[Cite as State v. Heard, 2022-Ohio-2266.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, : No. 110722 v. :
JARON HEARD, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: June 30, 2022
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-20-649186-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Michael Timms, Assistant Prosecuting Attorney, for appellee.
Joseph V. Pagano, for appellant.
EMANUELLA D. GROVES, J.:
Defendant-appellant, Jaron Heard (“Heard”), appeals his convictions
following a jury trial. For the reasons set forth below, we affirm. Procedural and Factual History
On the night of New Year’s Eve, 2019, the Medusa Night Club
(“Medusa” or the “nightclub”) on St. Clair Avenue was packed with about 500
patrons, who were there for a performance of Chief Keef. Shortly before 1 a.m.,
gunshots erupted around the dance floor, resulting in injuries to four patrons.
Following an investigation by the Cleveland Police Department (“CPD”), police
officers arrested Heard, without incident, on February 29, 2020, at the former Prime
XO Steakhouse.
On March 11, 2020, a grand jury returned a ten-count indictment
including four counts of felonious assault in violation of R.C. 2903.11(A)(1), four
counts of felonious assault in violation of R.C. 2903.11(A)(2),1 one count each of
having weapons while under disability (“HWWUD”) in violation of R.C.
2923.13(A)(2),2 and carrying a concealed weapon in violation of R.C.
2923.12(A)(2).3 On March 16, 2020, Heard pled not guilty at his arraignment and
over the ensuing months, numerous pretrials were conducted.
On October 26, 2020, Heard filed a motion in limine requesting that
the trial court exclude the testimony of his parole officer, who identified him in
footage from the nightclub’s surveillance video. The state objected and, on
1 Each of Counts 1-8 carried one-year, three-years, and 54-months firearms specifications, as well as a notice of prior conviction, and a repeat violent offender specification.
2 One-year, three-years, and 54-months firearms specifications were attached.
3 Forfeiture specification attached. November 16, 2020, the trial court held a hearing on the motion. On December 16,
2020, the trial granted Heard’s motion. The state appealed the trial court’s decision,
but dismissed the appeal on February 25, 2021, based on new evidence.
On March 29, 2021, Heard filed a motion to suppress a witness’
identification, which the state objected. On April 14, 2021, the trial court held a
hearing on the motion. The trial court denied the motion. Subsequently, on
April 28, 2021, Heard elected to have the charge of HWWUD, the notice of prior
conviction specification, the repeat violent offender specification, and the 54-
months firearm specification attached to Counts 1-9 tried to the bench. Heard had
a jury trial on the remaining counts.
At trial, the state presented 12 witnesses,4 including Andrea Dukes
(“Dukes”), who testified that she was a patron of the nightclub that night and was
struck in the foot during the shooting. Dukes was taken to the hospital where she
discovered she had suffered a broken bone in her foot. Dukes testified that the scene
was chaotic and that she did not see who shot her.
CPD detective Ron Berry (“Detective Berry”) testified that he and fellow
officers responded to the scene moments after the shooting and found the situation
chaotic. Detective Berry testified that officers attempted to interview possible
witnesses, but none wanted to speak with them about what they might have
observed. Detective Berry spoke with Medusa’s general manager, Bryan McIntosh
4 The testimony of some witnesses will be set forth in the law and analysis section below. (“McIntosh”), who gave Detective Berry access to the footage from the nightclub’s
various surveillance cameras. Detective Berry was able to view approximately 90
minutes of video footage, parts of which included the shooting.
At the trial, the state played the surveillance video, comprised of four
segments, taken from different angles. Three video segments were in black and
white, while the fourth was in technicolor. Detective Berry narrated as different
portions were being showed. The first portion of footage, presented in black and
white and taken by camera five, located overhead in the VIP section of the nightclub,
depicted the shooter firing into the crowd. The shooter retreated backwards, while
actively shooting, and bumped into the stage and nearly fell. The shooter dropped
the weapon before putting it back into his pocket. Detective Berry pointed out that
the video showed the back of the shooter’s sweatshirt, which was emblazoned with
a large X. Little stripes were also visible on the designer work of the hoodie.
Another portion of the video, presented in black and white and taken
by camera six, showed patrons on the dance floor and depicted a brief scuffle
between two women. Detective Berry noted that gunshots could be heard coming
from the foreground, causing patrons to scatter towards the exit. Detective Berry
described how the patrons stepped on top of each other and dropped personal
belongings while fleeing.
