[Cite as State v. Primm, 2016-Ohio-5237.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 103548
STATE OF OHIO PLAINTIFF-APPELLEE
vs.
TONY PRIMM DEFENDANT-APPELLANT
JUDGMENT: AFFIRMED
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-15-594182-A
BEFORE: E.T. Gallagher, J., E.A. Gallagher, P.J., and S. Gallagher, J.
RELEASED AND JOURNALIZED: August 4, 2016 ATTORNEY FOR APPELLANT
Thomas A. Rein 820 West Superior Avenue Suite 800 Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Timothy J. McGinty Cuyahoga County Prosecutor
BY: Owen M. Patton Blaise D. Thomas Frank Romeo Zeleznikar Assistant Prosecuting Attorneys The Justice Center, 9th Floor 1200 Ontario Street Cleveland, Ohio 44113 EILEEN T. GALLAGHER, J.:
{¶1} Defendant-appellant, Tony Primm (“Primm”), appeals from his convictions
and sentence following a jury trial. He raises the following assignments of error for
review:
1. The trial court erred by failing to grant a judgment of acquittal, pursuant to Crim.R. 29(a), on the charge of aggravated murder, and thereafter entering judgment of conviction on that offense as that charge was not supported by sufficient evidence, in violation of defendant’s right to due process of law, as guaranteed by the Fourteenth Amendment to the United States Constitution.
2. Appellant’s convictions are against the manifest weight of the evidence.
3. The trial court infringed upon and violated appellant’s right to testify when it ruled that if he testifies, then his prior murder case comes in, which resulted in the jury improperly hearing about it.
4. The trial court erred when it admitted other acts testimony in violation of R.C. 2945.59, Evid.R. 404(B), and appellant’s rights under Article I, Section 10 of the Ohio Constitution and the Fourteenth Amendment to the United States Constitution.
5. The trial court erred by ordering appellant to serve a consecutive sentence without making the appropriate findings required by R.C. 2929.14 and H.B. 86.
{¶2} After careful review of the record and relevant case law, we affirm Primm’s
convictions and sentence.
I. Procedural and Factual History
{¶3} In April 2015, Primm was named in a 14-count indictment, charging him with
aggravated murder in violation of R.C. 2903.01(A) (Count 1); murder in violation of R.C.
2903.02(B) (Count 2); felonious assault in violation of R.C. 2903.11(A)(1) (Count 3); two counts of attempted aggravated murder in violation of R.C. 2923.02 and R.C.
2903.01(E)(2) (Counts 4 and 5); two counts of felonious assault in violation of R.C.
2903.11(A)(2) (Counts 6 and 7); one count of improperly discharging a firearm on or near
prohibited premises in violation of R.C. 2923.162(A)(3) (Count 8); five counts of
improperly discharging into a habitation in violation of R.C. 2923.161(A)(1) (Counts 9,
10, 11, 12, and 13); and one count of having a weapon while under disability in violation
of R.C. 2923.13(A)(3) (Count 14). Counts 1 through 9 contained various firearm
specifications, ranging from one-year specifications to seven-year specifications.
{¶4} Primm’s indictment stems from the shooting death of victim, Clifford Cunard
(“Cunard”), at the home of Primm’s mother, Anita Primm (“Anita”), and Primm’s actions
during his subsequent flight from the police. The matter proceeded to a jury trial in
September 2015, where the following pertinent evidence was adduced.
{¶5} Timothy Allen (“Allen”) testified that he knew Primm from the
neighborhood. At approximately 1:00 a.m. on March 14, 2015, Allen observed Primm
and three or four other people sitting inside Primm’s vehicle, which was parked in Anita’s
driveway. Allen testified that he approached Primm’s vehicle and began talking to “a
couple of [his] friends in the back seat.” At some point during the conversation, Primm
asked Allen, “[w]hy you walking up to my truck like that?” Allen testified that he
looked down and noticed that Primm had a revolver in his hand and was waving it at
Allen. Allen asked Primm “if he was for real,” and Primm responded, “[d]on’t be
walking up to my truck like that.” Frightened, Allen immediately walked away from Primm’s vehicle and got into his own vehicle. Allen testified that he quickly backed up
in reverse “trying to get away from [Primm]” and accidently hit his friend’s brother’s
parked car. Once Allen observed Primm leave the scene in his vehicle, he called 911 at
1:35 a.m. and reported Primm’s act of “pulling a gun on [him].”
{¶6} Eva Traylor (“Traylor”) testified that she lives across the street from Anita
and has an unobstructed view of her home. On March 14, 2015, she heard a big crash at
approximately 1:30 in the morning. When she went outside, she saw Allen coming up
her front stairs and her son’s 2002 Pontiac “smashed up” on the street. Traylor testified
that she had learned that Allen hit her son’s vehicle as he was backing out of Anita’s
driveway. Traylor explained that “Allen was fleeing for his life” at the time of the
accident.
{¶7} Traylor called the Garfield Heights police, who arrived at her residence and
took information about the accident. Once the Garfield Heights police left, Traylor went
back into her home and attempted to calm down her son who was upset about the damage
to his vehicle. At approximately 2:30 a.m., Traylor observed Primm return to Anita’s
home in his vehicle. Traylor testified that she was familiar with Primm and his vehicle
because he frequently visited his mother’s home.
{¶8} Upon seeing Primm, Traylor immediately called 911 because she wanted the
police to investigate Primm’s involvement in the car accident and “didn’t want her son to
go over there and say anything [to Primm].” Police records reflect that Traylor placed
the 911 call at 2:27 a.m. Traylor testified Primm did not immediately go inside his mother’s home. Instead, Primm remained in the driveway for what “seemed like a long
time.” During her recorded 911 call, Traylor described Primm’s conduct to the
dispatcher as “odd,” stating that he was “getting in and out of his car,” and was going
back and forth between the front seat and the back seat of the vehicle. Officer Matthew
Krejci (“Officer Krejci”) testified that on March 14, 2015, the Garfield Heights police
received a 911 call for an incident involving “somebody pulling a gun out on somebody.”
