[Cite as State v. Kemp, 2013-Ohio-167.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 97913
STATE OF OHIO PLAINTIFF-APPELLEE
vs.
ANTOINE KEMP DEFENDANT-APPELLANT
JUDGMENT: CONVICTIONS AFFIRMED; SENTENCE VACATED; REMANDED FOR RESENTENCING
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-545098
BEFORE: Rocco, J., S. Gallagher, P.J., and Keough, J.
RELEASED AND JOURNALIZED: January 24, 2013 ATTORNEY FOR APPELLANT
Dale M. Hartman 2195 South Green Road University Heights, Ohio 44121
ATTORNEYS FOR APPELLEE
Timothy J. McGinty Cuyahoga County Prosecutor
BY: Norman Schroth Steven E. Gall Assistant Prosecuting Attorneys The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 KENNETH A. ROCCO, J.:
{¶1} Defendant-appellant Antoine Kemp appeals his convictions and sentences
after a jury found him guilty of murder and tampering with evidence. He presents six
assignments of error. He claims that the charges against him should have been dismissed
due to the eight-and-a-half year delay between the commission of the offenses for which
he was charged and his indictment. He also asserts that the trial court erred in excluding
extrinsic evidence of a witness’s alleged prior inconsistent statements, that his convictions
were not supported by sufficient evidence and were against the manifest weight of the
evidence, that the trial court should have granted a mistrial or dismissed the charges
against him due to the state’s violation of discovery rules, and that his sentence is contrary
to law.
{¶2} Having reviewed the record, this court affirms Kemp’s convictions but finds
that the sentence imposed by the trial court for murder was contrary to law.
Accordingly, we vacate Kemp’s sentence and remand to the trial court for resentencing.
{¶3} Kemp’s convictions stem from the death of Sheila Scales. On June 28, 2002,
Scales was found dead on her dining room floor, having been stabbed numerous times.
The state’s witnesses provided the following account of the events leading up to her
death. {¶4} On June 27, 2002, Lorna Bates, a friend of Sheila’s, spoke with her on the
telephone as Sheila was getting ready to go out for the evening. Bates testified that “[i]t
was late” and that the two women began chatting sometime “after 10:00, 9:00, 10:00
o’clock.” While the women were talking, the victim “clicked off” to answer another
incoming phone call, then returned to her call with Bates. The victim told Bates that
“her baby’s father” had called, that he was close by, and that he wanted to come over to
drop something off for the baby.
{¶5} The two women continued talking until another call “clicked in.” The
victim answered the call and then once again returned to talking with Bates. She told
Bates that the baby’s father had called again and was about ten minutes away. The
women continued talking as the victim headed out to her porch. The victim told Bates
she wanted to meet him at the car because she did not want him to come into the house.
A few minutes later, the victim told Bates, “[H]ere comes my ex, or she [sic] referred to
him, the asshole, coming down the street in his van now.” Bates heard the victim walk
down the stairs to meet him, and the women agreed to talk again the next day. Bates
never spoke with the victim again.
{¶6} No evidence was admitted at trial regarding who the victim believed “her
baby’s father” was at the time she died; however, the state stipulated that, based on DNA
testing conducted in 2011, Kemp was not the child’s biological father.
{¶7} Kemp was one of Sheila’s ex-boyfriends. Several of the victim’s neighbors
testified that they saw Kemp, or a van similar to one he drove, at Sheila’s house during the evening of June 27, 2002, or the early morning hours of June 28, 2002. Neighbor
Donald Avery, who knew Kemp, testified that Kemp frequently visited Sheila’s house,
and that he spoke with Kemp for a few minutes before Kemp went into Sheila’s house at
around 11:30 p.m. or midnight that evening. His brother, Douglas Avery, also saw
Kemp enter Sheila’s house. He did not see Kemp leave, but as it was getting late, he saw
an African-American male of similar size and build to Kemp run out of Sheila’s house
without his shirt on. He could not state whether Kemp was the person he saw.
{¶8} On the evening of the murder, Tomiko Grant was sitting outside on Donald
Avery’s porch. She testified that she saw Sheila talking to an African-American male on
her porch at around 10:00 or 11:00 p.m. She could not identify the man, but assumed
they “were together” because she had seen the man at the victim’s home multiple times,
and he was the only male she had ever seen over there. She did not see the man leave,
but when she returned from getting food at approximately 1:30 a.m., he was gone.
{¶9} Neighbor Rachelle Pugh testified that at approximately 1:45 a.m., she saw an
older model grey or black van on the street in front of the victim’s house. She went into
her house and a few minutes later she observed the van, driven by an African-American
male, make a number of unusual movements. She saw the van back into Sheila’s
driveway, pause briefly, pull out, pull into another driveway two houses down, back out,
pull into Sheila’s driveway again, and pull out again.
{¶10} There was no evidence anyone else had entered or left the victim’s house
that evening or the following morning. {¶11} On June 28, 2002, Sheila’s mother, Vickie Scales, went to her daughter’s
house to pick up her grandson for a weekend visit. When she arrived, the front door was
wide open, the child was crying, and her daughter was dead on the dining room floor.