The third portion of the video, presented in black and white and taken
by camera eight, showed the male wearing the sweatshirt with the large X on the
back of the garment, grabbing and pulling another male before reaching down and drawing a gun. Detective Berry explained how the male with the large X on the back
of his sweatshirt pointed the weapon in the down position before firing erratically
into the crowd. Detective Berry remarked that the individual wearing the hoodie
with the large X on the back and little stripes on the design was the only person
captured on the surveillance cameras shooting inside of the nightclub.
The fourth portion of the video, presented in technicolor and taken by
camera three, showed patrons entering the building, including a male in a green
sweatshirt. The face of the male in the green sweatshirt was clearly visible. Detective
Berry underscored that the male entering the nightclub was wearing the same
sweatshirt as the shooter depicted in the other footages. Detective Berry specifically
pointed towards the large X imprinted on the back and the little stripes on the side
of the green sweatshirt. Detective Berry asserted that he saw no one else on the
surveillance footage with the same distinctive patterns on their clothing. Detective
Berry testified that this was the individual seen in the earlier portion of the video
who had fired into the crowd.
Alphonso Lewis (“Lewis”), another patron in attendance, testified that
he arrived at the club around 11:30 p.m., with Jonna Farrell (“Farrell”) and two other
companions. Lewis described witnessing a fight between two patrons that started
in the VIP section of the nightclub. Lewis explained that once the nightclub lights
were turned on, the two patrons were brought down to the floor and separated into
a party on the right and a party on the left of the dance floor. Lewis stated that after
the parties were separated, the lights were again turned off. Lewis testified that moments later, the party from the left side of the
dance floor started shooting towards the right side of the dance floor. To protect
Farrell as shots were being fired, Lewis tackled her to the ground of the dance floor
and laid atop Farrell, until the gunshots ceased. Lewis testified that he did not see
the person who had been firing the gun, but that he, Farrell, and his two companions
exited the nightclub through a door into the back alley.
Lewis further testified that once he was outside and expressing anger
about the money he had spent at the club, he turned around to say something to his
friends when someone shot him in the face. Lewis testified that he did not see the
shooter’s face, so he was unsure if the person who shot him was the same person
that had been shooting inside the nightclub. After he was shot, Lewis immediately
ran and became separated from his friends, but found police officers, whom he
briefly spoke with before being transported to MetroHealth Medical Center.
Farrell testified that she and Lewis were on the dance floor for about
35-to-40 minutes before the shooting started. Farrell stated that Lewis pushed her
to the ground, laid on top of her during the shooting, and that they later exited the
nightclub through a door into a back alley. Farrell stated that Lewis was mad about
the shooting because he had spent so much money to get into the nightclub. Farrell
testified that at one point, Lewis said something out loud, at which time, an
individual whom Farrell claimed was the person that had been shooting in the
nightclub, turned around and said, “Oh, what you said? What you say?” and opened
fire. Farrell stated that Lewis pushed her out of the way, causing her to fall. Farrell testified that, while her friends had fled, “the shooter, he sat
there with his arm out and he was — he still had the gun on me. I didn’t know what
to expect. I couldn’t take my eyes off of him. I’ll never forget his face. And he just
walked away. He just turned around and walked away.” Farrell testified she later
found Lewis and her companions with police at the corner.
Farrell testified that Detective Berry contacted her in January 2021,
and that she later identified Heard as the person that shot Lewis outside the
nightclub. Farrell acknowledged that she knew the name of the person who had
been arrested before she went in to make an identification. Farrell testified that the
shooter was wearing a salmon or light pink sweatshirt and that the shooter was a
male with baby dreadlocks. Farrell claimed that Lewis knew she had seen the
shooter, because they had spoken about the case a lot.
At the close of the state’s case-in-chief, the trial court granted Heard’s
motion for acquittal on Counts 3, 4, 7, and 8. Heard did not present a case and
rested. The jury found Heard guilty of Counts 2 and 6, felonious assault charges
relating to Dukes, with one-year and three-year firearm specifications, as well as
guilty of Count 10, carrying a concealed weapon. The jury found Heard not guilty of
Counts 1 and 5, felonious assault charges relating to Lewis. Separately, the trial
court found Heard guilty of Count 9, HWWUD, the 54-month firearm specifications,
the repeat violent offender specification, and the notice of prior conviction.
On May 12, 2021, the trial court reopened the case and indicated that
it had erroneously believed there was a stipulation to the bifurcated counts relating to prior convictions. The trial court allowed the state to present an additional
witness, whose testimony will be discussed below in the third assignment of error.
