State v. Scott

2024 Ohio 975

Opinion

[Cite as State v. Scott, 2024-Ohio-975.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, : No. 112325 v. :

DAMARION SCOTT, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED IN PART, REVERSED IN PART, AND REMANDED RELEASED AND JOURNALIZED: March 14, 2024

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-21-659174-B

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Kevin R. Filiatraut, Assistant Prosecuting Attorney, for appellee.

Joseph V. Pagano for appellant.

EMANUELLA D. GROVES, J.:

Defendant-appellant Damarion Scott (“Scott”) appeals his convictions

for aggravated murder and other charges. For the following reasons, we affirm in

part, reverse in part, and remand. Factual and Procedural History

On February 16, 2021, Scott, along with Javon Chandler (“Chandler”),

was charged in the Cuyahoga County Common Pleas Court, Juvenile Division

(“juvenile court”), in the death of Angel Heredia with aggravated murder (Count 1);

murder (Count 2); aggravated robbery (Count 3); felonious assault (Count 4) and

having weapons while under disability (Count 5). Counts 1-4 included one- and

three-year firearm specifications. As Scott was 16 years old at the time of the

offenses and due to the nature of the charges, the state filed for a mandatory

bindover to the general division of the Cuyahoga County Common Pleas Court.

The juvenile court held a hearing on the state’s motion on April 22,

2021. After hearing testimony from the state’s witnesses and reviewing the state’s

exhibits, the juvenile court found that there was probable cause that both Scott and

Chandler committed the crimes outlined in the complaint, that the crimes would be

felonies if committed by an adult, and the nature of the crimes qualified for transfer

to the general division.

On May 4, 2021, Scott was indicted for aggravated murder, an

unclassified felony (Count 1); murder, an unclassified felony (Count 2); involuntary

manslaughter, a felony of the first degree (Count 3); two counts of aggravated

robbery, felonies of the first degree (Counts 4 and 5); two counts of felonious assault,

felonies of the second degree (Counts 6 and 7); robbery, a felony of the second degree

(Count 8); and having weapons while under disability, a felony of the third degree (Count 10).1 Counts 1 through 8 each included one- and three-year firearm

specifications.

Scott elected to take the charges to a trial by jury, which commenced on

November 14, 2022.2 Scott initially elected to have Counts 3 and 10 tried to the

bench because they each contained references to prior juvenile adjudications.

However, midtrial, Scott, against the advice of counsel, elected to have those counts

heard by the jury.

At the trial, the testimony and evidence established that Mr. Heredia

was shot and killed during an attempted carjacking at the Gas USA Station located

at 6501 Denison Avenue, Cleveland, Ohio. The incident was captured on the

business’s surveillance videos. The videos showed two African-American males in a

black Audi pull up to a pump at the station around 2:30 p.m., on February 10, 2021.

Both males exited the vehicle; however, neither attempted to pump gas. They stood

outside for several minutes before entering the store. Both were wearing face masks

hiding part of their noses and all of their lower faces, so there was not a full view of

their faces on the surveillance video. The two had a brief conversation with staff

about ordering food and then exited the store. Shortly thereafter, Mr. Heredia drove

into the station and parked along the side of the building. Once he entered the store,

1 Count 9 charged Chandler with having weapons while under disability.

2 Chandler pleaded guilty to Count 1 aggravated murder with the three-year firearm specification and was sentenced to a term of prison for life with parole eligibility after 23 years. the two males got into the Audi and drove the car to the side of the building near Mr.

Heredia’s parked car.

After Mr. Heredia exited the store and entered his car, the suspects

exited the Audi with guns in their hands and approached Mr. Heredia’s car. One

opened the driver’s side door, while the other opened the passenger side door. The

two confronted Mr. Heredia at gun point and then one of the males shot Mr. Heredia

six times in the face and upper torso. The two males then ran back to the Audi and

fled the scene.

Gas USA employee Brittany Dinickle saw the two males when they

parked and noticed that they did not pump gas. She observed them enter the store

and discussed purchasing food. However, Dinickle did not get a good look at either

person because of the masks they wore.

During the subsequent police investigation, five 9 mm spent casings

were recovered. Four of them were found in the victim’s car, a Nissan Altima, and

one was found in the Audi driven by the suspects. A Beretta 9 mm caliber pistol was

recovered during a search warrant of the home of Daryl Bethel, Jr. A ballistics

expert, Kristen Keoth, determined that the four spent casings retrieved from the

Nissan were fired from the Beretta 9 mm pistol. The fifth casing found in the Audi

came from the same gun. Although multiple guns were found at Scott’s residence,

none of them could be linked to the incident by either ballistics or DNA.3

3 Chandler’s DNA was found on Mr. Heredia’s sleeve, affirmatively linking him to

the crime. Detective David Borden4 with the CDP Homicide Unit spoke with

Dorothy Scott, Scott’s mother, when CPD executed a search warrant at her home on

February 13, 2021. During the conversation, Det. Borden informed Ms. Scott that

they were investigating her son for a homicide at Gas USA the previous Wednesday.

The conversation was captured on body-cam. Det. Borden showed Ms. Scott some

pictures of individuals. Ms. Scott identified one of the individuals as her son and the

other as someone nicknamed “Money” who was later identified as Chandler. Det.

Borden then pointed to the clothing in the picture and asked Ms. Scott where the

clothes were located. The two then proceeded to look for the clothes off-camera. At

one point, the picture Det. Borden held was placed in proximity to the body-cam.

The picture depicted an African-American male in a store setting wearing dark

clothing. The background resembles the interior of the Gas USA station video.

At trial, Det. Borden testified that Ms. Scott identified her son from still

pictures taken from surveillance video at Gas USA. However, Ms. Scott did not

remember identifying her son from those pictures when she testified. When shown

similar pictures at trial, Ms. Scott testified that she could not identify the masked

individuals. The defense objected when Det. Borden testified to his interaction with

Ms. Scott and moved for a mistrial. The trial court denied the motion.