Vickie Scales could not find a phone, so she ran out of the house and asked a neighbor to
call 911.
{¶12} A few minutes later, Officer Lee Davis arrived at the scene. He testified
that there was no sign of forced entry and that, based on the lack of blood beneath the
victim’s body on the dining room rug and streaks of blood on the kitchen floor, blood
residue in the kitchen sink, and blood that had splattered down into the basement from a
vent in the kitchen, the victim’s body appeared to have been dragged from the kitchen to
the dining room, and someone had attempted to clean up the blood in the kitchen.
{¶13} According to the coroner, Sheila sustained incised wounds to her chin and
neck and three deep stab wounds to her right breast. A deep stab wound to her right
chest that penetrated her rib, lung, and liver was the cause of death. The coroner could
not state with certainty how long Sheila survived after she sustained this fatal injury but
testified that, based on the depth of the wound, her lungs filling with blood, and the
amount of blood loss, Sheila would have likely died within “a matter of minutes.”
{¶14} Based on the fact that there appeared to be no penetration of any major
vessel or any injury to her central nervous system, defense expert Dr. Edward Cornett
offered a slightly longer time line, opining that Sheila could have lived 20-30 minutes or
longer after sustaining the fatal stab wound. {¶15} At around the same time Sheila’s body was found, Kemp and his parents
approached a neighbor, Euclid Police Captain Leonard Nosse, indicating that they had
something they wanted to tell him. Kemp told Nosse that he had gone over to the
victim’s house on the evening of June 27, 2002, that he had left for approximately thirty
minutes, and that, when he returned, the front door was ajar, and the victim was lying on
the floor in a pool of blood. Nosse recommended that Kemp turn himself in, and after
confirming that Cleveland police were investigating an incident that matched Kemp’s
description, made arrangements for Kemp to be transported to the scene. Kemp was
transported to the scene and then ultimately to the police station for questioning.
{¶16} Kemp also told his story to Detectives James Baird and Tim Entenok.
Based on his statements to the detectives, Kemp claimed to have arrived at the victim’s
home sometime between 6:00 and 8:00 p.m. on June 27, 2002. He stated that he and the
victim had smoked some marijuana and that he left at around 9:30 or 10:00 p.m. to buy
more. Kemp claims that when he returned to the house at around 11:00 or 11:30 p.m.,
the front door was ajar, and he found the victim lying on the dining room floor with her
head pointing toward the kitchen, in a pool of blood. According to Kemp, the victim was
still alive when he found her. He claims that as he held her, she died in his arms. Kemp
did not call EMS or the police. Instead, when he discovered he had the victim’s blood on
his clothing, he panicked. He waited for thirty minutes, debating about what to do, and
ultimately decided to leave. To avoid being “railroaded,” Kemp took off his shirt and wiped off the back door and front and back door knobs. He disposed of his clothing in a
dumpster, and then went home to his girlfriend, Leandra Wright.
{¶17} Wright testified that after Kemp came home, he did not act like himself.
Unlike other days, when Kemp came home on June 28, 2002, he did not wake Wright to
talk about his day. That next morning, he remained in bed until after Wright left, which
was unusual, and told Wright to take his van rather than her own vehicle to go over to her
sister’s house, which was also unusual. Wright testified that the van was “super clean”
and smelled like a fragrance.
{¶18} Later that afternoon, Kemp and his friend Lashown Malliener met Wright at
her sister’s house and told her what had happened. According to Wright, Kemp told her
that he had been at an ex-girlfriend’s house drinking beer. He left to buy some more beer
and when he returned, he found her in a pool of blood. Kemp told Wright that he did not
know if she was dead or alive but that he did not call 911; he just left. He told Wright
that a friend of the family was a police officer and that he was going to turn himself in
because “he didn’t do it.” Kemp and Malliener took the van and left. Wright never saw
the van again.
{¶19} Neither the clothing Kemp claimed to have discarded after he left the
victim’s home nor the van he drove around the time of the incident was ever recovered by
police.
{¶20} In addition to witness testimony, the state presented DNA evidence linking
Kemp to the victim. Cleveland homicide detective, Detective Entenok, was the lead investigator. He testified that by April 2003, all leads on the case had been exhausted
and the investigation had run cold. The case remained dormant until 2007, when the
Cuyahoga County Prosecutor’s Office received a federal grant to establish a Cold Case
Unit, and the case was revived. Previously collected samples obtained from underneath
the victim’s left and right fingernails were then tested for DNA. They were compared
with a DNA sample later obtained from Kemp in 2010. The DNA found under the
victim’s left fingernail was consistent with Kemp’s DNA. No other foreign DNA was
found.
{¶21} On December 15, 2010, nearly eight-and-a-half years after Sheila Scales’s
death, Kemp was indicted on one count of aggravated murder in violation of R.C.
2903.01(A) and one count of tampering with evidence in violation of R.C. 2921.12(A)(1).
On July 25, 2011, Kemp filed a motion to dismiss the charges against him due to the
state’s preindictment delay. The trial court denied the motion, and the case proceeded to
a jury trial.
