statement, then there is no need for extrinsic evidence. If the witness denies

making the statement, extrinsic evidence may be admitted, provided the opposing party

has an opportunity to query the witness about the inconsistency, and provided the

“evidence does not relate to a collateral matter[.]” Id. at ¶ 28, citing State v. Pierce, 2011-

Ohio-4873, 968 N.E.2d 1019, ¶ 82 (2d Dist.).

{¶ 106} In this case, Castro indicated that she did not recall sending the particular

text message regarding a threat by Thompson to kill her. “[I]f the witness says he [or

she] cannot remember the prior statement, ‘a lack of recollection is treated the same as

a denial, and use of extrinsic impeachment evidence is then permitted.’ ” State v. Fair, 2d

Dist. Montgomery No. 24388, 2011-Ohio-4454, ¶ 57, quoting State v. Harris, 2d Dist.

Montgomery No. 14343, 1994 WL 718227, *7 (Dec. 21, 1994). See also State v. Reed,

155 Ohio App.3d 435, 2003-Ohio-6536, 801 N.E.2d 862, ¶ 30-31 (2d Dist.) (witness’s

lack of memory regarding her first interview with the police laid a foundation for the

admission of extrinsic evidence, such as the testimony of the detective, regarding her

prior statements); State v. Spaulding, 2017-Ohio-7993, 98 N.E.3d 1057, ¶ 16 (6th Dist.)

(a claim that a witness cannot remember is treated the same as a denial under Evid.R.

613(B)); State v. Arnold, 147 Ohio St.3d 138, 2016-Ohio-1595, 62 N.E.3d 154, ¶ 16, fn. -42-

2 (citing Reed). Here, defense counsel laid a sufficient foundation for the presentation

of extrinsic evidence regarding that message for purposes of impeaching Castro’s

credibility.

{¶ 107} Nevertheless, we find that error to be harmless beyond a reasonable

doubt. Although the content of Castro’s message to Thompson was not evidence due

to Castro’s testimony that she did not remember the text, see State v. Johnson, 2015-

Ohio-5491, 55 N.E.3d 648, ¶ 74 (facts incorporated into questions do not constitute

evidence when the assumptions contained within the question are denied), the jury

repeatedly was made aware of Thompson’s threatening message to Castro shortly before

the shooting and Castro’s reply. Notably, Detective Daugherty acknowledged that,

during the course of the investigation, the police found threatening text messages to

Castro from Thompson, her ex-boyfriend. (Tr. at 658.) Daugherty further testified that

Castro received those texts very close to the time of the shooting.

{¶ 108} Defense counsel also discussed the text messages and Thompson,

without objection, during closing statements. Counsel stated:

Let’s talk about Jermichael 8 Thompson a moment. I asked her

[Castro] about text messages that she might have sent that night to this

person and she admitted, “Sure, Jermichael Thompson. He’s also Mike

Measy (phonetic). Yeah, I know who that is. Yeah, we text back and

forth, texted back and forth that whole day.” Okay. But, you know, I asked

her about, did he threaten you? She was evasive, she was evasive,

8 The transcript is inconsistent about the spelling of Thompson’s first name (Jamichael v. Jermichael). It is unclear which spelling is correct. -43-

doesn’t know, doesn’t remember, is not sure.

I asked her about her sending to him at 11:46, minutes before the

shooting, “So are you saying you’re going to kill me, nigga” exclamation

point. She says, “I don’t know. I don’t recall that.” Doesn’t recall that?

That’s a pretty big point of interest, that she is threatened and responds

with, “You’re going to kill me?” I ask her, doesn’t deny it. I mean, it seems

to me this guy would be a pretty big point of interest, a person of interest.

Doesn’t deny, doesn’t remember, not sure, being evasive. Again, evasive

when she’s providing testimony on that witness stand. Does that indicate

a lake [sic] of credibility? It should, because she’s not just evasive about

that, she’s evasive about many different things that I ask her about, about

that day.

Let’s talk about this Jermichael Thompson a little bit more because

interestingly enough, Detective Daugherty testifies he knows about the

threats that she received, but he says he dismissed this guy pretty quickly.

