State v. Newberry

2023 Ohio 3623

• Court: Ohio Court of Appeals
• Decided: October 5, 2023
• Docket: 111431
• Status: Published

Opinion

[Cite as State v. Newberry, 2023-Ohio-3623.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, : No. 111431 v. :

RONALD NEWBERRY, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: October 5, 2023

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-19-642539-A

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Carl M. Felice, Assistant Prosecuting Attorney, for appellee.

Katerina MacGregor; Law Office of Attorney Kimberly Kendall Corral and Gabrielle Ploplis, for appellant.

EILEEN A. GALLAGHER, P.J.:

Defendant-appellant Ronald Newberry appeals his convictions for

aggravated murder, murder, kidnapping, aggravated burglary, aggravated arson,

felonious assault and having weapons while under disability following a jury trial in

the Cuyahoga County Court of Common Pleas. The charges stemmed from an investigation into the deaths of Paul Bradley (“Paul” or “Paul B.”) and his 14-year-

old daughter P.B. Paul and P.B. were found dead in a burning car at a vacant

property in East Cleveland on October 10, 2018.

Newberry raises twelve alleged errors in the trial. He claims that the

trial court should have disqualified one of the jurors, his trial counsel was ineffective

and had a disqualifying conflict of interest and that various pieces of evidence should

have been excluded. He also argues that his convictions were not supported by

sufficient evidence and were against the manifest weight of the evidence.

For the reasons that follow, we affirm.

I. Factual Background and Procedural History

On July 31, 2019, a Cuyahoga County Grand Jury indicted Ronald

Newberry and two codefendants — Kodii Gibson and DeMarcus Sheeley — in a

fifteen-count indictment.1 The indictment alleged that Newberry committed the

following offenses on or about October 10, 2018:

Counts 1 and 3: Aggravated murder of P.B., in violation of R.C. 2903.01(A) and (B)

Counts 2 and 4: Aggravated murder of Paul B., in violation of R.C. 2903.01(A) and (B)

Count 5: Kidnapping of P.B. in violation of R.C. 2905.01(A)(3)

Count 6: Kidnapping of Paul B. in violation of R.C. 2905.01(A)(3)

Count 7: Aggravated burglary in violation of R.C. 2911.11(A)(1)

1 Kodii Gibson’s companion case in the common pleas court is Cuyahoga C.P. No.

CR-XX-XXXXXXX-B. DeMarcus Sheeley’s companion case in the common pleas court is Cuyahoga C.P. No. CR-19-642539-D. Count 8: Aggravated arson in relation to Paul B., in violation of R.C. 2909.02(A)(1)

Count 9: Aggravated arson in relation to P.B., in violation of R.C. 2909.02(A)(1)

Count 10: Murder of P.B., in violation of R.C. 2903.02(B)

Count 11: Felonious assault of P.B., in violation of R.C. 2903.11(A)(1)

Count 12: Murder of Paul B., in violation of R.C. 2903.02(B)

Count 13: Felonious assault of Paul B., in violation of R.C. 2903.11(A)

Count 14 did not apply to Newberry.

Count 15: Having weapons while under disability, in violation of R.C. 2923.13(A)(3)

Each of counts 1, 2, 3, 5, 6, 7, 10 and 11 carried one- and three-year

firearm specifications under R.C. 2941.141(A) and 2941.145(A). Count 13 carried an

accelerant specification under R.C. 2941.1425(B).2

The prosecution’s theory of the case was that Newberry, Gibson and

Sheeley participated in a “crime spree” on October 10, 2018, which culminated in

the murders of Paul and P.B. They broke into Paul’s house in Bedford and kept Paul

and P.B. detained there between 3 a.m. and 6 a.m. while they ransacked the house

and stole items of value. Then they drove Paul and P.B. — in a silver Buick LaCrosse

that Paul was renting — to an abandoned house on Wadena Avenue in East

Cleveland and kept them there for over two hours while Gibson called his girlfriend

to bring him a gasoline can and while Gibson and Sheeley walked to a nearby gas

2 The indictment also included capital specifications under R.C. 2929.04(A)(5) and

2929.04(A)(7) but the state voluntarily dismissed those specifications before trial. station, and back, to fill it up. Shortly after 9 a.m., they drove Paul and P.B. — again

in Paul’s car — to a vacant lot on Savannah Avenue in East Cleveland, where they

shot P.B. to death and burned Paul alive. Newberry, Gibson and Sheeley used

Newberry’s car — which had been recently purchased in Newberry’s mother’s name

— throughout these events. Newberry returned the car to the dealership in an

attempt to lose evidence and conceal his involvement in the crime. When

investigators suspected Newberry’s involvement, he and his mother created a fake

person — “Jamaican Shawn” — to conceal Newberry’s participation in the murders.

The state readily admitted that its case against Newberry was circumstantial.

The defense did not dispute that someone broke into Paul B.’s house,

robbed him, kidnapped both him and his daughter and brutally murdered them.

The defense did not even dispute that Newberry’s car was used in the commission

of those offenses. But the defense was adamant that Newberry was not involved in

those crimes. The defense argued to the jury that Newberry routinely allowed others

to use his car and phones and said that all the circumstantial evidence tying

Newberry to the murders was explained because Newberry allowed others to use his

car and phone at the time of the crimes. Newberry voluntarily turned himself in,

spoke to the police and consented to the collection of his DNA, all because he knew

he did nothing wrong. He returned his car because he knew his friends had

committed a crime in it.

A jury trial on the charges commenced on February 25, 2022 and the

jury returned its verdict on March 16, 2022. A. Voir Dire

During voir dire, prospective juror No. 31 requested a sidebar

conference and disclosed that the juror’s daughter “is friends with the victim’s

daughter.” The juror reported that this fact would not affect his ability to be fair and

impartial. The juror had not spoken with his daughter “for at least four years.”

Neither party moved to exclude juror No. 31 and the juror served on the jury.

B. Waiver of Potential Conflict

Before opening statements began on March 7, 2022, the trial court

discussed several preliminary matters with the parties including a potential conflict

that had been identified with respect to one of the defense counsel.

The prosecutor related to the court that the state had “discussed

several times off the record” with the defense that one of the defense attorneys had

previously represented Joseph D. Marché — an East Cleveland police officer who

was involved in the investigation of the case as a detective — “and others in East

Cleveland.” The prosecutor noted that the representation was in a civil case and

requested “that we go on the record and waive any potential conflicts.”

Defense counsel then explained that he previously represented

Marché and approximately three other East Cleveland employees in “a civil matter

where * * * a citizen[] had brought an action again[st] East Cleveland’s police

department for not being accredited, for not having their shooting records in line or

qualifying records, not having their continuing education, things like that.” Counsel

said that he had filed a motion to withdraw in that matter and the case was ultimately dismissed by the trial court. Counsel stated that he did not recall ever

speaking with Marché about that civil case and described that counsel’s role had

been limited to gathering records from state agencies and producing those records

to the trial court. Counsel then said as follows:

Nothing about this case or any other case, for that matter, was ever discussed. I’ve other cases against the Commander [Marché] where I’ve cross-examined him. I have no problem doing my job in this case. I didn’t learn anything from that representation about my client or any other client, for that matter.

Immediately after defense counsel’s explanation, the trial court

discussed the matter with Newberry, as follows:

THE COURT: Mr. Newberry, is that okay with you? After that’s all been disclosed, are you okay?

[NEWBERRY]: Yes.

The trial court then asked counsel for the parties if there was anything

else they would like to put on the record regarding the potential conflict issue.

Counsel had nothing further to say about it.

C. The State’s Case

The state called nineteen witnesses in its case-in-chief.

1. The Examination of John Hartman

John Hartman testified that he is employed as a police sergeant with

the East Cleveland Police Department. He said he has been a police officer in East

Cleveland for six years and was promoted to the rank of sergeant in August 2021.

Hartman was working as a patrol officer on October 10, 2018. At

around 9:30 a.m. that day, he responded to a vacant field on Savannah Avenue in East Cleveland regarding a report of a vehicle on fire. As Hartman arrived, he saw a

car on fire. The fire department was already on scene and working to extinguish the

fire.

Hartman and other officers who responded to the scene that day wore

city-issued body-worn cameras. The state played a video recording from one of

those cameras. The video depicts a car parked on a grassy lot between two houses.

The car’s trunk is partially open and flames stream from the vehicle. Firefighters

walk around the car, dousing the car with water from a firehose.

Hartman testified that one of the firefighters notified him that there

were two bodies inside the vehicle. Hartman approached within three feet of the car

and smelled the odor of burnt flesh. He saw two people in the back seat; they were

both deceased and “extremely burned.” He observed that both people appeared to

be bound at the wrists and “[i]t looked like they were wrapped with cloth.” Hartman

then notified his supervisors and began to “establish the crime scene.”

2. The Examination of Jennifer Heard

Jennifer Heard testified that she met Paul B. in 2003 and they dated

“on and off” from that point forward. They have three children together. Paul also

had other children, including P.B., for whom Heard is not the mother.

Paul served a three-year sentence in federal prison for drug

trafficking. After Paul’s release from prison, he and Heard lived together until 2018.

They bought a house on Gould Avenue in Bedford, Ohio in 2013 and Heard stayed there “on and off” over the years. The house was a two-story, single-family residence

with a detached garage.

Heard never knew Paul to hold a steady job after his release from

prison but he had money such that he could pay for household expenses and basic

needs and provide for his children. He also liked to go to the casino and often he

would go seven days a week. Paul gambled with large sums of money, thousands of

dollars at a time. Paul had over $5 million in receipts at the Jack Casino alone,

owned two properties and used at least two phones. She said she believed Paul made

his money through gambling.

In June 2018, Paul called Heard and asked her to drive to meet him

at a hotel in the Brecksville–Broadview Heights area of Ohio. When she arrived,

Paul put a black duffle bag in the back of her car; the bag was branded from the Jack

Casino. Heard was stopped by the Ohio State Highway Patrol on her way home from

the hotel. Troopers searched the bag, finding that it contained approximately

$345,000 in cash. Heard and Paul never talked about why the bag held that much

cash.

P.B. entered the ninth grade at school in August 2018; she was living

with Paul at the house on Gould Avenue that fall.

In September and October 2018, Paul was renting a Buick, which had

out-of-state license plates. It was his habit to rent cars, as opposed to buying a

vehicle, after his release from prison. Heard drove to the Gould Avenue house at around 11:30 p.m. on

October 9, 2018, to deliver P.B. a bookbag that P.B. had left at a relative’s house the

weekend before. Heard parked in the driveway and called Paul, who was home with

P.B. at the time, and P.B. came outside and grabbed the bag from Heard. P.B. kissed

Heard’s 16-month-old son, who was in the car with Heard, then went back inside

the house.

