[Cite as State v. Reid, 2026-Ohio-1764.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, : Nos. 115108 and 115290 v. :
AUSTIN D. REID, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED AND REMANDED RELEASED AND JOURNALIZED: May 14, 2026
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-24-691912-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Christine M. Vacha, Assistant Prosecuting Attorney, for appellee.
Cullen Sweeney, Cuyahoga County Public Defender, and Jennifer J. Pritchard, Assistant Public Defender, for appellant.
EILEEN T. GALLAGHER, P.J.:
Defendant-appellant Austin D. Reid (“Reid”) appeals his convictions
and sentence. He claims the following errors: 1. Appellant’s convictions were against the manifest weight of the evidence.
2. The trial court erred by failing to provide a self-defense jury instruction, in violation of the appellant’s rights under the Fifth and Sixth Amendments to the United States Constitution and Article I, Section 10 of the Ohio Constitution.
3. The trial court erred by permitting the state to introduce the contents of Mr. Reid’s cellular telephone extraction.
4. The trial court violated appellant’s right to a fair trial when the state was allowed to elicit testimony that appellant sought counsel prior to his arrest in violation of his Sixth Amendment right.
5. The trial court erred in sentencing Mr. Reid when it failed to properly allocate the appropriate amount of jail[-]time credit.
6. The cumulative errors committed during the trial deprived the appellant of a fair trial.
We affirm Reid’s convictions but remand the case to the trial court to
calculate jail-time credit.
I. Facts and Procedural History
Reid was charged with one count of murder in violation of
R.C. 2903.02(B) (Count 1), two counts of felonious assault in violation of
R.C. 2903.11(A)(1) and 2903.11(A)(2) (Counts 2 and 3), one count of domestic
violence in violation of R.C. 2919.25(A) (Count 4), one count of improperly
discharging a firearm at or into a habitation or a school or safety zone in violation of
R.C. 2923.161(A)(1) (Count 5), one count of discharging a firearm on or near a
prohibited premises in violation of R.C. 2923.162 (Count 6), one count of
intimidation of an attorney, victim or witness in a criminal case in violation of
R.C. 2921.04(B)(2) (Count 7), and one count of having weapons while under disability in violation of R.C. 2923.13(A)(2) (Count 8). The charges were brought in
connection with the shooting death of Kneina Scott (“Kneina”) on November 22,
2023.
Prior to trial, defense counsel filed a motion for relief from prejudicial
joinder. The trial court granted the motion and severed Counts 5 through 8 from
Counts 1 through 4. The case subsequently proceeded to a jury trial on Counts 1
through 4.
Shirley Scott (“Scott”) testified at trial that she had been dating Reid for
approximately two years prior to the events giving rise to this case. Scott and Reid
went out together on the night of November 21, 2023, and later returned home to
Scott’s home, which was located in the area of East 136th Street and Caine Avenue
in Cleveland. Scott and Reid had a “volatile” relationship, and they began arguing
in the early morning hours of November 22, 2023. Scott asked Reid to leave her
house because she was departing soon for Detroit, Michigan, but he refused. (Tr.
223-224.) The argument turned physical, and Scott’s sister, Kneina, arrived while
Scott and Reid were in the midst of a physical altercation. Kneina held a knife and
ordered Reid to “get off my sister.” (Tr. 231 and 277.) Kneina’s appearance at the
residence provided a break in the fighting that allowed Scott to move away from
Reid.
Scott, who had just taken a bath, was not yet dressed. She took a
revolver out of its lockbox, pointed at Reid, and told him, “[I]f [he] touch[ed] my
sister or me I would have to shoot him” and “please leave my house.” (Tr. 231.) Thereafter, Scott, Kneina, and Reid walked out of Scott’s second-floor apartment to
the outside. After watching Reid walk down the driveway and cross the street, Scott
went back upstairs to get dressed.
Reid returned to the residence before Scott had time to get dressed.
Reid called out, “[C]ome, bitches.” (Tr. 237.) Scott looked out her kitchen window
and observed Reid exiting his car, which he had just parked on her front lawn.
(Tr. 237.) Scott again told Reid to leave. Scott picked up her revolver and “shot it in
the air” from her upstairs window. (Tr. 237.) She testified that she only fired one
shot from her weapon as a “warning shot” and that she did not point it at Reid.
(Tr. 280-281.) Scott explained that she had asked Reid to leave many times and that
“[she] even broke up with him,” but he refused to leave. (Tr. 281.)
When Scott shot the revolver, Kneina, who had been “bent in the car,”
stood up and shook her head at Scott. (Tr. 239.) Meanwhile, Reid took a firearm
and shot it twice at Scott, who was in an upstairs window. (Tr. 239-240.) Scott
ducked inside the house to avoid being shot. She then heard another gunshot and
glass shatter. (Tr. 239-240.) Scott looked out her upstairs window, saw Kneina
laying on the ground, and ran downstairs to see her. Scott found Kneina’s phone
and called 911. (Tr. 242.)
While Scott spoke with the 911 dispatcher, she and Reid put Kneina in
the back seat of her gray Nissan Rogue and drove her to Marymount Hospital, a
Cleveland Clinic hospital. Kneina was pronounced dead at the hospital. (Tr. 248.)
According to Scott, Kneina was not armed, and Reid immediately disappeared from the hospital emergency room after they arrived. (Tr. 246.) Scott described the
incident to police at the hospital and at the homicide unit of the Cleveland Police
Department.
Leroy Presock (“Presock”) lived next door to Scott on Caine Avenue.
He testified that he was waking up at approximately 7:00 or 7:30 a.m. when he
“heard a young lady yell.” (Tr. 290.) Thereafter, Presock went outside and was
drinking coffee on his front porch when a neighbor across the street approached him
and asked if he had heard gunshots. Presock remained on his porch until the police
arrived and did not investigate the source of the gunshots. (Tr. 291.) Presock told
police that he heard a total of three gunshots. (Tr. 299.)
