State v. Motley

2023 Ohio 1811, 216 N.E.3d 761

• Court: Ohio Court of Appeals
• Decided: June 1, 2023
• Docket: 111718 & 111720
• Status: Published

Opinion

[Cite as State v. Motley, 2023-Ohio-1811.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, : Nos. 111718 and 111720 v. :

WILLIAM E. MOTLEY, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: June 1, 2023

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-22-669279-A

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and John F. Hirschauer and Tasha L. Forchione, Assistant Prosecuting Attorneys, for appellee.

Cullen Sweeney, Cuyahoga County Public Defender, and Jonathan Sidney, Assistant Public Defender, for appellant.

SEAN C. GALLAGHER, J.:

William E. Motley appeals his convictions for aggravated vehicular

homicide and assault, having weapons while under disability, carrying concealed

weapons, and operating a vehicle under the influence of alcohol, which included attendant firearm specifications. The trial court sentenced Motley to serve a definite

19-year aggregate term, concluding that the Reagan Tokes sentencing structure

remains unconstitutional despite State v. Delvallie, 2022-Ohio-470, 185 N.E.3d

536, ¶ 17-51, 103, 123 (8th Dist.), and the lack of any new theory on the constitutional

question.1 For the following reasons, the convictions are affirmed.

Motley drove a stolen2 2014 Dodge Charger while under the influence

of alcohol — a blood draw revealed a blood alcohol concentration 3.5 times greater

than the legal limit. There were three other passengers. At 60 m.p.h., on a multi-

lane street with a 35 m.p.h. speed limit, Motley collided with a disabled semitruck

and trailer in the curb lane. The brunt of the impact was borne by the right-side

passengers, although Motley was severely injured himself. The front passenger,

Cordon Smith, died on impact, but the right rear passenger, Michael Baird,

survived.3 He was badly injured. The third passenger, sitting behind Motley,

Vernon DeMeo, fared better. He immediately walked away from the scene of the

collision before emergency responders could even arrive. According to the event

data recorder (“EDR”) in the vehicle, which memorialized the vehicle’s sensor

1 The state did not appeal this determination. It may seem tempting for the trial judge to remain steadfast upon this chosen path given the novelty of the issue, but that is not within the purview of the trial court’s authority. Delvallie may or may not stand the test of time, but it currently stands as the law in this district. See Buckeye Community Hope Found. v. Cuyahoga Falls, 82 Ohio St.3d 539, 547, 697 N.E.2d 181 (1998) (Stratton, J., concurring) (explaining the need for her to change her vote on a case upon reconsideration).

2 Motley was acquitted of the receiving stolen property charge.

3 Baird died from an unrelated cause before trial. information in the five seconds preceding the collision, Motley failed to apply the

brakes until one-tenth of a second before impact.

There is some confusion in the record as to which direction the

steering wheel was being rotated immediately before the impact. According to the

testifying officer, who downloaded the EDR data into the printed format presented

to the jury, the steering wheel was rotated slightly to the right in a clockwise

direction immediately before the collision. The printed EDR data indicates the

opposite, that the steering wheel was rotated in a counterclockwise direction before

impact. The confusion lies in the definition of the steering input, whether a positive

number under the steering input column indicates a clockwise or counterclockwise

rotation of the steering wheel.

According to the officer who downloaded the EDR data, the steering

input data is given in degrees from neutral steering. A “0” (“zero”) means the vehicle

is being driven perfectly straight with the steering wheel having absolutely no input.

For illustrative purposes, based on that trial testimony in this case, a steering input

of “90” in the EDR data means the steering wheel was turned a quarter of one full

rotation, with “360” degrees indicating one full rotation. A steering input of “-90”

means the steering wheel was rotated a quarter of one full rotation in the other

direction. According to the trial testimony, a positive number in the “steering input”

column of the EDR data indicated a clockwise rotation of the steering wheel and a

negative number corresponds with a counterclockwise rotation. The definition of “steering input,” however, is available in the printed

EDR data and contradicts that testimony with respect to the direction of the steering

input. According to the “general information” section of the printed EDR data, a

“positive sign notation” for the “steering input” means the “steering wheel is turned

counterclockwise.” In other words, a positive number in the “steering input” column

denotes a counterclockwise rotation of the steering wheel as measured in degrees

from zero steering input. There is an express exception for 2005-2010 Chargers, in

which case the “positive sign notation” for steering input indicates a clockwise

rotation, so the direction of the steering wheel is backwards as compared to the

default. It appears this exception was the basis of the officer’s testimony.