Heard drove around the corner to Paul’s sister’s house, where she

stayed that night. She woke up around 6:45 a.m. on October 10, 2018, and called

Paul’s and P.B.’s phones which they did not answer. Later that morning she drove

to the Gould Avenue house and found that the street was blocked off by emergency

vehicles. She was informed that Paul’s vehicle had been found, burned, in East

Cleveland and that Paul and P.B. had been found deceased inside of it.

Heard was allowed back inside the Gould Avenue house on October

11, 2018. She found that each floor of the home was “[r]ansacked.” She took an

inventory and reported to police that several items of value were missing, including

two PlayStation videogame consoles and controllers, a pair of burgundy shoes, a

Ferragamo belt and Paul’s earrings and watch. She identified a picture taken of

Paul’s son when he went to prom, which she said depicts the son wearing the

Ferragamo belt that was taken.

On cross-examination, Heard admitted that she never saw Paul and

Newberry together. She did not know Newberry prior to this case and did not know the extent of the relationship, if any, between Paul and Newberry or the degree to

which they ever had contact.

3. The Examination of Michael Griffis

Michael Griffis testified that he is employed as a police officer by the

city of Solon and serves as a narcotics detective with the Southeast Law Enforcement

(“SEALE”) narcotics task force. He described SEALE as “a multi-jurisdictional task

force” that primarily investigates drug trafficking. He testified to the following facts

relevant to this investigation.

Before Paul B.’s death, law enforcement officers suspected that he was

involved in “heroin trafficking.” In 2015, Griffis was involved in an investigation

targeting Paul; officers bought approximately ten grams of heroin from Paul through

a confidential informant. That investigation ended when the confidential informant

stopped cooperating.

On cross-examination, Griffis admitted that drug traffickers often use

rental cars to hide their identity and avoid forfeiture.

On October 10, 2018, Griffis conducted a welfare check at Paul B.’s

house in the late morning or early afternoon. He and another detective found the

rear door open. They entered the house and saw a red liquid on the floor in several

rooms. The odor of gasoline was “really strong” so they backed out of the house and

contacted the gas and electric utility companies and the fire department to make

sure it was safe for them to enter. The gas and electricity services to the home were

cut off for safety. Once the house was rendered safe, Griffis and the other detective went through the property and found no one inside. The house looked like it had

been “tossed.”

4. The Examination of Christopher Wilson

Christopher Wilson testified that in October 2018 he was employed

as a special agent with the Ohio Bureau of Criminal Investigation (“BCI”).

On October 10, 2018, Wilson responded to the Savannah Avenue

crime scene at approximately 11:48 a.m. to photograph the scene. He observed two

bodies in the back seat of the burned-out vehicle; the victims appeared to have their

hands bound. One was positioned with the head facing the driver’s side of the

vehicle; the other was positioned behind the first, with the head facing the passenger

side. Wilson observed a “pinkish liquid drip stain” on the outside of the vehicle, near

the gas tank.

After photographing this scene, Wilson drove to Paul B.’s home on

Gould Avenue in Bedford to take photographs and assist with the processing of

evidence there.

There was a “strong chemical odor” when he entered the home. There

was a “reddish liquid” on the “floor, furnishings, and household items throughout

the house”; the State Fire Marshal’s Office collected samples of the liquid for testing

as a suspected accelerant. The house “appeared to have been rummaged through.”

In one of the bedrooms, there were “drawers from the nightstand pulled out and

various household items strewn throughout the floor.” There were stains on a wall and closet on the first floor of the home

that tested presumptively positive for blood. There was a fragment of a blue

examination glove on the floor of the living room near the blood stains; it appeared

that the suspected accelerant was on the glove.

There were items “consistent with drug activity” located in the

basement, including blender components, weights and a digital scale.

BCI collected the items of physical evidence identified as potentially

relevant to the investigation. BCI also collected “blind swabs” of various surfaces at

the home, to test for the “presence of skin cells and potentially extract DNA profiles

from those skin cells.”

5. The Examinations of Jeffrey Koehn and Mollie Jordan

Jeffrey Koehn testified that he has been employed as a fire and

explosion investigator by the Ohio State Fire Marshal’s Office for twelve and a half

years. He said he was a firefighter and fire investigator in Trumbull County for

thirteen years before joining the Fire Marshal’s Office and remains a part-time

firefighter in Geauga County. The state offered Koehn as an expert in determining

the origin and cause of fires and explosions and the defense stipulated to his

qualifications.

Mollie Jordan testified that she has been employed by the State Fire

Marshal’s forensic lab for eleven years. The state offered her as an expert in fire

debris analysis and the defense stipulated to her qualifications. Taken together, their testimony established the following facts and

conclusions relevant to this investigation.

Koehn was called to the Savannah Avenue crime scene on October

10, 2018. He smelled the odor of gasoline and “burnt flesh” while he was processing

the scene. The odor of gasoline was “very strong,” such that one could smell it out

to 20 feet from the vehicle. “Depending how the wind blew,” he said, “you could get

it even further away.” Koehn learned that the burned-out vehicle was registered to

a rental agency in Cleveland and that the vehicle had been rented to Paul B.

Koehn examined the vehicle at the scene and later processed the

vehicle for evidence at the medical examiner’s office. A hole was found on the

underside of the vehicle, surrounded by a “red stain”; this was later determined to

be a bullet hole surrounded by blood. Blood stains were also found in the vehicle.

Bullets and cartridge cases were found on the passenger side in the rear seating

compartment. There was a “reddish pinkish liquid” on the outside of the vehicle on

the rear passenger side. Samples were taken from the interior of the vehicle and

from the clothing on Paul’s and P.B.’s bodies and tested for gasoline.

Jordan conducted forensic tests on these samples. Every sample

taken from inside of the burned-out car tested positive for gasoline, including

samples taken from the clothes of the victims.

Koehn’s expert conclusion was that the vehicle fire was caused by a

person who intentionally set fire to the vehicle by applying an open flame — most

likely a lighter or a match — to gasoline, which had been intentionally applied to the vehicle and the victims. Koehn’s analysis of the scene led him to conclude that the

fire had spread from the front of the car — where the fire had been hot enough to

melt the car’s windshield and aluminum hood — to the rear. He also concluded that

the fire spread from the interior of the vehicle to the exterior.

Later, Koehn examined the dark blue 2010 Ford Edge that Newberry

had been using in October 2018. A trained accelerant-detecting dog alerted to the

exterior of the car and various places inside the car. Koehn collected eight samples

from the vehicle.

Jordan conducted forensic tests on these samples. A sample taken

from the front driver’s seat of Newberry’s car tested positive for gasoline, as did a

sample taken from the “rear carpet area” of his car. A sample taken from plastic

bubble wrap in Newberry’s trunk tested positive for gasoline and “medium

petroleum distillate.” Medium petroleum distillates include charcoal lighter fluid,

paint thinner and tiki torch fuel.

On cross-examination, Koehn admitted that no investigator tested

the clothing of any living person for the presence of accelerants. He further admitted

that he could not tell how much gasoline was present in the Ford Edge; it is possible

that there were only “drops” of gasoline there. He further admitted that it is possible

to transfer gasoline from one item to another. He continued as follows:

DEFENSE COUNSEL: [I]f I cut lawns for a living, right, and I’m pouring gasoline into weed whackers, blowers, lawnmowers, I get in my truck everyday, am I going to have gasoline on my seat?

A: It’s possible. Koehn said he was not able to say whether the gasoline detected in the

Ford Edge was “transfer material.”

6. The Examinations of Joseph Stevens and Christa Rajendram

Joseph Stevens testified that he is employed as a fire investigator for

the State Fire Marshal’s office. He said he has been in that role for seven years and

was employed as a firefighter for 20 years before that. The state offered him as an

expert in determining the origin and cause of fires and the defense stipulated to his

Christa Rajendram testified that she is employed as a forensic lab

supervisor by the State Fire Marshal Forensic Lab. She said she has worked at the

lab for approximately 28 years, detecting and analyzing ignitable liquids, among

other things and has a Ph.D. in chemistry. The state offered her as an expert in the

field of fire debris analysis and the defense stipulated to her qualifications.

Taken together, their testimony established the following facts and

Stevens responded to Paul B.’s Gould Avenue home on October 10,

2018, after police officers approaching the home “smelled the fumes from ignitable

liquid coming out of the house.” When he arrived, he also smelled “a distinct odor

of gasoline” at the house.

Stevens walked through the home and saw a “pinkish reddish” liquid

throughout the house. Stevens collected three samples of the liquid from various

places inside the home and submitted them to a laboratory for identification. Rajendram forensically tested the samples collected by Investigator

Stevens from Paul B.’s home. The red liquid on the samples was a mixture of

gasoline, a medium to heavy petroleum distillate and a petroleum-based oil.

Petroleum-based oils include motor oil and transmission fluid.

Stevens identified that there were a couple pieces of paper in the

basement of the home that someone had twisted up, indicating that the person

intended to “control the burn of that particular piece of paper.” His training told

him that a person can use a twisted piece of paper like he found “as a wick or

something to * * * initiate and ignite” a flammable liquid. The “pinkish reddish”

liquid that had been found throughout the house was also found on these two

twisted pieces of paper.

Through his examination, Stevens concluded that a person or

multiple people had poured an ignitable liquid throughout the home, including in

the basement and on the first and second floors of the home. Stevens found no fire

damage inside the house but he noted that there was a hot-water tank and a furnace

in the basement and a gas stove in the kitchen, among other possible “ignition

sources.” He explained that the fumes from the ignitable mixture poured

throughout the house could have ignited from these sources, like the pilot light of

one of the gas appliances.

On cross-examination, Stevens admitted that the wicks he found —

the twisted pieces of paper — had not been burned. He admitted that it did not look

like there had been any fire at the house. He did not know how long the ignitable mixture had been in the house and did not know how long it takes for gasoline to

evaporate.

7. The Examination of Phillip Howell

Phillip Howell testified that he is employed as a police detective with

the City of East Cleveland.

On October 16, 2018, Howell talked to a homeowner on Savannah

Avenue who maintained a video surveillance system. Howell obtained a search

warrant and gathered the recording system for review.

On November 9, 2018, Howell obtained a gas-station owner’s

consent to collect recordings from the gas station’s video surveillance system. The

gas station was located on Euclid Avenue near the Savannah Avenue crime scene.

On cross-examination, Howell admitted that he did not inquire as to

which employees were working at the gas station on October 9 and 10, 2018. He

also did not ask for transaction history like credit-card receipts from those days.