Later that evening, Officer Krejci received a 911 call from Traylor indicating that “the
subject was back in the driveway of his mother’s house.” At that time, Officer Krejci
relayed the information to on-duty officers. Officer Krejci testified that Traylor
described everything Primm was doing in the driveway, including walking to and from
different areas of his vehicle.
{¶9} Garfield Heights Police Officer Vinson Walker (“Officer Walker”) testified
that on March 14, 2015, at approximately 2:30 a.m., he received a call from dispatch
indicating that Primm was at his mother’s residence. Officer Walker testified that this
was significant because they had received a complaint that Primm had pulled a gun on
someone earlier that evening. Officer Walker and his partner, Officer Robert Jarzembak
(“Officer Jarzembak”), responded to the scene approximately five minutes after Traylor’s
911 call was placed. Officer Walker testified that he and Officer Jarzembak took
position in a parking lot across the street from Anita’s residence and waited for police
backup before approaching Primm. From this position, Officer Walker observed Primm
going in and out of his vehicle and back and forth from the driver’s side door and the rear of the vehicle. Officer Jarzembak testified that Primm seemed “like he was looking for
something or preparing something.”
{¶10} At approximately 3:00 a.m., Officer Walker observed Primm enter the
residence through the front door. At approximately 3:03 a.m., “Primm exit[ed] the front
door and [ran] to the vehicle where he jump[ed] in the driver’s side, start[ed] the vehicle,
pull[ed] out quickly and [left] at a high rate of speed.” Officer Walker testified that he
followed Primm’s vehicle and activated his overhead lights. At that time, Primm failed
to stop and accelerated his vehicle. Officer Walker testified that he determined that it was
necessary to terminate his pursuit due to Primm’s high rate of speed and reckless driving.
Officer Walker then observed Primm crash his vehicle into the front porch of a residential
home. Officer Walker testified that Primm exited the vehicle with a rifle and began
firing at his police cruiser. Officer Walker testified, “emotionally, I figured he was
trying to kill me * * * he was firing a level weapon towards our position.” Officer
Walker estimated that Primm fired his rifle six or seven times. Officer Walker returned
fire until Primm threw down his rifle and put his hands in the air. At that time, Officer
Walker approached Primm and took him into custody. In the process of detaining
Primm, Officer Walker kicked Primm in the left side of his face in order to prevent him
from reaching for the rifle.
{¶11} Officer Walker identified pictures of the rifle that was recovered from
Primm. In addition, Officer Walker identified a .380 caliber semiautomatic pistol that
was discovered in Primm’s vehicle next to the driver’s seat. {¶12} At the time of the incident, Anita was living in her home with her son,
Duran Primm (“Duran”). Anita testified that on March 13, 2015, she invited Cunard to
her home to watch movies and drink alcohol. At some point in the evening, Anita
observed her sons Duran and Primm come inside her home after a night of drinking.
Later that evening, Anita and Cunard began to argue after she told Cunard she was not
willing to commit to a relationship with him. Anita testified that during the argument,
Cunard pushed her as she was walking out of her bedroom, causing her to bump into a
desk and fall into the hallway. Anita testified that Primm saw her fall in the hallway.
Anita picked herself up and immediately went into the bathroom. While she was in the
bathroom, Anita heard a commotion and then heard four gunshots. When she came out
of the bathroom she saw Cunard lying on the floor. According to Anita, the police
arrived “very fast,” and she was taken to the police station for questioning.
{¶13} Portions of Anita’s video-recorded conversation with the police were played
in open court. The state argued that it was necessary to play the video recording in open
court because “[Anita]’s now fabricating a new set of events that she never described to
the police during her interview that morning, and she’s an adverse witness, mother of the
defendant, and doesn’t have a complete recollection even of her own interview.” The
video reflects that Anita did not mention an argument with Cunard or the fact that he had
pushed her, despite being questioned by the police within hours of the shooting,.
{¶14} Primm’s brother, Duran, testified that on the night of the incident, he and
Primm went to a party and were drinking. Duran stated that he became heavily intoxicated and had Primm drive him home at approximately 12:00 or 1:00 a.m. Duran
stated that he fell asleep in the backseat of Primm’s vehicle and immediately went to
sleep once he arrived at his mother’s home. He testified that he woke up to the sound of
people arguing and then heard gunshots. When Duran opened his bedroom door, he saw
Cunard lying on his mother’s bedroom floor.
{¶15} During his cross-examination, Duran testified that Anita and Cunard had
arguments and incidents of physical violence in the past. Duran stated that Cunard
carried a gun and had anger problems. After playing his video-recorded interview with
the police, however, Duran admitted that he did not tell the police during the interview
that Cunard carried a gun or that his mother and Cunard had a history of arguments and
physical violence.
{¶16} Brenda McNeely (“McNeely”) is employed with the Ohio Attorney
General’s Bureau of Criminal Investigation as a special agent in their Major Crimes
Division and is assigned to the Crime Scene Unit. On March 14, 2015, she responded to
the scene of the homicide. McNeely testified that the deceased male, identified as
Cunard, was found in the bedroom on the main floor. McNeely stated that the victim was
“lying face down in a prone position, wearing a t-shirt, underwear, and white socks.”
McNeely described a gunshot wound on the back of Cunard’s neck and also gunshot
injuries to his abdomen area. In the course of her investigation, McNeely discovered a
receipt for the purchase of a Cobra .380 firearm. McNeely testified that the firearm was
found in a firebox in the upstairs bedroom and listed Primm’s name as the purchaser. In addition, McNeely discovered five .380 cartridge cases within the main floor bedroom.