The vehicle in this case was alleged to be 2021 Dodge Charger, but the

state moved to delete the year from the indictment during trial because the

purported owner of the vehicle testified that it was a 2014 model year Charger.

Tr. 317:22-24. Either way, the vehicle did not fit the exception for flipping the

direction of rotation of the steering wheel as indicated by the recorded data based

on the definitions provided within the printed EDR data.

Reviewing the EDR data in isolation would tend to demonstrate that

the steering wheel was turned to the left (counterclockwise) for a majority of the five

seconds recorded by the EDR, most of the numbers were positive, and it was turned

to the right (clockwise) 1-2 degrees for only four-tenths of a second within two

seconds of the impact. Within one second of the impact, the steering wheel showed a more significant counterclockwise rotation of 10-14 degrees, meaning someone

was turning the steering wheel left for over a second before impact.

The officer testifying as to the contents of the printed EDR data

flipped the steering input directions from the printed EDR data, claiming the

steering wheel was turned to clockwise 10-14 degrees immediately before the

impact, giving credence to Motley’s eventual theory of defense — that DeMeo

grabbed the steering wheel and purposely caused the collision. This discrepancy

also explains the state’s demonstrative evidence, “exhibit 89,” in which the Charger

is depicted to be turning left at impact. For the jury, however, the discrepancy

between the printed EDR data and the trial testimony was not explored or resolved,

nor has it been discussed within the briefing presented in this appeal.

Motley built upon the officer’s testimony, claiming for the first time

at trial that DeMeo, who was sitting immediately behind Motley, jumped into the

front seating area and grabbed the steering wheel, yanking it to the right to

purposely cause the deadly collision. Motley never provides a rationale explaining

DeMeo’s motive in doing so despite the inherent risk to himself — especially since

DeMeo would have to be unbuckled to attempt that feat. In attempting to prove this

point, Motley presented a recording of DeMeo, recorded by one of Motley’s friends,

apparently confirming that DeMeo grabbed the steering wheel and intended to

cause the collision. According to DeMeo’s out-of-court statements, he jumped into

the front seat, stabbed Motley in the neck with a knife, and then grabbed the steering

wheel. After the collision, at least as told by DeMeo in the recording, Smith’s decapitated head landed in DeMeo’s lap, but he nonetheless survived the impact

unscathed. The facts do not support most of DeMeo’s out-of-court statements.

Smith’s head was attached to his body according to the autopsy photographs, and

Motley was not stabbed in the neck according to his medical records.

Motley also avoided discussing DeMeo’s motive in his appellate

arguments. According to DeMeo’s recorded statements, Motley and the two others

were settling a grudge against DeMeo and were in the process of attempting to

murder him while travelling at 60 m.p.h. in the stolen vehicle Smith had provided

for Motley’s use. DeMeo claimed that he saw the disabled semi and purposely

directed the vehicle into the rear of the trailer in an effort to save himself or die

trying.4 There is no dispute that Motley and the others had firearms in their

possession, and postmortem photographs of Smith indicated he was inexplicably

wearing latex gloves.

After considering all the evidence presented, including DeMeo’s

recorded statements, the jury convicted Motley of aggravated vehicular homicide

and assault, having weapons while under disability, carrying concealed weapons,

and operating a vehicle under the influence of alcohol. Motley was also found guilty

of attendant firearm specifications. This timely appeal followed.

4 The trial court attempted to preclude Motley or his attorney from discussing DeMeo’s recorded statements based on the preclusion against hearsay. After numerous violations of the trial court’s evidentiary ruling, the state relented and conceded to Motley’s request to admit and discuss the recording. Any error with the introduction of the recording was invited by Motley. In the first assignment of error, Motley claims his convictions for the

aggravated vehicular homicide and assault crimes are against the weight of the

evidence because he presented an alternate theory of causation that obviated any

criminal liability for the chain of events that led to Smith’s death and Baird’s serious

physical injuries.