On November 10, 2018, Howell went to an abandoned residence on

Wadena Avenue in East Cleveland, where there “was kind of * * * like a dump site.”

The home was “right around the corner” from the Savannah Avenue crime scene and

investigators “had information that the suspects were at that residence” with Paul

and P.B. Howell searched the outside of the residence and found examination-

gloves — some blue and others clear — scattered around the home’s driveway and

backyard. The gloves were collected as evidence. On cross-examination, Howell admitted that no investigator went

into the house at the “dump site” on Wadena Avenue, despite investigators’ belief

that the site was the staging area for the homicides.

On November 12, 2018, Howell went to a CPR Cell Phone Repair store

in Mayfield Heights, Ohio based on “information that one of the suspects had taken

a PlayStation from the victim’s house in Bedford and that the item was there at that

CPR store.” Howell collected a PlayStation videogame console from the store as

evidence.

On cross-examination, Howell admitted that no investigator

collected security-camera recordings from that store.

8. The Examination of James Kooser

James Kooser testified that he has been employed as a firearms and

tool marks examiner by the Cuyahoga County Regional Forensic Science Laboratory

for approximately five and a half years and was a Cleveland police detective for over

30 years before that. The state offered him as an expert in the field of firearm and

tool mark examination and the defense stipulated to his qualifications. He testified

to the following facts and conclusions relevant to this investigation.

Kooser examined two spent bullets and five fired cartridge cases

found in the burned-out Buick Lacrosse, as well as two spent bullets recovered from

P.B.’s body. He determined that all five of the fired 9 mm cases were fired from the

same Glock pistol. He determined that all four spent bullets — which were each

9 mm caliber — were fired from the same gun, which could have been manufactured by one of several manufacturers, including Glock. Kooser said it was his belief that

all the bullets and all the cases were fired from the same Glock pistol.

9. The Examination of Curtiss Jones

Curtiss Jones testified that he is employed by the Cuyahoga County

Medical Examiner’s Office as a supervisor for 19 years in the trace-evidence unit.

The state offered him as an expert in trace evidence analysis and the defense

stipulated to his qualifications. He testified to the following facts and conclusions

The medical examiner’s office received the silver Buick LaCrosse

containing Paul’s and P.B.’s bodies on October 10, 2018. Jones removed Paul and

P.B. from the vehicle and processed trace evidence from their bodies.

Paul was in “the rear bench seat of the vehicle with head towards the

driver’s side of the vehicle and facing forward in the vehicle.” There was burned

white fabric, possibly from a “hooded garment,” around his neck. He also had

burned green fabric around his neck, which could have been tied in a knot. He had

a “USB style charging cord” wrapped around his wrists and knotted into a binding;

a piece of clear tape was found melted onto the cord. He had an “orange electrical

extension cord” wrapped around his ankles and knotted into a binding.

P.B. was also in the back seat, oriented with her head towards the

passenger side. P.B.’s wrists and ankles had not been bound.

Five cartridge cases and two spent bullets were found in the back seat

of the vehicle. The medical examiner’s office received Newberry’s Ford Edge for

processing on November 29, 2018. Jones collected samples from inside and outside

the vehicle to look for bodily fluids, hair and DNA.

10.The Examination of Andrew Harasimchuk

Andrew Harasimchuk testified that he is a special agent with BCI and

has been employed in that capacity for seven years.

East Cleveland police asked BCI to process Newberry’s Ford Edge for

blood and gunshot residue. Harasimchuk and another special agent, Dan Boerner,

processed the vehicle on November 6, 2018. Harasimchuk understood that the

vehicle had been at an automobile dealership before East Cleveland police

impounded it; the vehicle had been “detailed” — cleaned — twice before his

examination.

Harasimchuk did not test for gunshot residue because the cleanings

made the test futile. He did not find blood anywhere on the inside or outside of the

car.

11. The Examination of Lisa Moore

Lisa Moore testified that she is employed as a DNA analyst by the

Cuyahoga County Regional Forensic Science Laboratory, part of the medical

examiner’s office; she has been in that role since 2002. The state offered her as an

expert in the field of forensic DNA testing and analysis and the defense stipulated to

her qualifications. Moore swabbed both sides of the examination-glove fragment found

in Paul B.’s house. She found DNA on the swab and entered the DNA profile in the

Combined DNA Index System (“CODIS”), which revealed a preliminary association

with Kodii Gibson. The DNA matched Gibson as the “major contributor” and one

unknown contributor. There was positive match support for Newberry as the

unknown minor contributor. The data generated during Moore’s processing of this

sample was sent to an outside lab operated by a company called Cybergenetics.

There was no match support for Newberry, Gibson or Sheeley found

on swabs taken from various places on the burned-out Buick LaCrosse, in Paul’s

house and on the ligatures around Paul’s body. The only DNA found on those swabs

was Paul’s.

The DNA from many of the samples collected from Newberry’s Ford

Edge matched to Newberry. Samples from the rear seating area matched to

Newberry and Quentin L. Palmer. A sample from the rear passenger door hand grip

matched to Sheeley. A sample taken from the rear passenger door armrest showed

positive match support for Sheeley and Palmer — and P.B. But the samples from

the armrest were not conclusive.

On cross-examination, Moore admitted that it makes sense that

Newberry’s DNA would be in the Ford Edge if Newberry used it frequently. She

further admitted that a passenger sitting in Newberry’s car might pick up some of

Newberry’s DNA. She admitted that it is possible that the passenger could then

deposit Newberry’s DNA on another object sometime later. Moore admitted that, of the DNA she found on the piece of the blue

glove found in Paul’s home, approximately 95 percent matched to Gibson. The

remaining DNA matched to a minor contributor. While there was positive match

support that the minor contributor was Newberry, the match was considered

inconclusive according to the medical examiner’s office’s standards at the time of

the test.

On redirect, Moore testified that Cybergenetics’ TrueAllele software

has been peer reviewed and was validated by the medical examiner’s office.

12. The Examination of Quiana Gilbert

Quiana Gilbert testified that Kodii Gibson is Gilbert’s child’s father.

In October 2018, Gibson would “hang around” Newberry and Sheeley; he had done

so for about six months. She used to see the three men together about once a month.

On October 9, 2018, Gibson drove Gilbert to her workplace in her car,

dropping her off at around 3 p.m. Newberry and Sheeley were also in the car on the

drive. The plan was for Gibson to pick Gilbert up at 11 p.m. when her shift ended

but at some point Gibson texted her and made clear that Gilbert needed to find a

different way to get home. Gibson arranged for Sheeley’s girlfriend to pick Gilbert

up from work and take her home but Gilbert ultimately decided to get a ride home

from a co-worker. Gilbert and Gibson were texting throughout the night of October

9, 2018.

Gilbert woke up at 7 a.m. on October 10, 2018 and Gibson had not yet

returned her car. She texted him to ask where her car was. That morning, she received a call from Gibson about a gas can and, based on that conversation, brought

a gas can from her house to Wadena Avenue in East Cleveland. Gibson’s

grandmother lived on Wadena. When Gilbert arrived at Wadena, she saw Gibson

standing next to an abandoned house located two doors down from Gibson’s

grandmother’s home. She did not see her own car. She pulled into the driveway of

the abandoned house and she saw Newberry’s vehicle there. She did not see

Newberry.

Gibson walked to the car that Gilbert was in, retrieved the gas can

from her and gave her the keys to her car. She learned that her car was parked “[o]ff

of 116th,” the street on which Sheeley lived.

After giving Gibson the gas can, Gilbert did not see him until the next

day (October 11, 2018). When she saw him next, Gibson had a red duffle bag that

said “JACK Casino” on it; he also had “[a] game system and a belt.” She had never

seen Gibson with those items before. There came a time that Gilbert went with

Gibson to take the gaming system to a business called “CPR”; Gibson said the

gaming system was broken.

The state played surveillance-camera footage from the gas station

located at the intersection of Wadena Avenue and Euclid Avenue. According to the

time stamps on the recording, the recording captures the outside of the gas station

during the following windows on October 10, 2018: 12:41–12:48 a.m., 7:40 a.m.,

7:47 a.m., 8:10–8:16 a.m. and 8:29–8:34 a.m. The state played the portion of the recording captured between 12:41

and 12:48 a.m.3 The recording shows a dark-colored vehicle pulling up to a gas

pump; Gilbert identified the vehicle as Newberry’s. Two people get out of the car;

Gilbert identified one as Gibson and the other as Newberry. The person identified

as Newberry exited the vehicle from the rear passenger door. The person identified

as Gibson appears to interact with a gas station employee while the person identified

as Newberry appears to walk around the outside of the gas station using a cell phone.

Gibson gets back into the driver’s seat of the vehicle and, a few minutes later, drives

in reverse for a few feet. Newberry enters the rear passenger seat and the vehicle

drives away from the station at 12:48 a.m.

The state played the portions of the recording captured at 7:40 and

7:47 a.m. The recording shows a dark-colored vehicle driving through the station’s

lot and exiting the lot at 7:40 a.m.; Gilbert identified the vehicle as Newberry’s. The

recording shows a dark-colored vehicle pulling into the lot at 7:47 a.m.; Gilbert again

identified it as Newberry’s and said the car was traveling through the parking lot in

the direction of Wadena Avenue.

The state played the portion of the recording captured between 8:10

and 8:16 a.m. The video shows two people walking in the gas station’s parking lot

toward the station, appearing to come from the direction of Wadena Avenue. Gilbert

identified them as Gibson and Sheeley. The person identified as Gibson appears to

3 The recording is choppy, seeming to capture a frame every four seconds or so. make a phone call at (according to the timestamp) 8:13 a.m.; Gilbert said this was

around the time that Gibson called her to have her bring him a gas can. The men

identified as Gibson and Sheeley then walk away from the station through the

parking lot in the direction of Wadena Avenue.

The state played the portion of the recording captured between 8:29

and 8:34 a.m. The recording shows two people walking in the gas station’s parking

lot toward the station, appearing to come from the direction of Wadena Avenue.

Gilbert identified them as Gibson and Sheeley and identified that Gibson was

holding the gas can she had dropped off to him at the abandoned house on Wadena.

The two are seen outside the gas station, with Gibson leaving view of the camera for

a time, until 8:34 a.m., at which time they exit the gas station through the parking

lot in the direction of Wadena Avenue with the gas can.

On cross-examination, Gilbert admitted that she did not see

Newberry in the surveillance video recordings after 12:48 a.m. She admitted that

she could not tell from the recordings who was driving Newberry’s vehicle in the

later recordings.

Gilbert testified that she was texting with Gibson throughout the

night of October 10, 2018, and said she was concerned for Gibson’s safety. She

testified that she understood Gibson was with Newberry and Sheeley that night.