Once Cunard’s body was moved, McNeely found “one bullet, spent projectile,” where
Cunard’s body had been.
{¶17} Dr. Harold Schaefer (“Dr. Schaefer”) is the Chief Toxicologist for the
Cuyahoga County Medical Examiner’s Office. Dr. Schaefer, without objection, was
classified as an expert witness. Dr. Schaefer reviewed his department’s work in the
autopsy of Cunard. Dr. Schaefer testified that Cunard’s body contained a blood alcohol
concentration of .092, and small traces of caffeine, morphine, hydrocodone,
phencyclidine (“PCP”), tramadol, and sildenafil.
{¶18} Dr. David Dolinak (“Dr. Dolinak”) of the Cuyahoga County Medical
Examiner’s Office was the primary forensic pathologist in the autopsy of Cunard. Dr.
Dolinak opined, within a degree of medical certainty, that Cunard died as a result of
gunshot wounds, and that it was a homicide. Dr. Dolinak testified about each of
Cunard’s six gunshot wounds. Dr. Dolinak testified that gunshot number one went
through the right upper neck and through the carotid artery. The bullet continued through
the neck and into the brain. Dr. Dolinak testified that gunshot wound number one
contains signs of “stippling,” which is “tiny scrapes of the skin caused by the little bits of
gunpowder actually becoming embedded in the skin.” Gunshot number two also went
through Cunard’s neck and continued through his right shoulder. Gunshot number three
went through Cunard’s abdomen and stopped in the muscle near the lower backbone.
Gunshot number four entered Cunard’s left shoulder and continued downward in his back. Gunshot number five entered Cunard’s abdomen and continued through his liver,
intestines, groin, and stopped in his buttock. Gunshot number six went through Cunard’s
right hand.
{¶19} At the conclusion of the state’s case, Primm moved for acquittal on all
counts pursuant to Crim.R. 29. The trial court denied the motion and the defense
proceeded with its case.
{¶20} Margarette Harrison (“Harrison”) testified that she is Primm’s girlfriend.
On the night of the incident, Harrison was with Primm celebrating her birthday.
Harrison testified that she and Primm attended a house party and left around midnight to
drop off Primm’s brother, Duran, at his mother’s house. Harrision stated that while they
were parked in Primm’s mother’s driveway, a man named “Tim” pulled up behind
Primm’s vehicle. Harrision testified that she could tell that Tim was drunk. According
to Harrison, Tim was slurring his words and smelled of alcohol. Harrision felt
threatened by Tim based on several statements he made to Primm during their
conversation. When Tim finally left, he reversed backwards and hit a parked car. At
that time, Harrison told Primm to take her home. Harrison testified that when Primm
dropped her off at her house, she told him to go back to his mother’s house because she
has kids and feared Tim would come to her house looking for Primm.
{¶21} Primm testified on his own behalf. Primm testified that on March 13, 2015,
he attended a party with Duran and Harrison. Around midnight, he and Harrison decided
to drive Duran to his mother’s house. He testified that he took Duran, who was intoxicated, into his mother’s house and helped him get into bed. At that time, Primm
noticed that Cunard was visiting his mother. Primm went back outside to his vehicle.
While in his car, Allen pulled up behind him and approached his vehicle. Primm
testified that Allen was acting “belligerent and was talking crazy.” He described Allen
as being “drunk and violent.” Primm testified that he asked Allen to leave because he
was scaring Harrison. Primm denied ever pulling a gun out on Allen. Primm testified
that once Allen finally left, he observed Allen crash his vehicle into a park car. Primm
then drove Harrison home and grabbed a rifle and “his other gun” before heading back to
his mother’s house. He claimed that he brought his guns with him to Anita’s house
because he was scared of Allen.
{¶22} Primm testified that when he arrived at Anita’s house he could not find his
cell phone inside his car. Primm stated that he looked for his phone in his car for several
minutes before he finally went inside. Once he entered the home, Primm immediately
observed his mother on the ground. Primm testified that he heard Cunard yelling and
that Cunard was acting belligerent and hostile. Primm testified that he was attempting to
calm Cunard down when Cunard suddenly hit him in the face. Cunard then threatened
Anita, stating, “I’m going to kill you b****.” Primm testified that Cunard “made a
gesture like he was going to grab something.” Primm stated that he “panicked,” pulled
his firearm from his waistband, and shot Cunard several times. Primm testified that
“[he] was scared and thought [Cunard] was going to kill him and his mother.” Primm stated, “so at that point I pretty much panicked, you know. I never shot nobody before.
I pretty much panicked, I jumped in my truck and I sped off.”
{¶23} Primm testified that he never saw officers as he fled the scene and that he
only stopped driving because he “tapped the porch” of a residential home. Primm testified
that when he got out of his vehicle he slipped, causing his rifle to go off a couple of times
by accident. Primm further testified that he was never kicked in the forehead by Officer
Walker and that the cut on his forehead was the result of Cunard hitting him in the face.
{¶24} Prior to Primm’s cross-examination, the state argued that Primm had opened
the door to the introduction of Evid.R. 404(B) evidence regarding his 2012 murder trial
when he testified that “he had never shot anyone before.” The state maintained that the
purpose of bringing in evidence of Primm’s prior murder trial was “to prove the absence
of mistake or accident.” The state explained
Essentially, what this [Primm] is saying is he didn’t want it to happen, it didn’t have to happen that way, it was all happening so fast. He is saying that he did not intend to do it. The fact that he has been around other instances of gunfire and shooting guns and being charged with a crime would seem to me to be indicative of the fact that this 404(B) could be used to establish in this case an absence of mistake or an absence of it being an accident on the part of this defendant, knowledge as to what happens when a firearm is fired, you know, his intent.