Detective Thomas Lascko (“Det. Lascko”) testified that he works in the
crime-scene and records unit of the Cleveland Police Department. He responded to
Scott’s home on Caine Avenue to collect and document evidence. He testified that
he found a pocketknife and a pair of glasses on the ground outside the house with
blood on them. The pocketknife was only partially open. (Tr. 287.) Police also
found one spent 10 mm cartridge case at the scene. (Tr. 643.)
Officer Bryan Peters (“Officer Peters”) of the Cleveland Police
Department responded to Marymount Hospital where he met Scott. Scott told him
that her boyfriend had shot her sister. (Tr. 304.) She also told Officer Peters that
Reid fired a total of two gunshots. (Tr. 314.) Based on Scott’s statements to police,
Reid became a suspect in the case. (Tr. 315.) Jonathan Dayton (“Det. Dayton”), a homicide detective with the
Cleveland Police Department, testified that he recovered surveillance videos from
Marymount Hospital. One video shows Reid carrying Kneina’s body into the
hospital and placing her on a wheelchair. (State’s exhibit No. 56.) Three other
videos show Reid exiting the hospital, “running from the emergency room,” and
running toward an RTA bus. (State’s exhibit Nos. 57, 58, and 59.)
Vesna Piscitello (“Piscitello”), a civilian analyst with the Cleveland
Police Department’s Real Time Crime Center (“RTCC”), received a report that Reid
exited an RTA bus near East 131st and Miles Avenue at 7:57 a.m. Piscitello tracked
Reid’s location on RTCC cameras, and she observed him take a second bus from
Miles Avenue to the Lee and Harvard intersection a little after 8:00 a.m. (Tr. 510-
511.)
Scott provided the police with Reid’s cell phone number, which police
also used to track Reid’s location. (Tr. 624.) Detective Erin O’Donnell, the lead
homicide detective on the case, testified that Reid’s cell phone “pinged” in the area
of Glendale Avenue in Cleveland. (Tr. 728.) Based on Piscitello’s observations of
Reid getting off a bus near Glendale Avenue and the location of Reid’s phone near
the residence, they obtained a search warrant for Reid’s mother’s home. (Tr. 568,
572, and 732.)
During the search, police recovered the clothes and shoes Reid was
wearing in the Marymount Hospital surveillance videos, a black Glock 10 mm auto
caliber semiautomatic handgun, and multiple cell phones, including a black iPhone that belonged to Reid. (Tr. 579, 581-583, and 586.) Reid was also arrested at the
Glendale home when the search warrant was executed. (Tr. 735.)
Curtiss Jones (“Jones”), a supervisor in the trace-evidence unit of the
Cuyahoga County Medical Examiner’s Office, testified that he examined the clothes
seized from the Glendale home. He also examined the clothes Kneina was wearing
at the time she was shot and killed. Jones testified that he looked for fouling, a type
of gunshot residue, on Kneina’s clothes, wig, and headband because it is useful for
determining whether the gun used to kill her was fired from close proximity. Based
on his examination, he concluded there was nothing to indicate that the shooter was
in close proximity to her at the time of the shooting. (Tr. 476.) He explained that
the absence of gunshot residue on the victim indicates it was “a distance shot.”
(Tr. 476.)
Jones testified that he found blood staining on Reid’s green and black
jacket. He explained that the blood staining was indicative of saturation rather than
spatter. (Tr. 485.) Blood found on Reid’s shoes was also indicative of a “drip stain”
rather than blood spatter. (Tr. 488.) Finally, Jones found gunshot-primer residue
on the sleeve cuffs of Reid’s jacket. (Tr. 486.) Jones explained that gunshot-primer
residue is different from regular gunshot residue because it is “formed from the
shooting of a gun.” (Tr. 486.) The presence of gunshot-primer residence on Reid’s
sleeve cuffs indicated that Reid shot a gun while he was wearing the green and black
jacket. (Tr. 486.) Marissa Esterline (“Esterline”), a DNA analyst with the Cuyahoga
County Regional Forensic Science Laboratory, testified that DNA found on the Glock
recovered from the Glendale residence matched Reid’s DNA. (Tr. 688.) James
Kooser (“Kooser”), a firearm and toolmarks examiner with the Cuyahoga County
Medical Examiner’s Office, determined that the 10 auto cartridge casing found at
Scott’s home on Caine Avenue was fired from the Glock 10 mm auto caliber pistol
taken from Reid’s mother’s home on Glendale. (Tr. 643-644 and 712.)
Dr. Thomas Gilson, Chief Medical Examiner of the Cuyahoga County
Medical Examiner’s Office, performed the autopsy on Kneina’s body. He concluded
that she died of a single gunshot wound to the head, skull, and brain and ruled her
death a homicide. (Tr. 414-415.) Dr. Gilson testified that there was no soot or
stippling, which indicates the gun was not fired within a few feet of the victim.
(Tr. 420.) He also stated that the bullet traveled in a straight line through her left
temple and exited from her right temple. (Tr. 420.)
Det. O’Donnell submitted Reid’s black iPhone to the Secret Service for
data extraction. (Tr. 737-740.) The Secret Service extracted the data and generated
a report of its contents. (Tr. 742-765.) Among other things, the report showed that
Reid’s phone was used to search “types of murders” and “Marymount Hospital” on
the day of the shooting. (Tr. 762-763.) A screenshot of the phone extraction also
showed a message to an account called Instagram Fight Back, asking, “Yo, What
lawyer you f*** with? Money ain’t no problem.” (Tr. 764.) The State dismissed the domestic-violence charge alleged in Count 4.
At the conclusion of the trial, the jury found Reid guilty of murder with one- and
three-year firearm specifications as alleged in Count 1 and two counts of felonious
assault with one- and three-year firearm specifications as alleged in Count 2 and 3.