On cross-examination, Gilbert admitted that Gibson told her to bring

the gas can because her car needed gas, which was a lie. She admitted that Gibson

has lied to her in the past. Gilbert further admitted that she had criminal charges filed against

her for lying to the Cleveland Heights Police Department with respect to a police

chase in which Gibson had been involved. The incident occurred a couple weeks

before October 10, 2018. She further admitted that those charges were dropped in

exchange for her testimony against Newberry.

Gilbert further admitted that she told police in November 2018 that

when she got to Wadena Avenue with the gas can, she saw Gibson coming from

Newberry’s car (as opposed to standing outside the house, as she testified). She

further admitted that she first told police that she had thrown away the videogame

console (as opposed to taking it to CPR as she testified).

On redirect, Gilbert said that she lied in that first interview because

Gibson had been arrested the day before and she was concerned about him.

13. The Examination of Jacob Kunkle

Jacob Kunkle testified that he is employed as a supervisory senior

resident agent with the Federal Bureau of Investigation and is now in charge of the

FBI’s Canton and Mansfield offices. He said he is one of about 80 special agents

nationwide that are assigned to the FBI’s Cellular Analysis Survey Team for which

he received specialized training in locating cell phones based on the records of

cellular-communications providers. The state offered him as an expert in historical

location analysis and the interpretation of cell-phone records; the defense did not

object to his qualifications. Kunkle testified that communications providers record the date and

time of communications that occur from a particular cell phone, the parties

involved, the duration of the communication and the cell-phone tower used. The

records further identify which side of a tower, which “sector,” a communication

used. “[I]f your phone makes or receives a communication,” he explained, “it selects

the strongest and clearest signal from one of those towers.” Many times, that is the

closest tower, but not always. In the Cleveland area, this information can locate a

cell phone within, generally, a “few square mile area.” He described this analysis as

“a piece to the puzzle,” one that cannot “precisely locate someone.” He said the

analysis “just gives you a general idea of where the phone was and whether it was in

a particular area on a given date and time.” He said that when he performs this

analysis, many times he has “no knowledge of who possessed the phone on a given

date or time.” The analysis also does not identify the content of the communications.

Kunkle analyzed call detail records from T-Mobile for cell-phone

numbers associated with Gibson and Newberry, one ending in -1900 (Gibson’s) and

the other ending in -6116 (Newberry’s), on October 10, 2018.

Between 2 a.m. and 4 a.m., there was “quite a bit of activity” on the

phone ending in -1900, “and that activity indicates that that phone moved from the

East Cleveland area down into the Bedford area during that time period.” There was

only one call on the phone ending in -6116 in that time window; it was “down in the

Shaker Heights area” at 2:21 a.m. Between 4 a.m. and 6 a.m., there were about 51 calls made to or from

the phone ending in -1900 and the records “indicate that this particular phone was

down in the Bedford area of Ohio” at that time. There was no activity noted from

the phone ending in -6116, so the records provide no information about where that

phone was during that window.

Between 6 a.m. and 8 a.m., the -1900 number used a tower in Maple

Heights and then moved into the East Cleveland area. There were two outgoing calls

and one incoming call between 6:55 a.m. and 7:58 a.m. on the -6116 phone “which

was up in the East Cleveland area.” Both phones used the same side of the same

tower for several calls between 6:55 a.m. and 7:58 a.m. on October 10, 2018.

Between 8 a.m. and 8:30 a.m., both phones again used the same

side of the same tower for communications, indicating that they were within the

same several square-mile area in that window.

On cross-examination, Special Agent Kunkle admitted that the list

of phone towers he has from the service provider would not show which towers, if

any, were not functioning — for maintenance or otherwise — on October 10, 2018.

He also did not investigate what, if any, potential obstructions exist in the relevant

areas that may have prevented a cell phone from connecting to the closest tower on

October 10, 2018. He also did not know the range of the towers at issue.

14. The Examination of Jennifer Bracamontes

Jennifer Bracamontes testified that she is employed as a DNA analyst

at Cybergenetics and has been so employed for ten years and that she runs DNA data through Cybergenetics’ TrueAllele software, which performs DNA interpretation.

The state offered her as an expert in DNA interpretation and the defense did not

object to her qualifications. She testified to the following facts and conclusions

Cybergenetics’ TrueAllele software “is a computer system that uses

math and statistics and sampling to separate out contributors of DNA mixtures or

samples that have more than one person present in them”; it is “one type of

probabilistic genotyping software.”

On June 7, 2019, the medical examiner’s office sent Cybergenetics

the DNA data from the glove fragment found at Paul B.’s house, along with reference

samples for the victims and suspects. After running the data through the TrueAllele

software, it was determined that there were “two inclusionary match statistics.”

There was a match between the glove and Gibson, which was “16.5 octillion times

more probable than a coincidence.” There was also “a match between the glove and

Mr. Newberry” which was “182,000 times more probable than a coincidence.”

Bracamontes explained that only one in 3.76 million people would match as strongly

as Newberry did. She further explained that the software inferred that Gibson

contributed around 85% of the DNA found in the sample and Newberry contributed

around 6%; the remaining 9% was from an unknown person.

On cross-examination, Bracamontes admitted that the TrueAllele

software is only used in 10 of the nearly 400 crime laboratories in the country. She

further admitted that Cybergenetics is a for-profit company that had collected $8,500 from the prosecution for developing the reports in this case and would

collect more as a result of her testimony at trial. Finally, she admitted that

Cybergenetics does not have “any reporting thresholds” so it “report[s] whatever

comes out” from the software’s analysis of the data.

On redirect, Bracamontes said the company would have had no

problem reporting to the prosecutor’s office if there had been support for excluding

Newberry as a contributor to the DNA on the glove fragment.

15. The Examination of Dr. Joseph Felo

Dr. Joseph Felo testified that he is employed as a forensic pathologist

and the Chief Deputy Medical Examiner for Cuyahoga County. He said he has been

employed as a forensic pathologist for over 24 years. The state offered him as an

expert in forensic pathology and the defense stipulated to his qualifications. He

testified to the following facts and conclusions relevant to this investigation.

Dr. Andrea McCollom performed the autopsies on Paul and P.B.

which Dr. Felo reviewed prior to trial.

The cause of Paul B.’s death was determined to be “[b]lunt impact to

head with brain injuries.” Other conditions that contributed to the death were

“[c]onflagration injury [flame burns] with thermal injuries and asphyxia by carbon

monoxide.” Dr. Felo described that the blunt injuries to Paul’s head were severe,

but are not always fatal. He described that the burns and asphyxia are not always

fatal either. But “putting the two together, they’re fatal.” He summarized that the

“blows to the head and the brain injuries” were the primary cause of Paul’s death “[a]nd what pushed him over the edge and finally caused his death is the burns and

the carbon monoxide poisoning.” The autopsy revealed that Paul was alive during

the fire as he had breathed in smoke from the fire before death.

The cause of P.B.’s death was determined to be “[g]unshot wounds

of the head with skull and brain injuries.” Specifically, the autopsy revealed that P.B.

had been shot three times in the head and died before the fire started.

16. The Examination of Annette Kennedy

Annettee Kennedy testified that she owns a used car lot in Cleveland

called J&W Auto.

Newberry was a customer of J&W Auto and had purchased “a couple

cars” from the business. On September 21, 2018, Newberry bought a navy blue Ford

Edge. He asked that the car be registered in his mother’s name. Around three weeks

later, Newberry returned the car because — he said — the radio was not working

properly and “he just didn’t want the car[;] [h]e wanted to be put into something

else.” Newberry had tinted the vehicle’s windows, so he was told he would have to

remove the tint before returning the car. Newberry had that work completed by the

next day. Newberry purchased a light maroon Sonata on October 26, 2018, the same

day Newberry turned in the Ford Edge; the car was also placed in his mother’s name.

17. The Motions to Suppress Evidence and Dismiss the Indictment

During trial, outside the presence of the jury, the defense moved to

suppress a recording investigators had made of an interview they conducted with

Newberry. The defense related that Newberry was represented by a lawyer who was present at the interview. At the end of the recorded interview, the lawyer asked the

detectives to turn off the recording. The detectives responded, “Give us five seconds”

and left the room, leaving Newberry alone with counsel. The detectives did not turn

off the recording equipment, which captured attorney–client communications

between Newberry and his counsel.

The defense argued that the recording should be suppressed and the

indictment dismissed for what the defense viewed as an intentional violation of the

attorney–client privilege.

The trial court denied the motion to suppress and the motion to

dismiss the indictment. It ordered that the portion of the recording containing the

attorney–client communications be excluded from the exhibit that would be shown

to the jury.

18.The Examination of Kenneth Lundy

Kenneth Lundy testified that he is employed as a police captain with

the East Cleveland Police Department but was a detective with the department in

the fall of 2018.

Lundy was assigned to the investigation of Paul’s and P.B.’s deaths.

In speaking with the victims’ relatives, Lundy came to learn that two Playstation

consoles, designer belts, watches and shoes had been stolen from the Gould Avenue

residence, as were a “Louis Vuitton hat[] and a black and red JACK’S Casino duffle

bag.” Investigators received a tip that a “dark colored SUV” drove slowly

past Paul B.’s Gould Avenue house at around 3 a.m. on October 10, 2018. The

security camera at Harris’ home later recorded Paul B.’s Buick LaCrosse driving in

East Cleveland, followed closely by a dark-colored Ford Edge with a temporary tag.

Investigators came to learn that Newberry had bought and returned a blue 2010

Ford Edge to J&W Auto; they towed the car from the lot to process it for evidence.

Lundy interviewed Newberry on November 9, 2018. The state

played the recording of the interview, during which Newberry claimed that a

“Jamaican Shawn” had his car at the time of the murders.

After making investigation, Lundy found that there was no merit “to

the identification of Jamaican Shawn.”

Phone records showed that Gibson and Newberry were

communicating by phone on October 9 and in “the early morning hours” of October

10, 2018. For instance, by comparing the time stamp on the gas station’s

surveillance recordings with the phone records, Lundy saw that Gibson’s phone

number was connected to Newberry’s phone number in a call at around 8:31 a.m.

on October 10 while Gibson was at the gas station holding the gas can Gilbert had

brought him.

The records also showed that Gibson’s and Newberry’s cell phones

were “hitting off the same tower, so they’re in the same area” at around 8:56 a.m.

that morning. The records also showed that there were over 60 calls between

Gibson and Gilbert in the “late night hours of October 9th into the early morning

hours of October 10th * * *.” Of those, 45 calls occurred between 4:20 a.m. and 5:30

a.m. on October 10.