Thereafter, the trial court found Heard guilty of Count 9, having weapons while
under disability, the 54-month firearm specifications, the repeat violent offender
specification, and the notice of prior conviction.
On July 8, 2021, Heard appeared for sentencing. The trial court
imposed a prison sentence of four years on Count 2 — felonious assault, which had
to be served consecutive to the four and half years on the attendant firearm
specification. The trial court also imposed a prison sentence of one year on Count 9
— HWWUD, which would be served concurrently to the base term in Count 2. The
trial court ordered Heard to serve the four and a half years firearm specification,
attendant Count 9, consecutively to the firearm specification attached to Count 2.
The trial court did not impose a prison sentence on Count 6, because of the merger
with Count 2. The trial court imposed an aggregate sentence of 13 years.
Additionally, the trial court advised Heard that the Reagan Tokes Act
would be applied to the four-year sentence on Count 2, felonious assault, and
explained the presumptive release date, pursuant to R.C. 2967.271(B), and that it
could be rebutted by the Ohio Department of Rehabilitation and Correction
(“ODRC”). The trial court further advised that if the ODRC rebuts the presumption,
Heard’s sentence may be extended for up to two years, pursuant to R.C. 2967.271(C),
for a period that does not exceed the maximum prison term imposed.
Heard now appeals and assigns the following errors for review: Assignment of Error No. 1
Appellant was denied due process when the trial court denied the motion to suppress identification testimony and did not instruct the jury pursuant to R.C. 2933.83(C).
Assignment of Error No. 2
The court erred by admitting video evidence and testimony that was not properly authenticated and without establishing a proper chain of custody.
Assignment of Error No. 3
The trial court abused its discretion and violated Appellant’s constitutional rights against double jeopardy by allowing the State to re-open its case after the court had rendered its verdict based on insufficient evidence.
Assignment of Error No. 4
The trial court erred when it denied Appellant’s motion for acquittal under Crim. R. 29 because the State failed to present sufficient evidence to establish beyond a reasonable doubt the elements necessary to support the convictions.
Assignment of Error No. 5
Appellant’s convictions are against the manifest weight of the evidence.
Assignment of Error No. 6
Appellant was denied a fair trial when the court overruled objections to improper statements made during closing arguments regarding non- testifying witnesses in violation of Appellant’s constitutional rights.
Assignment of Error No. 7
Appellant’s sentence is invalid because it was imposed pursuant to the Reagan Tokes Act Amendments, S.B. 201, which violates the United States and Ohio Constitutions. Assignment of Error No. 8
Appellant received ineffective assistance of counsel in violation of the Sixth Amendment to the United States Constitution and Section 10, Article I of the Ohio Constitution for not raising a constitutional challenge to the application of the Reagan Tokes Law.
Law and Analysis
Suppression of Identification Testimony / Mootness
In the first assignment of error, Heard argues that he was denied due
process when the trial court denied the motion to suppress Farrell’s identification
testimony and by not instructing the jury pursuant to R.C. 2933.83(C).
Generally, courts will not resolve issues that are moot. State v. Baird,
8th Dist. Cuyahoga No. 108515, 2020-Ohio-2717, ¶ 6, citing State v. Marcum, 2015-
Ohio-5237, 54 N.E.3d 719, ¶ 6 (10th Dist.), citing In re L.W., 168 Ohio App.3d 613,
2006-Ohio-644, 861 N.E.2d 546, ¶ 11 (10th Dist.). An [issue] will be deemed moot
if the appellant seeks to obtain a “judgment upon some matter which, when
rendered, for any reason cannot have any practical legal effect upon a then-existing
controversy.” Id., citing In re L.W.
The sole issue within this assignment of error is Heard’s claim that the
trial court should have suppressed Farrell’s identification testimony. In this matter,
Farrell’s testimony was totally related to the allegation that Heard was the individual
that shot Lewis. However, as noted above, the jury acquitted Heard of all the charges
relating to Lewis. Thus, addressing whether the trial court should have suppressed
Farrell’s identification testimony serves no practical purpose at this juncture.
Consequently, the issue Heard now raises is moot. As the state aptly points out, issues are moot, ‘“when they are or have
become fictitious, colorable, hypothetical, academic or dead. The distinguishing
characteristic of such issues is that they involve no actual genuine, live controversy,
the decision of which can definitely affect existing legal relations.”’ Sunderland v.
Liberty Twp. Bd. of Zoning Appeals, 5th Dist. Delaware No. 20 CAH 06 0023, 2021-
Ohio-353, ¶ 16, citing Grove City v. Clark, 10th Dist. Franklin No. 01AP-1369, 2002-
Ohio-4549, ¶ 11, quoting Culver v. Warren, 84 Ohio App. 373, 393, 83 N.E.2d 82
(11th Dist.1948).