{¶22} Following the conclusion of the state’s case, Kemp moved for acquittal
pursuant to Crim.R. 29. Determining that there was insufficient evidence of prior
calculation and design, the trial court granted Kemp’s motion and reduced the aggravated
murder charge to a charge of murder. After considering all the evidence, the jury found
Kemp guilty of murder in violation of R.C. 2903.02(A) and tampering with evidence in
violation of R.C. 2921.12(A)(1). {¶23} Kemp was sentenced to life in prison, with eligibility for parole after 15
years, on Count 1, and 36 months on Count 2, to be served concurrently. After the trial
court imposed its sentence, Kemp filed his notice of appeal, seeking to have his
convictions vacated or reversed.
{¶24} He presents six assignments of error for review:
I. The trial court erred by not dismissing the charges against Appellant due to preindictment delay.
II. The trial court erred in violation of the Sixth and Fourteenth Amendments to the United States Constitution, and Article I, Section 10 of the Ohio Constitution which provide rights to Confrontation and Cross-examination, and when it did not permit a witness to testify about prior inconsistent statements.
III. The State failed to present sufficient evidence to sustain a conviction against Appellant.
IV. Appellant’s convictions are against the manifest weight of the evidence.
V. Appellant was denied his right to a fair trial when the State of Ohio failed to comply with the discovery rules.
VI. Appellant’s sentence is contrary to law.
Preindictment Delay
{¶25} In his first assignment of error, Kemp claims that the trial court erred in
refusing to dismiss the charges against him due to the state’s preindictment delay.
Kemp contends that the eight-and-a-half year delay between the commission of the
offenses with which he was charged and his indictment prejudiced his defense and
warranted dismissal of the charges against him. {¶26} In reviewing a decision on a motion to dismiss for preindictment delay, we
accord deference to the trial court’s findings of fact but engage in a de novo review of the
trial court’s application of those facts to the law. State v. Wade, 8th Dist. No. 90029,
2008-Ohio-4574, ¶ 45, citing State v. Henley, 8th Dist. No. 86591, 2006-Ohio-2728.
{¶27} “An unjustifiable delay between the commission of an offense and a
defendant’s indictment * * * which results in actual prejudice to the defendant, is a
violation of the right to due process of law * * * .” State v. Luck, 15 Ohio St.3d 150, 472
N.E.2d 1097 (1984), paragraph two of the syllabus. “To warrant dismissal on the basis
of preindictment delay, a defendant must present evidence establishing substantial
prejudice.” State v. Walls, 96 Ohio St.3d 437, 2002-Ohio-5059, 778 N.E.2d 829, ¶ 51,
citing State v. Whiting, 84 Ohio St.3d 215, 217, 702 N.E.2d 1199 (1998). If the
defendant establishes prejudice, then the state has the burden of producing evidence of a
justifiable reason for the delay. Id.
{¶28} The determination of whether a defendant has sustained “actual prejudice”
as a result of a preindictment delay “involves ‘a delicate judgment based on the
circumstances of each case.’” Id. at ¶ 52, quoting United States v. Marion, 404 U.S. 307,
325, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971). The court must consider “the evidence as it
exists when the indictment is filed and the prejudice the defendant will suffer at trial due
to the delay.” Id. To establish actual prejudice, the defendant must demonstrate the
exculpatory value of the alleged missing evidence. Wade at ¶ 45. “In other words, a
defendant must show how lost witnesses and physical evidence would have proven the defendant’s asserted defense.” Id. at ¶ 48, quoting State v. Robinson, 6th Dist. No.
L-06-1182, 2008-Ohio-3498, ¶ 121. Prejudice is not presumed solely due to a lengthy
delay. State v. Copeland, 8th Dist. No. 89455, 2008-Ohio-234, ¶ 14 (ten-year delay
between crime and indictment did not support dismissal of charges where defendant did
not present evidence of substantial prejudice).
{¶29} Kemp argues that if the case had been prosecuted sooner, he “might have
been able to find” exculpatory evidence that was no longer available at the time of his
indictment. His motion to dismiss below originally focused on the prejudice he claimed
to have sustained as a result of his inability to locate witness Lorna Bates. However,
Bates was located before the hearing on Kemp’s motion, her contact information was
provided to the defense, defense counsel had an opportunity to speak with Bates several
months before the trial, and she testified at trial. Accordingly, the delay in Kemp’s
indictment did not result in any actual prejudice to Kemp as it relates to witness Lorna
Bates.
{¶30} Kemp also claims that there may have been additional, unidentified
witnesses, who no longer live in the neighborhood and who could no longer be located by
the time he was indicted, who may have observed two vans at the scene or other evidence
possibly implicating someone else as the murderer. He further contends that if he had
been indicted sooner, he could have investigated and determined the identity of Sheila’s
son’s biological father and shifted the focus of the police investigation on him. {¶31} Although some evidence may have been lost over the years, Kemp’s vague
claims of prejudice relating to unknown potential witnesses and other possible
exculpatory evidence that may have existed are speculative at best. Likewise, Kemp’s
supposition that, if he had been indicted sooner, he could have by some unspecified
means determined Sheila’s son’s biological father and shifted the focus of the
investigation on him, does not establish actual prejudice. Because Kemp has not shown
“by concrete proof, the exculpatory value of any alleged missing evidence,” he has failed
to demonstrate actual, substantial prejudice resulting from the state’s delay in bringing the
charges against him. Wade, 2008-Ohio-4574, at ¶ 48, quoting Robinson,
2008-Ohio-3498, at ¶ 121. Accordingly, the trial court did not err in denying Kemp’s
motion to dismiss based on preindictment delay. Kemp’s first assignment of error is
overruled.