***
So this statement that he’s never shot anybody before is arguably inaccurate, but even if he has not, he has been involved in other acts, even if they were not indicted that would indicate a familiarity with firearms.
Following a brief discussion on the record, the trial court ruled that it would permit the
state to explore Primm’s 2012 murder trial. {¶25} During his cross-examination, Primm admitted that the Cobra .380 handgun
recovered from his vehicle is the gun he used to kill Cunard on March 14, 2015.
However, Primm claimed that he used the weapon in self-defense. He further reiterated
his position that the discharge of the rifle towards the police was an accident.
{¶26} Following Primm’s admission to purchasing the firearm used to kill Cunard,
the following discussion took place on the record:
PROSECUTOR: And you said you never shot no one before; is that what I heard you say?
PRIMM: Yes, sir, I haven’t.
PROSECUTOR: How did Antonio Williams die?
DEFENSE COUNSEL: Objection.
THE COURT: Overruled.
PRIMM: I believe Laf did it.
PROSECUTOR: All right. Antonio Williams was your friend?
PRIMM: Yes, sir.
PROSECUTOR: You were charged with his aggravated murder?
PRIMM: I was found not guilty on the charges.
PROSECUTOR: And you beat it at trial —
PROSECUTOR: — you were found not guilty.
PROSECUTOR: Right? PRIMM: Yes, sir.
PROSECUTOR: And in this case, that Cobra .380, you know through discovery that the gun was ballistically matched to be the same gun that killed Antonio Williams, don’t you?
THE COURT: Overruled. You may answer, if you know.
PRIMM: That’s what I was told, yes.
PROSECUTOR: Okay. And that gun miraculously was never found during Antonio Williams’ homicide investigation, was it?
PRIMM: Not to my knowledge, no.
PROSECUTOR: Right. But you were the original purchaser at Atlantic Gun and Tackle in 2006, I think the receipt says?
PRIMM: Yes, sir. But there’s also other DNA on my gun.
PROSECUTOR: It was in your possession for all those nine years that you testified that you owned it; isn’t that right?
PRIMM: No, sir.
PROSECUTOR: Where did you hide it then, sir?
PRIMM: I didn’t hide it, other people had possession of it. That’s why there’s other DNA on it.
PROSECUTOR: Did you give it to your brother to hold it? PRIMM: No, Laf had it. That’s why he had Antonio Williams’ blood on his clothes.
{¶27} At the conclusion of trial, the jury found Primm guilty on all counts and
firearm specifications. At sentencing, the trial court sentenced Primm to life in prison
without parole with three-year gun specification on Counts 1 through 3. The court sentenced Primm to 18 years in prison each on Counts 4 and 5. Count 6 merged with
Count 4 and Count 7 merged with Count 5. The court sentenced Primm to three years in
prison on Count 8. Primm received eight years in prison each on Counts 9 through 13.
On Count 14, Primm was sentenced to three years in prison. The court ordered Primm’s
sentences to run consecutively to each other for an aggregate prison sentence of “life
without parole plus eighty-five years.”
{¶28} Primm now appeals from his aggravated murder conviction and sentence.
II. Law and Analysis
A. Sufficiency and Manifest Weight of the Evidence
{¶29} In his first and second assignments of error, Primm argues his aggravated
murder conviction was not supported by sufficient evidence and was against the manifest
weight of the evidence. Because Primm raises similar arguments in each assignment of
error, we consider them together for judicial clarity.
Standard of Review
{¶30} An appellate court’s function when reviewing the sufficiency of the
evidence supporting a criminal conviction is to examine the evidence admitted at trial and
determine whether such evidence, if believed, would convince the average mind of the
defendant’s guilt beyond a reasonable doubt. The relevant inquiry is whether, after
viewing the evidence in a light most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime proven beyond a reasonable doubt.
State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). {¶31} In contrast to a challenge based on sufficiency of the evidence, a manifest
weight challenge attacks the credibility of the evidence presented and questions whether
the state met its burden of persuasion rather than production. State v. Whitsett, 8th Dist.
Cuyahoga No. 101182, 2014-Ohio-4933, ¶ 26, citing Thompkins at 387. This court
reviews the entire record, weighs the evidence and all reasonable inferences, considers
the witnesses’ credibility and determines 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).
{¶32} In conducting such a review, this court remains mindful that the credibility
of the witnesses is primarily for the trier of fact to assess. State v. Bradley, 8th Dist.
Cuyahoga No. 97333, 2012-Ohio-2765, ¶ 14, citing State v. DeHass, 10 Ohio St.2d 230,
227 N.E.2d 212 (1967), paragraph one of the syllabus. 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 at 175.
Aggravated Murder --- R.C. 2901.0(A)
{¶33} Primm was convicted of aggravated murder under R.C. 2903.01(A), which
provides, in relevant part, “[n]o person shall purposely, and with prior calculation and
design, cause the death of another * * *.” R.C. 2903.01(A).