I mean, within milliseconds apparently from what you hear. Laura [Castro]

said he’s not a suspect is what Detective Daugherty said. And I asked him

because I couldn’t believe it, it’s in his report, and he said, yes. Laura said

he’s not a suspect, that’s good enough for me. Okay. I’m thinking he’s

the detective and he’s investigating the case, he might want to dig in a little

bit more. So you had the description of the guy. He’s a, you know, fat black

guy. “Did you look at Jermichael Thompson, whether he might fit that?”

“Yeah, I looked at his height and weight. He didn’t match the -44-

description.”

“Okay. Did you bring him in?”

“No, no, I looked at his height and weight on some records

somewhere.”

“When was that? What date was that?”

“I don’t know. I just saw his height and weight didn’t match it.” Did

he interview him, at least ask him a couple of questions about where he was

and -- anything? No. Who is this guy? At least eliminate him. Laura --

no, Laura said no. I guess it’s impossible that she could be protecting this

guy. I know, I know, maybe that is imaginary, you know, that somebody

could possibly do that. But then again, why George?

{¶ 109} In short, viewing the trial as a whole, we conclude that the exclusion of the

precise language of the text messages had no bearing on the outcome of Dewberry’s

trial. Accordingly, Dewberry’s third assignment of error is overruled.

{¶ 110} Dewberry further claims, in the alternative, that his trial counsel rendered

ineffective assistance regarding the text messages. He argues that defense counsel

should have laid a proper foundation for the admission of the text messages and that the

failure to get the text messages before to jury prejudiced him.

{¶ 111} To establish ineffective assistance of counsel, a defendant must

demonstrate both that trial counsel’s conduct fell below an objective standard of

reasonableness and that the errors were serious enough to create a reasonable

probability that, but for the errors, the outcome of the case would have been different. -45-

See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984);

State v. Bradley, 42 Ohio St.3d 136, 141-142, 538 N.E.2d 373 (1989). Hindsight is not

permitted to distort the assessment of what was reasonable in light of counsel’s

perspective at the time, and a debatable decision concerning trial strategy cannot form

the basis of a finding of ineffective assistance of counsel. State v. Cook, 65 Ohio St.3d

516, 524-525, 605 N.E.2d 70 (1992); State v. Fields, 2017-Ohio-400, 84 N.E.3d 193,

¶ 38 (2d Dist.). Trial counsel is also entitled to a strong presumption that his or her

conduct falls within the wide range of reasonable assistance. Strickland at 689.

{¶ 112} Even assuming, for sake of argument, that defense counsel should have

taken additional steps to ensure the admission of Castro’s text messages, we conclude

that Dewberry was not prejudiced by counsel’s actions. As stated above, even without

the exact wording of the text messages, the jury was aware that Thompson had sent

Castro threatening texts shortly before the shooting. We find no reasonable probability

that the outcome of Dewberry’s trial would have been different had the text messages

themselves been admitted. Dewberry’s fourth assignment of error is overruled.

V. Testimony by Detective about Conversation with Attorney Smith

{¶ 113} In his fifth assignment of error, Dewberry claims that the trial court erred in

allowing Detective Daugherty to testify about John Smith’s statements that Castro was in

fear and wanted protection and about Smith’s employment.

{¶ 114} On direct examination, Detective Daugherty testified that he was

contacted on his cell phone by John Smith, who presented himself as an attorney who

had spoken with Castro. Over defense counsel’s objection, the prosecutor asked

Daugherty what the general topic of his conversation with Smith was. Daugherty replied, -46-

“Laura being in fear of her life, and whether or not we could protect her and offer her like

some type of witness protection program.” (Tr. at 646.) A few moments later, the

prosecutor asked Daugherty if he knew where Smith worked. Daugherty replied, without

objection: “I do now. At the time he just said he was an attorney with the Air Force. I

know now that he works at Wright Patterson Air Force Base as an attorney.” (Tr. at 647.)

{¶ 115} Dewberry argues that Daugherty’s response about the topic of

conversation was hearsay and should have been excluded. Specifically, Dewberry

states: “[Smith’s] testimony is not only providing hearsay that Castro had relayed to Smith

she was in fear and wanted protection, but also is hearsay as it relays what Smith said to

Daugherty.” Dewberry emphasizes that Castro’s credibility was “paramount” at trial, and

her reasons for twice not identifying Dewberry were a critical issue.