Accordingly, we overrule the first assignment of error.
Admission of Video Evidence
In the second assignment of error, Heard argues that the trial court
erred in admitting video evidence and testimony, because it was not properly
authenticated. Alternatively, Heard argues the chain of custody was not properly
established.
Preliminarily, the admission of evidence is within the trial court’s
sound discretion. Cleveland v. Greear, 8th Dist. Cuyahoga No. 108190, 2020-Ohio-
29, ¶ 19, citing State v. Sage, 31 Ohio St.3d 173, 510 N.E.2d 343 (1987). A trial court
will have abused its discretion when its decision is contrary to law, unreasonable,
not supported by the evidence, or grossly unsound. Id., citing State v. Taylor, 8th
Dist. Cuyahoga No. 98107, 2012-Ohio-5421, ¶ 22, citing State v. Boles, 187 Ohio
App.3d 345, 2010-Ohio-278, 932 N.E.2d 345, ¶ 16-18 (2d Dist.). In addition, the
trial court’s abuse of its discretion must have materially prejudiced the defendant. Id., citing State v. Lowe, 69 Ohio St.3d 527, 532, 634 N.E.2d 616 (1994), citing State
v. Maurer, 15 Ohio St.3d 239, 265, 473 N.E.2d 768 (1984).
Pertinent to this matter, is Evid.R. 901, which provides for the
authentication or identification of evidence prior to its admissibility. In part, it
states that “authentication or identification as a condition precedent to admissibility
is satisfied by evidence sufficient to support a finding that the matter in question is
what its proponent claims.” Evid.R. 901(A).
Additionally, “the authentication requirement of Evid.R. 901(A) is a
low threshold that does not require conclusive proof of authenticity, but only
sufficient foundation evidence for the trier of fact to conclude that the evidence is
what its proponent claims it to be.” State v. Toudle, 8th Dist. Cuyahoga No. 98609,
2013-Ohio-1548, ¶ 21, citing Yasinow v. Yasinow, 8th Dist. Cuyahoga No. 86467,
2006-Ohio-1355, ¶ 81.
Further,
[t]he admissibility of photographic evidence is based on two different theories. One theory is the “pictorial testimony” theory. Under this theory, the photographic evidence is merely illustrative of a witness’ testimony and it only becomes admissible when a sponsoring witness can testify that it is a fair and accurate representation of the subject matter, based on that witness’ personal observation. * * * A second theory under which photographic evidence may be admissible is the “silent witness” theory. Under that theory, the photographic evidence is a “silent witness” which speaks for itself, and is substantive evidence of what it portrays independent of a sponsoring witness.
Cleveland v. Alrefaei, 2020-Ohio-5009, 161 N.E.3d 53, ¶ 28 (8th Dist.), citing State
v. Pickens, 141 Ohio St.3d 462, 2014-Ohio-5445, 25 N.E.3d 1023, ¶ 150, quoting Midland Steel Prods. Co. v. Internatl. Union, United Auto., Aerospace &
Agriculture Implement Workers, Local 486, 61 Ohio St.3d 121, 129-130, 573 N.E.2d
98 (1991).
Within the second assignment of error, Heard claims that the only
witnesses that testified relative to the collection of the video footage, Detective Berry
and McIntosh, provided contradicting testimony. Specifically, Heard claims that
the evidence was not properly authenticated because the owner of the nightclub,
who could have altered the video when it was in his sole possession, did not testify.
We are not persuaded by these assertions.
We begin with McIntosh, who testified that the nightclub opened in
2017 and had a security surveillance system that was upgraded between 2018 and
2019. McIntosh testified that in his capacity as the general manager, he regularly
worked with the security system. McIntosh stated that he viewed the video footage
with the police after the shooting and that the video footage was an accurate
representation of what was contained on the nightclub’s security cameras. While
the video was being played, McIntosh explained what each camera was depicting.
On cross-examination, the following exchange took place:
Q. The night of the incident, did you actually create the burned copy of the video for the Cleveland Police or did somebody else do that?
A. It was a joint effort between me and Mr. Magali. We basically took the USB drive, made a copy and gave it to Cleveland PD.
