State v. Leigh

2023 Ohio 91, 206 N.E.3d 37

• Court: Ohio Court of Appeals
• Decided: January 13, 2023
• Docket: 28821
• Status: Published

Opinion

[Cite as State v. Leigh, 2023-Ohio-91.]

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

STATE OF OHIO : : Appellee : C.A. No. 28821 : v. : Trial Court Case No. 18-CR-3087 : BRANDON WILLIAM LEIGH : (Criminal Appeal from Common Pleas : Court) Appellant : :

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OPINION

Rendered on January 13, 2023

MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Attorney for Appellee

MICHAEL T. COLUMBUS, Attorney for Appellant

............. -2-

EPLEY, J.

{¶ 1} After being bound over from juvenile court, Appellant Brandon William Leigh

was found guilty after a jury trial of murder, involuntary manslaughter, and improperly

discharging a firearm at or into a habitation. Each of those charges included a firearm

specification. In addition, the trial court found him guilty following a bench trial of having

weapons while under disability. The court sentenced Leigh to an aggregate term of 30

years to life in prison and ordered him to pay restitution.

{¶ 2} Leigh appeals from his convictions, raising five assignments of error. He

argues that (1) the trial court committed reversible error by admitting a witness’s probable

cause hearing testimony; (2) the trial court committed reversible error by allowing

testimony that Leigh sent messages via Facebook Messenger, which contained hearsay

and discussed other bad acts; (3) defense counsel rendered ineffective assistance; (4)

cumulative error deprived Leigh of a fair trial; and (5) the State failed to prove all of the

elements of the charged offenses. For the following reasons, the trial court’s judgment

will be affirmed.

I. Facts and Procedural History

{¶ 3} According to the State’s evidence at trial, at approximately 8:20 p.m. on

February 16, 2018, multiple gunshots were fired into the rear of the home of Jacqueline

Mooty, located at 122 Lorenz Avenue in Dayton. The shots came from an alley behind

the home. When the shooting occurred, Mooty was home with her boyfriend, her six

children (ranging in age from 6 to 22 years old), her two-year-old granddaughter, and

others. Keyona Murray, Mooty’s 22-year-old daughter, was shot in the head in Mooty’s -3-

first-floor rear bedroom. Keyona, who was approximately 11-weeks’ pregnant, died from

her injuries at the hospital.

{¶ 4} The main issue at trial was the identity of the shooter. One of Keyona’s

brothers, Marrico Murray, testified that he had met Leigh through his (Marrico’s) close

friend, Shareef Tillman. Marrico communicated with Leigh using Facebook Messenger,

where Leigh used the profile name “Brando So Humble.” On February 14, 2018, while

Marrico, Tillman, and Leigh were together, Leigh showed the others his 9mm handgun.

Marrico testified that Tillman put the gun in his pocket and left with it. Believing that

Marrico had stolen the gun, Leigh then sent Marrico a series of messages that Marrico

interpreted as warnings to return the gun. On February 15, 2018, the day before the

shooting, Marrico received a final message from Leigh, indicating “it’s on now,” as Marrico

interpreted it.

{¶ 5} Marrico did not immediately identify Leigh as a suspect to the police. After

additional questioning several days following the shooting, Marrico showed the Facebook

messages to detectives. During the investigation, Detective Zachary Farkas obtained

additional Facebook messages between Leigh and several other individuals in which

Leigh discussed getting robbed and his efforts to locate Marrico.

{¶ 6} Two additional State’s witnesses connected Leigh to the shooting. Aleea

Lee, who thought of Leigh as a son, testified that, at approximately 7:30 to 8:00 p.m. on

the night of the shooting, she drove Leigh to a recreation center near Third Street and

James H. McGee Boulevard. Between 8:30 and 8:45 p.m., Leigh asked to be picked up

at the intersection of Oakridge Drive and Gramont Avenue, a location near 122 Lorenz -4-

Avenue.

{¶ 7} Angela Williams, who had lived at Lee’s home with her girlfriend, stated that

a few days prior to the shooting, she overheard a conversation between Leigh and others

where Leigh spoke about “needing to get his sh*t back.” Williams stated that Leigh was

referring to a pistol. Williams also heard Leigh talk to his sister on the telephone about

meeting so that he could get another gun; he stated he needed it to get his property back.

Leigh had left shortly after the conversation with his sister. A few days after the shooting,

Leigh asked Williams if she had heard what had happened. When Williams asked Leigh

if he had something to do with it, Leigh told her that he was there and “did it.”

{¶ 8} During the afternoon of February 23, 2018, a week after the shooting, the

police went to Lee’s home and arrested Leigh. Before the police arrived at the house,

Lee and Leigh saw a detective drive by in a truck. Leigh said to Lee, “I’m about to go to

jail.”

{¶ 9} Leigh was 17 years old when the shooting occurred. Upon his arrest, he

was charged by complaint with murder in juvenile court. On April 3, 2018, the State filed

an amended complaint adding charges of involuntary manslaughter and improper

discharge of a firearm at or into a habitation, each with firearm specifications, as well as

having weapons while under disability. It further sought to have the matter transferred

to adult court. On August 3, 2018, the juvenile court conducted a probable cause hearing

during which four witnesses testified, including Angela Williams. The juvenile court

found that there was probable cause to believe that Leigh was responsible for the

offenses, and it ordered the case transferred to the general division of the common pleas -5-

court. On August 31, 2018, Leigh was indicted for murder, involuntary manslaughter,

and improper discharge of a firearm at or into a habitation, each with a firearm

specification. He was also indicted for having weapons while under disability.

{¶ 10} In March 2020, the matter proceeded to a bench trial on having weapons

while under disability and a jury trial on the remaining charges and specifications. The

State presented 13 witnesses and approximately 100 exhibits. Williams did not appear

for trial as required by subpoena, and the police were unable to locate her. The court

found that she was an unavailable witness, and it permitted an audio-recording of her

probable cause hearing testimony to be played for the jury.

{¶ 11} Leigh testified on his own behalf. He denied having a disagreement with

Marrico, sending all the Facebook messages that were presented at trial, and knowing

where Marrico lived. He stated that he had stopped using his “Brando So Humble”

account prior to February 2018. Leigh further testified that Lee did not take him to the

recreation center on February 16. He stated that he went to school that day, that Lee

picked him up and took him to her home, and that his mother picked him up around 8:30

p.m. and took him home. Leigh denied that he had committed the shooting, that he had

admitted to Williams that he did it, and that he had said that he was going to jail on

February 23. Leigh claimed that he had never been to 122 Lorenz Avenue.

{¶ 12} At the conclusion of the trial, Leigh was found guilty of all charges and

specifications. At sentencing, the trial court imposed an aggregate sentence of 30 years

to life in prison and ordered Leigh to pay restitution.

{¶ 13} Leigh appealed from his convictions. His original appellate counsel filed a -6-

brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493

(1967), stating that he could find no non-frivolous issues for appeal and requesting leave

to withdraw. Upon our initial review, we noted that the record was incomplete, making

the filing of an Anders brief inappropriate. We further commented that we were “troubled

by the filing of an Anders brief when the case involves a direct appeal from a conviction

on murder charges following a jury trial. It should be the truly rare case where counsel

finds no non-frivolous issues for review in such an appeal.” We emphasized that the

phrases “wholly frivolous” (the standard for an Anders brief) and “not meritorious” are not

synonymous, and that an Anders brief is not appropriate based on appellate counsel’s

determination that the defendant is not likely to prevail on appeal. Finally, we concluded

that at least one non-frivolous claim existed, including whether the convictions were

against the manifest weight of the evidence and whether the trial court erred in various

evidentiary rulings. We therefore set aside the Anders brief and appointed new counsel

for Leigh.