On April 8, 2025, the trial court sentenced Reid to 15 years to life on
the murder conviction in Count 1, to be served prior to and consecutive with the
attendant three-year firearm specification for a total of 18 years to life in prison. The
court also sentenced Reid to a three-year firearm specification attendant to Count 2,
but the underlying felonious assault charges alleged in Counts 2 and 3 merged with
the murder conviction alleged in Count 1. The three-year firearm specification
attendant to Count 2 was ordered to be served consecutively to Reid’s sentence on
Count 1 for an aggregate sentence of 21 years to life.
On May 29, 2025, Reid pleaded guilty to one count of discharging a
firearm on or near a prohibited premises as alleged in Count 6 and one count of
intimidation of an attorney, victim, or witness in a criminal case as alleged in Count
7. The court sentenced him to one year in prison on each count to be served
concurrently with his 21-year-to-life sentence on Count 1. This appeal followed.
II. Law and Analysis
A. Manifest Weight of the Evidence
In the first assignment of error, Reid argues his convictions are against
the manifest weight of the evidence. When reviewing a manifest-weight challenge, an appellate court
“‘weighs the evidence and all reasonable inferences, considers the credibility of
witnesses and determines whether in resolving conflicts in the evidence, the jury
clearly lost its way and created such a manifest miscarriage of justice that the
conviction must be reversed and a new trial ordered.’” State v. Virostek, 2022-Ohio-
1397, ¶ 54 (8th Dist.), quoting State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist.
1983). A reversal on the basis that a verdict is against the manifest weight of the
evidence is granted “‘only in the exceptional case in which the evidence weighs
heavily against the conviction.’” State v. Thompkins, 78 Ohio St.3d 380, 387 (1997),
quoting Martin at 175.
Reid argues his convictions are against the manifest weight of the
evidence because Scott’s testimony was not credible. He contends Scott was not
credible because (1) Scott’s statement that Reid parked across the street does not
make sense under the circumstances; (2) she testified that she heard gravel when
Reid pulled his vehicle onto her grass but the pictures of her house show there is no
gravel in the lawn; and (3) Presock’s testimony contradicts Scott’s testimony
because he only heard a female voice, and Scott testified that she was arguing with
Reid, who has a male voice.
However, just because Reid’s car was not parked on Scott’s property
does not make the testimony untrue. There was no evidence contradicting Scott’s
testimony that Reid’s car was parked across the street. And whether or not there
was actual gravel on Scott’s property is of no consequence. The important fact is that Scott heard a noise sounding like gravel that caused her to look out the window
and see that Reid parked his vehicle on the lawn. The police photographs that were
entered into evidence corroborate Scott’s testimony that he parked the car on the
grass because Reid’s car was still there when police arrived. (See State’s exhibit Nos.
61 and 63.)
Further, just because Presock did not hear Reid fighting with Scott
does not mean that he did not fight with her. It is possible that Reid argued with
Scott inside the house and that Presock could not hear Reid, but he heard Scott’s
voice outside. Moreover, the location of Reid’s car, whether or not the sound of a
car driving on the grass sounds like gravel kicking up, and whether Presock heard
Reid’s voice are not relevant to the material issues in the case.
Reid nevertheless argues that the physical evidence presented was not
consistent with Scott’s testimony. Reid first argues that while Scott testified that she
started to dress herself in a one-piece jumper by the window, photos of her home do
not show a jumper anywhere. Reid also argues that the only cartridge casing found
at the scene was located on the opposite side of Reid’s vehicle from where Scott
indicated he was standing. However, where Scott placed the one-piece jumper is a
minor detail not relevant to whether Reid killed Kneina. Nor is the location where
Reid was standing an issue of material fact.
“Minor inconsistencies do not render testimony incredible, nor do
they transform a conviction into a manifest miscarriage of justice.” State v. Price,
2026-Ohio-688, ¶ 32 (5th Dist.), citing State v. Craig, 2000 Ohio App. LEXIS 1138, *10 (10th Dist. Mar. 23, 2000). This court has held that “minor inconsistencies in
witness testimony will not render a conviction so against the manifest weight of the
evidence as to cause a miscarriage of justice.” State v. Weems, 2016-Ohio-701, ¶ 29-
30 (8th Dist.).
The surveillance videos from Marymount Hospital and the 911 audio
recording depict Scott screaming hysterically because her sister had just been shot
in the head. It is reasonable to conclude that she might not remember insignificant
details such as where she placed her one-piece jumper or where Reid was standing.
Surveillance videos from Marymount Hospital show that Reid fled from the hospital
and went to his mother’s house where he googled “types of murders” and
“Marymount Hospital.” These inquiries, which Reid made immediately after
leaving the hospital, suggest consciousness of guilt. The surveillance videos also
show Reid wearing the green and black jacket that was later recovered from his
mother’s home and was found to have gun-primer residue on the sleeves, indicating
that Reid had recently fired a weapon while wearing that jacket.
Other physical evidence established that the cartridge case found at
the crime scene was fired from the Glock 10 mm auto caliber handgun recovered
from Reid’s mother’s house and that Reid’s DNA was found on it. Evidence of gun-
primer residue on Reid’s jacket sleeves coupled with evidence that the cartridge case
found at the scene was fired from Reid’s 10 mm Glock is substantially more
probative than Scott’s testimony about where he was standing on her property,
where Scott placed her jumper, or whether Presock heard Reid’s voice. After reviewing the evidence presented at trial, we cannot conclude
that in resolving any conflicts in the evidence, the jury clearly lost its way and created
such a manifest miscarriage of justice that Reid’s convictions must be reversed.
Accordingly, the first assignment of error is overruled.
B. Self-Defense Instruction
In the second assignment of error, Reid argues the trial court erred by
failing to provide a self-defense instruction.
We review a trial court’s refusal to give a particular jury instruction for
an abuse of discretion. State v. Daniel, 2016-Ohio-5231, ¶ 30 (8th Dist.), citing State
v. Leonard, 2013-Ohio-1446, ¶ 33 (8th Dist.). An abuse of discretion occurs when a
court exercises its judgment in an unwarranted way regarding a matter over which
it has discretionary authority. Johnson v. Abdullah, 2021-Ohio-3304, ¶ 35.