{¶34} “‘[P]rior calculation’ and design * * * indicate[s] studied care in planning or
analyzing the means of the crime as well as a scheme encompassing the death of the victim.” State v. Taylor, 78 Ohio St.3d 15, 19, 676 N.E.2d 82 (1997), quoting 1973
Legislative Service Commission Comment to R.C. 2903.01. The phrase is not defined
in the Ohio Revised Code, however, the Ohio Supreme Court has interpreted it “to require
evidence of ‘more than [a] few moments of deliberation’” and “‘a scheme designed to
implement the calculated decision to kill.’” State v. Conway, 108 Ohio St.3d 214,
2006-Ohio-791, 842 N.E.2d 996, ¶ 38, quoting State v. Cotton, 56 Ohio St.2d 8, 381
N.E.2d 190 (1978), paragraph one of the syllabus. In other words, “[i]nstantaneous
deliberation is not sufficient to constitute ‘prior calculation and design.’” Cotton at
paragraph two of the syllabus. “‘[N]either the degree of care nor the length of time the
offender takes to ponder the crime beforehand’” is a “‘critical factor’” in and of itself so
long as it amounts to more than “‘momentary deliberation.’” State v. D’Ambrosio, 67
Ohio St.3d 185, 196, 616 N.E.2d 909 (1993), quoting the 1973 Legislative Service
Commission Comment to R.C. 2903.01. Although “‘momentary deliberation’ is
insufficient,” “prior calculation and design can be found even when the killer quickly
conceived and executed the plan to kill within a few minutes.” State v. Coley, 93 Ohio
St.3d 253, 264, 754 N.E.2d 1129 (2001).
{¶35} The state can prove “prior calculation and design” from the circumstances
surrounding a murder in several ways, including (1) “evidence of a preconceived plan
leading up to the murder,” (2) “evidence of the [defendant’s] encounter with the victim,
including evidence necessary to infer that the defendant had a preconceived notion to kill
regardless of how the [events] unfolded,” or (3) “evidence that the murder was executed in such a manner that circumstantially proved the defendant had a preconceived plan to
kill,” such as where the victim is killed in a cold-blooded, execution-style manner. State
v. Orr, 8th Dist. Cuyahoga No. 100841, 2014-Ohio-4680, ¶ 75, citing State v. Dunford,
11th Dist. Ashtabula No. 2009-A-0027, 2010-Ohio-1272, ¶ 53; State v. Trewartha, 165
Ohio App.3d 91, 2005-Ohio-5697, 844 N.E.2d 1218 (10th Dist.); State v. Hough, 8th
Dist. Cuyahoga No. 91691, 2010-Ohio-2770, ¶ 19 (“[I]f the victim is killed in a
cold-blooded, execution-style manner, the killing bespeaks aforethought, and a jury may
infer prior calculation and design.”).
{¶36} Whether a defendant acted with prior calculation and design is determined
on a case-by-case basis, following an analysis of the specific facts and evidence presented
at trial. Orr at ¶ 77; State v. Jones, 91 Ohio St.3d 335, 345, 744 N.E.2d 1163 (2001);
see also State v. Braden, 98 Ohio St.3d 354, 2003-Ohio-1325, 785 N.E.2d 439, ¶ 61
(“‘Where evidence adduced at trial reveals the presence of sufficient time and opportunity
for the planning of an act of homicide to constitute prior calculation, and the
circumstances surrounding the homicide show a scheme designed to implement the
calculated decision to kill, a finding by the trier of fact of prior calculation and design is
justified.’”), quoting Cotton at paragraph three of the syllabus.
{¶37} There is no “bright-line test” for determining the presence or absence of
prior calculation and design; however, the Ohio Supreme Court has identified several
factors to be weighed along with the totality of the circumstances surrounding the murder
in determining the existence of prior calculation and design, including (1) whether the defendant and the victim knew each other and, if so, (2) whether the relationship was
strained; (3) whether there was thought or preparation in choosing the murder weapon or
murder site; and (4) whether the act was “drawn out” or “an almost instantaneous
eruption of events.” Taylor, citing State v. Jenkins, 48 Ohio App.2d 99, 102, 355
N.E.2d 825 (8th Dist.1976); see also State v. Woods, 8th Dist. Cuyahoga No. 99630,
2014-Ohio-1722, ¶ 25.
{¶38} The state may use either direct evidence or circumstantial evidence to prove
the elements of a crime. See, e.g., State v. Durr, 58 Ohio St.3d 86, 92, 568 N.E.2d 674
(1991); Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492, at paragraph one of the syllabus; State
v. Bokeno, 12th Dist. Butler No. CA2011-03-044, 2012-Ohio-4218, ¶ 12.
Circumstantial and direct evidence are of equal probative value. Jenks at paragraph one
of the syllabus. Circumstantial evidence is “proof of facts or circumstances by direct
evidence from which the trier of fact may reasonably infer other related or connected
facts that naturally or logically follow.” State v. Seals, 8th Dist. Cuyahoga No. 101081,
2015-Ohio-517, ¶ 32, citing State v. Beynum, 8th Dist. Cuyahoga No. 69206, 1996 Ohio
App. LEXIS 2143 (May 23, 1996); see also State v. Hartman, 8th Dist. Cuyahoga No.
90284, 2008-Ohio-3683, ¶ 37 (“‘Circumstantial evidence is the proof of facts by direct
evidence from which the trier of fact may infer or derive by reasoning other facts in
accordance with the common experience of mankind.’”), quoting State v. Griesheimer,
10th Dist. Franklin No. 05AP-1039, 2007-Ohio-837, ¶ 26. {¶39} However, not all inferences are reasonable and in establishing facts by
means of circumstantial evidence, one inference cannot be based solely on another.
Although a trier of fact cannot draw an inference based solely upon another inference, an
inference that is based in part upon another inference and in part upon additional facts is a
“‘parallel inference’” and, “‘if reasonable, may be indulged in.’” State v. Cowans, 87
Ohio St.3d 68, 78, 717 N.E.2d 298 (1999), quoting Hurt v. Charles J. Rogers Transp.
Co., 164 Ohio St. 329, 130 N.E.2d 820 (1955), paragraph two of the syllabus.