Prior Inconsistent Statement
{¶32} In his second assignment of error, Kemp contends that trial court abused its
discretion and denied him his constitutional rights of confrontation and cross-examination
by excluding evidence of prior statements the victim’s mother made to Cleveland
homicide detective, Tim Entenok, in 2002, regarding paternity testing that had been
performed on the victim’s son. Kemp argues that because the victim’s mother testified at
trial that she did not know the identity of Sheila’s son’s father, extrinsic evidence of her
prior statements to police regarding his paternity should have been admitted under
Evid.R. 613(B) to impeach her testimony. This court disagrees. {¶33} The decision whether to admit or exclude evidence at trial falls within the
sound discretion of the trial court. State v. Robb, 88 Ohio St.3d 59, 69, 723 N.E.2d 1019
(2000). The record must reflect an abuse of discretion, i.e., that the trial court acted in an
unreasonable, arbitrary, or unconscionable manner, in order for an appellate court to
disturb a ruling of the trial court as to the admissibility of evidence. State v. Pruitt, 8th
Dist. No. 98080, 2012-Ohio-5418, ¶ 10, citing State v. Hamilton, 8th Dist. No. 86520,
2006-Ohio-1949, ¶ 19.
{¶34} Evid.R. 613(B) governs the admissibility of extrinsic evidence of a prior
inconsistent statement. It states, in relevant part:
Extrinsic evidence of a prior inconsistent statement by a witness is admissible if both of the following apply:
(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 * * *.
{¶35} Extrinsic evidence is not admissible under Evid.R. 613(B) unless a proper
foundation is laid for its admission. A foundation must be established through direct 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 regarding the inconsistent statement. State v. Morgan, 8th Dist. No. 97934, 2012-Ohio-4937, ¶ 14-15, citing State v. Theuring, 46 Ohio
App.3d 152, 155, 546 N.E.2d 436 (1st Dist.1988).
{¶36} If a witness denies making the statement, extrinsic evidence of the statement
is generally admissible; provided, the evidence does not relate to a collateral matter.
State v. Soke, 105 Ohio App.3d 226, 239, 663 N.E.2d 986 (8th Dist.1995), citing State v.
Riggins, 35 Ohio App.3d 1, 3, 519 N.E.2d 397 (8th Dist.1986). If, however, the witness
admits making the prior statement, the trial court does not abuse its discretion by
thereafter refusing to admit extrinsic evidence of that statement. State v. Eason, 8th Dist.
No. 66060, 1994 Ohio App. LEXIS 4636, *13 (Oct. 13, 1994), citing State v. Johnson, 10
Ohio App.3d 14, 460 N.E.2d 625 (10th Dist.1983); Theuring, 46 Ohio App.3d at 155, 546
N.E.2d 436; see also State v. Pierce, 2d Dist. No. 24323, 2011-Ohio-4873, ¶ 82 (“‘[I]f the
witness admits making the conflicting statement, then there is no need for extrinsic
evidence.’”), quoting State v. Harris, 2d Dist. No. 14343, 1994 Ohio App. LEXIS 5763,
*22 (Dec. 21, 1994).
{¶37} If an inconsistency “relates to a matter only collateral to the issue of [the]
defendant’s guilt,” extrinsic evidence of a prior inconsistent statement may be properly
excluded. Eason at *13-14. The decision whether to admit evidence of a prior
inconsistent statement that is collateral to the issues being tried is a matter within the trial
court’s discretion. Riggins, 35 Ohio App.3d at 3, 519 N.E.2d 397.
{¶38} During her cross-examination by defense counsel, Vickie Scales was asked
whether paternity tests had been conducted to determine the identity of Sheila’s son’s father. She testified that several tests had been performed but that his father had never
been determined. She further testified that she was questioned by police regarding
paternity testing in 2002 and that she had told police, at that time, that Bobby Hall was
Sheila’s son’s father, but that he had been later “ruled out” as the father.
Q. [Y]ou talked to the police about who the father was back in 2002 though, correct?
A. Yes. They approached me. Yes.
Q. And at that time, you had indicated to the police that she was tested for paternity, correct?
A. Uh-huh.
Q. And you indicated that Bobby Hall was the father, had you not?
A. Right. And he was ruled out.
{¶39} Later on in his cross-examination, defense counsel asked the witness
whether she “remember[ed] saying [to police in 2002] that DNA testing were [sic]
performed and results showed that Hall was the father.” She testified that she did not
remember that and that she was “not sure what [she] told them.” Defense counsel did
not conduct any further questioning of Vickie Scales regarding this issue.