In evaluating a claim that the verdict is against the weight of the

evidence, appellate courts must “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 [trier of fact] clearly lost its way

and created such a manifest miscarriage of justice” so that the convictions must be

reversed, and a new trial ordered. State v. Wilks, 154 Ohio St.3d 359, 2018-Ohio-

1562, 114 N.E.3d 1092, ¶ 168, citing State v. Thompkins, 78 Ohio St.3d 380, 387,

678 N.E.2d 541 (1997). Reversing a conviction based upon the weight of the

evidence should occur “‘only in the exceptional case in which the evidence weighs

heavily against the conviction.’” Thompkins at 387, quoting State v. Martin, 20

Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).

Both R.C. 2903.06 (aggravated vehicular homicide) and R.C.

2903.08 (aggravated vehicular assault) include a causation element. The state must

prove that the offender caused the death of another or caused serious physical harm

to another.

Motley claims that his introduction of DeMeo’s out-0f-court

statements definitively proves that Motley did not cause the collision. According to Motley, DeMeo’s conduct in grabbing the steering wheel was a superseding cause

that breaks the chain of causation and alleviates Motley of any criminal

responsibility. Motley provides no authority to support his claim, and as the jury

was instructed, “reasonable doubt is a doubt based on reason and common sense.”

Tr. 734:21-22. Motley’s alternate theory of causation defies common sense.

According to Motley, DeMeo jumped into the front seat from the back

seating area and steered the car into the disabled tractor-trailer while Motley was

driving the car at nearly 60 m.p.h. Motley has failed to account for how DeMeo was

able to survive that impact while unbelted and reaching around the front seat to grab

the wheel during the severe and catastrophic impact, much less how DeMeo

managed to walk away from the crime scene largely unscathed as compared to the

rest of the occupants. Application of the weight of the evidence standard does not

entail the appellate court suspending its collective common sense any more than the

jury would in considering reasonable doubt. Nonetheless, and setting that aside for

the sake of discussion, Motley omits crucial information from his version of DeMeo’s

out-of-court statements.

In this appeal, Motley never explains why DeMeo claimed to have

grabbed the steering wheel to cause the vehicle to impact the immovable object.

According to DeMeo’s recorded out-of-court statements, Motley and the other two

occupants kidnapped him intending to murder DeMeo for an earlier transgression

committed against someone in Motley’s circle. DeMeo referred to Motley using his

nickname, “Killer.” Motley, Smith, and Baird, according to DeMeo, were in the process of attempting to murder him when he grabbed the steering wheel in a last-

ditch effort to either save himself or die trying. Even if DeMeo’s version of events

were established as fact, Motley would not be relieved of criminal responsibility for

his intoxicated driving, which impaired his ability to control the vehicle at such

excessive speeds, especially when coupled with his complicity in the supposed

attempted murder of DeMeo that spurred DeMeo into action. And all of that fails to

account for Motley’s failure to use the brakes. Either way, Motley’s conduct was part

and parcel of the causal chain leading to the deadly collision.

This is not an exceptional case warranting appellate intervention.

The first assignment of error is overruled.

In the second and third assignments of error, Motley claims that

either his trial counsel rendered ineffective assistance of counsel for failing to object

to, or the trial court committed plain error in giving of, the jury instruction for

intervening causes as set forth in 2 Ohio Jury Instructions, CR Section 417.25 (Rev.

May 21, 2022):

OTHER CAUSES NOT A DEFENSE. There may be one or more causes of an event. However, if a defendant’s (act) (failure to act) was one cause, then the existence of other causes is not a defense. INTERVENING CAUSES. The defendant is responsible for the natural consequences of the defendant’s unlawful (act) (failure to act), even though (death) (physical harm to [a person] [property]) was also caused by the intervening (act) (failure to act) of another (person) (agency). That pattern instruction was last amended in May 2022, but conforms with State v.

Price, 162 Ohio St.3d 609, 2020-Ohio-4926, 166 N.E.3d 1155, ¶ 34, in which the Ohio Supreme Court affirmed a jury instruction providing that “the existence of

another cause is not a defense” to a criminal violation that includes a causation

element for the commission of the crime. Motley has not mentioned, much less

discussed, the Ohio Supreme Court’s conclusion in Price. See App.R. 16(A)(7).

In his reply brief, Motley argues that the pattern jury instruction is

not necessarily binding authority. Although that is axiomatically a true statement

of law, Motley has not demonstrated error with this particular pattern instruction.