“‘[C]ircumstantial evidence is sufficient to sustain a conviction if that evidence would
convince the average mind of the defendant’s guilt beyond a reasonable doubt.’” State
v. McKnight, 107 Ohio St.3d 101, 2005-Ohio-6046, 837 N.E.2d 315, ¶ 75, quoting State
v. Heinish, 50 Ohio St.3d 231, 238, 553 N.E.2d 1026 (1990).
{¶40} Applying the foregoing, we find a rational trier of fact could have concluded
beyond a reasonable doubt that Primm acted with prior calculation and design in
murdering Cunard. While there was no evidence to suggest Primm and Cunard had a
strained relationship, the testimony presented at trial demonstrated that Primm drove back
to his mother’s home with a handgun and a rifle in his possession after spending some
time inside her home earlier that evening. In fact, Primm testified that when he dropped
his girlfriend off at her home for the evening, he went inside and retrieved his handgun
and rifle before driving back to his mother’s home. The record further reflects that
despite not living with his mother, Primm arrived at his mother’s home at approximately
2:27 a.m. and was aware Cunard was visiting his mother that night. We recognize that the “mere possession of a weapon is not, without more, evidence of prior calculation and
design.” State v. Hicks, 8th Dist. Cuyahoga No. 102206, 2015-Ohio-4978, ¶ 48.
However, evidence that Primm left his mother’s house, drove to his girlfriend’s house at
approximately 2:00 a.m. to retrieve two firearms, and then returned to his mother’s house
with the weapons demonstrates Primm’s significant level of deliberation.
{¶41} In addition, several witnesses described Primm’s action in the minutes
leading up to the shooting death of Cunard. According to Traylor and Officer Walker,
Primm was going in and out of his vehicle for approximately 30 minutes before he
entered the home at 3:00 a.m. During her recorded 911 conversation, Traylor stated that
Primm was acting “odd.” Similarly, Officer Jarzembak stated that Primm appeared to be
“preparing for something.” Taking into consideration that Primm shot Cunard within
minutes of entering Anita’s home, we find Primm’s odd and preparatory behavior in the
driveway to be circumstantial evidence of Primm’s “calculated thought process.”
{¶42} Moreover, evidence of a preconceived plan is not the only way to prove the
element of prior calculation and design. As stated, the state can also offer “evidence that
the murder was executed in such a manner that circumstantially proved the defendant had
a preconceived plan to kill. See Trewartha, 165 Ohio App.3d 91, 2005-Ohio-5697, 844
N.E.2d 1218, ¶ 19. This allows the state to satisfy its burden by showing that the murder
was executed in such a manner that circumstantially proves a preconceived notion that the
victim would be killed regardless of the situation. Id. at ¶ 33. Thus, if the victim is killed in a cold-blooded, execution-style manner, the killing bespeaks aforethought, and a
jury may infer prior calculation and design. Id.
{¶43} In this case, Primm shot Cunard six times at close range, as evidenced by
“stippling” found near Cunard’s gunshot wound to his neck. The testimony at trial
revealed that Cunard was unarmed at the time of the shooting and was discovered in his
night-time attire near Anita’s bed. Considering the totality of the circumstances, we find
this cold-blooded killing bespeaks aforethought, not a sudden eruption of events, and
provided circumstantial evidence of Primm’s prior calculation and design.
{¶44} Viewing this evidence in a light most favorable to the prosecution, we find
there was sufficient evidence to establish beyond a reasonable doubt that Primm acted
with prior calculation and design in murdering Cunard.
{¶45} Moreover, we are unable to conclude that Primm’s aggravated murder
conviction was against the manifest weight of the evidence. In challenging the weight
of the evidence supporting his aggravated murder convictions, Primm argues that the
state’s case relied on inconsistent and uncorroborated accusations. There is no dispute
that this case involved many inconsistencies. For instance, Durand and Anita each
offered testimony at trial suggesting, for the first time, that Cunard’s death was the result
of Primm’s reaction to a physical altercation between Anita and Cunard. Despite this
testimony, however, the jury was also presented with portions of the recorded police
interviews of Anita and Duran, during which they never mentioned the physical
altercation between Anita and Cunard. In addition, the jury was presented with competing versions of Primm’s interaction with Allen and competing versions of Primm’s
retrieval of the handgun he used to shoot Cunard. Recognizing these inconsistences, we
find the jury, as the trier of fact, was in the best position to weigh the credibility of each
witness and to resolve inconsistencies in their testimony.
{¶46} Deferring to the jury’s assessment of credibility, as we must, we cannot say
that the jury clearly lost its way and created such a manifest miscarriage of justice that the
convictions must be reversed and a new trial ordered.
{¶47} Primm’s first and second assignments of error are overruled.
B. Primm’s Right to Testify at Trial
{¶48} In his third assignment of error, Primm argues his “right to testify was
constitutionally infringed upon by the trial court when it ruled that [Evid.R.] 404(B)
evidence would come in if he testified.”
{¶49} Prior to trial, the state filed a notice of intent to use evidence of Primm’s
prior bad acts under Evid.R. 404(B), arguing that evidence of Primm’s 2012 murder trial
was admissible to prove Primm’s intent. Upon consideration of the state’s arguments,
the court ruled that if Primm did not testify, evidence of Primm’s prior trial would not be
permitted. The court found, however, that if Primm did testify, introduction of the
Evid.R. 404(B) evidence may be appropriate. Primm argues the trial court’s ruling
amounted to a “Hobson’s choice,” which impaired his ability to freely choose whether to
testify at trial. {¶50} A defendant’s right to testify in a criminal trial is regarded both as a
fundamental and a personal constitutional right that is waivable only by an accused.
State v. Vaughn, 8th Dist. Cuyahoga No. 87245, 2006-Ohio-6577, ¶ 32, citing Rock v.
Arkansas, 483 U.S. 44, 107 S.Ct. 2704, 97 L.Ed.2d 37 (1987). The right to testify on
one’s own behalf at a criminal trial has sources in several provisions of the Constitution.
