[Cite as State v. Spivey, 2026-Ohio-1550.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, : No. 115015 v. :
DAVID SPIVEY, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: April 30, 2026
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-22-675401-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Gregory M. Paul, Assistant Prosecuting Attorney, for appellee.
Kimberly Kendall Corral, for appellant.
TIMOTHY W. CLARY, J.:
Defendant-appellant David Spivey (“Spivey”) appeals from his
convictions for murder and other offenses. For the following reasons, we affirm. Factual and Procedural History
This case arose from the homicides of brothers Dominique King
(“Dominique”) and Delvont’e King (“Delvont’e”), which occurred on July 30, 2020.
On October 24, 2022, a Cuyahoga County Grand Jury indicted Spivey on two counts
of aggravated murder in violation of R.C. 2903.01(A); two counts of murder in
violation of R.C. 2903.02(A); two counts of murder in violation of R.C. 2903.02(B);
two counts of felonious assault in violation of R.C. 2903.11(A)(1); two counts of
felonious assault in violation of R.C. 2903.11(A)(2); and one count of having
weapons while under disability in violation of R.C. 2923.13(A)(2). Apart from the
charge of having weapons while under disability, each count carried one- and three-
year firearm specifications.
Spivey pleaded not guilty to all charges, and the case proceeded to a
jury trial on November 6, 2023.
On November 14, 2023, the court declared a mistrial because the jury
was unable to reach a unanimous verdict on any of the charges. On December 4,
2023, Spivey filed a motion to dismiss on double-jeopardy grounds. On January 3,
2024, the trial court denied this motion, and Spivey appealed.
On September 12, 2024, this court affirmed the denial of Spivey’s
motion to dismiss on double-jeopardy grounds. State v. Spivey, 2024-Ohio-4492
(8th Dist.). The case was remanded to the trial court. On February 18, 2025, the court granted the State’s oral motion to
dismiss the having weapons-while-under-disability charge. The remaining counts
proceeded to a second jury trial.
The State called 12 witnesses to testify at trial, including two
detectives who worked on the case, Detective Bruce Vowell (“Detective Vowell”) and
Detective Richard Tusing (“Detective Tusing”). The following is a summary of the
evidence presented at trial.
Dominique and Delvont’e were brothers; Delvont’e lived in a house
on Walden Avenue in Cleveland with his mother, his girlfriend, and two other
brothers, Devon Foster (“Devon”) and Delourence King (“Delourence”). Spivey was
a friend of the family and a cousin of one of Dominique’s best friends, Zachariah
McNair (“McNair”). Devon testified that Spivey was close friends with Dominique,
and Devon considered Spivey a “friend slash brother slash cousin” to his family;
Devon identified Spivey at trial. (Tr. 697.) According to Devon, in the months
leading up to the shooting, Dominique told Devon that he was not on good terms
with Spivey, but Devon did not know the reason for this.
According to Devon, on the evening of July 29, 2020, he and
Delvont’e had been together outside of their house smoking marijuana and relaxing.
Devon testified that Dominique had gone to a party on St. Clair Avenue in Cleveland,
Ohio, with Spivey and McNair to celebrate the life of a friend who had recently
passed away. At some point in the evening, Dominique and Spivey got into a fight;
the record reflects that the fight likely took place at a BP station near Walden Avenue
or at the aforementioned party. At 1:03 a.m. on July 30, 2020, Dominique sent a
text message to a friend stating, “I had to beat up my little cousin tonight.” (Tr. 810.)
The text message was sent with a photo appearing to show bloody knuckles; the
photo was taken at 9:02 p.m. on July 29. The State also introduced evidence that a
swab from Dominique’s fingernails contained DNA from Spivey.
Phone records reflect that at around 12:39 a.m. on July 30, Spivey’s
cell phone connected with a cell tower located near St. Clair Avenue and East 106th
Street when Spivey made an outgoing call to Dominique. Shortly after 1 a.m.,
Spivey’s cell phone connected with a cell tower located on Shaker Boulevard when
Dominique made two calls to Spivey. None of these three calls were answered, but
law enforcement concluded that based on these records, Spivey was moving closer
to the house on Walden Avenue. The FBI agent, who testified as to his historical-
record analysis of Spivey’s cell phone records in this case, stated Spivey’s cell phone
was “in the area kind of to the north and west of Walden Avenue” shortly after 1 a.m.
on July 30, 2020. (Tr. 486.) The agent further testified that there was a period
lasting approximately nine hours following the shooting in which multiple incoming
calls were made to Spivey’s phone but the phone did not connect to the network.