Q. Did you include all video cameras that were available and provide those to the Cleveland police?
A. I believe so, yes. Q. Or did you just provide edited versions?
A. No, we gave them the whole — the whole relay of the night.
Q. So there would be more cameras than this, is what you’re saying?
A. I believe so. There should be.
***
Q. And again, were you personally the person that burned or made the copy, that did the work to transfer it from your surveillance system to the thumb drive that was provided to Cleveland Police?
A. It was a joint — I’d say me and Mr. Magali.
Q. Who actually did it? Because only one person can do it.
A. I believe Mr. Magali.
Here, considering the low threshold of authentication, we find that
McIntosh’s testimony properly authenticated the video. McIntosh was present at
the nightclub on the night of the shooting and viewed, alongside the police, what the
surveillance camera captured. In addition, McIntosh affirmed that the video footage
introduced accurately represented what had been captured on the surveillance
cameras.
Further, McIntosh testified that the creation of the copy that was
provided to law enforcement was a joint effort between himself and the owner of the
nightclub. Whether McIntosh or the nightclub’s owner physically inserted the
thumb drive into the computer to transfer the footage is immaterial since, as defense
counsel stated: “only one person can do it.” McIntosh’s testimony, viewed in the
proper and practical context, simply represents their joint efforts in providing law enforcement with a copy of what was captured on the surveillance cameras. As
such, it does not render the video footage unauthentic.
Nonetheless, Heard claims the two witnesses provided contradictory
testimony. A non-isolative review of Detective Berry’s testimony reveals the
opposite. Detective Berry testified that “[a]t that time I viewed a lot of the video [at
the nightclub] approximately an hour, hour and a half worth of video. And the inside
shooting was captured on the video inside of the nightclub.” Immediately, and
arguably apparent, not everything that the surveillance camera captured, in the
approximately 90 minutes of footage Detective Berry reviewed, would have been
relevant to the police investigation of the shooting.
Our review of the video contained on the thumb drive admitted into
evidence reveals that the longest of the four segments was only 3:13 minutes long.
That segment captured by camera three, depicts patrons, including Heard, entering
the nightclub. The other three segments captured on cameras five, six, and eight
depict different angles of the shooting inside the nightclub. These three segments
were only 59 seconds each.
Detective Berry continued that
[a]t that time, I asked [McIntosh] could I take sections out of it, because it was a lot of just the nightclub where it was too dark for you to see. But after the shooting, I believe some house lights came up a little bit and we could see individuals there. So I was able to, myself, have him edit out what I didn’t want and I took the part of the video that I need.
Finally, Detective Berry affirmed that the video segments that had
been played represented the footage he received from the nightclub. Critically, Detective Berry testified that these segments contained the clearer photographs that
actually showed what he was looking to obtain. Thus, notwithstanding Heard’s
assertions, Detective Berry’s testimony, in conjunction with McIntosh’s, served to
establish that the video footage accurately represented what transpired on the night
of the shooting.
Moreover, CPD patrol officer, Malcolm Sutton-Nicholson (“Officer
Sutton-Nicholson”) testified that he was engaged in secondary employment, as a
security officer, at the nightclub on December 31, 2019. Officer Sutton-Nicholson
explained that he is generally stationed outside the venue. At trial, Officer Sutton-
Nicholson was shown camera three from the video, the segment depicting the
patrons entering the nightclub. Officer Sutton-Nicholson was able to confirm his
presence on the footage and explained that he had momentarily stepped inside the
nightclub. Officer Sutton-Nicholson’s testimony served as further authentication of
the video admitted into evidence.
Based on the foregoing, we find the state satisfied Evid.R. 901(A), and
we find no merit to Heard’s argument that the state failed to properly authenticate
the surveillance video footage.
Accordingly, we overrule the second assignment of error.
Reopening Case
In the third assignment of error, Heard argues the trial court abused
its discretion and violated his constitutional rights against double jeopardy by
reopening the case after rendering its verdict on the matters not tried to the jury. The decision whether to reopen a case for the presentation of further
testimony is within the discretion of the trial court and will not be reversed on appeal
absent an abuse of that discretion. State v. Watson, 8th Dist. Cuyahoga No. 70344,
1997 Ohio App. LEXIS 1110 (Mar. 20, 1997), ¶ 10, Columbus v. Grant, 1 Ohio App.3d
96, 97, 439 N.E.2d 907 (10th Dist.1981). An abuse of discretion connotes more than
an error of law or judgment; it implies that the court’s attitude is “unreasonable,
arbitrary or unconscionable.” Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450
N.E.2d 1140 (1983).