The records also showed that Newberry’s phone number and

Gibson’s phone number were communicating on October 10 with a phone number

associated with a Darriel Ray, whose grandmother owned the house next to the

vacant lot where Paul’s and P.B.’s bodies were found. Gibson’s and Newberry’s

phone numbers were also communicating on October 10 with a phone number

associated with an Antonio Bell, whose mother owned the “dump site” house on

Wadena Avenue where investigators believe Paul and P.B. were taken before their

deaths.

The phone numbers associated with DeMarcus Sheeley and Quentin

Palmer were also in contact with the phone numbers of Gibson and Newberry on

October 9 and October 10.

On cross-examination, Lundy admitted that Newberry voluntarily

came to the East Cleveland Police Department on November 9, 2018, to turn himself

in after police made it known that they wanted to talk to him as a person of interest.

Lundy admitted that, in the interview, Newberry said he last saw his

car at “one or two in the morning,” which would have been after Newberry was seen

with the car at the gas station. Lundy further admitted that Newberry exits his own

car from the back seat in the camera footage; in the entire case, there are no photographs of Newberry driving his car. Lundy further admitted that Newberry

said he did not get his car and cell phone back until “somewhere before 12.” Lundy

admitted that Newberry does not appear on any of the gas-station security footage

from later in the morning of October 10. He further admitted that he had previously

identified — under oath — one of the people in those recordings as Newberry, but he

had been mistaken.

Lundy admitted that the burglary in Bedford could have occurred

between 3 a.m. and 7 a.m. on October 10; it was not known when the gasoline was

poured in the house and there was no video footage of whoever poured it in there.

Lundy admitted that Newberry told investigators he did not have his

cell phone during the relevant time period on October 10. No one saw Newberry

talking on his phone during that time.

He admitted that, while the FBI told him the phones used the same

tower, he cannot tell how close those two phones were to each other.

He admitted that no items identified as stolen from Paul B.’s

Bedford home were found in Newberry’s possession.

Lundy admitted that law enforcement asked Newberry about

“Jamaican Shawn” first, based on information they had obtained from someone

else; Newberry did not volunteer that name to them. On redirect, Lundy said the

first person to mention “Jamaican Shawn” to them was Newberry’s mother. D. The Motion for Acquittal and the Defense Case

After the close of the state’s case, Newberry moved for acquittal on

all the charges pursuant to Crim.R. 29. The trial court denied the motion.

The defense did not present a case. It renewed the motion for

acquittal at the close of trial and the trial court denied the renewed motion.

E. The Verdict

On March 16, 2022, the jury returned its verdict. The jury found

Newberry guilty on all counts with their attached specifications, except that it found

that the state had not proven the firearm specifications attached to Counts 2, 5, 6

and 7. The trial court then took Count 15, which was tried to the bench, under

consideration. The trial court found Newberry guilty of Count 15.

F. The Sentence and Appeal

The court held a sentencing hearing on March 24, 2022. The state

addressed the court, as did several members of the Paul B. family. The court

indicated that it had reviewed victim-impact letters received in the matter. The

defense also addressed the court.

As to each victim, the offenses of felonious assault, murder,

aggravated arson and aggravated murder under R.C. 2903.01(B) were merged, at

the state’s election, into the offense of aggravated murder under R.C. 2903.01(A).

In other words, Counts 3, 9, 10 and 11 merged into Count 1; Counts 4, 8, 12 and 13

merged into Count 2. The remaining offenses — the two kidnapping offenses

(Counts 5 and 6), aggravated burglary (Count 7) and having weapons while under disability (Count 15) — did not merge with any other offense. Newberry did not

object to the trial court’s merger decisions.

The trial court sentenced Newberry to a term of life imprisonment

with the possibility of parole after 30 years on each of Counts 1 and 2. The court

imposed a three-year prison term for the firearm specification attached to Count 1,

to be served prior and consecutive to the sentence for the underlying offense on

Count 1. Newberry was sentenced to a term of 11 years for each of Counts 5, 6 and

7. Newberry was sentenced to a term of 2 years on Count 15. The trial court ran the

sentences for Counts 1, 2 and 15 consecutively to each other. Newberry was granted

jail-time credit in the amount of 1,222 days.

Newberry appealed and raises twelve assignments of error for

review:

Assignment of Error 1:

The trial court erred by not removing Juror 31 for cause.

Assignment of Error 2:

The trial court erred by admitting Newberry’s recorded interview where law enforcement improperly recorded Newberry’s privileged meeting with counsel.

Assignment of Error 3:

The trial court erred when it overruled Newberry’s motion for a mistrial.

Assignment of Error 4:

Newberry was denied the effective assistance of counsel in violation of the Sixth Amendment to the United States Constitution. Assignment of Error 5:

The admission of testimony as to the content of unauthenticated records is plain error in violation of Newberry’s Fifth, Sixth and Fourteenth Amendment rights.

Assignment of Error 6:

The trial court erred when it admitted hearsay evidence in violation of Newberry’s confrontation rights.

Assignment of Error 7:

Improper identification testimony of police detectives — identifying Newberry as the person in a gas station surveillance video — invaded the province of the jury in violation of Newberry’s rights.

Assignment of Error 8:

The trial court failed to inquire into the nature and extent of a conflict of interest arising out of defense counsel’s representation of the lead police investigator.

Assignment of Error 9:

The trial court abused its discretion when it failed to disqualify defense counsel absent a knowing, intelligent and voluntary waiver.

Assignment of Error 10:

Newberry’s convictions are against the manifest weight of the evidence.

Assignment of Error 11:

The state failed to present sufficient evidence to prove each and every element of the offenses beyond reasonable doubt.

Assignment of Error 12:

The cumulative effect of multiple errors deprived Newberry of his constitutionally guaranteed right to a fair trial under the federal and state constitutions. II. Law and Analysis

A. First Assignment of Error – Juror No. 31

Newberry contends that the trial court should have removed juror

No. 31 for cause when the juror reported that his daughter, with whom he had not

spoken for at least four years, was “friends with the victim’s daughter.” Because

Newberry did not challenge juror No. 31 for cause during voir dire, we review this

argument only for plain error. See State v. Mammone, 139 Ohio St.3d 467, 2014-

Ohio-1942, 13 N.E.3d 1051, ¶ 78.

Crim.R. 52(B) provides that “[p]lain errors or defects affecting

substantial rights may be noticed although they were not brought to the attention of

the court.” An appellate court notices plain error “‘with the utmost caution, under

exceptional circumstances and only to prevent a manifest miscarriage of justice.’”

State v. Barnes, 94 Ohio St.3d 21, 27, 759 N.E.2d 1240 (2002), quoting State v.

Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978), paragraph three of the syllabus.

Plain error “must be an ‘obvious’ defect in the trial proceedings” and we will not find

plain error unless, but for the error, the outcome would have been different. Barnes

at 27; Long at paragraph two of the syllabus; State v. Gardner, 118 Ohio St.3d 420,

2008-Ohio-2787, 889 N.E.2d 995, ¶ 78. “The burden of demonstrating plain error

is on the party asserting it.” State v. Payne, 114 Ohio St.3d 502, 2007-Ohio-4642,

873 N.E.2d 306, ¶ 17.

Newberry has not demonstrated plain error. His argument seems to

be premised on a presumption that is not supported by the record — that juror No. 31’s daughter was friends with P.B., one of the victims. This is far from certain.

Jennifer Heard testified that Paul had other children, including other daughters.

The court read the indictment to the venire before voir dire began, so juror No. 31

knew that P.B. was one of the victims in the case. If the juror’s daughter had been

friends with P.B., one can presume that he would have said as much. The juror’s use

of the present tense “is friends” (as opposed to “was friends”) and reference to “the

victim’s daughter” (as opposed to “one of the victims”) strongly suggests that the

juror’s daughter is friends with another of Paul’s children. But in any event, the juror

reported that his daughter’s friendship with one of Paul’s children would not affect

the juror’s ability to be fair and impartial. Based upon a review of the entire voir

dire, we see no obvious error in the trial court seating juror No. 31 on the jury.

Newberry further contends that his trial counsel was ineffective for

failing to challenge juror No. 31 for cause.

A criminal defendant has the right to effective assistance of counsel.

Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674

(1984). In order to establish a claim of ineffective assistance of counsel, a defendant

must demonstrate that (1) the performance of defense counsel was seriously flawed

and deficient and (2) the result of the defendant’s trial or legal proceeding would

have been different had defense counsel provided proper representation. See id. at

687.

In evaluating counsel’s performance on a claim of ineffective

assistance of counsel, the court must give great deference to counsel’s performance and “indulge a strong presumption” that counsel’s performance “falls within the

wide range of reasonable professional assistance.” Strickland at 689; see also State

v. Powell, 2019-Ohio-4345, 134 N.E.3d 1270, ¶ 69 (8th Dist.) (“‘A reviewing court

will strongly presume that counsel rendered adequate assistance and made all

significant decisions in the exercise of reasonable professional judgment.’”), quoting

State v. Powlak, 8th Dist. Cuyahoga No. 99555, 2014-Ohio-2175, ¶ 69.

As it relates to counsel’s performance in voir dire, “counsel is in the

best position to determine whether any potential juror should be questioned and to

what extent.” State v. Murphy, 91 Ohio St.3d 516, 539, 747 N.E.2d 765 (2001).

Newberry must demonstrate that counsel’s performance was objectively

unreasonable in light of counsel’s failure to further question or strike the juror at

issue. State v. Bates, 159 Ohio St.3d 156, 2020-Ohio-634, 149 N.E.3d 475, ¶ 25. To

establish prejudice, Newberry “‘must show that [a] juror was actually biased against

him.’” (Emphasis omitted; alteration in original.) Id., quoting State v. Mundt, 115

Ohio St.3d 22, 2007-Ohio-4836, 873 N.E.2d 828, ¶ 67.

There is no indication that juror No. 31 was biased against

Newberry. We do not view it as objectively unreasonable that counsel did not

question the juror further or move to strike the juror. The fact that the juror’s

daughter is friends with one of the victim’s children is not, standing alone, one of

the enumerated bases upon which a juror may be challenged for cause under R.C.

2313.17. Moreover, the juror reported that he had not spoken with his daughter for

years prior to trial. Finally, the juror stated under oath that the relationship would not affect his ability to be fair and impartial in the matter. Under the facts and

circumstances of this case, we do not find that Newberry’s counsel was ineffective

with respect to the seating of juror No. 31 on the jury.

B. Second Assignment of Error – Recorded Interview of Newberry

Newberry contends that the trial court erred by admitting a video

recording of an interview of Newberry with police investigators. The original

recording captured Newberry consulting privately with defense counsel but the

version the state offered at trial had that portion of the recording removed.