However, “a trial ‘court does not have discretion to misapply the law.’”
Morgan v. Greater Cleveland Regional Transit Auth., 2025-Ohio-1655, ¶ 64 (8th
Dist.), quoting Johnson at ¶ 38. “Thus, 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.”’” Id., quoting Thomas v. Cleveland,
2008-Ohio-1720, ¶ 15 (8th Dist.), quoting Berger v. Mayfield, 265 F.3d 399 (6th
Cir. 2001).
A requested jury instruction should be given if it contains a correct
statement of the law, is appropriate to the facts, and reasonable minds might reach
the conclusion sought by the instruction. Murphy v. Carrollton Mfg. Co., 61 Ohio St.3d 585, 591 (1991); State v. Nelson, 36 Ohio St.2d 79 (1973), paragraph one of the
syllabus. However, the trial court should not instruct the jury where there is no
evidence to support a particular issue. State v. Williams, 2011-Ohio-5385, ¶ 32 (8th
Dist.), citing Riley v. Cincinnati, 46 Ohio St.2d 287 (1976).
R.C. 2901.05(B)(1) governs self-defense and states, in relevant part:
A person is allowed to act in self-defense . . . . If, at the trial of a person who is accused of an offense that involved the person’s use of force against another, there is evidence presented that tends to support that the accused person used the force in self-defense . . . the prosecution must prove beyond a reasonable doubt that the accused person did not use the force in self-defense[.]
Thus, the defendant bears the initial burden of production, which is
the burden of producing evidence “that tends to support” that the defendant used
the force in self-defense. State v. Davidson-Dixon, 2021-Ohio-1485, ¶ 18 (8th Dist.).
The defendant can produce evidence to support his or her claim of self-defense in
the State’s case-in-chief. See State v. Hawthorne, 2018-Ohio-1180, ¶ 21 (8th Dist.)
(holding that a defendant does not have to testify in his or her own defense in order
to establish the defense of self-defense; “he [or she] may exercise his [or her] right
to silence and still prove self-defense through the testimony of other witness”). If
the defendant meets his or her initial burden of producing evidence tending to
support a claim of self-defense, the burden then shifts to the State to establish its
burden of persuasion to prove beyond a reasonable doubt that the defendant did not
use force in self-defense. Davidson-Dixon at ¶ 18. A person may use deadly force in self-defense where he or she (1) was
not at fault in creating the situation giving rise to the affray; (2) had a bona fide belief
that he or she was in imminent danger of death or great bodily harm and that his or
her only means of escape from such danger was in the use of such force; and (3) did
not violate any duty to retreat or avoid the danger. State v. Messenger, 2022-Ohio-
4562, ¶ 14, citing State v. Barnes, 2002-Ohio-68 (2002). To satisfy this burden of
proving beyond a reasonable doubt that the defendant did not use force in self-
defense, the State must disprove at least one of the elements of self-defense.
Davidson-Dixon at ¶ 18.
In deciding whether a self-defense instruction should be given, the
trial court must view the evidence in a light most favorable to the defendant without
regard to credibility. Id. at ¶ 20. If there is conflicting evidence on the issue of self-
defense, the instruction must be given to the jury. Id. However, “‘if the evidence
generates only a mere speculation or possible doubt, the evidence is insufficient to
raise the affirmative defense, and submission of the issue to the jury will be
unwarranted.’” Id., quoting State v. Melchior, 56 Ohio St.2d 15 (1978).
The evidence in this case shows that Reid was at fault in creating the
situation that gave rise to the shooting. Scott repeatedly asked him to leave and he
eventually left her property. However, he immediately returned. At that point, he
became a trespasser on Reid’s property because he lacked her permission to be
there. A trespasser is defined as “[s]omeone who commits a trespass; one who intentionally and without consent or privilege enters another’s property.” Black’s
Law Dictionary (11th Ed. 2019).
Ohio courts have consistently held that a trespasser is not entitled to
claim self-defense because by invading the victim’s property without permission, the
trespasser created the situation giving rise to the affray. Ellis v. State, 64 Ohio St.3d
391, 395-396 (1992) (“A trespasser is not entitled to assert self-defense to justify an
assault upon another who legitimately used non-lethal force to exclude him from the
property.”); State v. White, 2019-Ohio-4288, ¶ 18 (4th Dist.) (following Ellis); State
v. Higgins, 2002-Ohio-4679, ¶ 19 (2d Dist.) (Trespassing “is inconsistent with the
defense of self-defense, because it presupposes that [the defendant] was at fault in
creating the situation that gave rise to the altercation.”); State v. Lampkins, 1993
Ohio App. LEXIS 2617, * 12 (10th Dist. May 18, 1993) (By trespassing on the victim’s
property, “appellant did do something to cause the affray.”).
The uncontroverted evidence established that Reid was trespassing on
Scott’s property when he shot and killed Kneina. He had an opportunity to walk
away and avoid a conflict, but he dismissed it. In denying Reid’s request for a self-
defense instruction, the court stated:
He was told to leave. How do you get around that he came back and this time he has a weapon? . . .
We don’t have evidence of anything else. We have evidence that he was there, he was told to leave, he left, and then he came back and . . . if he violated his duty to retreat to avoid the danger, that kills it.
(Tr. 858.) The evidence supports the court’s decision that Reid was a trespasser and,
therefore, not entitled to a self-defense instruction. Accordingly, the second assignment of error is overruled.
C. Cell Phone Extraction
In the third assignment of error, Reid argues the trial court erred by
allowing the State to introduce information extracted from Reid’s cell phone as
evidence.
We review a trial court’s decision to admit or exclude evidence for
abuse of discretion. Schleich v. Penn Cent. Corp., 2024-Ohio-5005 ¶ 9 (8th Dist.).