It is a right that is “‘essential to due process of law in a fair adversary process’” and thus
falls under the protections of the Fifth and Fourteenth Amendments. Rock at 51, quoting
Faretta v. California, 422 U.S. 806, 819, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). The
right to testify is also found in the Compulsory Process Clause of the Sixth Amendment,
which grants a defendant the right to call “witnesses in his favor” — which, of course,
would include himself. Rock at 52 (citation omitted). In addition, the right to testify is
“a necessary corollary to the Fifth Amendment’s guarantee against compelled testimony.”
Id.
{¶51} After careful review, we are unable to conclude that the trial court’s
evidentiary ruling infringed upon Primm’s constitutional rights. Regardless of the trial
court’s statements concerning the introduction of other acts evidence, Primm testified at
trial. Thus, he was afforded his constitutional guarantees and any arguments relating to
the introduction of other acts evidence are better suited in an evidentiary challenge, as
raised in Primm’s fourth assignment of error.
{¶52} Primm’s third assignment of error is overruled.
C. Other-Acts Evidence {¶53} In his fourth assignment of error, Primm argues the court improperly
allowed the state to introduce evidence of his 2012 murder trial in violation of Evid.R.
404(B).
{¶54} The trial court has broad discretion in the admission and exclusion of
evidence, including evidence of other acts under Evid.R. 404(B). State v. Morris, 132
Ohio St.3d 337, 2012-Ohio-2407, 972 N.E.2d 528, ¶ 22. Unless the trial court has
“clearly abused its discretion and the defendant has been materially prejudiced thereby,
this court should be slow to interfere” with the exercise of such discretion. State v.
Hymore, 9 Ohio St.2d 122, 128, 224 N.E.2d 126 (1967).
{¶55} Evid.R. 404(B) states that “[e]vidence of other crimes, wrongs, or acts is not
admissible to prove the character of a person in order to show action in conformity
therewith.” Such evidence may, however, be admissible for other purposes, “such as
proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of
mistake or accident.” Evid.R. 404(B). Similarly, R.C. 2945.59 permits the admission of
other acts evidence tending to show a defendant’s “motive or intent, the absence of
mistake or accident on his part, or the defendant’s scheme, plan, or system in doing the
act in question.”
{¶56} In determining whether to permit other acts evidence to be admitted, trial
courts should conduct the three-step analysis set forth in State v. Williams, 134 Ohio St.3d
521, 2012-Ohio-5695, 983 N.E.2d 1278, to (1) determine if the other acts evidence is
relevant to making any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence under Evid.R. 401, (2) determine if
the other acts evidence is presented to prove the character of the accused in order to show
activity in conformity therewith or whether the other acts evidence is presented for a
legitimate purpose, such as those stated in Evid.R. 404(B), and (3) consider whether the
probative value of the other acts evidence is substantially outweighed by the danger of
unfair prejudice. Id. at ¶ 20.
{¶57} In this case, the trial court permitted the state to introduce evidence of
Primm’s 2012 murder trial following Primm’s testimony that “[he] has never shot anyone
before.” The court determined that the evidence was offered for a legitimate purpose in
order to show Primm’s familiarity with firearms and his lack of mistake or accident in
shooting Cunard.
{¶58} Applying Williams to the circumstances of this case, we find evidence of
Primm’s 2012 murder trial and subsequent acquittal was not presented for a legitimate
purpose under Evid.R. 404(B). In our view, evidence of Primm’s prior murder trial did
not assist the trier of fact in determining whether, in this case, Primm’s act of shooting
Cunard was a mistake or the result of an accident. Most importantly, there were no
arguments raised on behalf of Primm at trial that the shooting of Cunard was a mistake or
an accident. Rather, Primm admitted to shooting Cunard, but claimed he acted in
self-defense. Under these circumstances, the basis of the state’s attempt to introduce
Primm’s prior bad acts related to an aspect of this case that was not in dispute — Primm intentionally shot Cunard. Accordingly, we find the trial court abused its discretion in
admitting the other-acts evidence at trial.
{¶59} However, even though the evidence was inadmissible, reversible error did
not occur. The Ohio Supreme Court has instructed that in determining whether to grant
a new trial as a result of the erroneous admission of evidence under Evid.R. 404(B), a
court must consider both the impact of the offending evidence on the verdict and the
strength of the remaining evidence after the tainted evidence is removed from the record.
State v. Morris, 141 Ohio St.3d 399, 2014-Ohio-5052, 24 N.E.3d 1153, ¶ 33. “[A]n
improper evidentiary admission under Evid.R. 404(B) may be deemed harmless error on
review when, after the tainted evidence is removed, the remaining evidence is
overwhelming.” Id. at ¶ 32.
{¶60} On this record, the exclusion of Primm’s prior murder trial from evidence
would not have changed the outcome of the trial. In our view, the record contains
overwhelming evidence to support Primm’s convictions. See State v. Peterson, 8th Dist.
Cuyahoga Nos. 100897 and 100899, 2015-Ohio-1013, ¶ 156; State v. Tate, 8th Dist.
Cuyahoga No. 102474, 2015-Ohio-4496, ¶ 23-24. As stated, Primm admitted to shooting
and killing Cunard, and the state presented substantial evidence regarding Primm’s
calculated conduct leading up to the shooting death of Cunard and his subsequent actions
during the police pursuit. Accordingly, we find that the error complained of was
harmless beyond a reasonable doubt and did not deprive Primm of his constitutional right
to a fair trial. {¶61} Primm’s fourth assignment of error is overruled.
D. Consecutive Sentences
{¶62} In his fifth assignment of error, Primm argues the trial court erred in
imposing consecutive sentences without making the necessary findings under R.C.