{¶ 14} Leigh, with new counsel, now raises five assignments of error, which we will

address in an order that facilitates our analysis.

II. Weight and Sufficiency of the Evidence

{¶ 15} In his fifth assignment of error, Leigh claims that the State failed to prove

that he discharged a firearm at a house, a key element of all his convictions. He states:

“[N]o one testified that Appellant ever possessed a firearm after Marrico took his.

Additionally, if he discharged a firearm in the neighborhood, no testimony established that

he did so with an awareness that a bullet would hit a house.” Leigh argues that, because -7-

the State failed to present evidence that he improperly discharged a firearm at or into a

habitation, all his convictions were based on insufficient evidence and against the

manifest weight of the evidence.

A. Standards for Sufficiency and Manifest Weight of the Evidence

{¶ 16} “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, 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.

{¶ 17} In contrast, “[a] weight of the evidence argument challenges the believability

of the evidence and asks which of the competing inferences suggested by the evidence

is more believable or persuasive.” (Citation omitted.) Wilson at ¶ 12; see Eastley v.

Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, 972 N.E.2d 517, ¶ 19. 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. Rather, we review the entire record, weigh the

evidence and all reasonable inferences, consider the credibility of witnesses, and

determine 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 -8-

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). A judgment of conviction should be

reversed as being against the manifest weight of the evidence only in exceptional

circumstances. Martin at 175.

{¶ 18} We recognize that, in other assignments of error, Leigh challenges the trial

court’s admission of certain evidence, including the Facebook messages and Williams’s

probable cause hearing testimony. However, when reviewing claims based on the

sufficiency or manifest weight of the evidence, we are required to consider all the

evidence admitted at trial, regardless of whether it was admitted erroneously. See State

v. Fleming, 2d Dist. Clark No. 2021-CA-40, 2022-Ohio-1876, ¶ 27, citing, e.g., State v.

Brewer, 121 Ohio St.3d 202, 2009-Ohio-593, 903 N.E.2d 284. Accordingly, we must

consider all the State’s evidence in conducting our analysis.

B. Improper Discharge of a Firearm at or into a Habitation

{¶ 19} Improper discharge of a firearm at or into a habitation, in violation of R.C.

2923.161(A)(1), was the predicate offense for Leigh’s murder and involuntary

manslaughter charges. In challenging his convictions, he therefore focuses on the

sufficiency of the State’s evidence in support of that predicate offense.

{¶ 20} R.C. 2923.161(A)(1) provides that “[n]o person, without privilege to do so,

shall knowingly * * * [d]ischarge a firearm at or into an occupied structure that is a

permanent or temporary habitation of any individual[.]” An “occupied structure” is

defined, in part, as a house or building, “occupied as the permanent or temporary

habitation of any person, whether or not any person is actually present.” R.C. -9-

2909.01(C). “[A] violation of R.C. 2923.161(A)(1) occurs when an offender fires a gun

into someone’s habitation, regardless of the presence of people.” State v. Lambert, 2d

Dist. Montgomery No. 28655, 2021-Ohio-17, ¶ 59, quoting State v. Grayson, 2017-Ohio-

7175, 95 N.E.3d 1025, ¶ 8 (8th Dist.).

{¶ 21} In this case, there was substantial evidence that multiple bullets were fired

into 122 Lorenz Avenue, Mooty’s occupied residence. Lights were on inside the home,

and two vehicles were parked in the driveway. Mooty, Cedric Smith (Mooty’s boyfriend),

and Marrico each testified to several people having been inside the home when the

shooting occurred. Several occupants of the home, including Mooty, Smith, and Marrico,

heard gunshots coming from behind the house. Keyona was shot and killed by a bullet

that penetrated the wall of the first-floor rear bedroom.

{¶ 22} Evidence technician Ronald Christoffers testified that he located two bullet

holes in the plywood covering the window to that bedroom, two bullet holes in the upstairs

rear bedroom, and an additional bullet hole in the upstairs rear bathroom wall. He traced

the path of travel for those bullets, and three .45 caliber bullets were recovered from inside

the home; a fourth bullet that entered the rear bathroom, which stopped inside a wall, was

not retrieved. An additional bullet was recovered during Keyona’s autopsy. Seven

spent Winchester .45 caliber bullet casings were discovered in the alley behind the

residence. (An additional spent bullet was found in the alley, but it was weathered and

appeared to be unconnected to the shooting.)

{¶ 23} The State was required to prove that the shooter acted knowingly. “A

person acts knowingly, regardless of his [or her] purpose, when he [or she] is aware that -10-

his [or her] conduct will probably cause a certain result or will probably be of a certain

nature.” R.C. 2901.22(B). “Culpable mental states are frequently demonstrated through

circumstantial evidence.” State v. Hypes, 2d Dist. Clark No. 2018-CA-110, 2019-Ohio-

4096, ¶ 21, quoting State v. Fox, 2018-Ohio-501, 106 N.E.3d 224, ¶ 14 (10th Dist.).

Circumstantial evidence has the same probative value as direct evidence. State v.

Jenks, 61 Ohio St.3d 259, 272, 574 N.E.2d 492 (1991), citing State v. Nicely, 39 Ohio

St.3d 147, 529 N.E.2d 1236 (1988); State v. St. John, 2d Dist. Montgomery No. 27988,

2019-Ohio-650, ¶ 49. In some cases, “circumstantial evidence may be more certain,

satisfying, and persuasive than direct evidence.” State v. Jackson, 57 Ohio St.3d 29, 38,

565 N.E.2d 549 (1991). A defendant’s state of mind may be inferred from the totality of

the circumstances. State v. Murphy, 2d Dist. Montgomery No. 27802, 2018-Ohio-3506,

¶ 16.

{¶ 24} “The shooting of a gun in a place where there is a risk of injury to one or

more persons supports the inference that appellant acted knowingly.” State v. Gregory,

90 Ohio App.3d 124, 131, 628 N.E.2d 86, 91 (12th Dist.1993). In this case, the State’s

evidence established that the shooter fired at least seven bullets toward Mooty’s occupied

residence. Five bullets struck the home and entered both the first and second floors of

the residence. Given the number of bullets fired, the location from which they were shot,

and the number and location of the bullet strikes, the jury reasonably concluded that the

shooter acted knowingly when firing at Mooty’s residence.

{¶ 25} Finally, the State presented substantial circumstantial evidence that Leigh

was the shooter. Marrico testified that he was not friends with Leigh and had only met -11-

him a couple of times. Marrico indicated that his communications with Leigh mainly were

through Facebook Messenger with Leigh using the profile name “Brando So Humble.”