We, therefore, will not disturb a trial court’s evidentiary ruling absent an abuse of
discretion. In re A.M., 2022-Ohio-612, ¶ 22 (8th Dist.).
Reid argues the trial court erred in admitting information extracted
from his phone into evidence because Det. O’Donnell, the witness who testified
about the information, did not perform the extraction and she did not have personal
knowledge as to how the information was extracted. Reid contends that without
personal knowledge, Det. O’Donnell could not properly authenticate the extracted
information.
Evid.R. 901 governs the authentication of evidence prior to its
admissibility and 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.” Evid.R. 901(A).
Evid.R. 901(B)(1) further provides that evidence may be properly authenticated by
testimony of a witness with knowledge that “a matter is what it is claimed to be.”
Authentication under Evid.R. 901(A) is a low threshold standard that does not require conclusive proof of authenticity. State v. Horton, 2015-Ohio-99, ¶ 19 (8th
Dist.), citing State v. Freeze, 2012-Ohio-5840, ¶ 65 (12th Dist.). The State need only
demonstrate a “reasonable likelihood” that the evidence is authentic. State v.
Dobson, 2025-Ohio-2148, ¶ 30 (8th Dist.), citing State v. Roseberry, 2011-Ohio-
5921, ¶ 65 (8th Dist.).
Det. O’Donnell collected the phone during the search of Reid’s
mother’s house, and she gave it to the Secret Service to conduct the Cellebrite
extraction. She demonstrated that she was familiar with how the extraction reports
are generated, and she testified as to what the electronically generated printouts
were and what they claimed to be. (Tr. 743-766.) Moreover, Det. O’Donnell verified
the information provided in the extraction. (Tr. 744-750.) She testified, in relevant
part:
Q: When you open a cell phone extraction, do you look to try to see if the actual extraction I’m looking at matches the information I sent to the Secret Service and the information that the Secret Service said they sent back to me?
A: Yes.
(Tr. 746.) Det. O’Donnell explained that “[e]ach cell phone has a distinct
fingerprint” known as the “IMEI number.” (Tr. 736.) She also explained that when
she submitted Reid’s phone for extraction, she put specific identifying information
on the evidence envelope to make sure the extraction matches the device she
submitted. (Tr. 740-744.) In this case, the evidence was marked with the case
number and the cell phone’s IMEI number. (Tr. 743.) Det. O’Donnell was not testifying as an expert on the inner workings
of the phone; she was merely describing the information she obtained from the
phone and the method she used to verify that it came from Reid’s phone. Given the
low threshold required by Evid.R. 901(B)(1) to demonstrate that the “matter is what
it is claimed to be,” we find that Det. O’Donnell’s verification of the contents of the
cell phone extraction was sufficient for authentication purposes. See, e.g., State v.
Lautenan, 2023-Ohio-1945, ¶ 58-62 (11th Dist.) (Although FBI agent did not create
cell phone-extraction reports, he properly authenticated them by demonstrating
that he was familiar with the extracted content.).
Reid nevertheless argues that even if the extracted cell phone data was
properly authenticated, evidence that he messaged a friend to retain an attorney was
more prejudicial than probative and should have been excluded. To be admissible
as relevant, evidence must have a tendency “to make the existence of any fact that is
of consequence to the determination of the action more probable or less probable
than it would be without the evidence.” Evid.R. 401. However, even relevant
evidence must be excluded under Evid.R. 403(A) “if its probative value is
substantially outweighed by the danger of unfair prejudice, of confusion of the
issues, or of misleading the jury.”
“In reaching a decision involving admissibility under Evid.R. 403(A),
a trial court must engage in a balancing test to ascertain whether the probative value
of the offered evidence outweighs its prejudicial effect.” State v. Wright, 2019-Ohio- 4460, ¶ 50 (8th Dist.), citing State v. Maurer, 15 Ohio St.3d 239 (1984), paragraph
seven of the syllabus.
“‘When determining whether the relevance of evidence is outweighed
by its prejudicial effects, the evidence is viewed in a light most favorable to the
proponent, maximizing its probative value and minimizing any prejudicial effect to
the party opposing admission.’” Bromall v. Select Specialty Hosp., 2022-Ohio-
2496, ¶ 55 (8th Dist.), quoting State v. Lakes, 2007-Ohio-325, ¶ 22 (2d Dist.).
“Unfair prejudice does ‘not mean the damage to a [party’s] case that
results from the legitimate probative force of the evidence; rather it refers to
evidence which tends to suggest decision on an improper basis.’” State v. Lang,
2011-Ohio-4215, ¶ 89, quoting United States v. Bonds, 12 F.3d 540 (6th Cir. 1993).
“‘Unfair prejudice is that quality of evidence which might result in an improper basis
for a jury decision.’” Bromall at ¶ 56, quoting Oberlin v. Akron Gen. Med. Ctr., 91
Ohio St.3d 169, 172 (2001). It is evidence that “‘arouses the jury’s emotional
sympathies, evokes a sense of horror, or appeals to an instinct to punish’” and
generally “‘appeals to the jury’s emotions rather than intellect.’” Oberlin at 172,
quoting Weissenberger’s Ohio Evidence, § 403.3, at 85-87 (2000).
The court allowed evidence of an Instagram message from Reid to a
friend asking for the name of an attorney. He argues this evidence was not probative
of guilt or innocence and that, therefore, its probative value was outweighed by the
danger of unfair prejudice. (Appellant’s brief at 16.) We agree the probative value
of this evidence is outweighed by the danger of unfair prejudice and that the trial court erroneously admitted the Instagram message into evidence. We nevertheless
find the error harmless.