See App.R. 16(A)(7). 2 Ohio Jury Instructions, CR Section 417.25 is expressly based

on Price’s conclusion that “other causes,” which inherently include intervening or

superseding causes, or however else the “other causes” are characterized, are not a

defense to criminal liability. Despite this unambiguous conclusion, Motley

maintains that intervening causes “can constitute a defense to the element of

causation” if the intervening or superseding cause breaks the causal chain. Motley

relies on tort law to define causation in the criminal context, citing Taylor v.

Webster, 12 Ohio St.2d 53, 56, 231 N.E.2d 870 (1967), but Motley has not presented

any authority for the proposition that tort law can supplant Price.

On this point, and as reiterated during oral argument, Motley

exclusively relies on State v. Flanek, 8th Dist. Cuyahoga No. 63308, 1993 Ohio App.

LEXIS 4282, 19 (Sept. 2, 1993). According to Motley, permitting the pattern

instruction to stand in his case would create an intradistrict conflict with Flanek.

In Flanek, it was concluded that “[a] defendant cannot be relieved of

criminal liability merely because factors other than his acts contributed to the death, provided such other factors are not the sole proximate cause of death.” (Emphasis

added.) Id., citing Cleveland v. Pellech, 8 Ohio Misc.2d 37, 457 N.E.2d 961 (1983);

Toledo v. Davenport, Lucas App. No. L-86-037 1987 Ohio App. Lexis 5699

(January 30, 1987), and Klug v. State, 27 Ohio Law Repr. 477 (1928). Flanek does

not stand for the proposition that a “superseding cause” can relieve a criminal

defendant of liability. It is quite the opposite. Under Flanek, a defendant is not

criminally liable for causing an event, provided that the third party’s conduct was

the sole proximate cause of the event. In other words, the defendant’s conduct did

not contribute to causing the event.

On the facts alone, Motley would not be entitled to that form of

instruction; Motley has not demonstrated that DeMeo was the “sole” proximate

cause of the collision. Even if DeMeo grabbed the steering wheel, Motley had control

of the speed. Motley had control of the braking. Motley had control over his driving

while exceedingly impaired. And none of that accounts for DeMeo’s statements

regarding Motley’s attempt to murder him in that speeding vehicle, which allegedly

caused DeMeo to act.

But beyond that, a superseding cause is not the same as being the

“sole” proximate cause of the event as discussed in Flanek — even if we entertained

the idea of imputing the tort definition into the criminal context to supplant Flanek

and Price. Here, Motley appears confused as to the difference between a

“superseding cause” and the “sole proximate cause” of an event. “The Restatement

refers to an intervening act of a third person which relieves one of liability for his negligence as a ‘superseding cause.’” Cascone v. Herb Kay Co., 6 Ohio St.3d 155,

159, 451 N.E.2d 815 (1983), fn. 1, citing Restatement of the Law 2d 465, Torts,

Section 440. A “superseding cause” relieves the actor of tort liability regardless of

whether the actor’s negligence “was a substantial factor in causing the harm.”

Restatement of the Law 2d 465, Torts, Section 440, Comment a.

Stanek understood that distinction: “[a] defendant cannot be relieved

of criminal liability merely because factors other than his acts contributed to the

death * * * .” Flanek, 8th Dist. Cuyahoga No. 63308, 1993 Ohio App. LEXIS 4282,

at 19. If the third party’s conduct was the sole cause of the criminal act, no trier of

fact can find a defendant criminally responsible for that act. Id. That is a rather

unremarkable observation. A superseding cause instruction assumes the

underlying negligence of the actor with respect to proximate causation and but for

some unforeseeable conduct of a third party that contributed to the causation of the

event, the actor would otherwise be liable. In other words, even if the defendant

contributed to causing the event, the superseding cause, an unforeseeable event,

relieves him of liability. That form of an instruction, which Motley claims is

necessary, is not supported by Ohio law. Motley’s attempt to inject the superseding-

cause theory into criminal law would conflict with Flanek and Price on the black-

letter rule that Ohio does not recognize the existence of a criminal defense based on

the existence of other acts or factors contributing to the harm.

Motley has not demonstrated that the form instruction is a

misapplication of Ohio law, nor has he even mentioned the implications of Price. According to Price, the existence of another cause of the event is not a defense to a

crime that includes an element of causation and one can “cause” an event through

contributing to the chain of events, whether that be characterized as an intervening

or superseding cause. Motley has not demonstrated that 2 Ohio Jury Instructions,

CR Section 417.25 is inherently flawed.