In this matter, as previously stated, Heard elected to have the charges
of having weapons while under disability and the repeat violent offender
specification, as well as the 54-months firearm specification attached to Counts 1-9,
tried to the bench. On May 3, 2021, immediately after the trial court announced the
jury’s verdict, the trial court announced that it had found Heard guilty of the charges
and specifications attached to the respective counts.
On May 12, 2021, the trial court reconvened and indicated that at the
time it announced the verdict on the bifurcated matters, it was laboring under the
misimpression that the parties had stipulated to those charges. The trial court
subsequently reopened the case, to which the defense counsel objected. The trial
court overruled the objection and allowed the state to present the testimony of
Detective Steven Veverka (“Detective Veverka”) of the Cuyahoga County Sheriff's
Office. Detective Ververka proceeded to testify that he compared Heard’s jail
booking fingerprint card for the instant case with the card from the previous case
and concluded that both originated from Heard. The parties then stipulated that
both fingerprint cards belonged to Heard. The trial court admitted both fingerprint
cards into evidence and found Heard guilty of the charges.
Heard now claims that the trial court violated his constitutional rights
against double jeopardy. We find no merit in this assertion.
On a prefatory note, the Double Jeopardy Clause of the Fifth
Amendment to the United States Constitution states that no person shall “be subject
for the same offence to be twice put in jeopardy of life or limb.” This protection
applies to Ohio citizens through the Fourteenth Amendment to the United States
Constitution. State v. Brown, 119 Ohio St.3d 447, 2008-Ohio-4569, 895 N.E.2d 149,
¶ 10, citing Benton v. Maryland, 395 U.S. 784, 786, 89 S.Ct. 2056, 23 L.Ed.2d 707
(1969). Similarly, the Ohio Constitution provides: “No person shall be twice put in
jeopardy for the same offense.” Ohio Constitution, Article I, Section 10. The
protections afforded by the double jeopardy clauses of the Ohio and United States
Constitutions are “coextensive.” State v. Mutter, 150 Ohio St.3d 429, 2017-Ohio-
2928, 82 N.E.3d 1141, ¶ 15, citing State v. Martello, 97 Ohio St.3d 398, 2002-Ohio-
6661, 780 N.E.2d 250 (2002), ¶ 7.
Further, the prohibition against the double jeopardy clause “protects
against three abuses”: (1) “‘a second prosecution for the same offense after
acquittal,’” (2) “‘a second prosecution for the same offense after conviction’” and (3) “‘multiple punishments for the same offense.’” State v. Ruff, 143 Ohio St.3d 114,
2015-Ohio-995, 34 N.E.3d 892, ¶ 10, quoting North Carolina v. Pearce, 395 U.S.
711, 717, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), overruled on other grounds,
Alabama v. Smith, 490 U.S. 794, 109 S.Ct. 2201, 104 L.Ed.2d 865 (1989).
Here, we find none of these delineated “abuses” is implicated in this
case. Heard had not been acquitted, was not being prosecuted a second time for the
same offenses, and the trial court had not meted out multiple punishments. The
trial court had simply labored under the misimpression that there was a stipulation
and rectified the matter by reopening the case to reconcile the record. Importantly,
Heard has not demonstrated any prejudice. As such, we find no abuse of discretion
in the trial court’s decision.
Accordingly, we overrule the third assignment of error.
Sufficiency of Evidence
In the fourth assignment of error, Heard argues the trial court erred
when it denied his Crim.R. 29 motion for acquittal because the state failed to present
sufficient evidence to sustain the convictions.
Preliminarily, we note, Crim.R. 29(A) provides that a court
shall order the entry of the judgment of acquittal of one or more offenses * * * if the evidence is insufficient to sustain a conviction of such offense or offenses. Because a Crim.R. 29 motion questions the sufficiency of the evidence, [w]e apply the same standard of review to Crim.R. 29 motions as we use in reviewing the sufficiency of the evidence. State v. Scott, 8th Dist. Cuyahoga No. 110691, 2022-Ohio-1669, ¶ 36, citing
Fairview Park v. Peah, 8th Dist. Cuyahoga No. 110128, 2021-Ohio-2685, ¶ 37,
quoting State v. Tenace, 109 Ohio St.3d 255, 2006-Ohio-2417, 847 N.E.2d 386, ¶ 37.