Crim.R. 52(A) defines “harmless error” as “[a]ny error, defect,
irregularity, or variance which does not affect substantial rights shall be
disregarded.” Under the harmless-error standard of review, “the government bears
the burden of demonstrating that the error did not affect the substantial rights of
the defendant.” State v. Perry, 2004-Ohio-297, ¶ 15, citing United States v. Olano,
507 U.S. 725, 741 (1993).
To be viewed as “affecting substantial rights,” the error must have
been prejudicial, meaning “‘[i]t must have affected the outcome of the [trial] court
proceedings.’” State v. Fisher, 2003-Ohio-2761, ¶ 7, quoting Olano. In other words,
Crim.R. 52(A) asks whether the rights affected are “substantial” and, if so, whether
a defendant has suffered any prejudice as a result. State v. Morris, 2014-Ohio-5052,
¶ 24-25.
As previously stated, Scott testified that Reid shot and killed Kneina.
And, Reid’s DNA was found on the murder weapon. The murder weapon was
recovered from his mother’s house, and subsequent ballistics testing established
that the cartridge casing found at the crime scene matched Reid’s Glock 10 mm auto
caliber semiautomatic handgun. Surveillance video from Marymount Hospital
showed Reid carrying Kneina’s body into the hospital and showed him running away
immediately thereafter. Police recovered the clothes Reid was wearing in the
surveillance videos, and forensic testing showed that the clothes were saturated with blood. Therefore, even if the Instagram message were excluded from the evidence,
the outcome of the trial would have been no different.
The third assignment of error is overruled.
D. Request for Counsel
In the fourth assignment of error, Reid argues the trial court violated
his right to a fair trial by allowing the State to elicit testimony that he sought an
attorney prior to his arrest. He contends this evidence violated his Sixth
Amendment right to counsel and his Fifth Amendment right to remain silent.
The Sixth Amendment to the United States Constitution provides that
“[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the
Assistance of Counsel for his defense.” U.S. Const., Amend. VI. However, “[u]nder
the plain language of the Sixth Amendment, the right to counsel belongs to an
accused and does not attach until a criminal prosecution has commenced.” State v.
Taylor, 2024-Ohio 1752, ¶ 22, citing Rothgery v. Gillespie Cty., Texas, 554 U.S. 191,
198 (2008).
A criminal prosecution is commenced by “‘the initiation of adversary
judicial criminal proceedings—whether by way of formal charge, preliminary
hearing, indictment, information, or arraignment.’” Id., quoting Rothgery at id. But
courts will not construe every mention of an attorney as an invocation of the right to
counsel. Gorel v. United States, 531 F.Supp. 368, 371 (S.D.Tex. 1981). The court
must look at the totality of the circumstances to determine whether the inquiry
about an attorney was either an attempt to invoke the Sixth Amendment right to counsel or an inquiry about securing an attorney at some point in the future. State
v. Gladding, 66 Ohio App.3d 502, 508 (11th Dist. Mar. 5, 1990.) (“[A] telephone call
to an attorney is not necessarily tantamount to a request for present assistance of
counsel.”).
Reid messaged a friend for the name of an attorney before his
mother’s home was searched, before he was arrested, and before any criminal
prosecution had been initiated. He asked the friend for the name of an attorney
before he was in police custody. Therefore, Reid’s request for the name of an
attorney was not an invocation of his Sixth Amendment right to counsel and can
only be construed as an effort to obtain the information for purposes of a
prosecution that had not yet commenced. The evidence, therefore, did not infringe
on Reid’s Sixth Amendment right to counsel.
Reid nevertheless argues that using evidence of his desire for counsel
to show consciousness of guilt violates the right to remain silent embodied in the
Fifth Amendment of the United States Constitution.1 He cites State v. Leach, 2004-
Ohio-2147, and Martin v. State, 364 Md. 692 (2001), in support of his argument.
In Leach, the Ohio Supreme Court addressed the question of whether
the use of a defendant’s prearrest silence as substantive evidence of guilt violated
the Fifth Amendment. The Court noted that the United States Supreme Court had
not, at that time, addressed this question. Relying on decisions from the Fifth,
1 The Fifth Amendment to the United States Constitution states that no person “shall be compelled in any criminal case to be a witness against himself.” It applies to the states through the Fourteenth Amendment. Malloy v. Hogan, 378 U.S. 1, 6 (1964). Ninth, and Eleventh Circuits, the Court held that the State violated the defendant’s
Fifth Amendment privilege against self-incrimination when it introduced evidence
in its case-in-chief that, before arrest, the defendant remained silent and/or asserted
his right to counsel in response to questioning. Id. at ¶ 38. The Court concluded
that allowing the factfinder to consider the defendant’s silence as evidence of guilt
undermined the right against self-incrimination guaranteed by the Fifth
Amendment. Id. at ¶ 31.
In Martin, a police officer was charged with committing theft while in
the line of duty. Id. at 695-697. After consulting with an attorney, the police officer
resigned from the police force. Id. at 703. The trial court allowed the State to draw
an inference of guilt from the defendant’s consultation with an attorney. Id. at 707.
The Maryland Supreme Court held that evidence of the defendant’s consultation
with an attorney was prejudicial and was admitted in error. Id. at 708.
However, “prosecutors may use a defendant’s pre-arrest silence as
substantive evidence of his guilt if the defendant did not expressly invoke his right
to remain silent.” Abby v. Howe, 742 F.3d 221, 228 (6th Cir. 2014), citing Salinas
v. Texas, 570 U.S. 178, 183 (2013).
The Salinas Court reasoned that the privilege against self-
incrimination “‘generally is not self-executing”’ and that a witness who desires its
protection “‘must claim it.’” Id. at 181, quoting Minnesota v. Murphy, 465 U.S. 420,
425, 427 (1984), quoting United States v. Monia, 317 U.S. 424, 427 (1943). The
court further explained that “forfeiture of the privilege against self-incrimination need not be knowing.” Id. at 190. “Statements against interest are regularly
admitted into evidence at criminal trials . . . and there is no good reason to approach
a defendant’s silence any differently.” Id. Therefore, with certain exceptions not
applicable there, none of the protections guaranteed by the Fifth Amendment are
available unless or until the defendant explicitly invokes the privilege. Id.