{¶40} Kemp asserts that Detective Entenok would have testified that he had a
conversation with the victim’s mother in 2002 in which she told him that the victim had
had a paternity test performed that showed that Bobby Hall was her son’s father.
Because Vickie Scales admitted, during defense counsel’s cross-examination, to making
the very statement defense counsel sought to introduce through Detective Entenok, i.e., that she had told police in 2002 that Sheila’s son “was tested for paternity” and that
“Bobby Hall was the father,” her testimony at trial was not inconsistent with her prior
statement and extrinsic evidence of that prior statement was, therefore, not admissible
under Evid.R. 613(B). See, e.g., Eason, 1994 Ohio App. LEXIS 4636 at *13.
{¶41} Neither Vickie Scales’s response to further questioning by defense counsel
that she did not recall what she told police regarding “DNA testing” nor her trial
testimony that Bobby Hall was ultimately “ruled out” as Sheila’s son’s father, negates her
acknowledgment on the witness stand that she previously told police that Bobby Hall was
his father or establishes a foundation for the admissibility of extrinsic evidence of her
prior statements to impeach her testimony under Evid.R. 613(B).
{¶42} Further, Vickie Scales’s testimony regarding Sheila’s son’s paternity was
“not a fact of consequence to the determination of the action,” i.e., whether Kemp
murdered Sheila Scales; it related to a matter collateral to the determination of Kemp’s
guilt. As such, extrinsic evidence of her prior statement was properly excluded for this
reason as well. See, e.g., State v. Cowen, 8th Dist. No. 96969, 2012-Ohio-3682, ¶ 24.
Accordingly, the trial court did not abuse its discretion in excluding testimony from
Detective Entenok regarding Vickie Scales’s prior statements. Kemp’s second
assignment of error is overruled.
Sufficiency and Manifest Weight of the Evidence
{¶43} In his third and fourth assignments of error, Kemp challenges both the
sufficiency and the weight of the evidence presented at trial to support his convictions for murder and tampering with evidence. He contends that the state’s theory that he
committed these crimes was not supported by any reliable, credible evidence. Although
they involve different standards of review, because they involve interrelated issues and a
review of the same evidence, Kemp’s third and fourth assignments of error are addressed
together.
{¶44} A challenge to the sufficiency of the evidence supporting a conviction
requires a determination of whether the state has met its burden of production at trial.
State v. Hunter, 8th Dist. No. 86048, 2006-Ohio-20, ¶ 52. When reviewing sufficiency
of the evidence, an appellate court must determine “‘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. Leonard,
104 Ohio St.3d 54, 2004-Ohio-6235, 818 N.E.2d 229, ¶ 77, quoting State v. Jenks, 61
Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus.
{¶45} Kemp was convicted of murder in violation of R.C. 2903.02(A) and
tampering with evidence in violation of R.C. 2921.12(A)(1). R.C. 2903.02(A) provides,
in relevant part: “No person shall purposely cause the death of another * * *.” R.C.
2921.12(A)(1) states:
No person, knowing that an official proceeding or investigation is in progress, or is about to be or likely to be instituted, shall * * * [a]lter, destroy, conceal, or remove any record, document, or thing, with purpose to impair its value or availability as evidence in such proceeding or investigation. {¶46} Kemp argues that his convictions must be reversed because the state did not
establish he had any motive to murder Sheila Scales and because there was no direct
testimony or any forensic evidence “linking him to any crime.” This court disagrees.
{¶47} Proof of motive is not required to sustain a conviction. “[P]roof of motive
does not establish guilt, nor does want of proof thereof establish innocence; and, where
the guilt of the accused is shown beyond a reasonable doubt, it is immaterial what the
motive may have been for the crime, or whether any motive is shown.” State v. Allen,
8th Dist. No. 85530, 2005-Ohio-4813, ¶ 15, citing State v. Lancaster, 167 Ohio St. 391,
149 N.E.2d 157 (1958), paragraph two of the syllabus. Accordingly, the state’s failure to
establish a clear motive is not a sufficient basis upon which to reverse Kemp’s
convictions.
{¶48} The record reflects that the case against Kemp was based, in large part, on
circumstantial evidence. However, guilt may be proved by circumstantial evidence, real
evidence, direct evidence — or any combination of the three. State v. Primeau, 8th Dist.
No. 97901, 2012-Ohio-5172, ¶ 30, citing State v. Nicely, 39 Ohio St.3d 147, 529 N.E.2d
1236 (1988); Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492. Circumstantial evidence has no
less probative value than direct or testimonial evidence. Primeau at ¶ 30, citing Jenks at
paragraph one of the syllabus. Indeed, circumstantial evidence may, at times, be “more
certain, satisfying and persuasive than direct evidence.” State v. Lott, 51 Ohio St.3d 160,
167, 555 N.E.2d 293 (1990). {¶49} The Ohio Supreme Court “has ‘long held that circumstantial evidence is
sufficient to sustain a conviction if that evidence would convince the average mind of the
defendant’s guilt beyond a reasonable doubt.’” State v. Cassano, 8th Dist. No. 97228,
2012-Ohio-4047, ¶ 13-15, quoting State v. Heinish, 50 Ohio St.3d 231, 238, 553 N.E.2d
1026 (1990). The question is whether the state presented sufficient evidence that, if
believed, would support the jury’s convictions of murder and evidence tampering beyond
a reasonable doubt, i.e., whether there was sufficient evidence that Kemp “purposely
cause[d] the death” of Sheila Scales and “[a]lter[ed], destroy[ed], conceal[ed], or
remove[d] any * * * thing, with purpose to impair its value or availability as evidence”
knowing that an investigation was “about to be or likely to be instituted.”