According to the agent, this could have been for a variety of reasons, including that
the phone was turned off, ran out of battery, was in airplane mode, or did not have
a strong signal. Devon testified that at around 1 a.m. on July 30, he left the house to
go to a nearby gas station. Around 30 minutes later, while still at the gas station,
Devon heard gunshots; shortly thereafter, Delourence came to tell Devon that
Delvont’e was dead and Dominique was in the hospital.
The State introduced video footage from a neighbor who lived across
the street from the victims’ family on Walden Avenue. The footage showed
Dominique drive up in front of his family’s home at around 1 a.m. on July 30 in a
gray or silver Jeep. Law enforcement subsequently determined that the Jeep was
owned by McNair’s girlfriend; Devon testified that Dominique had borrowed the
Jeep from McNair. Shortly after Dominique parked, Delvont’e came out of the
house, Dominique exited the Jeep, and the brothers appeared to be talking.
Several minutes later — at 1:09 a.m. according to the video’s
timestamp — two suspects walked into the frame of the video and approached the
brothers. One of the suspects — identified by Detective Vowell as Little Dave and
later by Devon as Spivey — was wearing a dark hoodie, jeans, and a face mask. The
other wore a light-colored t-shirt and appeared taller than the first suspect. The four
men talked for several minutes in the front yard of the house. Around 1:18 a.m., the
video shows Dominique walking over to the driver’s door of the Jeep, removing
something from his waistband, and placing it in the car; Detective Vowell testified
that he believed this was the handgun that was recovered from under the driver’s
seat of the Jeep. Devon also testified that he believed that Dominique was putting
his gun away. Dominique then walked back over to the other men, closely
approaching the man identified as Spivey. The two men appeared to engage in a
brief physical altercation and then separated. About one minute later, the taller
suspect pulled out a gun and shot at both brothers. The video shows Delvont’e
collapse in the driveway of the house next door to his; Dominique began to run away
and collapsed in the corner of the yard and his family’s driveway.
The State called a neighbor, who testified that he lived on Walden
Avenue with his wife. The neighbor testified that on July 30, 2020, around 1:30 or
2 a.m., he was watching television in his second-floor bedroom with his wife and
could see the street from where he was in his house. The neighbor testified that he
heard a car pull up and heard two car doors close, so he looked out his bedroom
window and saw two individuals get out of a light-colored Malibu or Impala and
walk up the street. The neighbor continued watching television, and approximately
15 minutes later, he heard gunshots. He testified that he “heard a lot of gunshots”
and that it sounded like two different kinds of gunshots because “[o]ne was like pow
pow and the other was like boom boom.” (Tr. 686.) He testified that as he heard
the gunshots, he got up and looked out the window again and could see “the
individuals shooting” and then heard a lot of people screaming and saw people
running. When asked to describe the suspects, the neighbor stated, “[O]ne was
wearing a hoodie, one was wearing a T-shirt. And I ain’t going to say both of them
was short, but one was shorter than the other.” (Tr. 687.) The neighbor testified
that he saw the two suspects get back into their car and speed up the street headed west; he stated that the taller individual was the driver. The neighbor gave a
statement to the police when they responded to the scene.
Law enforcement responded to the scene at around 1:30 a.m.
following reports of a shooting. Delvont’e was pronounced dead on the scene, and
Dominique was transported to University Hospitals, where he was pronounced
dead. The deputy medical examiner who performed the autopsy of each victim
testified at trial that Dominique had six gunshot wounds and Delvont’e had nine
gunshot wounds; for both victims, the deputy medical examiner concluded that the
cause of death was multiple gunshot wounds and the manner of death was homicide.
Detective Vowell testified that he arrived at the scene around
2:30 a.m. on July 30. He described the scene and narrated the video of the shooting
as described above. Detective Vowell testified that he spoke to numerous family
members at the scene, but he did not testify specifically as to what, if anything, he
learned from particular family members; he described the scene as “dramatic.”
(Tr. 352.) Detective Vowell testified that later that morning, he obtained a
description of the shooting suspects. Vowell testified that he learned there were two
black males, both of whom were wearing blue jeans, brown hoodies pulled up over
their heads, and N-94 masks on their faces; their faces were largely covered.