A sufficiency challenge requires a court to determine whether the
state has met its burden of production at trial and to consider not the credibility of
the evidence but whether, if credible, the evidence presented would sustain a
conviction. State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997). The
relevant inquiry is whether, after viewing the evidence in a light most favorable to
the prosecution, any rational trier of fact could have found the essential elements of
the crime proven beyond a reasonable doubt. State v. Jenks, 61 Ohio St.3d 259, 273,
574 N.E.2d 492 (1991), citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781,
61 L.Ed.2d 560 (1979).
In this matter, the jury found Heard guilty of two counts of felonious
assault, which required the state to prove that he knowingly caused or attempted to
cause physical harm to another by means of a deadly weapon or dangerous ordnance
in the form of a firearm.
As previously stated, the shooting was captured on the nightclub’s
surveillance video footage, which we have concluded was properly authenticated
and duly admitted into evidence. The segment, captured by camera three, depicted
patrons, including Heard, entering the nightclub. Heard’s face is clearly visible and
the green sweatshirt, with the distinctive ornamental large “X” adorning the back of
the garment, as well as the embellishments on the sleeve, are evident. In the three other segments, captured by cameras five, six, and eight, depicting the shooting from
different angles, the shooter was wearing the sweatshirt described above. Detective
Berry testified that he saw no one else on the surveillance footage with the same
distinctive patterns featured on the sweatshirt that Heard was wearing. The
surveillance video unmistakably linked Heard to the gunshot wounds Dukes
sustained that night.
Viewing this evidence in the light most favorable to the state, any
rational trier of fact could have found that the state presented sufficient evidence to
satisfy the elements of felonious assault as charged. Consequently, the trial court
properly denied Heard’s Crim.R. 29 motion for acquittal.
Accordingly, we overrule the fourth assignment of error.
Manifest Weight of Evidence
In the fifth assignment of error, Heard argues his convictions were
against the manifest weight of the evidence.
Unlike sufficiency, ‘“weight of the evidence involves the inclination of
the greater amount of credible evidence.”’ State v. Harris, 8th Dist. Cuyahoga No.
109060, 2021-Ohio-856, ¶ 32, quoting Thompkins, 78 Ohio St.3d at 387, 678 N.E.2d
541. Weight of the evidence relates to ‘“the evidence’s effect of inducing belief.”’ Id.,
quoting State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264,
¶ 25, citing Thompkins at 386-387. The reviewing court must consider all of the
evidence in the record, the reasonable inferences to make from it, and the credibility
of the witnesses to determine ‘“whether in resolving conflicts in the evidence, the factfinder clearly lost its way and created such a manifest miscarriage of justice that
the conviction must be reversed and a new trial ordered.”’ Id., citing Thompkins at
387, quoting State v. Martin, 20 Ohio App.3d 172, 485 N.E.2d 717 (1st Dist.1983).
Initially, we note Heard devotes much of his argument to the impact
of Farrell’s testimony. However, as discussed in the first assignment of error, the
jury acquitted Heard of the charges where Farrell’s testimony would have been
relevant. Thus, having previously found any issues flowing from Farrell’s testimony
to be moot, her testimony will not be a factor in our analysis herein.
Here, as discussed in the preceding assignment of error, the
surveillance video footage unquestionably revealed that Heard was the individual
that was shooting inside the nightclub. As previously discussed, but worth repeating,
the surveillance cameras captured Heard entering the nightclub in very distinctive
clothing and later caught him shooting into the crowd of revelers. The surveillance
video persuasively supports the state’s claim that Heard was the individual that was
shooting inside the nightclub.
Nothing in our review indicates that the jury clearly lost its way and
created a manifest miscarriage of justice in finding Heard guilty.
Accordingly, we overrule the fifth assignment of error.
Prosecutorial Misconduct
In the sixth assignment of error, Heard argues he was denied a fair
trial when the trial court overruled his objection to the prosecutor’s improper
statements during closing argument. At the outset, it is important to note that the relevant question in
reviewing a claim of prosecutorial misconduct is ‘““whether the prosecutors’
comments so infected the trial with unfairness as to make the resulting conviction a
denial of due process.””’ State v. Froman, 162 Ohio St.3d 435, 2020-Ohio-4523, 165
N.E.3d 1198, ¶ 114, quoting Darden v. Wainwright, 477 U.S. 168, 181, 106 S.Ct.
2464, 91 L.Ed.2d 144 (1986), quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643,
94 S.Ct. 1868, 40 L.Ed.2d 431 (1974).
In answering that question, the reviewing court considers “whether
the conduct was improper and, if so, whether it prejudicially affected the defendant’s
substantial rights.” Id., citing State v. Maxwell, 139 Ohio St.3d 12, 2014-Ohio-1019,
9 N.E.3d 930, ¶ 243. In evaluating prejudice, the court considers “the effect that the
misconduct had ‘on the jury in the context of the entire trial.’” Id., quoting State v.