{¶ 26} Marrico described how on February 14, 2018, two days before the shooting,

Leigh had shown his 9 mm handgun to Marrico and Tillman, and Tillman had put the gun

in his pocket and left with it. Leigh, believing that Marrico had stolen the gun, then sent

Marrico a series of Facebook messages that Marrico interpreted as warnings to return

the weapon. Marrico also received several phone calls from Brando So Humble that he

did not answer. At 12:22 p.m. on February 15, the day before the shooting, Marrico

received a message from Leigh, saying “This is the last time I’m telling you this You Gone

Give me my sh*t or do you really want to go thru this.” State’s Ex. 65 & 66b. He

received another similar message 26 minutes later. Then, a couple of minutes later,

Leigh sent a message saying, “Ight Bet.” After a few additional messages where Leigh

asked Marrico where he was, Leigh wrote, “But just to tell this really the last time I’m

asking you So * * * You Don’t Tell me Nun in like an hour it’s over * * *.” At 3:14 p.m.,

Leigh sent a final message to Marrico saying “Bet.”

{¶ 27} Detective Farkas testified about additional Facebook conversations

between Leigh (“Brando So Humble”) and (1) Tillman (“Lilreef Ah Realviewboy”); (2)

Leigh’s sister, Brittany Leigh (“Jai Bee”); (3) Gabrielle Marzhaka (“LightBright Gabby”);

(4) an unidentified person who used the profile name “Ypn Prince;” (5) an unidentified

person who used the profile name “Shamica Mariee;” (6) an unidentified person who used

the profile name “Semaj Hall;” (7) Sir Christion Rogers (“Sir Christion Rogers”); and

Theodore Shavers (“Nlmb Msrmar”). Detective Farkas created a timeline of the various -12-

communications, reflecting Leigh’s statements that Marrico robbed him of a gun, his

efforts to get Marrico to return it, and Leigh’s efforts to find Marrico. At 12:40 p.m. on

February 15, Leigh sent a message to Semaj Hall, saying “I need some bullets, some sh*t

happened last night.” Less than an hour later, Leigh’s sister asked Leigh if he “want[ed]

the house sprayed with ks [AK-47s or the like]” and she would buy him a gun later. Leigh

later told Ypn Prince that he was robbed by Marrico. At 1:13 p.m. on February 16, Leigh

wrote to Shavers to bring him a gun (“pole”). After February 16, Leigh’s account did not

include references to Marrico or getting his gun back.

{¶ 28} Angela Williams also testified about incriminating statements that Leigh

made. Prior to the shooting, Williams heard Leigh say that one of his friends had taken

his pistol and he needed to get it back. State’s Ex. 99. The next day, Williams heard

Leigh talking with his sister about meeting up to get another gun, which he needed to “get

his sh*t back.” A few days after the shooting, Williams saw information about it on

Facebook. Williams testified that Leigh “came up and told [her]” that he was involved.

She elaborated: “He walked up to me, he said, Auntie you – did you hear about what

happened? I said, what you talking about? He said, the shooting. I said where, in

Westwood, that girl that was pregnant? He said, yeah. He said – I said, why you have

something to do with that? He said, what you mean I have something to do with it? I

did it.”

{¶ 29} During the afternoon of February 23, 2018, Lee, Leigh and Bobby Hunter

saw a person who looked like a detective drive by Lee’s house in a truck. Lee heard

Leigh say, “I’m about to go to jail.” Later that day, Leigh was arrested for the shooting. -13-

{¶ 30} Construing the evidence in the light most favorable to the State, the jury

could have reasonably concluded that Leigh was the shooter. The nature of the shooting

indicates that the shooting was not a random event. Leigh’s Facebook Messenger

communications demonstrated that Leigh believed that Marrico had stolen his gun and

would not return it and that Leigh began looking for Marrico to rectify the theft of the

weapon. The messages reflect that Leigh concurrently sought to obtain another gun.

Lee’s testimony placed Leigh in the general area of the shooting when the shooting

occurred and, according to Williams, Leigh confessed to the shooting a few days after it

occurred. Leigh expressed that he would be going to jail when officers later arrived at

Lee’s home. The State presented sufficient evidence to support Leigh’s convictions.

{¶ 31} In this case, Leigh claimed that he had stopped using his Brando So Humble

account prior to February 2018, denied making the incriminating statements to Williams

and Lee, and asserted that he was not the shooter. No gun was located, and no one

saw the shooter.

{¶ 32} Nevertheless, it was the province of the jury, as the trier of fact, to assess

the witnesses’ credibility and determine whether the State had proved, beyond a

reasonable doubt, that Leigh had committed the charged offenses. In reaching its

verdict, the jury was free to believe all, part, or none of each witness’s testimony. State

v. Peterson, 2d Dist. Montgomery No. 29061, 2021-Ohio-3947, ¶ 27. Upon review of the

entire record, we cannot conclude that the jury lost its way when it ostensibly credited the

State’s version of events and found that Leigh shot at Mooty’s home, killing Keyona and

her unborn child. Leigh’s convictions for murder, involuntary manslaughter, and -14-

improper discharge of a firearm at or into a habitation were not against the manifest weight

of the evidence.

{¶ 33} Leigh’s conviction for having weapons while under disability also was based

on sufficient evidence and was not against the manifest weight of the evidence. R.C.

2923.13 provides that, “[u]nless relieved from disability under operation of law or legal

process, no person shall knowingly acquire, have, carry, or use any firearm or dangerous

ordnance, if any of the following apply: * * * (2) The person * * * has been adjudicated a

delinquent child for the commission of an offense that, if committed by an adult, would

have been a felony offense of violence.”

{¶ 34} In this case, the State presented a certified copy of a 2015 delinquency

adjudication showing that Leigh was adjudicated delinquent for burglary, contrary to R.C.

2911.12(A)(1), a felony of the second degree. Identifying information in the adjudication

entry, including the juvenile’s date of birth and the name of his mother, established that

the juvenile was Leigh, and the parties stipulated to Leigh’s prior adjudication. Joint Ex.

101. Burglary under R.C. 2911.12(A)(1) is a felony offense of violence. See R.C.

2901.01(A)(9)(a). Leigh did not possess a weapon when he was arrested in February

2018, and the weapon involved in the shooting was not located. Nevertheless,

substantial evidence supported the conclusion that Leigh had possessed a firearm.

{¶ 35} Leigh’s fifth assignment of error is overruled.

III. Admission of Facebook Messages

{¶ 36} In his second assignment of error, Leigh claims that the trial court “erred by

allowing testimony that asserted [he] sent Facebook Messenger messages, which -15-

contained hearsay, and that contained evidence of other bad acts.” Leigh argues that

the State failed to produce any evidence that Leigh, and not someone else, sent the

relevant messages from the Brando So Humble Facebook account. He further asserts

that the messages should have been excluded because they contained inadmissible

hearsay and evidence of prior bad acts.

{¶ 37} In general, the admission or exclusion of relevant evidence is within the

sound discretion of the trial court, and we review that decision for abuse of discretion.

State v. Jali, 2d Dist. Montgomery No. 28294, 2020-Ohio-208, ¶ 39. The term “abuse of

discretion” indicates an attitude that is arbitrary, unconscionable, or unreasonable.

Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).

A. Authentication

{¶ 38} First, Leigh argues that the State failed to present evidence that he sent the

Facebook messages and, thus, the messages were not properly authenticated.

{¶ 39} Authentication is governed by Evid.R. 901. “Evid.R. 901(A) requires, as a

condition precedent to the admissibility of evidence, a showing that the matter in question

is what it purports to be.” State v. Simmons, 2d Dist. Montgomery No. 24009, 2011-

Ohio-2068, ¶ 12; State v. Hatfield, 2d Dist. Montgomery No. 28990, 2022-Ohio-148, ¶ 84.