Newberry argued that the fact that the state had recorded that conversation in the

first place violated his Sixth Amendment rights and, therefore, the entire recording

should have been excluded or the indictment dismissed. The trial court allowed the

remainder of the recording — which, again, did not include the attorney–client

conversation — to be admitted and played to the jury.

“‘Implicit within the meaning of [the constitutional right to counsel]

is the right of a criminal defendant to consult privately with his attorney.’”

(Alterations in original.) State v. Osie, 140 Ohio St.3d 131, 2014-Ohio-2966, 16

N.E.3d 588, ¶ 131, quoting State v. Milligan, 40 Ohio St.3d 341, 342, 533 N.E.2d 724

(1988). But “‘[e]ven where there is an intentional intrusion by the government into

the attorney–client relationship, prejudice to the defendant must be shown before

any remedy is granted.’” Osie at ¶ 144, quoting United States v. Steele, 727 F.2d 580,

586 (6th Cir.1984). To determine prejudice, a court must look to the factors identified

in Weatherford v. Bursey, 429 U.S. 545, 97 S.Ct. 837, 51 L.Ed.2d 30 (1977): (1)

whether the government deliberately intruded in order to obtain confidential and

privileged information, (2) whether the government obtained directly or indirectly

any evidence which was or could be used at trial as a result of the intrusion, (3)

whether any information obtained was or could be used in any manner detrimental

to the defendant and (4) whether details about trial preparation were learned by the

government. Osie at ¶ 144, citing Milligan at 344.

Here, none of those four factors are present. We find, however, that

it was an unconscionable violation of Newberry’s constitutional rights. There is not,

however, anything in the record that suggests the government obtained information

that it used or could have used at trial or in another way detrimental to Newberry.

Finally, there is nothing in the record suggesting that the government learned any

details about defense trial preparation from the act.

Therefore, the defense did not demonstrate that they were entitled

to any remedy beyond that taken by the trial court, redacting the confidential

conversation from the recording played at trial.

C. Third Assignment of Error – Newberry’s Motion for a Mistrial

Newberry contends that the trial court erred by not ordering a

mistrial during Lundy’s testimony after the following exchange:

[PROSECUTING ATTORNEY]: During the interview [Newberry gave with police investigators], the defendant stated he was going to provide you with a list of names and alibi witnesses. * * * Was that ever provided? [LUNDY]: No.

Newberry says that this exchange implied that Newberry had an

affirmative duty to provide a list of alibi witnesses to the police, undermining the

presumption of innocence “and effectively reallocat[ing] the burden to the defense

to disprove the State’s case” in violation of the Fifth Amendment.

The decision to grant or deny a motion for mistrial lies within the

sound discretion of the trial court. State v. Taylor, 8th Dist. Cuyahoga No. 111694,

2023-Ohio-928, ¶ 38; State v. Miller, 8th Dist. Cuyahoga No. 100461, 2014-Ohio-

3907, ¶ 36, citing State v. Garner, 74 Ohio St.3d 49, 59, 1995-Ohio-168, 656 N.E.2d

623 (1995). This is “in recognition of the fact that the trial judge is in the best

position to determine whether the situation in his [or her] courtroom warrants the

declaration of a mistrial.” State v. Glover, 35 Ohio St.3d 18, 19, 517 N.E.2d 900

(1988).

A court abuses its discretion when it exercises its judgment in an

unwarranted way with respect to a matter over which it has discretionary authority.

Johnson v. Abdullah, 166 Ohio St.3d 427, 2021-Ohio-3304, 187 N.E.3d 463, ¶ 35.

An abuse of discretion implies that the court’s attitude is unreasonable, arbitrary or

unconscionable. See, e.g., State v. Musleh, 8th Dist. Cuyahoga No. 105305, 2017-

Ohio-8166, ¶ 36, citing Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d

1140 (1983). “An abuse of discretion also occurs when a court ‘“applies the wrong

legal standard, misapplies the correct legal standard, or relies on clearly erroneous

findings of fact.”’” Cleveland v. Wanton, 8th Dist. Cuyahoga No. 109828, 2021- Ohio-1951, ¶ 8, quoting S. Euclid v. Datillo, 2020-Ohio-4999, 160 N.E.3d 813, ¶ 8

(8th Dist.), quoting Thomas v. Cleveland, 176 Ohio App.3d 401, 2008-Ohio-1720,

892 N.E.2d 454, ¶ 15 (8th Dist.).

“‘A mistrial should not be ordered in a criminal case merely because

some error or irregularity has intervened * * *.’” State v. Robinson, 8th Dist.

Cuyahoga No. 110883, 2022-Ohio-1940, ¶ 31, quoting State v. Reynolds, 49 Ohio

App.3d 27, 550 N.E.2d 490 (2d Dist.1988), paragraph two of the syllabus. A mistrial

is warranted only when “‘the ends of justice so require and a fair trial is no longer

possible.’” Taylor at ¶ 38, quoting Garner at 59.

After a thorough review of the record, we conclude that the trial

court acted within its discretion by denying Newberry’s motion.

“It is axiomatic that in a criminal prosecution, the prosecution bears

the burden of proof in demonstrating that the accused is guilty beyond a reasonable

doubt. Further, the prosecution may not shift to the accused the burden of proof on

an essential element of the crime.” (Citation omitted.) State v. Porter, 2016-Ohio-

1115, 61 N.E.3d 589, ¶ 58 (8th Dist.), citing R.C. 2901.05(A) and In re Winship, 397

U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970).

Here, though, the context of the state’s question makes clear that the

state was clarifying for the jury that it did not fail to investigate Newberry’s

explanation for his whereabouts on the date of the murders. The investigators were

never provided the name of any witness to interview regarding Newberry’s alibi. The state did not comment on Newberry’s failure to produce alibi witnesses during

closing argument.

Moreover, the jury was instructed that the state bore the burden of

proof and that the defense had no burden. A jury is presumed to follow the

instructions, including curative instructions, given to it by a trial judge. Garner at

59.

Given the context of the prosecutor’s question and the instructions

of the trial court clarifying that the state bore the burden of proof, we cannot say that

the trial court abused its discretion in denying Newberry’s motion for a mistrial.

D. Fourth and Fifth Assignments of Error – Cell Phone Records and Ineffective Assistance of Counsel

We consider Newberry’s fourth and fifth assignments of error

together because they are intertwined. Through them, Newberry challenges the

admission into evidence of cell phone records containing location data for

Newberry’s and Gibson’s cell phones. He contends that (1) the trial court erred by

admitting the records because the records were not properly authenticated and

(2) he was denied the effective assistance of counsel at trial because defense counsel

did not object to the evidence on Daubert grounds and based on the lack of

authentication.

1. The Cell Phone Records Were Authenticated

Because Newberry failed to object to the admission of the cell phone

records at trial, he has forfeited all but plain error as to his authenticity argument. Newberry contends that the records provided by the cell-phone

companies were never authenticated or qualified as business records pursuant to

Evid.R. 901 or 803(6). He argues that they should have been excluded, citing State

v. Brooks, 5th Dist. Richland No. 2011-CA-59, 2012-Ohio-1725, and State v. Hood,

134 Ohio St.3d 595, 2012-Ohio-5559, 984 N.E.2d 929.4 He says that the error was

not harmless considering the circumstantial nature of the state’s case.

The state responds that the records were properly authenticated

because Lundy testified that he received the records from T-Mobile in response to a

search warrant and the records were accompanied by a statement from T-Mobile

confirming that fact. The state directs us to Chagrin Falls v. Ptak, 8th Dist.

Cuyahoga No. 109342, 2020-Ohio-5623; State v. Richardson 2016-Ohio-8081, 75

N.E.3d 831 (2d Dist.) and Brecksville v. Sadaghiani, 8th Dist. Cuyahoga No.

109992, 2021-Ohio-2443.

Evid.R. 901(A) addresses the authentication or identification of

evidence prior to its admissibility. Evid.R. 901(A) states: “The requirement of

authentication or identification as a condition precedent to admissibility is satisfied

by evidence sufficient to support a finding that the matter in question is what its

proponent claims.” This requirement is a “‘a low threshold.’” State v. Rogers, 8th

Dist. Cuyahoga No. 105879, 2018-Ohio-3495, ¶ 15, quoting State v. Maust, 8th Dist.

4 The Ohio Supreme Court vacated its decision in State v. Hood, 134 Ohio St.3d

595, 2012-Ohio-5559, 984 N.E.2d 929, and replaced it with a reconsidered opinion at State v. Hood, 135 Ohio St.3d 137, 2012-Ohio-6208, 984 N.E.2d 1057. Thus, we discuss the reconsidered opinion below. Cuyahoga No. 103182, 2016-Ohio-3171, ¶ 24. It “‘does not require conclusive proof

of authenticity, but only sufficient foundation evidence for the trier of fact to

conclude that the evidence is what its proponent claims it to be.’” Rogers at ¶ 15,

quoting Maust at ¶ 24. The proponent of the evidence must demonstrate a

“‘reasonable likelihood’ that the evidence is authentic, which may be supplied by the

testimony of a witness with knowledge.” State v. Roseberry, 197 Ohio App.3d 256,

268, 2011-Ohio-5921, 967 N.E.2d 233, ¶ 65 (8th Dist.), quoting State v. Bell, 12th

Dist. Clermont No. CA2008-05-044, 2009-Ohio-2335, ¶ 30; State v. Wright, Dist.

Clermont No. 28831, 2021-Ohio-2133, at ¶ 77.

In the context of a business record, a “‘qualified witness’ * * * would

be someone with ‘enough familiarity with the record-keeping system of the business

in question to explain how the record came into existence in the ordinary course of

business.’” Hood, 135 Ohio St.3d 137 at ¶ 40, quoting 5 McLaughlin, Weinstein’s

Federal Evidence, Section 803.08[8][a] (2d Ed.2009).

Here, Lundy testified that the cell-phone records were obtained

directly from T-Mobile through a court-issued search warrant. The records were

admitted into evidence along with a statement from T-Mobile that the records were

being produced “in response to the Search Warrant * * * dated November 05, 2018.”

Moreover, the state presented the testimony of Jacob Kunkle, an FBI

special agent who received specialized training in locating cell phones based on the

records of cellular-communications providers. He is one of only approximately 80

special agents in the country on the FBI’s Cellular Analysis Survey Team. To qualify for that specialized team, Kunkle underwent 400 hours of training with various

cellular-communications providers, learning from the providers’ records custodians

and radio engineers. After that training, Kunkle passed a practical examination on

the subject. He has performed thousands of location analyses in his career.