In addition to pictures captured from the surveillance video, Detective

Timothy Cramer obtained a search warrant for Scott’s Instagram account for a date

4 At the time of the incident, Borden was a detective with the homicide unit. At trial, he had been promoted to the rank of sergeant after ten years as a homicide detective and had worked in that role approximately 45 days. range from February 9, 2021, through February 13, 2021. After receipt of the

documents, he found that around midnight the morning of the shooting, multiple

pictures were uploaded to Scott’s Instagram that depicted him, Chandler, and a third

unknown individual. The pictures revealed two weapons that appeared similar to

the weapons depicted in the surveillance video. The clothing worn by Chandler and

Scott in the Instagram pictures resembled the clothing worn by the suspects in the

surveillance videos. The state presented side-by-side pictures to compare the

clothing Scott was wearing on Instagram with the clothing worn by the suspects in

the surveillance video.

The jury found Scott guilty of all charges. The trial court found that

Counts 1 through 3 (aggravated murder, murder, and involuntary manslaughter)

merged for purposes of sentencing. The state elected to proceed with Count 1. The

trial court sentenced Scott to life with the possibility of parole after 20 years, to run

consecutively to the three years on the firearm specification. The trial court found

that Counts 4, 5, and 8 (two counts of aggravated robbery and one count of robbery)

merged. The state elected to proceed on Count 4. The trial court sentenced Scott to

11 years to run concurrent to Count 1. The three-year firearm specification on that

charge would run consecutively to the underlying count. The trial court found that

Counts 6 and 7 (two counts of felonious assault) would merge. The state elected to

proceed on Count 7. The trial court sentenced Scott to eight years to run

concurrently to Counts 1 and 4 and that the gun specifications would merge for the

purposes of sentencing. Finally, the trial court sentenced Scott to 36 months on Count 10, having weapons while under disability, to run concurrently to all other

counts for an aggregate sentence of life with the possibility of parole after 26 years.

Scott appeals assigning the following errors for our review:

Assignment of Error No. 1

The trial court committed reversible error by denying appellant’s motion for mistrial and by allowing Det. Borden to provide hearsay testimony as evidence in violation of Evid.R. 802 and the Fifth and Sixth Amendments to the United States Constitution.

Assignment of Error No. 2

The juvenile division of common pleas court violated due process when it improperly relinquished jurisdiction over the charges against the juvenile appellant where probable cause was not established and therefore the general division of common pleas court lacked jurisdiction over the juvenile appellant. R.C. 2152.12(A); Fifth and Fourteenth Amendments to the U.S. Constitution; Article I, Section 16 of the Ohio Constitution.

Assignment of Error No. 3

The trial court erred when it denied appellant’s motion for acquittal under Crim.R. 29 because the state failed to present sufficient evidence to establish beyond a reasonable doubt the elements necessary to support the convictions.

Assignment of Error No. 4

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

Assignment of Error No. 5

The court committed plain error by proceeding with the trial after jurors came forward stating that they were exposed to information that would improperly influence deliberations in violation of appellant’s Sixth Amendment right to a fair trial. Assignment of Error No. 6

The court committed plain error and/or abused its discretion by allowing the opinion testimony of the forensic video specialist over appellant’s objections where he was not declared an expert witness and his lay opinion testimony was inadmissible in violation of Crim.R. 16, Evid.R. 701.

Assignment of Error No. 7

Appellant was deprived of his constitutional rights under the Sixth Amendment to the extent the court considered cross-examination opened the door to allow prejudicial hearsay testimony regarding identification of appellant and for failing to object to the opinion testimony of the forensic video specialist who was not properly deemed an expert witness.

Law and Analysis

For ease of analysis, we will address the assignments of error out of

order. Accordingly, we will begin with the second assignment of error in which Scott

argues that his right to due process was violated when the juvenile court found that

there was probable cause for it to relinquish jurisdiction to the general division to

try him as an adult.

Probable Cause to Try Scott as an Adult

Scott argues that there was insufficient evidence of identity because

Ms. Scott denied identifying her son as one of the perpetrators depicted in

surveillance photos. There was no other testimony identifying Scott as one of the

perpetrators. Furthermore, Det. Thelemon Powell testified before the juvenile

court, incorrectly, that clothing and/or shoes were obtained from Scott’s home that

matched items seen in the surveillance video. Finally, Scott argues, if there was

sufficient evidence of identification, the evidence established that Chandler was the shooter. Scott argues that he could not be tried as an adult based on a finding that

he was complicit in Chandler’s conduct.

Standard of Review

We review the juvenile court’s decision regarding a mandatory

bindover proceeding as a mixed question of law and fact. In re A.J.S., 120 Ohio St.3d

185, 2008-Ohio-5307, 897 N.E.2d 629, ¶ 51. Accordingly, we give deference to the

trial court’s determinations regarding the credibility of witnesses, but “we review de

novo the legal conclusion whether the state presented sufficient evidence to

demonstrate probable cause to believe that the juvenile committed the acts

charged.” Id.

In a mandatory bindover proceeding, the juvenile court must transfer

the case to the general division if a complaint has been filed alleging the child is

delinquent for committing an act that would be charged as aggravated murder,

murder, attempted aggravated murder, or attempted murder, if committed by an

adult, and

[t]he child was sixteen or seventeen years of age at the time of the act charged that would be aggravated murder, murder, attempted aggravated murder, or attempted murder and there is probable cause to believe that the child committed the act charged.

R.C. 2152.12(A)(1)(a)(i).