“The threshold standard for authenticating evidence is low, meaning that the party

seeking to introduce the disputed evidence need only demonstrate ‘a reasonable

likelihood that the evidence is authentic.’ ” (Citations omitted.) State v. Shropshire, 2d

Dist. Montgomery No. 28659, 2020-Ohio-6853, ¶ 11.

{¶ 40} Evid.R. 901(B) provides examples of several ways that the authentication -16-

requirement may be satisfied. The most common method is oral testimony that a matter

is what it is claimed to be under Evid.R. 901(B)(1). E.g., State v. Quarles, 2015-Ohio-

3050, 35 N.E.3d 616, ¶ 34 (2d Dist.); State v. Renner, 2d Dist. Montgomery No. 25514,

2013-Ohio-5463, ¶ 30. We have noted that, “in most cases involving electronic print

media, i.e., texts, instant messaging, and e-mails, the photographs taken of the print

media or the printouts of those conversations are authenticated, introduced, and received

into evidence through the testimony of the recipient of the messages.” State v. Irwin, 2d

Dist. Montgomery No. 26224, 2015-Ohio-195, ¶ 21, quoting State v. Roseberry, 197 Ohio

App.3d 256, 2011-Ohio-5921, 967 N.E.2d 233, ¶ 75 (8th Dist.).

{¶ 41} Here, the State produced ample evidence to authenticate the Facebook

messages. Captain Brad Daugherty, who was a member of the homicide taskforce at

the time of the shooting, testified that Marrico provided Facebook messages that were on

his cell phone. Daugherty took photographs of those messages. State’s Exhibit 65.

The detective then prepared a search warrant for Facebook records for several accounts,

including Brando So Humble, Little Reef, Rico Murray, and Light Bright Gabby. Trial Tr.

237, 434-435.

{¶ 42} The parties stipulated “State’s Exhibit number 66, are records are from the

Facebook Messenger account under the profile name Brando So Humble. State’s

Exhibit Number 66 is a fair, accurate, and complete copy, of those records, and they are

a business record made and kept in a regular course of business by Facebook, Inc.”

Trial Tr. 438-439. The email account associated with the “Brando So Humble” Facebook

account was brandonleigh* * *@* * *.com. -17-

{¶ 43} Marrico testified that he communicated with Leigh using Facebook

Messenger, both by sending messages and making telephone calls. Marrico stated that

he used the profile name “Rico Murray” and Leigh used the profile name “Brando So

Humble.” Marrico identified Leigh as the person shown in three photos from the Brando

So Humble Facebook account, State’s Exhibits 68-70. Marrico stated that he arranged

to meet up with Leigh using Facebook Messager and the person depicted in State’s

Exhibit 68 was the individual he met. Marrico further stated that State’s Exhibit 70

depicted how Brando So Humble/Leigh looked in late 2017 and early 2018. When

presented with a printout of Facebook messages between Rico Murray and Brando So

Humble (State’s Exhibit 65), Marrico testified that they were “[m]essages between me and

Brandon” and were “fair, consistent, accurate, and complete” reports of the

communications between them on those dates. Trial Tr. 184-185. Reviewing the

Facebook communications, Marrico testified that he had called “Brando So Humble” and

spoken with Leigh; Leigh had demanded that Marrico return his gun. Trial Tr. 189-191.

{¶ 44} The State’s evidence was sufficient to demonstrate not only that the

Facebook messages were authentic business records, but that Leigh was the person

using the “Brando So Humble” Facebook Messenger account. The trial court did not err

when it determined that the State adequately authenticated the Facebook messages.

B. Hearsay

{¶ 45} Next, Leigh argues that the Facebook messages were “replete with

inadmissible hearsay.” Leigh reiterates that the State did not establish that Leigh was

using the Brando So Humble account and that statements from other individuals to Leigh -18-

were offered for the truth of the matter asserted.

{¶ 46} Under Evid.R. 801(C), “hearsay” is “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.” “Statement” is defined as (1) an oral or written assertion or (2)

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.; Rogers v. Olt, 2018-Ohio-2110, 112

N.E.3d 407, ¶ 14 (2d Dist.). In general, hearsay is not admissible. Evid.R. 802.

{¶ 47} “Certain statements are excluded from the definition of hearsay, including

statements of a party-opponent where the statement is offered against that party.” Evid.R.

801(D)(2)(a); State v. Cole, 2d Dist. Miami No. 2013-CA-18, 2014-Ohio-233, ¶ 36.

{¶ 48} Leigh highlights several statements that he claims were improperly offered

for the truth of the matter asserted. He notes an exchange between “Brando So Humble”

and “Lilreef”:

Lilreef ah Realviewboy: wya rn [where you at right now?]

Brando So Humble: by the bass get bullets

Detective Farkas explained that “the bass” was referring to an apartment complex.

{¶ 49} Leigh argues that Lilreef’s statement was used to prove the truth of Leigh’s

location, but Lilreef’s message was a question, not an “assertion,” and thus did not

constitute a statement under the hearsay rule. See, e.g., State v. Moody, 2d Dist. -19-

Montgomery No. 26926, 2016-Ohio-8366, ¶ 92; State v. Berry, 3d Dist. Union No. 14-20-

05, 2021-Ohio-1132, ¶ 106. Significantly, it was Leigh (“Brando So Humble”), not Lilreef,

who indicated where Leigh had gone. Leigh’s response constituted an admission of a

party-opponent under Evid.R. 801(D)(2) and it was admissible as substantive evidence

of his guilt.

{¶ 50} Leigh also points to two Facebook messages between him and his sister.

At 2:49 a.m. on February 15, 2018, Leigh wrote to his sister, “I got somebody selling a

pole.” Detective Farkas stated that a “pole” is a handgun. Trial Tr. 510-511. Again, this

statement by Leigh was admissible as an admission. At 1:32 p.m. later that day, Leigh’s

sister messaged him, “or you just want the house sprayed with k’s and I buy you a gun

[later].” Trial Tr. 518. Leigh responded to this message with a phone call. Leigh’s

sister’s question was not an assertion, and thus did not constitute hearsay.

C. Prior Bad Acts

{¶ 51} Finally, Leigh argues that the trial court impermissibly allowed testimony

that Leigh planned to smoke marijuana, planned to rob people, and had a gun. Leigh

claims that the evidence should have been precluded under Evid.R. 404(B) and R.C.

2945.59.

{¶ 52} Evid.R. 404(B)(1) states: “Evidence of any other crime, wrong or act is not

admissible to prove a person’s character in order to show that on a particular occasion

the person acted in accordance with the character.” In other words, it does not

necessarily follow that because a person performed an act in the past, he or she

committed this act. -20-

{¶ 53} Evid.R. 404(B)(2) recognizes that other-act evidence may properly be used

for other purposes. Such purposes include proof of motive, opportunity, intent,

preparation, plan, absence of mistake, identity, knowledge, or lack of accident. Id. “The

key is that the evidence must prove something other than the defendant’s disposition to

commit certain acts. Thus, while evidence showing the defendant's character or

propensity to commit crimes or acts is forbidden, evidence of other acts is admissible

when the evidence is probative of a separate, nonpropensity-based issue.” State v.

Hartman, 161 Ohio St.3d 214, 2020-Ohio-4440, 161 N.E.3d 651, ¶ 22.