2929.14(C)(4).
{¶63} R.C. 2953.08(G)(2) provides that when reviewing felony sentences, the
appellate court may overturn the imposition of consecutive sentences where the reviewing
court “clearly and convincingly” finds that (1) “the record does not support the sentencing
court’s findings under R.C. 2929.14(C)(4),” or (2) “the sentence is otherwise contrary to
law.” Our review of a claim that the record does not support the trial court’s findings
under R.C. 2929.14(C)(4) is “‘extremely deferential.’” State v. Balbi, 8th Dist.
Cuyahoga No. 102321, 2015-Ohio-4075, ¶ 5, quoting State v. Venes, 2013-Ohio-1891,
992 N.E.2d 453, ¶ 21 (8th Dist.).
{¶64} In Ohio, there is a presumption that prison sentences should be served
concurrently, unless the trial court makes the findings outlined in R.C. 2929.14(C)(4) to
justify consecutive service of the prison terms. State v. Cox, 8th Dist. Cuyahoga No.
102629, 2016-Ohio-20, ¶ 3; R.C. 2929.41(A). R.C. 2929.14(C)(4) provides that in order
to impose consecutive sentences, the trial court must find that consecutive sentences are
necessary to protect the public from future crime or to punish the offender, that such
sentences would not be disproportionate to the seriousness of the conduct and to the
danger the offender poses to the public, and that one of the following applies: (a) The offender committed one or more of the multiple offenses while the offender was awaiting trial or sentencing, was under a sanction imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised Code, or was under postrelease control for a prior offense.
(b) At least two of the multiple offenses were committed as part of one or more courses of conduct, and the harm caused by two or more of the multiple offenses so committed was so great or unusual that no single prison term for any of the offenses committed as part of any of the courses of conduct adequately reflects the seriousness of the offender’s conduct.
(c) The offender’s history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender.
State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 20-22.
{¶65} Compliance with R.C. 2929.14(C)(4) requires the trial court to make the
statutory findings at the sentencing hearing, “and by doing so it affords notice to the
offender and to defense counsel.” Bonnell at ¶ 29. “Findings,” for these purposes,
means that “‘the [trial] court must note that it engaged in the analysis’ and that it ‘has
considered the statutory criteria and specifie[d] which of the given bases warrants its
decision.’” Id. at ¶ 26, quoting State v. Edmonson, 86 Ohio St.3d 324, 326, 715 N.E.2d
131 (1999). Further, the reviewing court must be able to determine that the record
contains evidence to support the findings. State v. Davis, 8th Dist. Cuyahoga No.
102639, 2015-Ohio-4501, ¶ 21, citing Bonnell at ¶ 29.
{¶66} A trial court is not, however, required to state its reasons to support its
findings, nor is it required to give a rote recitation of the statutory language, “provided
that the necessary findings can be found in the record and are incorporated in the sentencing entry.” Bonnell at ¶ 37. The failure to make consecutive sentence findings
is contrary to law. Balbi, 8th Dist. Cuyahoga No. 102321, 2015-Ohio-4075, at ¶ 4.
{¶67} In this case, the trial court stated the following when ordering Primm’s
sentences to be served consecutively:
I made this record is because I want the record to demonstrate that this guy is the worst of the worst and, therefore, the longest possible prison sentence is necessary.
*** It is necessary to protect the public and to punish this offender by putting him away for as long as I possibly can. Any sentence including death at the institution would not be disproportionate to the crimes that he has committed while under a sanction of this Court, and he was under a sanction that he was not permitted to own, possess or control a firearm.
No one sentence in this case would adequately reflect the seriousness of this individual’s conduct. The harm here is so great, the murder of and, by the way, my condolences to the family because all of the testimony was that your uncle, Mr. Cunard, was a fine person. He was completely within his right to be where he was at on the night in question.
He was invited over to the residence by the woman that he was with and there was no credible testimony whatsoever that he caused any problem at all. None. So I wanted you to know that.
Additionally, I also want to make this finding that obviously the offender’s criminal history shows consecutive terms are necessary to protect the public, and the reason I’m doing this is because of, first of all, a murder. Attempting to kill police officers, but in addition in 2006, a trafficking case; the very significant 2007 discharge of six shots into a house while under a weapons disability; the 2008 weapons disability; the 2008 drug case. I mean he is on a terror here.
He was acquitted of the 2012 murder where the record has been made to who owned that gun, so those factors indicate that the maximum period of incarceration is necessary[.]
*** All the sentences imposed here are consecutive for all the reasons that have been placed upon the record.
{¶68} On this record, we find the trial court satisfied its statutory obligations for
imposing consecutive sentences under R.C. 2929.14(C)(4) and incorporated its findings
into the sentencing entry. Further, we cannot “clearly and convincingly” find that the
record does not support the court’s findings. Accordingly, Primm’s sentence is not
contrary to law.
{¶69} Primm’s fifth assignment of error is overruled.
III. Conclusion
{¶70} Primm’s aggravated murder conviction is supported by sufficient evidence
and is not against the manifest weight of the evidence. The trial court did not infringe
upon Primm’s constitutional right to testify at trial. However, the trial court erred in
admitting evidence of Primm’s prior murder trial. The trial court’s error was harmless
beyond a reasonable doubt given the overwhelming evidence of Primm’s guilt. Finally,
the trial court made the necessary findings for imposing consecutive sentences pursuant to
R.C. 2929.14(C)(4), and Primm’s sentence is not contrary to law.
{¶71} Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common
pleas court to carry this judgment into execution. The defendant’s conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court
for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
EILEEN T. GALLAGHER, JUDGE
EILEEN A. GALLAGHER, P.J., and SEAN C. GALLAGHER, J., CONCUR