Furthermore, when a child is alleged to be delinquent by reason of

committing one or more acts that would be an offense if committed by an adult, if any of those acts are a category-two5 offense (aggravated robbery is one such

offense) and there is probable cause to believe the juvenile committed the category

two offense, the juvenile court must transfer the case to the general division if the

child is sixteen or seventeen at the time of the act and either:

(a) the child has previously been adjudicated a delinquent child for committing an act that is a category one or category two offense and was committed to the department of youth services as a result of that adjudication; or

(b) the child is alleged to have had a firearm on or about his person or under his control while committing the act charged and to have displayed the firearm, brandished the firearm, indicated possession of the firearm, or used the firearm to facilitate the crime.

R.C. 2151.12(A)(1)(b)(i) and (ii); 2151.10(A)(2)(a); 2151.10(A)(2)(b).

There is no dispute that the crimes occurred in this matter. The entire

incident was caught on video. Additionally, the parties stipulated that Scott was 16

at the time of the crime and that the victim died from gunshot wounds inflicted on

February 10, 2021, as a result of a homicide. The primary question was whether the

state presented sufficient evidence to meet the probable cause standard to establish

Scott as one of the perpetrators.

In order to establish probable cause in a bindover proceeding, the state

must present credible evidence as to each element of the offense. State v. Iacona,

93 Ohio St.3d 83, 93, 752 N.E.2d 937 (2001). It must establish “credible evidence

that ‘raises more than a mere suspicion of guilt.’” Id. However, the state need not

5 Category-two offenses are violations of R.C. 2903.03, 2905.01, 2907.02, 2911.01,

or 2911.11 of the Revised Code; 2903.04 that is a felony of the first degree, and R.C. 2907.12 as it existed prior to September 3, 1996. establish “‘evidence of guilt beyond a reasonable doubt.’” In re I.S., 8th Dist.

Cuyahoga No. 112364, 2023-Ohio-3975, ¶ 68, quoting Iacona at 93. When making

the probable cause determination, “the juvenile court must evaluate the quality of

the evidence presented by the state in support of probable cause as well as any

evidence presented by the respondent that attacks probable cause.” Iacona at 93.

Although, as Scott points out, Ms. Scott denied identifying her son in

any of the surveillance videos, the body-cam video of her conversation with Det.

Borden contradicts her testimony. At the time the search warrant was executed, the

police had not issued the search warrant for Scott’s Instagram account and the still

picture seen on the body-cam appears to be from the surveillance video introduced

at the hearing. Ms. Scott is shown identifying the individuals in that picture as her

son and Chandler. Additionally, Det. Borden then pointed to the clothing in the

picture and asked Ms. Scott where they were located. The trier of fact could infer

that the picture depicted the suspect and that the detective was asking Ms. Scott to

locate the clothing worn by her son. Det. Cramer subsequently testified that the

picture shown to Ms. Scott in the video was a still picture from surveillance footage

at Gas USA on February 10, 2021.

Nevertheless, although Ms. Scott denied identifying her son in the

surveillance pictures, she did identify her son and Chandler in Instagram pictures

posted to Scott’s account the morning of the shooting. A side-by-side comparison

of the clothing depicted on Instagram and stills from the surveillance video

established that Scott was wearing similar clothing to the perpetrator. Scott was depicted wearing a dark puffer jacket with a white Eddie Bauer logo on the breast

with a hood, dark pants with holes in each knee, and black and white sneakers.

Additionally, Scott is a tall, young man with a slim build. The surveillance videos

depict two young men, one wearing a black puffer jacket with an Eddie Bauer logo

on the breast, black pants with holes in the knees and black and white sneakers.

Scott was also wearing a similar hat in the Instagram pictures to one observed on a

suspect in the surveillance video. Accordingly, the state met its burden of

production as to the identity of the perpetrator.

Finally, Scott argues that if identification was established, he merely

acted in complicity and could not be bound over to common pleas court. When

addressing the issue of complicity, the Ohio Supreme Court has found that a juvenile

is not subject to mandatory bindover unless the evidence establishes that the child,

himself, had a firearm on or about the child’s person or under the child’s control

while committing the act charged and the child displayed, the firearm, brandished

the firearm, indicated possession of the firearm, or used the firearm to facilitate the

commission of the act charged. State v. Hanning, 89 Ohio St.3d 86, 94, 728 N.E.2d

1059 (2000), referencing former R.C. 2151.26(B)(4)(b). The evidence establishes

that Scott had a gun on his person in the commission of an aggravated robbery, a

category-two offense, and brandished the firearm during the commission of the

offense. The fact that Chandler is the person who fired his gun does not absolve

Scott from his own conduct of participating in the aggravated robbery with a gun on

his person. Based on the foregoing, the state met its burden to establish probable

cause to support bindover of the case to the general division; accordingly, the second

assignment of error is overruled.

Det. Borden’s Testimony

In the first assignment of error, Scott argues that the trial court

committed reversible error when it denied a motion for a mistrial after the

admission of hearsay testimony from Det. Borden. Scott specifically objects to the

following exchange:

State: When you showed [Ms. Scott] a still photo from camera 10 with the two individuals on it, what did she say?

Defense: Objection.

Court: Overruled.

Det. Borden: I’m sorry. Overruled? She said that’s my son and that’s Javon Chandler. She called him by his nickname. Money.

(Tr. 469.)

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

sound discretion of the trial court. State v. Garner, 74 Ohio St.3d 49, 59, 656 N.E.2d

623 (1995). Additionally, a trial court holds broad discretion when deciding whether

to admit or exclude evidence. State v. Sage, 31 Ohio St.3d 173, 182, 510 N.E.2d 343

(1987). A court of appeals will not disturb such an exercise of discretion unless there

is a showing that the defendant suffered material prejudice. State v. Miller, 8th Dist.

Cuyahoga No. 100461, 2014-Ohio-3907, ¶ 36, citing Sage at 182. A court abuses its

discretion when it’s conduct is “unreasonable, arbitrary, or unconscionable.” State v. Hill, 171 Ohio St.3d 524, 2022-Ohio-4544, 218 N.E.3d 891, ¶ 9, citing Blakemore

v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983). “A mistrial should be

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

possible.’” Miller at ¶ 36, quoting State v. Franklin, 62 Ohio St.3d 118, 127, 580

N.E.2d 1 (1991).