{¶ 54} R.C. 2945.59 similarly provides:

In any criminal case in which the defendant’s motive or intent, the absence

of mistake or accident on his part, or the defendant’s scheme, plan, or

system in doing an act is material, any acts of the defendant which tend to

show his motive or intent, the absence of mistake or accident on his part, or

the defendant’s scheme, plan, or system in doing the act in question may

be proved, whether they are contemporaneous with or prior or subsequent

thereto, notwithstanding that such proof may show or tend to show the

commission of another crime by the defendant.

{¶ 55} Like Evid.R. 404(B), R.C. 2945.59 “preclude[s] the admission of evidence

of other crimes, wrongs, or acts offered to prove the character of an accused in order to

show that the accused acted in conformity therewith, but it does not preclude admission

of that evidence for other purposes, e.g., to show proof of motive, opportunity, intent,

preparation, plan, knowledge, identity, or absence of mistake or accident.” State v. -21-

Williams, 134 Ohio St.3d 521, 2012-Ohio-5695, 983 N.E.2d 1278, ¶ 25; State v.

Robinson, 2d Dist. Montgomery No. 29272, 2022-Ohio-2896, ¶ 22.

{¶ 56} In Williams, the Ohio Supreme Court set forth a three-step analysis for

determining the admissibility of other-acts evidence. Williams at ¶ 20. “[T]o be

admissible, (1) the evidence must be relevant, Evid.R. 401, (2) the evidence cannot be

presented to prove a person’s character to show conduct in conformity therewith but must

instead be presented for a legitimate other purpose, Evid.R. 404(B), and (3) the probative

value of the evidence cannot be substantially outweighed by the danger of unfair

prejudice, Evid.R. 403.” State v. Graham, 164 Ohio St.3d 187, 2020-Ohio-6700, 172

N.E.3d 841 ¶ 72, citing Williams at ¶ 20.

{¶ 57} “ ‘The admissibility of other-acts evidence pursuant to Evid.R. 404(B) is a

question of law.’ ” Graham at ¶ 72, citing State v. Hartman, 161 Ohio St.3d 214, 2020-

Ohio-4440, 161 N.E.3d 651, ¶ 22. “The court is precluded from admitting improper

character evidence under Evid.R. 404(B), but it has discretion to allow other-acts

evidence that is admissible for a permissible purpose.” (Citations omitted.) Id.

{¶ 58} During his testimony, Marrico described what led to the “falling out” between

him and Leigh. Marrico stated that he and Tillman got together with Leigh, and the three

were “walking around chilling, planning on smoking and stuff, and like planning on hitting

a lick and stuff.” Trial Tr. 181. Marrico explained that “hitting a lick” meant robbing

someone. While they were together, Leigh said that he had a gun and showed the

others a black 9 mm handgun. Marrico stated that Tillman put the gun in his pocket and

still had it when the group separated. Id. -22-

{¶ 59} Marrico’s testimony was not offered to disparage Leigh’s character or to

show that he was likely to commit criminal acts. Rather, Marrico’s testimony explained

Leigh’s motive for the shooting, namely his belief that Marrico had stolen his gun, and his

testimony was relevant to the issue of the identity of the shooter. In addition, the

probative value of Marrico’s testimony was not substantially outweighed a danger of unfair

prejudice. Marrico’s reference to planning a robbery was fleeting and a minor detail

given the overall course of the trial.

{¶ 60} Leigh also disputes a statement from Detective Farkas that various

Facebook Messenger threads between February 13, 2018, and February 18, 2018 related

to “a robbery” and locating Marrico. Trial Tr. 494-495. Detective Farkas’s review of the

Facebook Messages makes clear that he was referring to the theft of Leigh’s gun, which

Marrico allegedly had taken from Leigh, not any prior robbery that Leigh had committed.

In short, Farkas’s statement does not refer to a prior bad act.

{¶ 61} Leigh’s second assignment of error is overruled.

IV. Testimony of Angela Williams

{¶ 62} In his first assignment of error, Leigh claims that the trial court “erred by

admitting hearsay testimony of Angela Williams” and that the admission of her probable

cause hearing testimony violated his rights under the Confrontation Clause. Leigh

specifically argues that (1) the trial court erred in finding that she was an unavailable

witness and (2) he did not have meaningful prior opportunity for cross-examination. He

further asserts that the audio recording of Williams’s testimony at the probable cause

hearing was not authenticated. -23-

{¶ 63} On January 14, 2020, the State issued a subpoena for Williams to appear

at 8:00 a.m. on Monday, March 9, 2020, for Leigh’s rescheduled trial. The record reflects

that Detective Farkas personally served the subpoena on January 21, 2020. Williams

did not appear for the March 9, 2020 trial as required, and at 8:45 a.m., the State asked

the court to issue a material witness warrant for Williams. The State’s motion indicated

that Williams had failed to meet with prosecutors for a pretrial conference and failed to

appear pursuant to the subpoena. The trial court granted the State’s motion.

{¶ 64} The following day, March 10, the State moved the trial court for an order

declaring Williams an unavailable witness, pursuant to Evid.R. 804(A)(5), and asked that

her former testimony be admitted at trial. That afternoon, the trial court held a brief

hearing (outside the presence of the jury) on the State’s motion. The court noted that

this issue had previously been raised in October 2019 prior to Leigh’s previous trial date,

and it stated that the motion and memorandum in opposition would be “incorporated by

reference into the decision making process now.” Detective Farkas then testified about

his efforts to locate Williams.

{¶ 65} Defense counsel did not cross-examine Detective Farkas, but he argued

that the State’s request should be denied because the probable cause hearing did not

provide a full and fair hearing. Counsel stated that additional information, such as

Williams’s prior convictions, was not available to Leigh’s juvenile court counsel for use in

cross-examination.

{¶ 66} The trial court overruled defense counsel’s objection and granted the

State’s motion. The trial court reasoned that, under Crawford, there needs to be an -24-

opportunity for cross-examination, but cross-examination does not have to occur. The

trial court noted that cross-examination did occur at the probable cause hearing “by the

very attorney representing your client for the very incident that we are here.” The trial

court declared Williams unavailable and allowed her probable cause hearing testimony

to be presented. The State played Williams’s probable cause hearing testimony for the

jury later that afternoon.

{¶ 67} We begin with Leigh’s argument that the State failed to properly

authenticate the audio recording of Williams’s probable cause hearing testimony.

{¶ 68} Immediately prior to playing Williams’s former testimony, the prosecution

asked for a sidebar and asked the court how it wanted the State to introduce the former

testimony. After a brief discussion, the court indicated that it would inform the jury that

the witness was unavailable and her former testimony would be played. When asked if

he had any comments, defense counsel responded, “You’re the judge.”

{¶ 69} At the conclusion of the sidebar, the court then addressed the jury:

THE COURT: All right, ladies and gentlemen, sometimes in trials a witness

is or becomes unavailable for testimony for whatever reasons, and if that

witness has given prior testimony, and that prior testimony is recorded, the

rules allow for that prior testimony to be presented now. It’s my

understanding that the State wishes to introduce the prior testimony of

Angela Williams; is that correct?

[PROSECUTOR]: That’s correct, Judge. -25-

THE COURT: And the method by which that will be presented will be by an

audio tape; is that correct?

[PROSECUTOR]: That's correct, Judge.