According to Detective Vowell, a witness described one of the men as around six feet
tall and thin and the other man as around five feet six inches; both were carrying
black handguns in their right hands. The witness said that the men got into a silver or gray Chevrolet Impala or Malibu and left the scene and the taller man was the
driver.1
Detective Vowell testified that on August 2, 2020, he returned to
Walden Avenue to interview the victims’ mother. During this interview, Vowell
learned that “it was rumored that a male named Little Dave was one of the shooters
that night.” (Tr. 356.) Detective Vowell could not identify the source of this rumor
beyond “the streets[.]” (Tr. 399.) Detective Vowell learned that Little Dave was said
to be friends with Dominique and a cousin of McNair, one of Dominique’s best
friends. Further, he testified that the victims’ mother was familiar with Little Dave
because he “was always at her house, so she knew who he was.” (Tr. 405.) Vowell
testified that he learned that at some point earlier in the day or evening prior to the
shooting, Little Dave and Dominique had gotten into a fight but he had no other
information about this fight.
Detective Vowell went on to testify that between August 4 and 28,
2020, he attempted to confirm Little Dave’s identity. At some point in that period,
his partner obtained a palm print from the driver’s window of the Jeep and that print
was determined to be Spivey’s.2 Detective Vowell further testified that Spivey was
approximately five feet eight inches tall and weighed approximately 135 pounds and
1 Detective Vowell did not specify who provided this description. Although there are discrepancies between Detective Vowell’s testimony of the witness’ description of the suspects and the neighbor’s description provided at trial, the neighbor did note a height difference between the suspects and identified the taller suspect as the driver of the vehicle.
2 At no point in the surveillance footage can either suspect be seen near the driver’s
door of the Jeep. this was consistent with the shorter suspect in the surveillance video. He went on to
testify that he subsequently returned to the victims’ house and spoke with their
mother, who identified a photo of Spivey as Little Dave.
Detective Tusing testified that he was assigned to this case in
December 2020, and Spivey had already been identified as a person of interest in
the case. According to Detective Tusing, when he received information that Spivey’s
DNA was present in a sample from Dominique’s fingernails, he obtained an arrest
warrant for Spivey. He also testified that in February 2023, Ohio State Highway
Patrol conducted a traffic stop in which they seized the 9 mm firearm that was used
in this shooting. According to Detective Tusing, the two men involved in the traffic
stop had no connection to Spivey or to the shooting. He testified that it was not
unusual for someone to get rid of a firearm used in a homicide quickly and that given
the time that had elapsed since the shooting, it was possible that the firearm had
changed hands multiple times.
The State called Thomas Morgan (“Morgan”), who testified that he
was employed as the supervisor of the firearm and toolmark unit at the Cuyahoga
County Medical Examiner’s Office. Morgan testified that he received evidence,
analyzed the evidence, and prepared a report in connection with this case.
Specifically, Morgan analyzed a 9 mm Luger caliber Glock pistol, a 9 mm Luger
caliber Ruger pistol, various bullets and bullet fragments retrieved from the victims’
bodies, and spent shell casings. Morgan testified that he tested both firearms for
operability and to recover test bullets and test cartridge cases for later comparison into the National Integrated Ballistic Information Network (“NIBIN”) system. (Tr.
553.) As a result of his testing and analysis, Morgan concluded that all 21 of the
9 mm Luger cartridge casings recovered from the crime scene were fired from the
Glock pistol. (Tr. 554.) Similarly, Morgan concluded that 12 of the 14 bullet
fragments recovered from the bodies of both victims came from this firearm; the
remaining two could not be classified. (Tr. 563.) With respect to the four .40 caliber
Smith & Wesson cartridge casings recovered from the crime scene, Morgan
concluded that they were discharged by an unknown/unidentified .40 caliber Smith
& Wesson firearm. Further, Morgan concluded that the Ruger pistol he analyzed
was not responsible for any of the 9 mm shell casings recovered from the scene.
The State called Detective Tony Gonzalez (“Detective Gonzalez”) who
testified that he was employed by the Cleveland Division of Police and assigned to
the U.S. Marshals Northern Ohio Violent Fugitive Task Force. Detective Gonzalez
testified that in September 2021, he received an assignment to locate Spivey in
connection with this case. He testified that he initially determined that Spivey might
be in Dayton, Ohio, based on a traffic citation and accident report in which Spivey
reported that a .40 caliber firearm was stolen from him out of his girlfriend’s vehicle,
a silver Chevrolet Malibu. Detective Gonzalez testified that he also attempted to
locate Spivey at his uncle’s house in Garfield Heights, Ohio.
Ultimately, Detective Gonzalez determined that Spivey was in
Houston, Texas with his girlfriend. Detective Gonzalez communicated with agents
in Houston, who apprehended Spivey in October 2022. At the close of the State’s case in which the foregoing evidence was
presented, Spivey made a Crim.R. 29 motion; the court denied this motion.