If a mistrial is based on erroneously admitted evidence, that evidence

should be “‘of an exceptionally prejudicial character such that its withdrawal from

consideration by the jury cannot be expected to remove the harm.’” State v.

Marshall, 2014-Ohio-4677, 22 N.E.3d 207, ¶ 29 (8th Dist.), quoting United States

v. Carr, 5 F.3d 986, 993 (6th Cir.1993).

Scott argues that Det. Borden’s testimony was inadmissible hearsay

because it was testimony regarding an out-of-court statement offered for the truth

of the assertion. While Scott acknowledges that testimony regarding an out-of-court

identification is admissible nonhearsay under Evid.R. 801(D)(1)(c), Scott argues

that it was improper for Det. Borden to testify regarding the statement before Ms.

Scott testified where Det. Borden’s testimony did not corroborate Ms. Scott’s

testimony because she denied identifying her son.

“A statement is not hearsay if the declarant testifies at trial and is

subject to examination concerning the statement and the statement is one of

identification of a person soon after perceiving the person, if the circumstances

demonstrate the reliability of the prior identification.” Evid.R. 801(D)(1)(c). This

identification may be established by the person making the identification or a third person to whom or in whose presence the identification was made. State v. Boston,

46 Ohio St.3d 108, 124, 545 N.E.2d 1220 (1989); citing State v. Lancaster, 25 Ohio

St.2d 83, 267 N.E.2d 291 (1971), paragraph five of the syllabus. In addition, the

identifier must have testified and been subject to cross-examination and the prior

statement must be admitted “not as original, independent or substantive proof of

the identity of the accused as the guilty party, but as corroboration of the testimony

of the identifying witness as to the identity of the accused.” Id.

Here, Ms. Scott did not testify until after Det. Borden testified and she

denied identifying her son in surveillance photos. However, she acknowledged that

she identified her son in pictures that she was shown during the execution of the

search warrant at her home and she identified her son and Chandler in Instagram

pictures in similar clothing at trial. Det. Borden testified on direct examination that

he showed Ms. Scott the surveillance photos at her home. It was not until redirect

that the state asked Det. Borden whether Ms. Scott made an identification and what

that identification was. Regardless, this court has held that a prior identification is

admissible even if the witness recants at trial when the evidence contains sufficient

indicia of trustworthiness or reliability. State v. Brown, 8th Dist. Cuyahoga No.

73047, 1998 Ohio App. LEXIS 4219, 5 (Sept. 10, 1998), citing State v. Houston, 8th

Dist. Cuyahoga No. 64574, 1994 Ohio App. LEXIS 52 (Jan. 13, 1994). Ms. Scott’s

statement was captured on body-cam video and the picture that was shown to her

was visible and identifiable as a surveillance photo. Additionally, Ms. Scott could have refused to identify the picture since the person depicted was wearing a mask.

However, she immediately identified the suspects as her son and Chandler.

Accordingly, the first assignment of error is overruled.

Sufficiency of the Evidence

In the third assignment of error, Scott challenges his convictions

based on the sufficiency of the evidence. Scott argues that there was insufficient

evidence of identity, insufficient evidence that Scott was complicit in Chandler’s

actions; and insufficient evidence to support the verdicts on all counts.

When examining the sufficiency of the evidence, we must

examine the evidence admitted at trial to 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. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the

syllabus.

Sufficiency tests whether the state met its burden of production at

trial. State v. Toby, 8th Dist. Cuyahoga No. 106306, 2018-Ohio-3369, ¶ 19, citing

State v. Givan, 8th Dist. Cuyahoga No. 94609, 2011-Ohio-100, ¶ 13. To meet the

burden of production a party must “produce sufficient evidence to make out a prima

facie case.” State v. Petway, 2020-Ohio-3848, 156 N.E.3d 467, ¶ 47 (11th Dist.). “A

reviewing court is not to assess ‘whether the state’s evidence is to be believed, but

whether, if believed, the evidence against a defendant would support a conviction.’” State v. Nelson, 8th Dist. Cuyahoga No. 100439, 2014-Ohio-2189, ¶ 14, quoting

State v. Thompkins, 78 Ohio St.3d 380, 390, 678 N.E.2d 541 (1997).

A conviction may not be overturned under this standard “unless we

find that reasonable minds could not reach the conclusion [made] by the trier of

fact.” State v. Treesh, 90 Ohio St.3d 460, 484, 739 N.E.2d 749 (2001).

A finding that a conviction is based on legally insufficient evidence

bars retrial. State v. McFarland, 162 Ohio St.3d 36, 2020-Ohio-3343, 164 N.E.3d

316, ¶ 23. “‘A reversal based on the insufficiency of the evidence has the same effect

[as a verdict of not guilty] because it means that no rational factfinder could have

voted to convict the defendant.’” Id. at ¶ 23, quoting Thompkins at 387.

Scott challenges all the charges for which the jury found him guilty;

however, a conviction consists of the offenses that a defendant was both found guilty

of and sentenced. McFarland at ¶ 25 (a conviction consists of a guilty verdict and

the imposition of a sentence or penalty; merger of counts moots a sufficiency of the

evidence claim to the merged counts). Accordingly, we will only address the

sufficiency of Scott’s convictions for aggravated murder (Count 1); aggravated

robbery (Count 4); felonious assault (Count 7); and having weapons while under

disability (Count 10).