Since Motley has not provided any reason to invalidate the pattern

instruction or distinguish Price, there is no need to further discuss the jury

instruction given in this case. It is not the role of an appellate court to flesh out

underdeveloped arguments on behalf of one of the parties. State v. Quarterman,

140 Ohio St.3d 464, 2014-Ohio-4034, 19 N.E.3d 900, ¶ 19, citing State v. Bodyke,

126 Ohio St.3d 266, 2010-Ohio-2424, 933 N.E.2d 753, ¶ 78 (O’Donnell, J.,

concurring in part and dissenting in part), quoting Carducci v. Regan, 714 F.2d 171,

177 (D.C.Cir.1983). It suffices that Motley has not demonstrated the existence of

error in the giving of the pattern jury instruction to demonstrate ineffective

assistance of counsel or the existence of plain error. The second and third

assignments of error are overruled.

In the fourth assignment of error, Motley claims the trial court erred

by denying his motion to suppress the fruits of the search warrant issued to obtain

Motley’s medical records, which yielded proof of his operating a vehicle while

intoxicated and disproved DeMeo’s hearsay claiming he stabbed Motley in the neck.

The medical records demonstrated that Motley’s blood alcohol concentration was

3.5 times the legal limit and that Motley had no evidence of a neck wound. Motley appears to have waived any privacy rights to his medical records for the purposes of

trial in light of his reliance on DeMeo’s out-of-court statements that implicated the

medical records. Neither party has addressed this concern, however, so it is simply

noted.

According to Motley, the warrant lacked probable cause that Motley

had been operating the vehicle while intoxicated because the affidavit in support of

the warrant omitted facts describing the OVI offense and instead just related the

nature of the crash (hitting a stationary object at a speed in excess of the posted

speed limit). There was evidence of Motley’s inebriation provided by medical

providers, and an open container of liquor Motley was drinking was found in the

crashed vehicle, but the affiant did not rely on that evidence in the warrant

application. Evidence of an OVI offense having been committed, however, is not the

only method of proving an aggravated vehicular homicide or assault crime.

In reviewing “the sufficiency of probable cause in an affidavit

submitted for a search warrant,” the trial court renders a “common-sense decision

whether, given all the circumstances set forth in the affidavit, including the veracity

and basis of knowledge of persons supplying hearsay information, there is a fair

probability that contraband or evidence of a crime will be found in a particular

place.” State v. Marion, 2022-Ohio-2480, 192 N.E.3d 1279, ¶ 35 (5th Dist.), citing

State v. George, 45 Ohio St.3d 325, 544 N.E.2d 640 (1980), at paragraph one of the

syllabus, and Illinois v. Gates, 462 U.S. 213, 238-239, 103 S.Ct. 2317, 76 L.Ed.2d 527

(1983). Appellate courts “must accord great deference to the issuing judge’s determination of probable cause.” Id. In situations in which oral testimony is “not

offered in support of a search-warrant affidavit, the [trial court] determines the

sufficiency by ‘evaluating only [the facts alleged within] the four corners of the

affidavit and [applying] an objective reasonableness standard.’” Id. at ¶ 38, quoting

United States v. Richards, 659 F.3d 527, 559 (6th Cir.2011), fn. 11 (Moore, J.,

concurring in judgment only), and United States v. Weaver, 99 F.3d 1372, 1378 (6th

Cir.1996). Appellate review focuses “‘exclusively with the statements contained

within the affidavit itself.’” Id. at ¶ 38, citing Richards and Weaver at 1378.

Motley, addressing this concern, claims the warrant was “fatally

deficient” because reckless driving alone does not justify the intrusion into a

defendant’s private medical records. On this point, Motley cites several out-of-state

cases as persuasive authority: Hall v. Raech, 677 F.Supp.2d 784, 797 (E.D.Pa.

2010); Commonwealth v. Kohl, 532 Pa. 152, 156-157, 168-169, 615 A.2d 308 (1992);

Commonwealth v. Myers, 640 Pa. 653, 164 A.3d 1162 (2017); King v. Ryan, 153

Ill.2d 449, 451-452, 463-464, 607 N.E.2d 154 (1992). All of those cases deal with

some form of defining probable cause to arrest for driving while under the influence

of drugs or alcohol. The warrant in this case was not based on an OVI offense under

Ohio law.