Neither Leach nor Martin are analogous to the case at bar. Leach
involved a prearrest, pre-Miranda invocation of the right to remain silent and a
postarrest invocation of the right to counsel. And Martin involved an actual
consultation with an attorney. Reid merely sent a message to a friend seeking the
name of an attorney. Reid was not under arrest and no criminal prosecution had
begun. Moreover, Reid never invoked either his Fifth Amendment right to remain
silent or his Sixth Amendment right to counsel. Reid’s message seeking the name of
an attorney is akin to a statement against interest, which the Salinas Court held was
regularly admitted into evidence. Salinas at 190. We, therefore, find no error in the
admission of Reid’s cell phone message.
The fourth assignment of error is overruled.
E. Jail-Time Credit
In the fifth assignment of error, Reid argues the trial court erred in
failing to properly calculate and apply jail-time credit. Reid does not argue how
much credit should have been awarded, only that the proper amount was not given.
Failure to apply jail-time credit is reversible error. State v. Hunter, 2008-Ohio-
6962, ¶ 16 (10th Dist.) (applying plain error analysis to failures to raise errors in jail- time credit calculations); State v. Abdullah, 2020-Ohio-4813, ¶ 41 (7th Dist.) (“Plain
error exists where a trial court fails to accurately calculate jail-time credit.”); State
v. Thompson, 2015-Ohio-3882, ¶ 23 (8th Dist.) (“A trial court’s failure to award jail-
time credit constitutes an error that may be addressed on appeal.”).
The trial court stated at the sentencing hearing that “credit will be
given for all time served.” (Tr. 979.) However, it never applied any jail-time credit,
and the State concedes this fact.
Therefore, the fifth assignment of error is sustained.
F. Cumulative Error
In the sixth assignment of error, Reid argues that cumulative errors
deprived him of a fair trial.
Under the cumulative-error doctrine, a conviction may be reversed
when the cumulative effect of nonprejudicial errors “deprives a defendant of a fair
trial even though each of the instances of trial-court error does not individually
constitute cause for reversal.” State v. Garrett, 2022-Ohio-4218, ¶ 270, citing State
v. Powell, 2012-Ohio-2577, ¶ 223. “However, the doctrine of cumulative error is
inapplicable when the alleged errors are found to be harmless or nonexistent.” State
v. Allen, 2016-Ohio-102, ¶ 53 (8th Dist.), citing State v. Brown, 2003-Ohio-5059,
¶ 48.
We overruled the first four assignments of error because we did not
find any errors in the trial. Although the trial court made a minor error with respect
to Reid’s jail-time credit, that error occurred after trial and did not affect the fairness of the trial. In the absence of any errors during the trial, we overrule the sixth
assignment of error.
Judgment affirmed, and case remanded to the trial court for the
limited purpose of calculating and applying jail-time credit.
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 and to calculate jail-time credit.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
EILEEN T. GALLAGHER, PRESIDING JUDGE
MICHAEL JOHN RYAN, J., CONCURS; KATHLEEN ANN KEOUGH, J., CONCURS IN PART AND CONCURS IN JUDGMENT ONLY IN PART (WITH SEPARATE OPINION)
KATHLEEN ANN KEOUGH, J., CONCURRING IN PART AND CONCURRING IN JUDGMENT ONLY IN PART:
I fully concur with the majority’s resolution of Reid’s assignments of
error, except the fourth assignment of error. Although I would find error, I would
nonetheless conclude the error to be harmless. Accordingly, I concur in judgment
only regarding Reid’s fourth assignment of error. I agree with the majority that the trial court committed error in
admitting the Reid’s Instagram message inquiring about a lawyer because the
probative value did not outweigh the danger of unfair prejudice. As the majority
concluded the error was harmless because of the other admissible evidence.
In addressing Reid’s fourth assignment of error — whether the
admission of the Instagram message violated his Sixth Amendment right to counsel
— the majority found no error or violation. Although I agree with overruling Reid’s
fourth assignment of error, I would do so under a harmless-error analysis. I also do
not find the discussion in the majority opinion about the Fifth Amendment
necessary nor do I find Salinas, 570 U.S. 178 (2013), applicable.
In Salinas, the police suspected the defendant’s involvement in two
murders and asked the defendant to come to the police station. The defendant
voluntarily went to the police station, and the police asked him questions about the
case. It was established that the defendant was not in police custody, he was free to
leave, and thus not Mirandized. Although he voluntarily answered some questions,
the defendant did not respond when the police asked him whether ballistics testing
would have matched his firearm to shell casings found at the crime scene. At trial,
the prosecution used the defendant’s silence as evidence of guilt. The Salinas Court
found that the Fifth Amendment privilege against self-incrimination is not self-
executing and must be expressly invoked — simply remaining silent is insufficient
to claim Fifth Amendment protections. Accordingly, the Salinas Court found that
because the defendant did not expressly invoke the privilege during the non- custodial interview, the prosecution’s use of his silence did not violate his Fifth
Amendment right.
In my opinion, any discussion about the Fifth Amendment is not
applicable to this assignment of error. In Salinas, the case involved a prearrest,
noncustodial conversation with law enforcement. Because the Salinas defendant
did not invoke the Fifth Amendment during that voluntary meeting, the court found
no violation.
Here, we have an Instagram message that Reid sent to a friend
inquiring about an attorney; law enforcement was not involved in this conversation.
I cannot comprehend how Reid could invoke his Fifth Amendment right to remain
silent in a text message to a friend.
Rather, I find this case akin to the line of cases Reid cites in his
appellate and reply briefs concerning the State using as evidence of guilt or
consciousness of guilt a defendant seeking, consulting, or inquiring about an
attorney prior to arrest. See State v. Angel T., 292 Conn. 262 (2009); Zemina v.
Solem, 438 F. Sup. 455 (D.S.D. 1977), aff’d, 573 F.2d 1027 (8th Cir. 1978); State v.