THE COURT: All right. Now, my understanding is, I’ve listened to the audio

tape. And my understanding is at one point during the course of the audio

tape, there’s a little bit of a commotion. You’re not going to have video, but

it’s apparent there’s some commotion going on in the courtroom. You’re

not to pay any attention to that; there’s nothing about that that is pertinent

to either side of any issue here today.

There are also some objections made during the course of it, I think

a telephone goes off or something. The objections were ruled on by the

judge at the hearing. Those objections and rulings will stand.

Otherwise, Mr. [Prosecutor], I’d ask that you play the tape, not at the

very beginning, but at whatever time you’ve designated for the testimony to

start, which would be the entire testimony?

[PROSECUTOR]: Yes, Your Honor.

THE COURT: Okay, you can proceed.

[PROSECUTOR]: And I would note for the record that this audio CD is

marked as State's Exhibit 99.

THE COURT: Thank you. So pay attention to this, folks, just as if the witness is

testifying.

Defense counsel did not object to the trial court’s introduction of the audio recording. -26-

{¶ 70} Although Leigh previously had objected to the admission of Williams’s

probable cause hearing testimony due to an alleged lack of opportunity to fully cross-

examine Williams, he did not object based on the State’s failure to authenticate the

recording. Accordingly, Leigh has waived all but plain error with respect to the

authentication of the audio recording of her probable cause hearing testimony. Plain

error arises only when, “but for the error, the outcome of the trial clearly would have been

otherwise.” State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978), paragraph two of

the syllabus. “Notice of plain error under Crim.R. 52(B) is to be taken with the utmost

caution, under exceptional circumstances and only to prevent a manifest miscarriage of

justice.” Id. at paragraph three of the syllabus.

{¶ 71} In this case, the recording itself (State’s Exhibit 99) leaves little doubt that it

reflects Williams’s probable cause hearing testimony. Although the trial court ordered

that the juvenile court judge’s preliminary statements not be played for the jury, the

recording begins with the judge identifying himself, calling the case, indicating what

proceedings were occurring, and identifying who was present in that courtroom. There

is nothing to suggest that the recording is not what it purports to be. In the absence of

an objection, we find no plain error in the trial court’s admission of Williams’s probable

cause hearing testimony.

B. Confrontation Clause and Hearsay

{¶ 72} Leigh primarily argues that Williams’s probable cause hearing testimony

constituted hearsay and that its admission violated his rights under the Confrontation

Clause of the Sixth Amendment to the United States Constitution. -27-

{¶ 73} Under the Confrontation Clause, a criminal defendant enjoys the right “to

be confronted with the witnesses against him.” Under this provision, testimonial out-of-

court statements are barred, unless the witness is unavailable and the defendant has had

a prior opportunity to cross-examine the witness. State v. Tench, 156 Ohio St.3d 85,

2018-Ohio-5205, 123 N.E.3d 955, ¶ 17; Crawford v. Washington, 541 U.S. 36, 53-54, 124

S.Ct. 1354, 158 L.Ed.2d 177 (2004). Under the Ohio Rules of Evidence, former

testimony given as a witness at another hearing is not excluded by the hearsay rule if (1)

the witness is unavailable and (2) “the party against whom the testimony is now offered

* * * had an opportunity and similar motive to develop the testimony by direct, cross, or

redirect examination.” Evid.R. 804(B)(1). “Testimony given at a preliminary hearing

must satisfy the right to confrontation and exhibit indicia of reliability.” Id.

{¶ 74} We review the trial court’s ruling on the admissibility of Williams’s prior

probable cause hearing testimony for an abuse of discretion. State v. Jackson, 2d Dist.

Montgomery No. 24430, 2012-Ohio-2335, ¶ 51.

1. Testimonial

{¶ 75} At the outset, we find little difficulty concluding that Williams’s probable

cause hearing testimony was testimonial for purposes of the Confrontation Clause. In

Crawford, the United State Supreme Court interpreted “testimony” to typically mean “[a]

solemn declaration or affirmation made for the purpose of establishing or proving some

fact.” Crawford, 541 U.S. at 51, quoting 2 N. Webster, An American Dictionary of the

English Language (1828). “[T]he core class of testimonial statements includes

statements ‘that were made under circumstances which would lead an objective witness -28-

reasonably to believe that the statement would be available for use at a later trial.’ ” State

v. Syx, 190 Ohio App.3d 845, 2010-Ohio-5880, 944 N.E.2d 722, ¶ 23 (2d Dist.), quoting

Crawford at 52. The Crawford Court cited ex parte testimony at a preliminary hearing as

an example of “this core class of ‘testimonial’ statements.” Id. at 52. Williams’s sworn

testimony at the juvenile court’s probable cause hearing unequivocally constitutes

testimonial statements.

2. Unavailable Witness

{¶ 76} Both the Confrontation Clause and Evid.R. 804 permit the admission of prior

testimony only if the witness is unavailable. Evid.R. 804(A) identifies five circumstances

when a declarant is unavailable, including when the witness “is absent from the hearing

and the proponent of the declarant’s statement has been unable to procure the

declarant’s attendance * * * by process or other reasonable means.” Evid.R. 804(A)(5).

{¶ 77} In criminal cases, the State bears the burden of establishing that the

declarant is unavailable to testify to use hearsay made at the prior judicial proceeding.

State v. Jackson, 2d Dist. Montgomery No. 24430, 2012-Ohio-2335, ¶ 50, citing State v.

Smith, 2d Dist. Montgomery No. 22926, 2010-Ohio-745, ¶ 10. Both the Confrontation

Clause and Evid.R. 804(B)(1) normally require a showing by the State that the hearsay

declarant is unavailable despite reasonable efforts made in good faith to secure his or her

presence for trial. Smith at ¶ 11, citing State v. Keairns, 9 Ohio St.3d 228, 460 N.E.2d

245 (1984). “[T]he test is whether the State made reasonable, good-faith efforts to

secure their appearance, not whether it took every conceivable step.” Mitchell at ¶ 14.

{¶ 78} “A showing of unavailability must be based on testimony of witnesses rather -29-

than hearsay; mere statements that a search has been made lack sufficient particularity

to allow the court to determine what steps have been taken and whether they were

reasonable.” Jackson at ¶ 50.

{¶ 79} Defense counsel did not object to Williams’s former testimony on the ground

that her unavailability had not been established. Consequently, Leigh has waived all but

plain error as to the trial court’s ruling on Williams’s unavailability. See State v. Neyland,

139 Ohio St.3d 353, 2014-Ohio-1914, 12 N.E.3d 1112, ¶ 176; State v. Mitchell, 2d Dist.

Montgomery No. 24797, 2012-Ohio-3722, ¶ 10 (failure to dispute unavailability

constitutes waiver of all but plain error on that issue).

{¶ 80} During his testimony about his efforts to locate Williams, Detective Farkas

stated that he was the lead detective on the case and was aware that the court had issued

a material witness warrant for Williams on March 9. Within hours of the issuance of the

warrant, an email (called a suspect locator) was sent to all Dayton police officers, advising

them that Williams had a warrant for her arrest and to attempt to locate her. The email

directed any officer who encountered Williams to call Farkas directly on his cell phone.

No officer contacted the detective in response to the suspect locator email.

{¶ 81} Detective Farkas tried to contact Williams several times at the phone

number that she had provided to him when she was initially served in January 2020, which

was also the phone number provided to Detective Farkas by the probation department.