{¶50} In this case, the state presented sufficient “satisfying and persuasive”
evidence supporting the jury’s determination that Kemp murdered Sheila Scales and
engaged in evidence tampering.
{¶51} In statements he made to police and others, Kemp admitted that he was at
the victim’s house at the time of her death and that he destroyed evidence that he knew
would be relevant to the subsequent investigation of Sheila’s murder.
{¶52} Several neighbors, including brothers Douglas and Donald Avery, who
knew Kemp, testified to seeing Kemp at the victim’s house that evening. Other
witnesses observed a van similar to that driven by Kemp at the victim’s house and later
making erratic, suspicious movements in and around the victim’s driveway. No one was else was identified as having entered or left the victim’s home that evening.
Investigators testified that there was no sign of any forced entry.
{¶53} Further, Kemp’s story regarding the condition in which he claimed to have
found the victim did not match the physical evidence that was found at the scene.
Whereas Kemp told investigators that when he found the victim, she was still alive, lying
in a pool of blood on the dining room floor, investigators testified that, based on the
physical evidence, the victim was stabbed in the kitchen and her body dragged from the
kitchen into the dining room; the rug on the dining room floor where the victim’s body
was found contained no blood.
{¶54} In addition, DNA consistent with Kemp’s DNA was found underneath the
victim’s left fingernail. Kemp attempts to minimize the significance of the state’s DNA
evidence, arguing that it could have resulted from casual contact he had with the victim.
However, no other foreign DNA was found. Kemp also points out that 42 other items
were tested relating to the case or crime scene and that none contained any DNA from
Kemp or any other physical evidence linking Kemp to the crime. However, Kemp told
investigators that he threw away the clothes that he was wearing when he was with the
victim. These clothes were never recovered. Kemp further admitted to destroying
evidence that would have established his presence at the crime scene, including wiping
off the back door and front and back door knobs. Accordingly, it is not surprising that
there was nothing further from the crime scene that was tested directly linking Kemp to
Sheila’s murder. {¶55} Kemp also contends that because the victim told Lorna Bates that “her
baby’s father” was coming over and that DNA testing conducted by the state in 2011
established that Kemp was not the father of the victim’s son, there must have been
another person in the victim’s home the night of the murder who also drove a van and
killed her. However, this is not the only inference the jury could have reasonably drawn
from the evidence. It is not clear who the victim believed “her baby’s father” was at the
time she died — whether it was Kemp or someone else.
{¶56} Further, Kemp’s actions after he claimed to have discovered the victim —
his failure to call 911 or EMS, his destruction of evidence at the crime scene, his
abnormal behavior following the incident, and the subsequent disappearance of his
unusually “super clean” van — are consistent with guilt, not someone who had no role in
Sheila’s death.
{¶57} Kemp asked the jury to believe that during the brief period of time he left
the victim’s house to get more marijuana, someone else — whom none of the neighbors
saw — entered the victim’s house, stabbed her numerous times, and then, within a matter
of minutes, dragged the still living victim from the kitchen to the dining room, attempted
to clean up the blood in the kitchen, and escaped from the house without detection before
Kemp came back to witness the victim’s final, dying breath. Kemp maintains that
because “his story” was “not physically impossible,” “consistent within itself,” and
“consistent with available evidence,” the jury lacked a sufficient basis upon which to convict him. However, the jury was entitled to disbelieve Kemp’s implausible version
of events.
{¶58} As with all circumstantial evidence, nothing in the state’s case directly
proved that Kemp murdered Sheila Scales. But the state’s evidence could well have
convinced the jury that “the application of various facts formed a larger picture that, when
viewed as [a] whole, made a compelling case for [Kemp’s] guilt.” State v. Cassano, 8th
Dist. No. 97228, 2012-Ohio-4047, ¶ 19.
{¶59} Viewing the evidence in a light most favorable to the prosecution, we
conclude that a rational jury could have found that the essential elements of the crimes of
which Kemp was convicted were proven beyond a reasonable doubt.
{¶60} We likewise find no merit to Kemp’s assertion that the jury’s verdict was
against the manifest weight of the evidence. When considering an appellant’s claim that
a conviction is against the manifest weight of the evidence, the reviewing court sits as a
thirteenth juror and may disagree with the factfinder’s resolution of conflicting testimony.
State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997), quoting Tibbs v.