Kunkle testified in detail about how communications providers

record data about communications that occur from a particular cell phone,

identifying the cell-phone tower and sector used. He explained how this data is used

to locate a cell phone within an area as large as several square miles. He described

the limitations of the technology, too, noting that a cell phone does not always select

the closest tower when making a communication connection. He frankly admitted

that the analysis was only “a piece to the puzzle” and that one cannot “precisely

locate someone” using the providers’ location data. He said the analysis “just gives

you a general idea of where the phone was and whether it was in a particular area

on a given date and time.” Moreover, he admitted that he has “no knowledge of who

possessed the phone on a given date or time” and that the analysis does not identify

the content of any communications.

We find that Agent Kunkle is sufficiently familiar with the record-

keeping system of T-Mobile to be a qualified witness for purposes of Evid.R. 803(6).

See State v. Johnson, 2022-Ohio-4344, 203 N.E.3d 78, ¶ 104–108 (5th Dist.). This

testimony, when combined with Lundy’s testimony that the records were obtained

from T-Mobile through a search warrant and the statement in the records

confirming that the records were produced pursuant to the warrant, was sufficient to overcome the low threshold of authentication. See Chagrin Falls v. Ptak, 8th Dist.

Cuyahoga No. 109342, 2020-Ohio-5623, ¶ 21.

2. Trial Counsel Was Not Ineffective

“Failing to file a motion to suppress does not constitute ineffective

assistance of counsel per se.” State v. Brown, 115 Ohio St.3d 55, 2007-Ohio-4837,

873 N.E.2d 858, ¶ 65. “To establish ineffective assistance of counsel for failure to

file a motion to suppress, a defendant must prove that there was a basis to suppress

the evidence in question.” Id.

Newberry contends that his defense counsel should have challenged

the reliability of the cell phone records’ location data pursuant to Daubert v. Merrell

Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).

He further argues that his counsel should have objected to the records’ admission

because of a lack of foundation.

In Daubert, the United States Supreme Court held that the trial

court must act as a “gatekeeper” to ensure both the relevancy and reliability of expert

scientific testimony before admitting it. The Ohio Supreme Court adopted the

Daubert approach to determining the reliability of expert scientific testimony in

Miller v. Bike Athletic Co., 80 Ohio St.3d 607, 687 N.E.2d 735 (1998).

This court has previously held, however, that “testimony concerning

a defendant’s cell phone records and the location of the cellular towers used by a

defendant’s phone in relation to locations relevant to the crime constitutes lay

opinion testimony that does not require ‘specialized knowledge, skill, experience, training, or education’ regarding cellular networks.” State v. Wilson, 8th Dist.

Cuyahoga No. 104333, 2017-Ohio-2980, ¶ 30, citing State v. Daniel, 2016-Ohio-

5231, 57 N.E.3d 1203, ¶ 69 (8th Dist.). We further noted that a Daubert analysis

would be appropriate to the extent that a witness exceeded simply detailing the

defendant’s phone records and which cellular towers were used. Wilson at ¶ 31.

Because Agent Kunkle only testified about the cell phone records of

Gibson and Newberry and the location of the cellular towers used by their phones in

relation to the locations relevant to the crimes, his testimony was admissible as lay

testimony and Newberry has failed to demonstrate prejudice. We find that trial

counsel’s decision not to challenge the evidence was a tactical decision and the

product of trial strategy. See also State v. Sands, 11th Dist. Lake No. 2007-L-003,

2008-Ohio-6981, ¶ 108 (noting that the decision to raise a Daubert challenge is a

matter of trial strategy).

E. Sixth Assignment of Error – Hearsay Evidence and the Confrontation Clause

Newberry contends that the trial court erred in admitting, over

objection, Quiana Gilbert’s statement that it was her understanding that Gibson was

with Newberry overnight on the night of the murders.

The Sixth Amendment to the U.S. Constitution provides in relevant

part that “[i]n all criminal prosecutions, the accused shall enjoy the right * * * to be

confronted with the witnesses against [the accused].” The United States Supreme

Court held that the Confrontation Clause bars “admission of testimonial statements

of a witness who did not appear at trial unless [the witness] was unavailable to testify, and the defendant had had a prior opportunity for cross-examination.”

Crawford v. Washington, 541 U.S. 36, 53–54, 124 S.Ct. 1354, 158 L.Ed.2d 177

(2004).

Here, though, there is no out-of-court testimonial statement.

Quiana Gilbert testified that it was her understanding that Gibson was with

Newberry throughout the night of the crimes. It was established that Gilbert was

communicating with Gibson over the phone that night. But the state did not elicit

testimony from Gilbert that Gibson told her that he was with Newberry.

Because Gilbert did not testify about what Gibson told her on the

phone that evening, there is no out-of-court statement that could be considered

hearsay and there is no Confrontation Clause issue.

F. Seventh Assignment of Error – Identification Testimony

Newberry contends that the trial court erred by admitting Captain

Lundy’s testimony identifying Newberry as one of the individuals captured by gas

station security cameras on the night of the shooting. He further argues that his

counsel was ineffective for failing to object to the identification testimony.

Lundy identified Newberry in security-camera footage captured

between 12:41 a.m. and 12:48 a.m. on the day of the murders. Gilbert also identified

Newberry in that footage.

In Gibson’s trial, Lundy mistakenly identified Newberry in

recordings captured later that morning. But, contrary to what Newberry suggests,

Lundy did not make the same mistake in Newberry’s trial. To the contrary, Lundy admitted that Newberry does not appear on any of the gas-station security footage

from later in the morning of October 10. He further admitted that he had previously

identified, under oath, one of the people in those recordings as Newberry, and that

he had been mistaken.

Lundy was familiar with Newberry because he participated in

Newberry’s interview. Moreover, Gilbert also identified Newberry in the recordings.

There is no merit to Newberry’s seventh assignment of error.

G. Eighth and Ninth Assignments of Error – Counsel’s Alleged Conflict of Interest

We address Newberry’s eighth and ninth assignment of error

together because they are intertwined. Through them, Newberry contends that one

of his defense counsel had a conflict of interest based on counsel’s former

representation of Marché and other East Cleveland law-enforcement officers. He

asserts that his counsel should have been disqualified from representing him at trial.

“The fundamental right to counsel includes a ‘correlative right to

representation free from conflicts of interest.’” State v. Williams, 166 Ohio St.3d

159, 2021-Ohio-3152, 184 N.E.3d 29, ¶ 6, quoting State v. Gillard, 64 Ohio St.3d

304, 311, 595 N.E.2d 878 (1992). “‘Both defense counsel and the trial court are

under an affirmative duty to ensure that a defendant’s representation is conflict-

free.’” Williams at ¶ 6, quoting State v. Dillon, 74 Ohio St.3d 166, 167–168, 1995-

Ohio-169, 657 N.E.2d 273 (1995).

Here, the nature of defense counsel’s former representation of one

of the state witnesses was fully disclosed, defense counsel stated that the former representation presented no conflict of interest and the trial court asked Newberry

if he was comfortable proceeding to trial with that counsel. Newberry said that he

was.

Newberry has not shown that this consent was anything but

informed and voluntary. Further, he has not shown that counsel’s former

representation presented an actual conflict of interest or that counsel’s performance

was adversely affected by the previous representation. See Williams at ¶ 8.

Appellant’s eighth and ninth assignments of error are without

merit.

H. Tenth and Eleventh Assignments of Error – Sufficiency and Manifest Weight of the Evidence

We address Newberry’s tenth and eleventh assignments of error

together. Newberry contends that the state did not present sufficient evidence with

respect to any count for which he was found guilty and he says that the trial court

should, therefore, have granted his Crim.R. 29(A) motion for acquittal on each

count. He further contends that his convictions were against the manifest weight of

the evidence.

While Newberry challenges every count for which he was found

guilty, any error with respect to the sufficiency or manifest weight of the evidence

on the felonious-assault, murder, aggravated-arson and aggravated-murder-under-

R.C. 2903.01(B) counts is harmless beyond a reasonable doubt because those counts

were merged into aggravated murder under R.C. 2901.01(A) at sentencing. See

State v. Ramos, 8th Dist. Cuyahoga No. 103596, 2016-Ohio-7685, ¶ 14 (“When counts in an indictment are allied offenses, and there is sufficient evidence to

support the offense on which the state elects to have the defendant sentenced, the

appellate court need not consider the sufficiency of the evidence on the count that is

subject to merger because any error would be harmless * * *.”), citing State v. Powell,

49 Ohio St.3d 255, 263, 552 N.E.2d 191 (1990).

Therefore, in addressing these assignments of error, we consider

only whether the convictions for aggravated murder under R.C. 2901.03(A),

kidnapping, aggravated burglary and having weapons under disability were

supported by sufficient evidence and were not against the manifest weight of the

A challenge to the sufficiency of the evidence supporting a

conviction requires a determination of whether the state has met its burden of

production at trial. State v. Hunter, 8th Dist. Cuyahoga No. 86048, 2006-Ohio-20,

¶ 41, citing State v. Thompkins, 78 Ohio St.3d 380, 390, 678 N.E.2d 541 (1997).

Whether the evidence is legally sufficient to support a verdict is a question of law.

Thompkins at 386.

An appellate court’s function when reviewing the sufficiency of

evidence to support a criminal conviction is to examine the evidence admitted at

trial to determine whether such evidence, if believed, would convince a reasonable

juror of the defendant’s guilt beyond a reasonable doubt. Id.; see also State v.

Bankston, 10th Dist. Franklin No. 08AP-668, 2009-Ohio-754, ¶ 4 (noting that “in a

sufficiency of the evidence review, an appellate court does not engage in a determination of witness credibility; rather, it essentially assumes the state’s

witnesses testified truthfully and determines if that testimony satisfies each element

of the crime.”). We must determine “‘whether, after viewing the evidence in a light

most favorable to the prosecution, any rational trier of fact could have found the

essential elements of the crime proven beyond a reasonable doubt.’” State v.

Leonard, 104 Ohio St.3d 54, 2004-Ohio-6235, 818 N.E.2d 229, ¶ 77, quoting State

v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus.

A manifest-weight challenge, on the other hand, attacks the

credibility of the evidence presented and questions whether the state met its burden

of persuasion at trial. See State v. Whitsett, 8th Dist. Cuyahoga No. 101182, 2014-

Ohio-4933, ¶ 26, citing Thompkins, 78 Ohio St.3d at 387; State v. Bowden, 8th Dist.

Cuyahoga No. 92266, 2009-Ohio-3598, ¶ 13.

When considering an appellant’s claim that a conviction is against

the manifest weight of the evidence, the court of appeals sits as a “‘thirteenth juror’”

and may disagree with “the factfinder’s resolution of the conflicting testimony.”