{¶ 116} We agree with Dewberry that Daugherty’s testimony regarding the nature

of his conversation with Smith was hearsay. Even though Daugherty did not provide any

verbatim statements by Smith, Daugherty’s testimony conveyed that Castro told Smith

(for the truth of the statement) that she was in fear for her life and that she wanted to

know what protection could be offered to her by the police. We see no non-hearsay

purpose for the admission of that statement other than for the truth of the matter asserted.

{¶ 117} Nevertheless, even accepting that Daugherty’s testimony in this regard

was hearsay, we find it to be harmless beyond a reasonable doubt. The admission of

hearsay statements may be harmless when the hearsay statement is merely cumulative

of other testimony, particularly when the declarant has previously testified. See, e.g.,

State v. Strange, 2d Dist. Montgomery No. 28200, 2019-Ohio-4188, ¶ 30 (any error in

admitting a witness’s testimony that the victim told him that the defendant’s mother had -47-

threatened the victim was harmless when the victim herself testified regarding the same

encounter prior to the witness’s testimony, and his testimony was consistent with and

merely cumulative of the victim’s testimony). See also State v. Conway, 109 Ohio St.3d

412, 2006-Ohio-2815, 848 N.E.2d 810, ¶ 59 (any error in admitting hearsay statements

by two witnesses was harmless when the witnesses’ testimony “was merely cumulative”).

{¶ 118} Here, Castro had previously testified regarding her conversation with

Smith and her reasons for twice failing to identify Dewberry while at the hospital. Castro

testified that she was afraid after seeing herself identified on local news reports. When

asked why she did not identify Dewberry’s photo when she was presented with the first

photospread, Castro responded:

Because I was scared that he was going to come and kill me, my kids, my

family, and I was in the hospital and there was no way that I can get out.

There was nothing I can do. I had my children, my father, my sister and

my stepmother and I felt like if I told the police who he was while I was in

the hospital, he would send somebody up to the hospital to finish what he

intended on doing in the first place, and I was so scared that all I wanted to

do was leave the hospital.

(Tr. at 435.)

{¶ 119} Castro further testified that she left Ohio out of concern for her safety and

that she “waited until I was all the way out of Ohio” before talking to the police about who

had committed the shooting. Castro indicated that she called Smith “[b]ecause I wanted

to make sure that we would be safe. I wanted to go to the police and tell the police who

it was, but I wanted to make sure our safety was first.” (Tr. at 437.) Castro indicated -48-

that Smith called the Dayton police, and then the police called her and asked her to come

back. When asked if the police offered any type of protection, Castro testified that the

police “made sure I got out of here, packed up our stuff and stuff * * * [and] reimbursed

me for a U-Haul trailer.” (Tr. at 437-438.) She reiterated that she “was scared to death,

and I just felt like I needed to get out of the hospital and move my family away before

going to the police.” (Tr. at 441.)

{¶ 120} In light of Castro’s extensive testimony regarding her fearfulness, her flight

from Dayton, and her reasons for delaying her identification of Dewberry as the shooter,

we conclude, beyond a reasonable doubt, that the outcome of Dewberry’s trial was not

affected by Detective Daugherty’s isolated response that he talked with Smith about

Castro’s fearfulness and about whether the police could protect her.

{¶ 121} Dewberry also asserts that he was prejudiced by Daugherty’s testimony

that Smith worked at Wright Patterson Air Force Base. Dewberry states that “[t]his detail

was not small,” because many jurors in Montgomery County have connections with or

know people who work at WPAFB and most jurors “tend to have a respect for authority

and the military.” Dewberry claims that “this bit of hearsay about Smith’s workplace likely

added credibility to Castro’s claim of being in fear and needing protection.”

{¶ 122} Because Dewberry did not object to the question regarding Smith’s place

of employment, we review the matter for plain error. State v. Dalton, 2019-Ohio-4364,

__ N.E.3d. __, ¶ 12 (2d Dist.) (“Failure to object to the admission of evidence waives all

but plain error.”). “Plain error exists ‘if the trial outcome would clearly have been different,

absent the alleged error in the trial court proceedings.’ ” State v. Kessel, 2019-Ohio-1381,

133 N.E.3d 1086, ¶ 33 (2d Dist.), quoting State v. Bahns, 185 Ohio App.3d 805, 2009- -49-

Ohio-5525, 925 N.E.2d 1025, ¶ 25 (2d Dist.). Viewing the evidence at trial as a whole,

we cannot conclude that the outcome of Dewberry’s trial would have been different had

Daugherty’s testimony that Smith worked as an attorney at WPAFB been excluded.