The first two phone calls went directly to Williams’s voicemail and then her phone

indicated that the mailbox was full. Farkas did not have any other phone number for

Williams. -30-

{¶ 82} The detective also went to four different locations in an attempt to locate

Williams: (1) an address on Kenwood Avenue where Williams was served in November

2019 for a previous trial date; (2) an address on Westwood Avenue, which was the

address Williams provided to her probation officer and the probation department provided

to Farkas; (3) an address on Sylvan Avenue, where Williams’s mother lived; and (4) an

address on Ellis, an address given to the police in October 2019 during a separate

incident. No one was home at the Kenwood and Sylvan Avenue addresses. At the

Westwood address, Detective Farkas spoke to a person who claimed to be a cousin of

Williams; the cousin said that Williams did not live there, but she would attempt to get in

contact with Williams and have Williams call him. Detective Farkas left his cell phone

number with the cousin, but neither the cousin nor Williams had made contact. Finally,

when Detective Farkas went to the Ellis address, he spoke to a former girlfriend of

Williams, who said that she had not seen Williams since she was arrested for domestic

violence. The former girlfriend was unable to provide updated contact information, and

the police did not have addresses for any other potential relatives.

{¶ 83} Detective Farkas contacted three local hospitals to inquire whether Williams

had been admitted. The hospitals all reported that they did not have a patient named

Angela Williams at their locations. Farkas also checked whether Williams was

incarcerated in Montgomery, Miami, Clark, Green, Darke, or Warren County; she was not

in custody in any of those locations as of 11:45 a.m. that day.

{¶ 84} In this case, the trial court did not commit error, plain or otherwise, when it

determined that Williams was unavailable. Williams failed to appear for trial as required -31-

by a subpoena that she received in January 2020, and a material witness warrant had

been issued to compel her appearance. Detective Farkas’s testimony established that

Dayton police officers had been notified to look for her but were unsuccessful, that

Williams was not responding to repeated phone calls from Detective Farkas, that he was

unable to locate her at her stated address and other related residences, and that he had

determined that she was neither incarcerated in Montgomery County and the surrounding

counties nor hospitalized nearby. The trial court did not abuse its discretion in

determining that the detective’s efforts to secure Williams’s presence were reasonable.

3. Prior Opportunity to Cross-Examine

{¶ 85} Leigh further claims that the probable cause hearing testimony was

inadmissible because his attorney did not have a meaningful opportunity or a similar

motive to develop Williams’s testimony at the probable cause hearing as he did at trial.

At trial, defense counsel argued that Leigh’s counsel in the juvenile court did not have

information that would be important for cross-examination at trial, such as Williams’s prior

convictions.

{¶ 86} The Confrontation Clause was written “to secure for the opponent the

opportunity of cross-examination.” (Emphasis omitted.) State v. Self, 56 Ohio St.3d 73,

76, 564 N.E.2d 446 (1990), quoting 5 Wigmore, Evidence, Section 1395, at 150

(Chadbourn Rev. 1974); State v. Curtiss, 2d Dist. Montgomery No. 29006, 2022-Ohio-

146, ¶ 71. Thus, the Confrontation Clause permits the admission of an unavailable

witness’s prior testimony if the defendant had a prior opportunity to cross-examine the

witness. Crawford, 541 U.S. 36, 54, 57-59, 124 S.Ct. 1354, 158 L.Ed.2d 177; State v. -32-

Neyland, 139 Ohio St.3d 353, 2014-Ohio-1914, 12 N.E.3d 1112, ¶ 181. Leigh’s attorney

in juvenile court was afforded the right to cross-examine Williams at the probable cause

hearing, and he exercised that right. Accordingly, no Confrontation Clause violation

occurred when Williams’s prior testimony was presented at trial.

{¶ 87} The Ohio Rules of Evidence require an additional layer of analysis.

Because testimony may be admissible under the Confrontation Clause yet inadmissible

under the rules of evidence, and vice versa, see Crawford at 51, the declarant’s

statements must fall within the constitutional requirements and the rules of evidence to

be admissible. State v. Wilson, 2d Dist. Clark No. 2018-CA-2, 2020-Ohio-2962, ¶ 69,

citing State v. Nevins, 171 Ohio App.3d 97, 2007-Ohio-1511, 869 N.E.2d 719, ¶ 36 (2d

Dist.).

{¶ 88} The requirements of Evid.R. 804(B)(1) are two-fold: (1) the party against

whom the testimony is offered had an opportunity to examine the declarant in the prior

proceeding, and (2) that party had a motive that is similar to the motive that the party

would have in the present proceeding to develop the former testimony by direct, cross, or

redirect examination. Burkhart v. H.J. Heinz Co., 140 Ohio St.3d 429, 2014-Ohio-3766,

19 N.E.3d 877, ¶ 3; Cranford v. Buehrer, 2d Dist. Montgomery No. 26266, 2015-Ohio-

192, ¶ 25.

{¶ 89} “An identical motive to develop testimony is not required by Evid.R.

804(B)(1), only a similar motive.” State v. White, 2d Dist. Montgomery No. 20324, 2005-

Ohio-212, ¶ 26; Neyland at ¶ 182. The similar-motive requirement “has become, not a

mechanical one of identity or even of substantial identity of issues, but rather that the -33-

issues in the first proceeding, and hence the purpose for which the testimony was offered,

must have been such as to produce an adequate motive for testing on cross-examination

the credibility of the testimony.” Neyland at ¶ 186, quoting McCormick, Evidence,

Section 304, at 495 (7th Ed.2013).

{¶ 90} During the probable cause hearing, Williams testified primarily about

incriminating statements she heard Leigh make to others and his confession to her

following the shooting that he had done it. Defense counsel extensively cross-examined

Williams at the juvenile court hearing on all aspects of her testimony. Counsel asked her

numerous questions about the nature of her relationships with Lee and Leigh, her lack of

memory about the dates when certain events occurred, and the details about the events

she witnessed and the statements she heard.

{¶ 91} Leigh argues that his attorney’s motive at the probable cause hearing was

limited to preventing the establishment of “sufficient credible evidence” that he committed

the offense, not preventing proof beyond a reasonable doubt. He also asserts that “a

mountain of evidence has been developed” since the probable cause hearing. We do

not find those arguments persuasive. At both the probable cause hearing and at trial,

the identity of the shooter was the primary issue and, in both instances, defense counsel

was motivated to discredit Williams’s testimony implicating Leigh as the shooter. The

trial court did not abuse its discretion in determining that defense counsel had a prior

opportunity and a similar motivation to cross-examine Williams under Evid.R. 804(B)(1).

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

V. Ineffective Assistance of Counsel -34-

{¶ 93} In his third assignment of error, Leigh claims that his defense counsel

rendered ineffective assistance in three respects. First, Leigh argues that his attorney

should have objected to the authentication of the audio recording of Williams’s probable

cause hearing testimony. Second, he asserts that he should have objected to the sitting

of a prejudicial juror. Third, he claims that counsel should have objected to the other-

acts evidence in the Facebook messages.

{¶ 94} To establish ineffective assistance of counsel, a defendant must

demonstrate both that (1) trial counsel’s conduct was deficient, and (2) trial court’s

deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668,

104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Lloyd, Ohio Slip Opinion No. 2022-Ohio-

4259, __ N.E.3d __, ¶ 15.