The affidavit for the warrant did not include any mention of probable

cause to believe an OVI offense had been committed. Instead, the warrant was

focused on the potential reckless or negligent driving elements of the aggravated

vehicular homicide crimes based on the nature of the accident, inexplicably hitting a stationary object at such a speed as to cause the instantaneous death of a front seat

passenger. The affiant averred that probable cause existed to search Motley’s

medical records as evidence of the aggravated vehicular assault committed in

violation of R.C. 2903.08. That crime does not necessarily depend on an OVI

offense; it can be committed through reckless or negligent driving. See, e.g.,

Marion, 2022-Ohio-2480, 192 N.E.3d 1279, at ¶ 40 (5th Dist.) (concluding that the

medical records are probative of a vehicular homicide based on the negligent

operation of a vehicle to determine the driver’s medical condition at the time of the

collision).

The warrant in this case was seeking the medical records to determine

whether Motley was driving recklessly or negligently or had experienced some

medical emergency to explain the single-car accident. The crime of aggravated

vehicular homicide is not limited to an OVI offense. The fact that the warrant

uncovered Motley’s intoxication does not render the original affidavit invalid just

because the medical records established Motley’s intoxication, even if it is presumed

that the intoxication was unknown to the officers at the time given Motley’s medical

condition at the scene of the crime. Since Motley has not addressed the reckless or

negligent operation aspect of the probable cause consideration, nothing further

need be said on this topic. See App.R. 16(A)(7). He has failed to demonstrate the

existence of error, and the fourth assignment of error is overruled.

In the fifth assignment of error, Motley claims the trial court erred in

permitting a law enforcement officer to discuss the data recovered from the vehicle’s EDR. Importantly, Motley did not, nor has he ever, objected to the recorded data

from the EDR being introduced as evidence. See Evid.R. 103(A). Instead, Motley’s

sole focus is on whether the officer who performed the perfunctory task of

downloading the EDR data into a usable trial medium was properly qualified as an

expert as defined under Evid.R. 702 and therefore was required to produce an expert

report under Crim.R. 16(K) or violated Evid.R. 701 by proving opinion evidence

despite his lack of firsthand knowledge. Motley concedes that he received a copy of

the printed EDR data that was introduced at trial during the discovery process.

Motley’s focus on the officer’s expert qualifications is misplaced. “A

police officer does not need to be an expert to testify about the collection of data and

recording of information at an accident scene.” State v. Mobley, 2d Dist.

Montgomery No. 26858, 2016-Ohio-4579, ¶ 31, citing State v. Brady, 7th Dist.

Mahoning No. 13 MA 88, 2014-Ohio-5721, ¶ 43, and Roy v. Gray, 197 Ohio App.3d

375, 2011-Ohio-6768, 967 N.E.2d 800, ¶ 11 (1st Dist.). Motley appears to confuse a

data draw with accident reconstruction, which “‘involves the use of scientific

methodology to draw inferences from investigative data.’” Id. The officer who

downloaded the EDR data was not proffered or qualified as an expert to opine on

the implications of the EDR data; for example, he was not testifying as an expert

accident reconstructionist explaining how the accident occurred based on his review

of the EDR data. He simply testified as to how the data took its printed form, and

then he simply regurgitated the information in the document that was ultimately

introduced into the record for the jury’s consideration. Motley does not discuss nor even identify any expert opinion rendered by the officer. This is fatal to his argument

that focuses on the officer’s testimony and not the reproduction of the EDR data that

was introduced into evidence.

If the printed version of the EDR data required an expert’s

interpretation; in other words, if the jury was unable to read the report and render

any conclusions based solely on the report itself, then the EDR data would have been

inadmissible in the form it was presented. Motley did not challenge the introduction

of the printed data itself, instead focusing on the purported lack of foundation of the

officer’s “expert” qualifications. See Evid.R. 103(A)(1). This is an important

distinction.