{¶ 123} Dewberry raises, in passing, that he was denied the right to confront Smith,

who did not testify. “[T]he [United States] Supreme Court has recognized that a

defendant’s Sixth Amendment right to confront witnesses against him is violated when an

out-of-court statement that is testimonial in nature is admitted into evidence without the

defendant having had the opportunity to cross-examine the declarant.” State v. Eicholtz,

2d Dist. Clark No. 2012-CA-7, 2013-Ohio-302, ¶ 26, citing Crawford v. Washington, 541

U.S. 36, 68, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).

Testimonial statements include statements “ ‘that were made under

circumstances which would lead an objective witness reasonably to believe

that the statement would be available for use at a later trial.’ ” State v. Kelley,

2d Dist. Clark No. 2011 CA 37, 2012-Ohio-1095, ¶ 58, quoting Crawford at

52. “ ‘[S]tatements are nontestimonial when made in the course of police

interrogation under circumstances objectively indicating that the primary

purpose of interrogation is to enable police assistance to meet an ongoing

emergency. They are testimonial when the circumstances objectively

indicate that there is no such ongoing emergency, and that the primary

purpose of the interrogation is to establish or prove past events potentially

relevant to later criminal prosecution.’ ” Eicholtz at ¶ 26, quoting Davis v.

Washington, 547 U.S. 813, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006),

paragraph one of the syllabus. -50-

State v. Kerr, 2d Dist. Montgomery No. 26686, 2016-Ohio-965, ¶ 22.

{¶ 124} “The admission of hearsay does not violate the Confrontation Clause if the

declarant testifies at trial.” State v. Powell, 132 Ohio St.3d 233, 2012-Ohio-2577, 971

N.E.2d 865, ¶ 64, citing California v. Green, 399 U.S. 149, 155, 90 S.Ct. 1930, 26 L.Ed.2d

489 (1970). Smith did not testify at trial, but Castro did, and it was content of Castro’s

hearsay statements to Smith that was the primary basis of Dewberry’s claim. Castro

testified at trial about her fear of Dewberry and of the assistance she received from the

police when leaving the Dayton area. Dewberry’s counsel had an opportunity to cross-

examine Castro on those topics. Under these circumstances, the admission of the

hearsay statement did not violate the Confrontation Clause.

{¶ 125} Dewberry’s fifth assignment of error is overruled.

VI. Testimony About Location of Defendant’s Cell Phone

{¶ 126} In his sixth assignment of error, Dewberry claims that the trial court erred

in allowing the State, on redirect examination, to elicit testimony from Special Agent Horan

that Dewberry’s phone was not at his residence when the shooting occurred. Dewberry

argues that the State’s question exceeded the scope of cross-examination.

{¶ 127} In general, the redirect examination of a witness cannot exceed the scope

of the cross-examination. State v. Rucker, 2018-Ohio-1832, 113 N.E.3d 81, ¶ 59 (8th

Dist.); Saker Family Trust v. Elio Internatl., Inc., 10th Dist. Franklin No. 99AP-945, 2000

WL 726791, *2 (June 6, 2000). However, the “control of redirect examination is

committed to the discretion of the trial judge and a reversal upon that ground can be

predicated upon nothing less than a clear abuse thereof.” State v. Wilson, 30 Ohio St.2d

199, 204, 283 N.E.2d 632 (1972). “A trial court abuses its discretion when it makes a -51-

decision that is unreasonable, unconscionable, or arbitrary.” (Citation omitted.) Darmond,

135 Ohio St.3d 343, 2013-Ohio-966, 986 N.E.2d 971, ¶ 34.

{¶ 128} During the State’s direct examination, Special Agent Horan testified about

the location of Dewberry’s cell phone. Initially, he described how cell phones

communicate with cell phone towers through specific radio frequencies and that cell

phone towers are typically designed to cover a 360-degree circle, which generally is

divided into three 120-degree sectors. He stated that cell phones communicate with the

towers when, for example, phone calls are made, text messages are sent, or data is used.