{¶ 95} Trial counsel’s performance is deficient if it falls below an objective standard

of reasonableness. Strickland at 687; Lloyd at ¶ 16. The first prong “requires showing

that counsel made errors so serious that counsel was not functioning as the ‘counsel’

guaranteed the defendant by the Sixth Amendment.” Strickland at 687; State v. Dennis,

2d Dist. Montgomery No. 29266, 2022-Ohio-2888, ¶ 37. 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 entitled to a strong presumption that his or her conduct falls within the wide

range of reasonable assistance. Strickland at 689. -35-

{¶ 96} The second prong requires a showing 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. Strickland at 694; Lloyd at ¶ 18. “A reasonable probability is a

probability sufficient to undermine confidence in the outcome.” Id.

{¶ 97} Although Leigh cites three bases for his ineffective assistance of counsel

claim, he focuses on his attorney’s failure to object to Juror #15 during voir dire. During

jury selection, the prosecutor asked prospective jurors “whether anyone had been a victim

of a crime * * * in the past that might affect them in their ability to sit as a juror and hear

the evidence in this case and be fair.” Voir Dire Tr. 98. Juror #15 responded, “I am the

victim of a drive-by shooting. * * * And I – there were several rounds shot into the

bedrooms of my two small children. But I, that will not affect my ability to judge

impartially.” The two continued:

[PROSECUTOR]: Let me ask you this; how long ago was that?

[JUROR #15]: About a year ago.

[PROSECUTOR]: Okay. Is that case being prosecuted, if you know?

[JUROR #15]: No, sir.

[PROSECUTOR]: Okay. Now, I’ve talked about the fact that one of the

charges in this case is firing or the improper discharge of a firearm into a

habitation. And it sounds like that case, and I don't know the facts of the

case that you’re talking about, but it sounds like it may be a similar, I don’t

know, factual situation where a firearm was involved at least. Knowing

that, and knowing that you may hear evidence that’s similar in nature, at -36-

least to some degree, will you be able to set aside the case that you’re

talking about, albeit, a year ago, and judge this case only on the evidence

in court?

[JUROR #15]: Yes, sir.

[PROSECUTOR]: In other words, what we want to find out, kind of on the

flip side of things is, because you had that terrible event happen that you’re

not going to say, you know what, I’m going to make sure that someone pays,

okay, I don’t care what the evidence is, all right. And that you’ll actually sit

and listen and judge the case on the evidence. That you’re not going to be

predisposed, for instance, to find someone guilty because of a situation in

your past. It sounds like you don’t have problem with that though?

[JUROR #15]: That’s correct.

[PROSECUTOR]: Okay. You’ll be able to be fair and impartial?

[PROSECUTOR]: Okay. I appreciate your candor. * * *

Voir Dire Tr. 99-100.

{¶ 98} Defense counsel also asked Juror #15 about the drive-by shooting. The

juror told defense counsel that the incident took place at his house in Denver and the

perpetrators had never been apprehended, to his knowledge. Id. at 129.

{¶ 99} On appeal, Leigh claims that his trial court should have sought to have Juror

#15 removed based on the similarity between the facts in this case and the prospective

juror’s drive-by shooting incident. A prospective juror may be challenged for cause if the -37-

juror demonstrates a “predisposition to decide a case or an issue in a certain way, which

does not leave the mind perfectly open to conviction.” State v. Carruth, 2d Dist.

Montgomery No.1997, 2004-Ohio-2317; State v. Davis, 2d Dist. Montgomery No. 20135,

2005-Ohio-121, ¶ 21.

{¶ 100} In this case, Juror #15 made clear that he would be able to be fair and

impartial, despite the similar nature of the incidents, and that he could judge the case

solely on the evidence provided in court. Juror #15 gave no indication that he would be

predisposed to find Leigh guilty based on the drive-by shooting of his house in Denver.

Given Juror #15’s answers during voir dire, defense counsel could have reasonably

concluded that he had no basis to seek Juror #15’s removal for cause.

{¶ 101} We likewise cannot conclude that defense counsel acted deficiently in

failing to exercise a peremptory challenge to remove Juror #15. Juror #15 was not

initially among the 12 prospective jurors who would be seated as the jury, and he joined

that group only after the State and defense counsel each exercised a peremptory

challenge. Defense counsel subsequently exercised his three remaining peremptory

challenges on other prospective jurors. While one might question why defense counsel

elected to use peremptory challenges on other individuals rather than Juror #15, defense

counsel’s decision was within the realm of trial strategy, which we will not second-guess.

Moreover, on this record, we cannot conclude that there was a reasonable probability that

the outcome of the trial would have been different had defense counsel made different

decisions during jury selection.

{¶ 102} With respect to defense counsel’s failure to object to the lack of -38-

authentication of the probable cause hearing audio-recording and the admission of

Facebook messages with other act evidence, we likewise conclude that Leigh’s claims

lack merit. Although the State did not offer any evidence to authenticate the audio-

recording of Williams’s probable cause hearing testimony, there is no indication that the

recording was not authentic, and defense counsel, in his professional judgment, could

have opted not to raise the issue. Moreover, even if defense counsel had objected to

the lack of authentication before the recording was played at trial, the recording would not

necessarily have been excluded from evidence. Rather, the State would have had an

opportunity to authenticate the exhibit prior to playing it for the jury.

{¶ 103} Finally, defense counsel did not render ineffective assistance regarding

the Facebook messages. As stated above, the trial court did not err in admitting the

Facebook messages into evidence. Accordingly, counsel did not act deficiently in failing

to object to those messages under Evid.R. 404(B) and R.C. 2945.59.

{¶ 104} Leigh’s third assignment of error is overruled.

VI. Cumulative Error

{¶ 105} In his fourth assignment of error, Leigh claims that multiple errors deprived

him of a fair trial.

{¶ 106} Under the cumulative error doctrine, “a conviction will be reversed when

the cumulative effect of errors in a trial deprives a defendant of a fair trial[,] even though

each of the numerous instances of trial-court error does not individually constitute cause

for reversal.” State v. Powell, 132 Ohio St.3d 233, 2012-Ohio-2577, 971 N.E.2d 865,

¶ 223, citing State v. DeMarco, 31 Ohio St.3d 191, 196-197, 509 N.E.2d 1256 (1987). -39-

“However, in order even to consider whether ‘cumulative’ error is present, we would first

have to find that multiple errors were committed.” State v. Madrigal, 87 Ohio St.3d 378,

398, 721 N.E.2d 52 (2000); State v. Mize, 2022-Ohio-3163, 195 N.E.3d 574, ¶ 76 (2d

Dist.). “We then must find a reasonable probability that the outcome of the trial would

have been different but for the combination of the separately harmless errors.” Mize at

¶ 76, quoting State v. Durant, 159 Ohio App.3d 208, 2004-Ohio-6224, 823 N.E.2d 506,

¶ 38 (2d Dist.).

{¶ 107} Most of the alleged errors that Leigh identifies in support of his cumulative

error argument are the same alleged errors previously raised and rejected here. Leigh

now cites a few additional statements by Marrico and Detective Farkas, but we do not

find any errors, individually or cumulatively, that deprived Leigh of a fair trial.

{¶ 108} Leigh’s fourth assignment of error is overruled.

VII. Conclusion

{¶ 109} The trial court’s judgment will be affirmed.

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

WELBAUM, J. and LEWIS, J., concur.