Florida, 457 U.S. 31, 42, 102 S.Ct. 2211, 72 L.Ed. 2d 652 (1982). The reviewing court
must examine the entire record, weigh the evidence and all reasonable inferences,
consider the witnesses’ credibility, and determine whether, in resolving conflicts in the
evidence, the jury clearly lost its way and created such a manifest miscarriage of justice
that the conviction must be reversed and a new trial ordered. State v. Martin, 20 Ohio
App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). In its review, this court remains mindful that the credibility of witnesses and the weight of the evidence are matters
primarily for the jury to assess. State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212
(1967), paragraphs one and two of the syllabus.
{¶61} The power to reverse a conviction as against the manifest weight of the
evidence must be exercised with caution; a new trial is granted only in the exceptional
case in which the evidence weighs heavily against the conviction. Martin, supra. This
is not that case.
{¶62} As detailed above, in this case, the state’s witnesses presented credible,
consistent testimony linking Kemp to the murder. State v. Wilson, 8th Dist. No. 90267,
2008-Ohio-3354, ¶ 34-35. DNA evidence also supported Kemp’s convictions. Kemp’s
version of events was implausible and his actions inconsistent with someone who had no
involvement in Sheila Scales’s murder.
{¶63} Kemp maintains that neighbor Douglas Avery’s testimony regarding what
he claims to have seen the evening of Sheila’s murder was unreliable and should not have
been believed because Avery’s testimony that he and Kemp attended school together at
Lincoln West conflicted with testimony by retired Euclid Police Captain Leonard Nosse
that Kemp’s family lived down the street from the Nosse family and attended Euclid High
School with his son. However, “[a] conviction is not against the manifest weight of the
evidence solely because the jury heard inconsistent testimony.” Wade, 2008-Ohio-4574,
at ¶ 38, quoting State v. Asberry, 10th Dist. No. 04AP-1113, 2005-Ohio-4547, ¶ 11. The
jury was in the best position to weigh the witnesses’ credibility. Any inconsistencies in witness testimony regarding where Kemp may have gone to school more than ten years
ago or where Avery may have first come to know Kemp were not of the sort that would
lead us to find a manifest miscarriage of justice.
{¶64} The jury weighed credibility and it, as the factfinder, was free to believe all,
part, or none of the testimony of each witness. It was well within the province of the jury
to credit the version of events offered by the state and to reject the implausible version of
events offered by Kemp. After examining the entire record, weighing the evidence, and
considering the credibility of the witnesses, we do not find that the jury lost its way or
created a manifest miscarriage of justice in convicting Kemp of Sheila Scales’s murder
and tampering with evidence. The state’s case contained substantial evidence upon
which the jury could reasonably conclude, beyond a reasonable doubt, that each element
of the charged offenses had been established. Accordingly, we overrule Kemp’s third
and fourth assignments of error.
Discovery Violation
{¶65} In his fifth assignment of error, Kemp argues that the trial court should have
declared a mistrial and dismissed the charges against him based on the state’s failure to
disclose phone records showing a call from a landline at Kemp’s mother’s home to the
victim’s home at around midnight the evening Sheila Scales was murdered. The
omission was discovered by defense counsel during his cross-examination of Detective
Entenok as he questioned the detective regarding whether police had ever obtained any
cell-phone records showing calls from Kemp to the victim the evening of the incident. The detective responded that they had not obtained Kemp’s phone records but did obtain
incoming phone records that showed a call from Kemp’s mother’s house to the victim’s
house.
{¶66} After eliciting this testimony, Kemp moved for a mistrial. The trial court
denied Kemp’s request for a mistrial but instructed the jury to disregard the detective’s
testimony relating to the telephone call.
{¶67} Upon receipt of a written demand for discovery from a defendant, Crim.R.
16(B) requires that the state disclose documents and other materials
related to the particular case indictment, information, or complaint, and which are material to the preparation of a defense, or are intended for use by the prosecuting attorney as evidence at the trial, or were obtained from or belong to the defendant, [that are] within the possession of, or reasonably available to the state.
Crim.R. 16(B). The state did not dispute that the phone records should have been
disclosed to Kemp under Crim.R. 16, but claimed that any nondisclosure was simply an
“oversight.”
{¶68} The trial court has discretion to fashion a remedy for discovery violations
that are discovered during trial. Crim.R. 16(L)(1) provides in pertinent part:
If at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with this rule * * * the court may order such party to permit the discovery or inspection, grant a continuance, or prohibit the party from introducing in evidence the material not disclosed, or it may make such other order as it deems just under the circumstances.
{¶69} “It is within the trial court’s sound discretion to decide what sanction to
impose for a discovery violation.” State v. Darmond, 8th Dist. Nos. 96373 and 96374, 2011-Ohio-6160, ¶ 14, citing Lakewood v. Papadelis, 32 Ohio St.3d 1, 3, 511 N.E.2d
1138 (1987). A trial court’s discovery sanction will not be overturned unless it was
unreasonable, unconscionable, or arbitrary. Id., citing State v. Engle, 166 Ohio App.3d
262, 2006-Ohio-1884, 850 N.E.2d 123, ¶ 7 (3d Dist.).