The printed EDR data is simple in nature. It provides data from the

vehicle’s sensors for the five seconds preceding the collision (speed, whether the

driver was activating the brakes, steering input in terms of degrees from driving

straight, etc.). The printed EDR data is akin to downloading the contents of a cell

phone and introducing that information at trial through the officer who performed

the perfunctory act of downloading the extrinsic data from its original source. See

Mobley. Motley has not identified any aspect of the printed EDR data that requires

an expert’s interpretation, and the officer was not qualified to testify as an expert

under Evid.R. 702, which negated any requirement to produce an expert report

during discovery. Further, Motley has not identified any statements from the officer

that offered an interpretation of the EDR data as generally precluded under Evid.R.

701 for fact witnesses. Although the state referred to the officer as “an expert” in closing, that

isolated reference would be a mischaracterization of the manner in which the

evidence was introduced at trial. Motley failed to object to the state’s reference in

the closing argument. By failing to timely object to the state’s mischaracterization

of the evidence, Motley has waived all but plain error, which will not be invoked

given the isolated nature of the state’s commentary. The fifth assignment of error is

overruled.

In the sixth assignment of error, Motley claims that it was error to

preclude him from introducing additional evidence of DeMeo’s involvement in

causing the collision. According to Motley, the court should have permitted him to

impeach the state’s witnesses with the contents of police reports or writings

generated by other officers, which indicated that DeMeo was the passenger in the

driver’s side rear seat at the time of the crash or accused Baird of kidnapping, all

despite the general prohibition against impeaching witnesses with extrinsic

evidence. Evid.R. 616(C). Motley has not provided any discussion providing the

appropriate standard of review or any authority in support of his claimed error as

required under App.R. 16(A)(7). The sixth assignment of error is accordingly

In the seventh assignment of error, Motley claims the trial court

improperly designated discovery for counsel’s review only. According to Motley, he

filed a motion on January 4, 2022, seeking an in camera review of the “counsel only”

designation on discovery materials. He claims the trial court denied that motion sometime thereafter without conducting any inspection. Motley appealed his

convictions in two separate appeals involving Cuyahoga C.P. CR-22-669279, a direct

appeal from the sentencing entry and another appeal from the trial court’s decision

denying a motion for new trial. In the underlying case, there is no motion seeking

any in camera review, and therefore, there can be no error.

According to the state, there was an issue in another criminal

proceeding, CR-21-665471, at least providing some context for Motley’s assignment

of error, but that case is not the subject of the current appeal. The seventh

assignment of error is overruled.

In the eighth assignment of error, Motley claims that he was

prejudiced by the 23 postmortem photos of Smith’s body introduced at trial. Motley

cites State v. Maurer, 15 Ohio St.3d 239, 264-266, 473 N.E.2d 768 (1984), State v.

Morales, 32 Ohio St.3d 252, 259, 513 N.E.2d 267 (1987), and State v. Watson, 61

Ohio St.3d 1, 572 N.E.2d 97 (1991), as controlling authority that, according to him,

limits the introduction of “gruesome” photographs to less than a handful at trial.

“Gruesome” photographs are admissible if that evidence is relevant

and of probative value to assist the trier of fact in determining the issues, “or are

illustrative of testimony and other evidence, as long as the danger of material

prejudice to a defendant is outweighed by their probative value and the photographs

are not repetitive or cumulative in number.” State v. Franklin, 62 Ohio St.3d 118,

125, 580 N.E.2d 1 (1991), citing Maurer and Evid.R. 403. “‘[T]he admission of

photographs is left to the sound discretion of the trial court.’” Id., citing Maurer. The state argues that the photographs were used by the coroner and

other witnesses during trial testimony to explain the injuries and mechanism of

Smith’s death in reliance on State v. Graham, 8th Dist. Cuyahoga No. 109582, 2021-

Ohio-3199, ¶ 41 (affirming the introduction of over 100 photographs of a decedent’s

remains).

Motley claims that 23 photographs were too many, but he provides

no useable framework to resolve how many photographs constitute an abuse of

discretion, nor does he provide any usable definition of what constitutes a

“gruesome” photograph. He merely presumes that the postmortem pictures of

Smith are “gruesome.” Some are more desensitized to morbid scenes than others,

and Ohio law appears largely silent as to any workable definition of what constitutes

a “gruesome” photograph. The photos must have shock value, State v. Depew, 38

Ohio St.3d 275, 281, 528 N.E.2d 542 (1988), but a picture of a corpse alone does not

necessarily rise to that level. See State v. Froman, 162 Ohio St.3d 435, 2020-Ohio-

4523, 165 N.E.3d 1198, ¶ 105; State v. Kirkland, 160 Ohio St.3d 389, 2020-Ohio-

4079, 157 N.E.3d 716, ¶ 105.