Keenan, 66 Ohio St.3d 402, 410, 613 N.E.2d 203 (1993).
In this matter, during closing argument, the prosecutor stated:
But you’ll see that he [Mr. Heard] knows these security guards, and I think this is important, because from Mr. McIntosh’s testimony, we know that there were 30 security guards in the club that night, and at least those two at the front door know this man and they know who he is [meaning Mr. Heard.]
And this is what you need to be thinking about. They know what he’s capable of. The idea that those security guards didn’t want to come here, didn’t want to talk to the detectives, it’s either because they’re afraid of him, or because they know him and they’re sticking up for him. They won’t snitch. Heard now argues the above statements were improper because they
violated, among other things, his rights to confrontation, since no security guards
testified at the trial. However, despite Heard’s present assertions about the impact
of the above statements, the record reveals that the statements he deemed improper
bore some relationship to testimony presented at trial.
Relevantly, the following exchange took place between McIntosh and
the prosecuting attorney:
Q. And I’ve asked you who the security guards are?
A. Yes.
Q. And you have not provided me the names of the security guards —
A. No.
Q. — right?
Q. Why is that?
A. They aggressively told me that they did not want to be involved and were scared.
Here, the above exchange ostensibly provided the basis for the
prosecutor’s comments during closing arguments. It is important to keep in mind
that a prosecutor has wide latitude to comment on the evidence of record and may
suggest conclusions based on that evidence in a closing argument. Chagrin Falls v.
Ptak, 8th Dist. Cuyahoga No. 109342, 2020-Ohio-5623, ¶ 54, citing State v. Ceron,
8th Dist. Cuyahoga No. 99388, 2013-Ohio-5241, ¶ 111. Thus, a prosecutor may freely address what the evidence has shown
and what reasonable inferences may be drawn from that evidence. State v.
Wuensch, 8th Dist. Cuyahoga No. 105302, 2017-Ohio-9272, ¶ 38, citing State v.
Lott, 51 Ohio St.3d 160, 165, 555 N.E.2d 293 (1990); State v. Black, 181 Ohio App.3d
821, 2009-Ohio-1629, 911 N.E.2d 309, ¶ 33 (2d Dist.). Because the prosecutor was
arguably drawing an inference from McIntosh’s testimony, it was permissible.
These comments did not serve to infect the trial with unfairness to make the
resulting conviction a denial of due process. As such, we find Heard’s present
assertion not well-taken.
Accordingly, we overrule the sixth assignment of error.
Reagan Tokes Act
In the seventh assignment of error, Heard argues that his indefinite
sentence imposed pursuant to the Reagan Tokes Act is unconstitutional because it
violates the right to trial by jury, the separation-of-powers doctrine, and the right to
due process.
However, we need not dwell on the arguments presented. The Ohio
Supreme Court held in State v. Maddox, Slip Opinion No. 2022-Ohio-764, that
constitutional challenges to the Reagan Tokes Act are ripe for review. Based on the
authority established by this district’s en banc holding in State v. Delvallie, 2022-
Ohio-470, 185 N.E.3d 536 (8th Dist.), the challenges Heard advanced against the
constitutional validity of the Reagan Tokes Act have been overruled. Id. at ¶ 17-54.
Accordingly, we overrule the seventh assignment of error. Effective Assistance of Counsel
In the eighth assignment of error, Heard argues defense counsel was
ineffective for failing to object to the imposition of an indefinite sentence under the
Reagan Tokes Act. However, given our resolution of the seventh assignment of
error, overruling Heard’s constitutional challenges to the Reagan Tokes Act, his
assertion is now rendered moot.
Accordingly, we summarily overrule the eighth assignment of error,
Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
Cuyahoga County Common Pleas Court to carry this judgment into execution. The
defendant’s conviction having been affirmed, any bail pending appeal is terminated.
Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
____________________________ EMANUELLA D. GROVES, JUDGE
SEAN C. GALLAGHER, A.J., and MARY EILEEN KILBANE, J., CONCUR
N.B. Judge Emanuella D. Groves concurred with the opinions of Judge Lisa B. Forbes (dissenting) and Judge Anita Laster Mays (concurring in part and dissenting in part) in Delvallie and would have found the Reagan Tokes Law unconstitutional.
Judge Mary Eileen Kilbane joined the dissenting opinion by Judge Lisa B. Forbes and the concurring in part and dissenting in part opinion by Judge Anita Laster Mays in Delvallie and would have found the Reagan Tokes Law unconstitutional.