Identification

There was no eyewitness testimony in this case. The police did not

find Scott’s DNA or fingerprints in the victim’s car, they could not link any of the

guns found at Scott’s residence to the crime, nor were any cell phone records obtained that linked Scott to the location of the crime. The evidence of identification

came from the store surveillance videos, Instagram pictures, and Ms. Scott. In the

Instagram photos, Scott can be seen wearing the same clothing as one of the suspects

in the surveillance video, from head to toe, from the hat, pants with holes in the

knees, and black and white sneakers. Chandler likewise appears to be wearing the

same clothes on Instagram as the other suspect. While there is a third person in the

Instagram photos, that person is clearly shorter than Scott and Chandler, while Scott

and Chandler appear to be close to the same height. The suspects are roughly the

same height in the surveillance video as well.

After Ms. Scott identified her son during the execution of the search

warrant, she repeatedly denied identifying her son in the surveillance photos.

However, looking at the identification evidence in a light most favorable to the

prosecution, there was sufficient evidence presented to establish that Ms. Scott

identified her son in the surveillance photo. At the time she made the identification,

the only pictures of the suspects obtained by the police were from the surveillance

video. No other photos of Scott had been secured. Det. Borden testified the picture

he showed Ms. Scott was from the surveillance video. Furthermore, the picture can

be seen on the body-cam and is clearly a still photo from inside Gas USA as seen in

the accompanying surveillance video from inside the store. Finally, Det. Cramer

requested Instagram data from February 9 through February 13, covering

immediately before the shooting up to the execution of the search warrant at the

Scott home on February 13, 2021. Accordingly, when Det. Borden is seen in body- cam footage pointing to the clothing worn by the person in the picture and asking

Ms. Scott where the clothing was located, the picture had to be from the surveillance

videos, and it had to be an image of Ms. Scott’s son, because the CDP did not have

the Instagram photos at that time.

Therefore, there was sufficient evidence, if believed by the jury, to

identify Scott as one of the perpetrators of the crime.

Complicity and The Underlying Charges

In his brief, Scott separates his argument regarding complicity from

his challenges to the underlying charges. A person who is alleged to be complicit

may be charged either with complicity or with the principal offense.

R.C. 2923.03(F). In the instant case, the state alleged both that Scott directly

participated in the crimes and was complicit in Chandler’s actions. Accordingly, we

will address Scott’s arguments together. Scott argues that the state failed to present

sufficient evidence of complicity because there was no evidence that Scott knew

Chandler would shoot or kill Mr. Heredia, that Scott had an operable firearm, or that

anything was stolen from Mr. Heredia. Scott also contends that because there was

no evidence of theft or that Scott possessed a deadly weapon, there was insufficient

evidence to support his conviction for aggravated robbery. Further, he contends that

there was insufficient evidence to support his conviction for felonious assault under

Count 7 because there was no evidence that Scott knowingly by means of a deadly

weapon caused physical harm to Mr. Heredia. Finally, Scott argues that there was

insufficient evidence to support his conviction for having weapons while under disability because the evidence presented to show the prior adjudication was not

properly admitted into evidence, further the gun was never recovered, and there was

no evidence that the gun used was operable.

Evidence to support a conviction based on complicity by aiding and

abetting must establish “‘that the defendant supported, assisted, encouraged,

cooperated with, advised, or incited the principal in the commission of the crime,

and that the defendant shared the criminal intent of the principal.’” McFarland, 162

Ohio St.3d 36, 2020-Ohio-3343, 164 N.E.3d 316 at ¶ 29, quoting State v. Johnson,

93 Ohio St.3d 240, 754 N.E.2d 796 (2001). “‘Participation in criminal intent may be

inferred from presence, companionship and conduct before and after the offense is

committed.’” Johnson at 245, quoting State v. Pruett, 28 Ohio App.2d 29, 273

N.E.2d 884 (4th Dist.1971).

The elements that the state was required to establish for aggravated

murder under R.C. 2903.01(B) were that Scott was complicit in purposely causing

the death of another while committing or attempting to commit, or while fleeing

immediately after committing or attempting to commit aggravated robbery, as

alleged in the indictment.

For the charge of aggravated robbery under R.C. 2911.01(A)(1), the

state needed to establish that in attempting or committing a theft offense, or in

fleeing immediately after the attempt or offense upon Angel Heredia, Scott did have

a deadly weapon, to wit: a handgun, on or about his person or under his control and

either displayed the weapon, brandished it, indicated he possessed it, or used it. For felonious assault, the state had to establish that Scott aided and abetted another and

knowingly caused or attempted to cause physical harm to Angel Heredia by means

of a deadly weapon or dangerous ordnance, to wit: a handgun. R.C. 2903.11(A)(2).

Finally, for having weapons while under disability, the state had to

establish that Scott knowingly acquired, had, carried or used any firearm or

dangerous ordnance and he had been adjudicated a delinquent juvenile for the

commission of an offense, to wit: on May 29, 2019, Scott was adjudicated delinquent

for felonious assault, a felony of violence if committed by an adult.

R.C. 2923.13(A)(2).

The video evidence established that Scott and Chandler went to the

gas station to commit a crime. They parked at a pump but did not attempt to pump

gas. They entered the store and discussed buying food but did not do so. They

immediately moved their car next to Mr. Heredia’s car after he parked. Shortly after

Mr. Heredia returned to his car, both Chandler and Scott exited the Audi; they

flanked Mr. Heredia’s car with guns drawn. There was clearly an exchange between

Mr. Heredia, Scott, and Chandler before Chandler fired the gun. They both then ran

to the Audi and fled the scene.

There is a noticeable gap between the perpetrators opening Mr.

Heredia’s door and the eventual shooting. The jury could reasonably infer that the

suspects were attempting to forcibly obtain something from Mr. Heredia at

gunpoint before shots were fired. Scott participated in all aspects of the aggravated robbery before, during, and after the offense. Furthermore, although the evidence

suggests that Scott did not shoot Mr. Heredia,

[a] jury can infer an aider and abettor’s purpose to kill where the facts show that the participants in a felony entered into a common design and either the aider or abettor knew that an inherently dangerous instrumentality was to be employed to accomplish the felony or the felony and the manner of its accomplishment would be reasonably likely to produce death.