According to Motley, the state should have been limited to one or two

photographs depicting the damage Motley caused to Smith, with his entire focus on

the number of photographs introduced to the exclusion of demonstrating that the

photographs depicted “gruesome” images. Motley’s sole focus on the number of

postmortem pictures is misplaced. Under State v. Garrett, Slip Opinion No. 2022-Ohio-4218, ¶ 114, the

introduction of 17 crime scene photographs depicting close-up photographs of the

victims’ heads and faces was deemed not an abuse of discretion. Under Graham,

8th Dist. Cuyahoga No. 109582, 2021-Ohio-3199, this court affirmed the

introduction of over 100 “gruesome” photographs. Under Watson, 61 Ohio St.3d 1,

572 N.E.2d 97, five photographs depicting the victim whose “brain was literally

blown out of his skull” was too many, although the error was harmless. There is

hardly any workable framework to determine what constitutes “gruesome”

photographs beyond what could be best described as a “know it when we see it”

practical standard of review, but beyond that, the number of postmortem

photographs introduced at trial is not, in and of itself, the dispositive part of the

inquiry. There is no set limit as to how many photographs are deemed unduly

prejudicial.

The question is the degree to which the photographs depict truly

“gruesome” images, but even then, a defendant must show prejudice in order to

demonstrate reversible error. State v. Lundgren, 73 Ohio St.3d 474, 486, 653

N.E.2d 304 (1995) (over dissent’s claim that the photographs were not all

“gruesome,” the majority found error in the introduction of 16 autopsy photographs,

but the error was harmless given the overwhelming evidence of the defendant’s

guilt). Prejudice is not presumed merely from the “gruesome” nature of the

photographs alone. See id. The standard of review for the introduction of evidence is abuse of

discretion. On this point, Motley has not demonstrated that the trial court abused

its discretion in permitting the introduction of 23 postmortem photographs

depicting the wounds and physical damage that was discussed by various witnesses

at trial. The on-scene photographs introduced did not depict overly shocking images

as compared to Watson, which vividly depicted a person shot in the head with the

brain matter being exposed, but reflected the crime scene as it existed immediately

after the catastrophic collision, and the autopsy photographs were discussed in

establishing Smith’s mechanism of death and to describe the severity of the impact.

Thus, the photographs were used to assist the trier of fact in visualizing the oral

testimony.

And further, even if those 23 photographs were deemed “gruesome”

and excessive, Motley has not demonstrated, let alone argued, the existence of

prejudice from their introduction into evidence. His sole argument on this point is

that the “gruesome” nature of the photographs caused prejudice. Prejudice,

however, cannot be assumed solely based on the alleged “gruesome” nature of the

photographs as Motley asks. See Lundren at 486 (concluding that the defendant

was not prejudiced solely from the introduction of the photographs deemed

inadmissible), citing Evid.R. 103 and Crim.R. 52(A). The eighth assignment of error

is overruled.

In the ninth and final assignment of error, Motley claims that

cumulative errors that were individually deemed harmless combined to create prejudice. Under the cumulative-error doctrine, a conviction may be reversed when

the cumulative effect of nonprejudicial errors “deprives a defendant of a fair trial

even though each of the instances of trial-court error does not individually constitute

cause for reversal.” Garrett, 2022-Ohio-4218 at ¶ 270, citing State v. Powell, 132

Ohio St.3d 233, 2012-Ohio-2577, 971 N.E.2d 865, ¶ 223, and State v. DeMarco, 31

Ohio St.3d 191, 509 N.E.2d 1256 (1987), paragraph two of the syllabus. Having

found only one error potentially deemed to be harmless error, the introduction of

the autopsy and crime-scene photographs, there is no cumulative error. The ninth

and final assignment of error is overruled.

The convictions are affirmed.

It is ordered that appellee recover from appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the

common pleas court to carry this judgment into execution. The defendant’s

conviction having been affirmed, any bail pending appeal is terminated. Case

remanded to the trial court for execution of sentence.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.

______________________ SEAN C. GALLAGHER, JUDGE

MICHELLE J. SHEEHAN, P.J., and EMANUELLA D. GROVES, J., CONCUR