{¶ 129} Horan further explained that the actual coverage area for each sector

varies based on such things as the topography of the area, buildings, and even the

amount of tree foliage. Horan conducted a drive test to map the actual coverage area

for the sector of the tower “in the area of where the homicide occurred” (Tr. at 689)

(displayed on State’s Ex. 86 in blue) and for the tower for Dewberry’s residence.

Dewberry’s residence straddled the line between two sectors (shaded in green and purple

in State’s Ex. 86).

{¶ 130} Horan testified that it was not possible for Dewberry’s phone to be at home

and, at the same time, to be in the area where the homicide occurred, because “the radio

frequency for the tower, where the homicide occurred, which is blue, does not appear

anywhere near or at where the two sectors that service where the residence is.” (Tr. at

689.) Looking at the location of Dewberry’s phone when the two phone calls between

his phone and Castro’s phone occurred (between 11:49 and 11:59 p.m.), Horan testified

that “there’s a radio frequency that could have been obtained [by Dewberry’s phone] very

close to where the crime occurred.” (Tr. at 690.) From 12:03 a.m. to 2:56 a.m., -52-

Dewberry’s phone was “back where it had been earlier in the evening.” (Tr. at 691.)

{¶ 131} On cross-examination, Horan distinguished between historical data and

“pinging,” which is real-time location data. Horan stated that pings can provide more

accurate location information, whereas historical data shows only cell site and sector.

Horan acknowledged that Dewberry’s phone could have been located in any of the blue-

shaded area and that the data did not pinpoint Dewberry’s exact location at the time of

the homicide. Horan further acknowledged that the location of the shooting was not

actually within the blue area.

{¶ 132} During redirect examination, the prosecutor asked Horan:

[PROSECUTOR:] Okay. Let me ask. Assuming this homicide occurred

just before midnight on August 20th of 2015, can you tell me, in the analysis

that you performed and looking at the records, would it be possible, at that

time, just before midnight, for the Dewberry phone to have been at the

Dewberry residence?

Defense counsel objected, but the trial court overruled the objection. Horan then

responded:

THE WITNESS: It would not have been there, no.

[PROSECUTOR:] And can you explain why?

[THE WITNESS:] Because, number one, we know the phone selected this

tower and sector, so it had to be here, physically. And secondly, the radio

frequencies that cover the Dewberry residence do not appear in this area,

nor do these radio frequencies appear where the Dewberry residence is; so

they’re distinct area. -53-

(Tr. at 698-697.)

{¶ 133} We find no abuse of discretion in the trial court’s decision to permit the

prosecution’s question on redirect examination. During cross-examination, defense

counsel elicited testimony indicating that Dewberry’s phone was not necessarily near the

homicide site when it was in the blue-shaded area and that the shooting was not actually

in the blue area. The prosecutor’s question about whether Dewberry’s phone could have

been at his residence logically stemmed from defense counsel’s similar questions about

where Dewberry’s phone could have been (other than the site of the shooting) when the

shooting occurred. Moreover, the prosecutor’s question did not raise a new, previously-

unaddressed subject. Special Agent Horan previously had testified during direct

examination that Dewberry’s residence and the location of the shooting involved separate

towers and sectors and that Dewberry could not be at the two locations simultaneously.

{¶ 134} Dewberry’s sixth assignment of error is overruled.

VII. Cumulative Error

{¶ 135} In his seventh assignment of error, Dewberry claims that he was denied a

fair trial as the result of the cumulative effects of multiple errors committed during his trial.

{¶ 136} The cumulative error doctrine provides that a conviction may 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, 656

N.E.2d 623 (1995); see State v. Moody, 2d Dist. Montgomery No. 26926, 2016-Ohio-

8366, ¶ 129. Although Dewberry’s trial was not without error, upon review of the record,

we cannot conclude that the errors collectively deprived Dewberry of a fair trial. -54-

{¶ 137} Dewberry’s seventh assignment of error is overruled.

VIII. Conclusion

{¶ 138} The trial court’s judgment will be affirmed.

TUCKER, P.J., and DONOVAN, J., concur.

Copies mailed to:

Mathias H. Heck Sarah E. Hutnik Lucas W. Wilder Hon. Barbara P. Gorman