State v. Scott, 61 Ohio St.2d 155, 165, 400 N.E.2d 375 (1980).

Here, Scott acted in concert with Chandler throughout the crime.

Additionally, Scott clearly had a firearm in his hands during the commission of this

crime. The fact that the gun was not recovered and therefore could not be tested is

not dispositive. “Where no shots are fired and the firearm is not recovered, such as

in the instant case, circumstantial evidence, including the representations and

actions of the person in possession of the gun, are of crucial importance when we

evaluate the evidence of the firearm’s operability.” State v. Robinson, 8th Dist.

Cuyahoga No. 101850, 2015-Ohio-1838, ¶ 25, citing State v. Ware, 9th Dist. Summit

No. 22919, 2006-Ohio-2693, ¶ 13. Looking at all of Scott’s actions, the jury could

infer that the firearm he brandished was operable. Therefore there was sufficient

evidence to support the convictions of aggravated murder, aggravated robbery, and

felonious assault.

During the course of the trial, the state sought to secure a stipulation

to Scott’s prior juvenile adjudication; however, the defense consistently refused to

stipulate. The state introduced five certified documents: (1) the complaint; (2) a copy of a fact sheet listing Ms. Scott as the mother; (3) a copy of the summons issued

to Ms. Scott at her current address, the address of the search warrant; (4) Scott’s

plea to felonious assault, a second-degree felony; and (5) the disposition placing

Scott on probation. The state did not introduce any accompanying testimony with

these documents.

In order to establish a prior conviction, including a prior adjudication

of delinquency, “a certified copy of the entry of judgment in such prior conviction

together with evidence sufficient to identify the defendant named in the entry as the

offender in the case at bar, is sufficient to prove such prior conviction.”

R.C. 2945.75(B)(1). However, R.C. 2945.75(B)(1) is not the exclusive method of

proving a prior conviction. State v. Gwen, 134 Ohio St.3d 284, 2012-Ohio-5046,

982 N.E.2d 626 ¶ 1. Proof of the prior conviction can be accomplished by

stipulation, admission, or by the testimony of a witness with knowledge of the prior

conviction who can also identify the accused as the offender involved in said prior

conviction. State v. Kronenberg, 8th Dist. Cuyahoga No. 101403, 2015-Ohio-1020,

¶ 43, citing Gwen at ¶ 22.

Scott argues, in part, that the documents submitted by the state were

not properly authenticated. However, the parties agreed that the documents were

certified public records and therefore self-authenticating under Evid.R. 902(4);

accordingly, Scott’s argument that the documents were not properly authenticated

is waived. The state introduced certified copies of the adjudication and

disposition and introduced the additional documents to establish that Scott was the

subject of the prior adjudication due to the date of birth, identity of the mother, and

her address. The documents indicate that Scott’s date of birth is January 24, 2005;

however, no witness testified to Scott’s date of birth at trial. The documents do list

Ms. Scott as the mother of the child adjudicated delinquent, have her residing at the

same address, and the child’s name is Damarion Scott. The documents also indicate

that the juvenile, at age 14, was 6'6'' tall and weighed 140 pounds, but no one testified

regarding Scott’s current height and weight. Based on the foregoing, we find that

the state presented insufficient evidence to establish that Scott was the person

identified in the documents.

Accordingly, the third assignment of error is sustained as to the

conviction for having weapons while under disability. However, Scott’s challenge to

the remaining charges is overruled.

Manifest Weight of the Evidence

In the fourth assignment of error, Scott argues that his convictions

were against the manifest weight of the evidence. Specifically, Scott points to

inaccuracies in the crime-scene log; that testimony in the juvenile court was

inconsistent with testimony at trial; and that the gun Scott was holding in the

Instagram photos did not look like the gun in the surveillance pictures. Finally, Scott

argues the evidence of identification was unreliable and there were other potential

suspects. Scott specifically focuses on the idea that there was confusion regarding which picture was shown to Ms. Scott and that had the police followed guidance in

R.C. 2933.83(6)(f) there would have been a reliable indicator of which photo was

shown to her.

“‘[W]eight of the evidence involves the inclination of the greater

amount of credible evidence.’” State v. Harris, 8th Dist. Cuyahoga No. 109060,

2021-Ohio-856, ¶ 32, quoting Thompkins, 78 Ohio St.3d at 387, 678 N.E.2d 541.

Weight of the evidence is “‘the evidence’s effect of inducing belief.’” Id., quoting

State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, ¶ 25, citing

Thompkins at 386-387. As the reviewing court, a decision to reverse a conviction

based on the weight of the evidence stems from this court sitting as the “thirteenth

juror” who “disagrees with the factfinder’s resolution of the conflicting testimony.”

State v. Thompkins, 78 Ohio St.3d 380, 678 N.E.2d 541 (1997), citing Tibbs v.

Florida, 457 U.S. 31, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982). The appellate court

must consider all of the evidence in the record, the reasonable inferences to make

from it, and the credibility of the witnesses to determine “‘whether in resolving

conflicts in the evidence, the factfinder clearly lost its way and created such a

manifest miscarriage of justice that the conviction must be reversed and a new trial

ordered.’” Harris, citing Thompkins at 387, quoting State v. Martin, 20 Ohio

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

During the trial, the defense was able to question witnesses about

discrepancies in the testimony at the juvenile court probable cause hearing and the

trial. However, at trial, witnesses made clear that there was no physical evidence linking Scott to the crime scene. Additionally, none of the testimony at the probable

cause hearing was presented at trial. The defense raised it solely to highlight that

there was no evidence collected that was linked to Scott. Accordingly, the jury had

to consider all of the evidence, including the fact that the police did not find any

physical evidence that linked Scott to the crime.