{¶70} As this court has previously explained:
A mistrial should not be ordered in a criminal case merely because some error or irregularity has occurred, unless the substantial rights of the accused adversely are affected * * *. State v. Reynolds (1988), 49 Ohio App.3d 27, 33, 550 N.E.2d 490. A mistrial is necessary only when a fair trial no longer is possible. State v. Franklin (1991), 62 Ohio St.3d 118, 127, 580 N.E.2d 1, citing Illinois v. Somerville (1973), 410 U.S. 458, 462-463, 93 S.Ct. 1066, 35 L.Ed.2d 425. Thus, the essential inquiry on a motion for mistrial is whether the substantial rights of the accused were adversely or materially affected. State v. Goerndt, Cuyahoga App. No. 88892, 2007-Ohio-4067, ¶ 21.
***
[W]hen the prosecution fails to disclose potentially exculpatory evidence, the trial court must consider the following factors in deciding the appropriate way to ensure the fairness of the proceeding: 1) whether the prosecution’s failure to disclose was a willful violation of Crim.R. 16; 2) whether foreknowledge of the evidence would have benefitted the accused in the preparation of his defense; and, 3) whether the accused is prejudiced by admission of the evidence. State v. Saucedo, Cuyahoga App. No. 90327, 2008-Ohio-3544, at ¶ 25, citing State v. Parson (1983), 6 Ohio St.3d 442, 445, 453 N.E.2d 689. State v. Smith, 8th Dist. No. 95541, 2011-Ohio-3581, ¶ 21-24. {¶71} Kemp cites State v. Larkins, 8th Dist. No. 85877, 2006-Ohio-90, in support
of his position that the trial court should have granted his request for a mistrial and
dismissed the charges against him as a sanction for the state’s failure to disclose the
telephone records. In Larkins, this court affirmed the trial court’s dismissal of the
defendant’s indictment as a sanction for the state’s violation of Crim.R. 16. The state had willfully withheld exculpatory material from the defendant, including information
that called into question the state’s identification of the defendant as the perpetrator,
resulting in prejudice to the defendant. Id. at ¶ 43-48. The prejudice to the defendant
could not be cured by a new trial or other means because nearly twenty years had passed,
eight witnesses for the defense were deceased, numerous other witnesses had unknown
addresses, and to present the witnesses’ prior testimony would have been useless because
none of the witnesses had been previously questioned about the exculpatory evidence.
Id. at ¶ 51. Larkins is the “extraordinary case” in which prejudice caused to the
defendant as a result of the state’s failure to disclose exculpatory evidence could not be
cured except by a dismissal. Id. This is not such a case.
{¶72} First, there is no evidence in this case that the state’s failure to disclose the
telephone records was willful. Nor are the telephone records exculpatory. Further,
although Kemp asserts it is “quite likely” his defense strategy would “have been
different” had the phone records been previously disclosed, we cannot conclude that
Kemp was prejudiced. When a trial court has sustained an objection and provided a
curative instruction, we must presume — in the absence of any evidence to the contrary
— that the jury followed the trial court’s instruction. State v. Allen, 8th Dist. No. 96014,
2011-Ohio-4821, ¶ 32-33; State v. Garner, 74 Ohio St.3d 49, 59, 656 N.E.2d 623 (1995).
{¶73} The trial court was in the best position to determine which sanction under
Crim.R. 16(L) was most appropriate in this case. After hearing the parties’ arguments,
the trial court chose to exclude the evidence and give a curative instruction to the jury. We cannot state, based on the record, that the trial court’s decision was arbitrary,
unreasonable, or unconscionable. State v. Person, 174 Ohio App.3d 287,
2007-Ohio-6869, 881 N.E.2d 924, ¶ 12-13 (1st Dist.). Accordingly, Kemp’s fifth
Sentence
{¶74} In his sixth assignment of error, Kemp argues that the trial court erred in
sentencing Kemp to “[l]ife in prison with eligibility of parole after 15 years” on the
murder count instead of “an indefinite term of fifteen years to life.”
{¶75} Pursuant to R.C. 2929.02(B)(1), “whoever is convicted of or pleads guilty to
murder in violation of section 2903.02 of the Revised Code shall be imprisoned for an
indefinite term of fifteen years to life.” Accordingly, the sentence imposed by the trial
court is contrary to R.C. 2929.02(B)(1); Kemp should have been sentenced to “an
indefinite term of fifteen years to life.”
{¶76} Because the sentence the trial court imposed for murder was contrary to law,
Kemp’s sixth assignment of error is sustained. Kemp’s sentence is reversed and vacated,
and the matter is remanded to the trial court for resentencing in accordance with this
opinion.
{¶77} Convictions affirmed; sentence vacated and remanded for resentencing.
It is ordered that appellee and appellant share the costs herein taxed.
The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate be sent to said court to carry this judgment into
execution. The defendant’s convictions having been affirmed, any bail pending appeal is
terminated. Case remanded to the trial court for resentencing.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
____________________________________ KENNETH A. ROCCO, JUDGE
SEAN C. GALLAGHER, P.J., and KATHLEEN A. KEOUGH, J., CONCUR