Santiago, 100 Conn.App. 244-45 (2007); Henderson v. United States, 632 A.2d 419
(D.C. App. 1993); People v. Meredith, 84 Ill.App.3d 1065 (1980); State v. Marshall,
123 N.J. 1 (1991); State v. Foth, 1996 Ohio App. LEXIS 3445 (10th Dist. Aug. 15,
1996); United States v. Liddy, 509 F.2d 444 (D.C. Cir. 1974). In each of these cases
cited, the prosecution commented to the jury about the defendant’s retention of,
consultation with, or request for an attorney. The respective courts found that in these situations, the prosecution cannot invite the jury to draw an adverse inference
about the defendant’s guilt because the defendant sought counsel. The respective
courts found that this commentary infringed on a defendant’s constitutional right to
counsel.
Furthermore, in Sizemore v. Fletcher, 921 F.2d 667, 671 (6th Cir.
1990), the court stated, “A prosecutor may not imply that an accused’s decision to
meet with counsel, even shortly after the incident giving rise to a criminal
indictment, implies guilt.”
In a recent Tennessee appellate decision, State v. Sullivan, 2024
Tenn. Crim. App. LEXIS 20 (Jan. 24, 2024), the court addressed the perils of the
prosecution using evidence of a defendant’s consultation with a lawyer before arrest
or before charges are even filed. In Sullivan, the defendant was on the phone with
his son when officers appeared on scene. As this call continued, the officers asked
the defendant of his whereabouts, to which he replied, “I’m headed to my lawyer’s
office.” The trial court allowed the State to introduce this statement into evidence.
The Sullivan defendant appealed, challenging the trial court’s
decision, stating the evidence infringed on his Sixth Amendment right to counsel
and further, was overly prejudicial. In discussing the assignment of error, the
Sullivan Court noted other courts that have held that the Due Process Clause of the
Fourteenth Amendment prohibits the prosecution’s discussion of a defendant
seeking legal counsel before the initiation of formal charges or custodial
interrogation. Id. at *29, citing Commonwealth v. Nolin, 448 Mass. 207 (2007); State v. Dixon, 279 Kan. 563 (2005), disapproved of on other grounds by State v.
Wright, 290 Kan. 194 (2010).
The reason for this prohibition is simple: this evidence “is likely to give rise to the improper inference that a defendant in a criminal case is, or at least believes himself to be, guilty” because “he had done something for which he needed a lawyer to defend him.” State v. Angel T., 292 Conn. 262, 973 A.2d 1207, 1221 (Conn. 2009); Martin v. State, 364 Md. 692, 775 A.2d 385, 394 (Md. 2001) (“Evidence of a criminal defendant’s consultation with an attorney is highly prejudicial, as it is likely to give rise to the improper inference that a defendant in a criminal case is, or at least believes himself to be, guilty.”).
For these reasons, the State must tread carefully before seeking admission of any evidence that the accused sought legal advice or tried to meet with a lawyer before charges are brought.
Id. at * 29.
The court also focused on the relevance of the statement and whether
a jury instruction should have been given to guide the jury’s consideration of the
evidence, that it could not be used as an inference of guilt. The court found it a
“significant concern” that “the jury was left without any proper guidance about how
to consider and evaluate the evidence.” Id. at * 32.
We remain “mindful that [m]ost jurors . . . are not schooled in the law and that from such evidence and arguments, a juror might easily draw the inference . . . that it was [the defendant’s] idea to seek counsel because he had done something for which he needed a lawyer to defend him. Accordingly, we view [e]vidence of a criminal defendant's consultation with an attorney [as] highly prejudicial, as it is likely to give rise to the improper inference that a defendant in a criminal case is, or at least believes himself to be, guilty.”
Id., quoting Angel T., 292 Conn. at 283.
The Sullivan Court found that the prosecution’s use of the statement
created an improper inference of guilt but ultimately found the prosecution’s use of the evidence harmless because the evidence of the defendant’s guilt was
overwhelming and the State did not use the defendant’s statement during closing
arguments. The court found that “while the jury was left with an inference of guilt,
the State did not compound the error by making an argument [at closing] supporting
this theory.” Id. at *35.
In the case before us, the State used Reid’s text message for the
improper purpose that Sullivan and the other courts determined infringed on a
defendant’s right to counsel — an improper inference of guilt. And this inference of
guilt was compounded by the State’s closing argument:
Finally, he wants to know from an Instagram message, he’s in a jam, he needs a lawyer, and the most important thing here is that he wants a lawyer to get him off because money ain’t no problem.
What does that tell you? It’s the State’s position when you’re looking at the evidence and using your reason and common sense and evaluating it in that capacity that the evidence that the detectives collected confirms the information that was received.
And the law that is given to you is the law that you must apply in this case. And when you use your reason and common sense, you will be able to find that the defendant is guilty of all three counts in this indictment.
(Tr. 901.)
In my opinion, these comments undoubtedly invited the jury to infer
that Reid’s search for an attorney was indicative of his guilt. I would find that these
comments impermissibly infringed on Reid’s Sixth Amendment right to counsel.
Despite this violation, I would find the error harmless for the reasons
as previously discussed in the majority opinion discussing Reid’s third assignment of error. But I once again question why the State continues to use problematic
evidence in their case-in-chief when that evidence is entirely not necessary to satisfy
its burden of proof. In State v. Keller, 2018-Ohio-4107 (8th Dist.), and State v.
Lindsey, 2019-Ohio-782 (8th Dist.), this court questioned the State’s tactics of using
improper testimony and evidence and found in both cases that “[u]nder different
circumstances, this tactic could be reversible error.” Keller at ¶ 50 and Lindsey at
¶ 52.
In this case, the State did not need to use the Instagram message to
prove its case against Reid. As the majority opinion conclusively demonstrates, the
evidence without the use of the message was overwhelming of Reid’s guilt.
Fortunately for the State, this is not the case where the Instagram message was so
overly prejudicial to jeopardize its entire case. But I would caution the State to
consider the prejudicial effect of certain evidence and whether its introduction is
worth the risk.