The inaccuracies in the crime-scene log were irrelevant in this case.

The crime-scene log is used to record who enters and leaves the crime scene. The

defense strategy was to challenge the identification and lack of evidence linking

Scott to the crime. None of the evidence collected linked Scott to the crime, so

inaccuracies in the crime-scene log were not dispositive of guilt or innocence.

With respect to the guns depicted in the Instagram photos, Scott

acknowledges that two of the guns depicted in the pictures were similar to the guns

seen in the surveillance video. The fact that Scott was not depicted holding one of

those guns is not dispositive. Additionally, as we have noted, although there is a

third person in the Instagram photos, it is clearly evident that that person is

noticeably shorter than both Scott and Chandler. Furthermore, the suspects appear

to be the same height as each other, and so do Scott and Chandler.

Finally, with respect to the photo identification, although Det. Borden

could have had Ms. Scott sign the picture, the fact that he did not is not dispositive.

This was a question of credibility. Det. Borden testified he showed Ms. Scott a still

picture from the surveillance video. Ms. Scott testified that she never saw those pictures and did not identify her son. The jury, looking at all the testimony, found

Det. Borden’s testimony more credible.

Based on the foregoing, there is no indication on this record that the

jury lost its way or that the conviction was a manifest miscarriage of justice.

Accordingly, the fourth assignment of error is overruled.

In the fifth and sixth assignments of error, Scott argues that the trial

court committed plain error, first, for continuing with the trial after jurors came

forward indicating that they were exposed to information that would improperly

influence deliberations and second, by allowing the opinion testimony of the state’s

forensic video specialist because he was never declared an expert and his lay opinion

violated Crim.R. 16 and Evid.R. 701.

Plain Error Standard

If a defendant fails to object at trial, he waives all but plain error.

Crim.R. 52(B); State v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d

860, ¶ 28.

To constitute plain error, there must be: (1) an error, i.e., a deviation from a legal rule, (2) that is plain or obvious, and (3) that affected substantial rights, i.e., affected the outcome of the trial. State v. Pratts, 8th Dist. Cuyahoga No. 104235, 2016-Ohio-8053, ¶ 34, citing State v. Barnes, 94 Ohio St.3d 21, 27, 759 N.E.2d 1240 (2002). A defendant is entitled to a plain error finding where it is established that but for the error, the outcome of the trial clearly would have been different. State v. Johnson, 8th Dist. Cuyahoga No. 99715, 2014-Ohio-2638, ¶ 94, citing State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978); State v. Hill, 92 Ohio St.3d 191, 749 N.E.2d 274 (2001). Even if the plain error standard is met, courts should only notice it “with the utmost caution, under exceptional circumstances and only to prevent a manifest miscarriage of justice.” Long, 53 Ohio St.2d at 91, 372 N.E.2d 804, paragraph three of the syllabus.

State v. White, 8th Dist. Cuyahoga No. 110452, 2022-Ohio-2130, ¶ 37.

If a defendant fails to call an error to the attention of the trial court,

he must “‘demonstrate a reasonable probability that the error resulted in prejudice

— the same deferential standard for reviewing ineffective assistance of counsel

claims,’” in order to obtain relief. State v. Thomas, 152 Ohio St.3d 15, 2017-Ohio-

8011, 92 N.E.3d 821, ¶ 33, quoting Rogers at 385, ¶ 22, citing United States v.

Dominguez Benitez, 542 U.S. 74, 81-83, 124 S.Ct. 2333, 159 L.Ed.2d 157 (2004).

The Jury

After the lunch break on day two of trial, Juror No. 4 told the court’s

bailiff that she overheard a phone call by one of Scott’s family members and that the

speaker was very loud. When questioned, the juror indicated the call was very

animated and the family member felt the case should be reviewed by the Supreme

Court. She also mentioned something about how they had signed up for a trial by

jury. At the time this conversation had occurred, Scott had not revoked his earlier

waiver of his right to a jury as to two counts, which were to be heard to the bench.

Once Juror No. 4 understood the gist of the call, he put on his headphones to prevent

hearing anything further. Juror No. 4 indicated that the statements could

potentially affect his ability to deliberate because the implication was raised that

something was wrong with the proceedings, i.e., that the system was failing the

family. Juror No. 4 denied speaking of the conversation to other jurors but told the court that other jurors were in the vicinity when Scott’s family member was

speaking, and Juror No. 3 asked when they returned to the jury room whether

anyone heard the family member.

Juror No. 3 told the court that he heard the conversation and a family

member was listing the charges in a loud voice. Nothing he heard however would

influence him one way or the other in his deliberations. He did speak of the incident

to other jurors; however, they heard the loud tone but did not hear any specifics.

After speaking to these two jurors, the state requested the removal of

Juror No. 4 and the defense agreed. Both parties then requested a general

instruction to the jury regarding the lunchroom conversation and anything that the

jury might have overheard. After excusing Juror No. 4, the court addressed the

remaining jurors, including Juror No. 4’s replacement. Juror No. 2 indicated they

heard a sentence, but “nothing of substance.” Juror No. 7 heard the “loudness” but

could not hear what was said. No other juror acknowledged hearing the

conversation. After this interaction, the case proceeded. The defense did not

request a new trial.

Before this court, the defense argues that a new trial should have been

granted based on the number of jurors “who acknowledged hearing/witnessing the

out of court statements and Juror No. 4’s insistence that it would impact his ability

to be impartial.” The defense argues that the jury was “tainted.” We disagree.

This court has held that the proper procedure when a trial court learns

that a juror was subject to an improper outside communication is to hold a hearing to determine whether the communication biased the juror. State v. McKeller, 8th

Dist. Cuyahoga No. 78254, 2001 Ohio App. LEXIS 4657 (Oct. 18, 2001), citing State

v. Phillips, 74 Ohio St.3d 72, 656 N.E.2d 643 (1995). A trial court has broad

discretion in determining whether to declare a mistrial or replace an affected juror.