Thompkins at 387, quoting Tibbs v. Florida, 457 U.S. 31, 42, 102 S.Ct. 2211, 72

L.Ed.2d 652 (1982). The reviewing court must examine the entire record, weigh the

evidence and all reasonable inferences, consider the witness’ credibility 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 that the conviction must

be reversed and a new trial ordered. Thompkins at 387, citing State v. Martin, 20

Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). Reversal on manifest-weight grounds is reserved for the “‘exceptional case in which the evidence weighs heavily

against the conviction.’” Thompkins at 387, quoting Martin, supra.

The elements of an offense may be proven by direct evidence,

circumstantial evidence, or both. See, e.g., State v. Wells, 8th Dist. Cuyahoga No.

109787, 2021-Ohio-2585, ¶ 25, citing State v. Durr, 58 Ohio St.3d 86, 568 N.E.2d

674 (1991). Circumstantial evidence and direct evidence have “equal evidentiary

value.” Wells at ¶ 26, citing State v. Santiago, 8th Dist. Cuyahoga No. 95333, 2011-

Ohio-1691, ¶ 12.

A person commits aggravated murder under R.C. 2903.01(A) by

purposely causing the death of another with prior calculation and design. R.C.

2903.01(A). “The element of prior calculation and design ‘require[s] a scheme

designed to implement the calculated decision to kill.’” State v. McFarland, 162

Ohio St.3d 36, 2020-Ohio-3343, 164 N.E.3d 316, ¶ 31, quoting State v. Cotton, 56

Ohio St.2d 8, 11, 381 N.E.2d 190 (1978).

A person commits kidnapping under R.C. 2905.01(A)(3) by,

through force, threat or deception, removing another person from the place where

the other person is found or by restraining the liberty of that person, for the purpose

of terrorizing or inflicting serious physical harm to anyone. R.C. 2905.01(A)(3).

A person commits aggravated burglary under R.C. 2911.11(A)(1) by

trespassing, by force, stealth or deception, in an occupied structure while someone

is present in the structure with the purpose to commit in the structure any criminal offense where the offender inflicts, or attempts or threatens to inflict physical harm

on another.

A person commits the crime of having weapons while under

disability by knowingly acquiring, having, carrying or using any firearm if the person

has been convicted of certain felony offenses. R.C. 2923.13(A)(3). In order to “have”

a firearm, an individual must either actually or constructively possess it. E.g., State

v. Adams, 8th Dist. Cuyahoga No. 93513, 2010-Ohio-4478, ¶ 16.

Here, the fact that these crimes were committed is not in dispute.

Newberry instead argues that the state did not offer sufficient evidence to prove

beyond a reasonable doubt that he committed those crimes or was complicit in their

commission. Our court has held that a person who aids and abets a principal

offender in the commission of a crime constructively possesses a firearm possessed

solely by the principal offender. See, e.g., Adams at ¶ 19 (collecting cases); but see

State v. Lewis, 2d Dist. Greene No. 96CA12, 1997 Ohio App. LEXIS 1316 (Apr. 4,

1997).

Ohio’s complicity statute, R.C. 2923.03, states as follows:

(A) No person, acting with the kind of culpability required for the commission of an offense, shall do any of the following:

(1) Solicit or procure another to commit the offense;

(2) Aid or abet another in committing the offense;

(3) Conspire with another to commit the offense in violation of section 2923.01 of the Revised Code;

(4) Cause an innocent or irresponsible person to commit the offense. To “aid or abet” is to “‘assist or facilitate the commission of a crime,

or to promote its accomplishment.’” State v. McFarland, 162 Ohio St.3d 36, 2020-

Ohio-3343, 164 N.E.3d 316, ¶ 26, quoting State v. Johnson, 93 Ohio St.3d 240, 243,

754 N.E.2d 796 (2001). R.C. 2923.03(F) provides that a person who violates the

complicity statute “shall be prosecuted and punished as if he were the principal

offender.”

As the Ohio Supreme Court recently described:

“To support a conviction for complicity by aiding and abetting pursuant to R.C. 2923.03(A)(2), the evidence must show that the defendant supported, assisted, encouraged, cooperated with, advised, or incited the principal in the commission of the crime, and that the defendant shared the criminal intent of the principal.” Johnson at syllabus. “‘Participation in criminal intent may be inferred from presence, companionship and conduct before and after the offense is committed.’” Id. at 245, quoting State v. Pruett, 28 Ohio App.2d 29, 34, 273 N.E.2d 884 (4th Dist.1971).

McFarland at ¶ 29.

The question here, then, is whether there was sufficient evidence

presented for a rational trier of fact to find beyond a reasonable doubt that Newberry

committed or was complicit in the crimes committed against Paul and P.B.

While the state’s case was admittedly circumstantial, we find that

there was sufficient evidence to support Newberry’s convictions based on his

participation or complicity in the scheme to rob, kidnap and murder Paul and P.B.

Newberry associated with Gibson and Sheeley in the summer and

into the fall of 2018. Three weeks before the murders, Newberry purchased the dark

blue Ford Edge that would be used throughout these crimes. He directed that the car be registered in someone else’s name and he caused the windows of the vehicle

to be tinted. Newberry returned the vehicle to the dealership less than three weeks

after the murders. The car had been detailed before it was returned, rendering

certain forensic tests futile. In light of the other evidence in the case, a rational trier

of fact could conclude that Newberry procured, altered, cleaned and returned the

car in the ways he did to assist in the commission of the robbery–murder scheme.

The evidence supports a conclusion that Newberry was involved in

the scheme in other ways, too. Newberry and Sheeley were with Gibson at around

3 p.m. on October 9, 2018, the day before the murders, driving Gilbert to work.

Newberry was captured on surveillance footage entering his Ford Edge at a gas

station near to the presumed murder scene, with Gibson, at 12:48 a.m. on October

10, 2018. The two leave the parking lot in the vehicle, together.

Gibson’s phone moved from East Cleveland to Bedford between 2

a.m. and 4 a.m.; a witness described seeing a dark-colored vehicle driving slowly

past Paul B.’s home in the early morning hours of October 10. Gibson’s phone is in

Bedford between 4 a.m. and 6 a.m. While Newberry’s phone shows no activity

during this time, DNA collected from an examination glove in Paul B.’s home

matched Newberry’s DNA; a match was 182,000 times more probable than a

coincidence. When Newberry’s car was swabbed later, there was positive match

support found for P.B.’s DNA in the rear seat on the armrest. Swabs taken from the

car also tested positive for gasoline and a medium petroleum distillate, the same kind of accelerants that were found spilled throughout Paul B.’s home. Items of

value from Paul’s home had been stolen and were later seen in Gibson’s possession.

Between 6 a.m. and 8 a.m., Gibson’s phone moved into the East

Cleveland area. When Newberry’s phone next pinged off a cell tower at 6:55 a.m., it

was in the East Cleveland area. Between that time and 8:30 a.m., Newberry’s and

Gibson’s phones used the same side of the same cell tower, indicating that they were

in the same general area at the same time. Newberry’s car is seen on the gas station

surveillance video at 7:40 a.m. and 7:47 a.m. At the latter time, the vehicle is

traveling through the parking lot in the direction of Wadena Avenue. Newberry’s

car is seen on surveillance from a home on Wadena Avenue, traveling with Paul’s

rental car.

Gibson is seen on surveillance footage bringing the gas can from the

direction of Wadena Avenue to the gas station. He is recorded making a phone call

from the gas station, and records show that he was talking with Newberry’s phone.

Gibson then exits the gas station, walking in the direction of Wadena Avenue and

the vacant lot where Paul’s burning car would be found later that morning. P.B. had

been shot to death and Paul had been struck on the head and then burned alive.

When Newberry was interviewed by police, he claimed that a

“Jamaican Shawn” had his car and phone that entire night. Police later determined

that no such person exists.

These facts support the inference that Newberry was “more than a

mere bystander” in these crimes. See State v. High, 2018-Ohio-2236, 115 N.E.3d 702, ¶ 34 (8th Dist.); State v. Riley, 8th Dist. Cuyahoga No. 107073, 2019-Ohio-981,

¶ 46.

This evidence is sufficient for a rational trier of fact to conclude,

beyond a reasonable doubt, that Newberry either committed or assisted and

facilitated these offenses.

As to manifest weight, Newberry points to no inconsistencies in the

evidence. He only argues that the evidence against him was “of such low credibility

and reliability that it undermines [the] reliability of the outcome of the trial.” After

a careful review of the record, we cannot say that this is an exceptional case where

the trier of fact clearly lost its way and created a manifest miscarriage of justice such

that a conviction must be reversed.

I. Twelfth Assignment of Error – Cumulative Errors

Newberry contends that the alleged errors he identified in his first

eleven assignments of error cumulatively deprived him of his constitutional right to

a fair trial.

Pursuant to the doctrine of cumulative error, a conviction will be

reversed where the cumulative effect of errors in a trial deprives a defendant of the

constitutional right to a fair trial even though each of numerous instances of trial-

court error does not individually constitute cause for reversal. State v. Baker, 8th

Dist. Cuyahoga No. 95300, 2011-Ohio-2784, ¶ 59, citing State v. Garner, 74 Ohio

St.3d 49, 656 N.E.2d 623 (1995). In order to find cumulative error present, we must find that

multiple errors were committed at trial. We must then find a reasonable probability

that the outcome of the trial could have been different but for the combination of the

separately harmless errors. State v. Djuric, 8th Dist. Cuyahoga No. 87745, 2007-

Ohio-413, ¶ 52. To affirm in spite of multiple errors, we would have to determine

that the cumulative effect of the errors is harmless beyond a reasonable doubt. State

v. Williams, 8th Dist. Cuyahoga No. 94261, 2011-Ohio-591, ¶ 25, citing State v.

DeMarco, 31 Ohio St.3d 191, 195, 509 N.E.2d 1256 (1987) (stating that the errors

can be considered harmless if there is overwhelming evidence of guilt of other

indicia that the errors did not contribute to the conviction).

Here, Newberry merely references the arguments addressed in his

first eleven assignments of error. As discussed above, we have found no errors in

the trial. We, therefore, overrule Newberry’s twelfth assignment of error.

III. Conclusion

Having overruled Newberry’s assignments of error for the reasons

stated above, we affirm.

It is ordered that the appellee recover from the appellant the costs herein

taxed.

The court finds there were reasonable grounds for this appeal.

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

Cuyahoga County Court of Common Pleas to carry this judgment into execution. The defendant’s conviction having been affirmed, any bail pending 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.

_________________________________ EILEEN A. GALLAGHER, PRESIDING JUDGE

MARY J. BOYLE, J., and SEAN C. GALLAGHER, J., CONCUR