Id.

Juror No. 4 was the only juror who heard what was said and felt it

affected his ability to be impartial going forward. None of the other jurors heard the

statement or felt influenced by the fact that Scott’s family member was having a loud

conversation in the lunchroom. A trial court may rely on a juror’s representation

that they can be impartial and that averment is not inherently suspect. Id., citing

Phillips at 89.

As there was no error, Scott has failed to establish that the trial court

plainly erred when it did not sua sponte declare a mistrial and grant a new trial.

Accordingly, the fifth assignment of error is overruled.

Forensic Video Specialist’s Testimony

In the sixth assignment of error, Scott argues that it was plain error

and/or an abuse of discretion for the trial court to allow the opinion testimony of the

state’s forensic video specialist when he was not declared an expert witness and his

lay opinion violated Crim.R. 16 and Evid.R. 701.

The state introduced the testimony of Tom Ciula (“Ciula”) as a forensic

video specialist; however, they did not seek to qualify Ciula as an expert witness.

Ciula collected the video surveillance from Gas USA. During the course of his testimony, the defense objected when the state sought to have Ciula describe what

the suspects were wearing in the video, including the logo on the left hand front side

of one of the jackets; what the victim was wearing when he entered the store; the

defense objected to a question asking whether the video showed two gentlemen

exiting an Audi, one wearing a black jacket exiting the passenger side and one

wearing a gray jacket exiting the driver’s side; and to questions that asked the

witness to address a color issue with one of the videos.

The testimony of a lay witness regarding their opinions or inferences

is limited to “those opinions or inferences which are (1) rationally based on the

perception of the witness and (2) helpful to a clear understanding of the witness’

testimony or the determination of a fact in issue.” Evid.R. 701. A court has wide

latitude in the admission or exclusion of this testimony, and thus we review the trial

court’s decision for an abuse of discretion. State v. Koch, 2d Dist. Montgomery

No. 28041, 2019-Ohio-4182, ¶ 49. Although the defense objected to certain

questions and answers, they did not challenge Ciula’s testimony as improper lay

witness testimony; accordingly we review the admission of the testimony for plain

error.

Under Evid.R. 701, a witness’s opinion is rationally based on their

perception when the witness has firsthand knowledge of the subject of his testimony

and his opinion is one a rational person would form on the basis of observed facts.

State v. Mulkey, 98 Ohio App.3d 773, 649 N.E.2d 897 (10th Dist.1994); State v.

Miller, 2015-Ohio-519, 27 N.E.3d 564, ¶ 37 (8th Dist.). Testimony is “helpful” where it aids the trier of fact in understanding the witness’s testimony or determining a

fact in issue. Id. While Ciula had firsthand knowledge of the video and could testify

to its contents, his testimony was not necessary to aid the jury in understanding his

testimony or determining any facts at issue. The video spoke for itself, and the jury

was capable of examining it and comparing the clothing in the surveillance video to

Scott’s Instagram posts. Accordingly, it was an error to allow Ciula to testify about

the contents of the video. His testimony was not necessary to aid the jury to

understand his testimony or determine any fact at issue; the jury was capable of

making these determinations for itself without Ciula’s assistance. However, the

admission of Ciula’s testimony was harmless error. The jury was presented with the

video and had an opportunity to review it and determine for themselves what it

contained. Additionally, the defense cross-examined Ciula regarding his answers

and pointed out issues of concern, for instance, that it was possible the suspects’

jackets were light gray and dark gray rather than black and gray as Ciula testified.

Based on the foregoing, Scott has failed to establish that the admission

of Ciula’s testimony was plain error, i.e., an error of such magnitude that the

outcome of the trial would have been different if it had not occurred. Accordingly,

the sixth assignment of error is overruled.

Ineffective Assistance of Counsel

Finally, in the seventh assignment of error, Scott argues that he

received ineffective assistance of counsel when counsel opened the door on cross- examination to prejudicial testimony on redirect from Det. Borden and for failing to

object to Ciula’s testimony.

A defendant demonstrates ineffective assistance of counsel when he

establishes that “counsel’s performance was deficient and that the deficient

performance prejudiced the defendant so as to deprive him of a fair trial.” State v.

Trimble, 122 Ohio St.3d 297, 2009-Ohio-2961, 911 N.E.2d 242, ¶ 98,

citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674

(1984). When determining whether an attorney’s performance fell below an

objective standard of reasonableness, we “must indulge a strong presumption that

counsel’s conduct falls within the wide range of reasonable professional assistance.”

Strickland at 689. “A defendant’s failure to satisfy one prong of the Strickland test

negates a court’s need to consider the other.” State v. Madrigal, 87 Ohio St.3d 378,

721 N.E.2d 52 (2000), citing Strickland at 690, 104 S.Ct. at 2066, 80 L.Ed. 2d at

695.

Based on our analysis of Scott’s first and fifth assignments of error,

we find that Scott has failed to establish he was prejudiced by the alleged errors. The

record presented sufficient evidence of identification even if we remove Det.

Borden’s testimony on cross-examination from the record. In regard to Ciula’s

testimony, it did not address the ultimate issue. He testified solely to how he

interpreted the surveillance video. The defense challenged some of his conclusions.

Consequently, Scott has failed to establish that counsel’s performance was deficient

or that the outcome of the trial would have had a different result. Accordingly, the seventh assignment of error is overruled.

Judgment affirmed in part; the conviction for having weapons while

under disability is reversed and remanded.

It is ordered that appellant and appellee share the costs herein taxed.

The court finds there were reasonable grounds for this appeal.

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

common pleas court to carry this judgment into execution.

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

of the Rules of Appellate Procedure.

EMANUELLA D. GROVES, JUDGE

KATHLEEN ANN KEOUGH, A.J., and MARY J. BOYLE, J., CONCUR