The jury began deliberations on February 24, 2025. On February 25,
2025, the court received a note from the jury, signed by all 12 jurors, indicating that
it could not reach a unanimous verdict. The same day, the jury’s foreperson also
informed the court’s bailiff that they were concerned about one of the other
members of the jury. The court questioned the foreperson, who reported to the court
that they believed one juror may be “operating under a bias” and specifically stated:
Well, unanimously we’ve all come to a decision except for this one person, who in their statements while they’re deliberating, that basically said regarding their life experiences that they will not take evidence into consideration.
(Tr. 935-936.) The court, with the agreement of both parties, instructed the jury to
continue deliberations pursuant to State v. Howard, 42 Ohio St.3d 18 (1989).
On February 26, 2025, the jury returned a verdict of not guilty of both
counts of aggravated murder and guilty of all remaining counts of murder and
felonious assault with the attendant firearm specifications.
On March 12, 2025, the court held a sentencing hearing. The parties
agreed that all four counts related to Dominique were allied offenses of similar
import and all four counts related to Delvont’e were allied offenses of similar import;
the State elected to have Spivey sentenced on the two counts of murder in violation
of R.C. 2903.02(A). The victims’ mother, grandmother, aunt, and friend addressed
the court; the assistant prosecuting attorney and defense counsel both addressed the
court as well. The court sentenced Spivey to 15 years to life in prison, to be served
consecutively to six years on the firearm specifications, with parole eligibility after
21 years.
Spivey appealed. He now raises eight assignments of error for our
review:
I. The admission of prejudicial hearsay identification testimony by Detective Vowell which violated Spivey’s Sixth Amendment right to confrontation and Ohio’s rules of evidence was (a) plain error and (b) ineffective assistance of counsel.
II. The admission of Detective Vowell’s testimony about the identification of the appellant in surveillance footage was (a) plain error and (b) ineffective assistance of counsel.
III. The admission of irrelevant and overly prejudicial palm print evidence was (a) plain error and (b) ineffective assistance of counsel.
IV. The admission of evidence of weapons which were irrelevant and overly prejudicial was (a) plain error and (b) ineffective assistance of counsel.
V. Admission of Devon Foster’s testimony, who was not a witness to the crime and had no firsthand knowledge of the crime was (a) plain error and (b) ineffective assistance of counsel.
VI. Admission of video [surveillance] footage to be admitted that had not [been] authenticated was (a) plain error and (b) ineffective assistance of counsel.
VII. Appellant Spivey’s [convictions] are against the manifest weight of the evidence.
VIII. The trial court abused its discretion when it took no steps to [safeguard] appellant’s rights after a report of juror bias during deliberations.
Law and Analysis
Spivey’s first six assignments of error all challenge the trial court’s
admission of various forms of evidence, arguing that the admission constituted both
plain error and ineffective assistance of counsel. Generally, a decision regarding the admission of evidence will not be overturned absent an abuse of discretion. State v.
Payne, 2019-Ohio-4158, ¶ 38 (8th Dist.). An abuse of discretion is defined as “a
court exercising its judgment, in an unwarranted way, in regard to a matter over
which it has discretionary authority.” Johnson v. Abdullah, 2021-Ohio-3304, ¶ 35.
However, because all the evidence challenged in Spivey’s first six assignments of
error was admitted without objection at trial, he has forfeited all but plain error.
State v. McInnes, 2026-Ohio-734, ¶ 61 (8th Dist.), citing State v. Rogers, 2015-
Ohio-2459, ¶ 3 and 21 (Failure to object to an error in the trial court forfeits all but
plain error on appeal.).
Crim.R. 52(B) authorizes appellate courts to recognize and correct
“‘“plain errors or defects affecting substantial rights” notwithstanding the accused’s
failure to meet his obligation to bring those errors to the attention of the trial court.’”
Id. at ¶ 62, quoting State v. Mosby, 2024-Ohio-5210, ¶ 24 (8th Dist.), quoting
Crim.R. 52(B). “Under the plain-error doctrine, intervention by a reviewing court is
warranted only under exceptional circumstances to prevent injustice.” State v.
Bailey, 2022-Ohio-4407, ¶ 8, citing State v. Long, 53 Ohio St.2d 91 (1978),
paragraph three of the syllabus (“Notice of plain error. . . is to be taken with the
utmost caution, under exceptional circumstances and only to prevent a miscarriage
of justice.”). To prevail under the plain-error doctrine, Spivey “must establish that
‘an error occurred, that the error was obvious, and that there is “a reasonable
probability that the error resulted in prejudice,” meaning that the error affected the outcome of the trial.’” (Emphasis added in Rogers.) Id., quoting State v. McAlpin,
2022-Ohio-1567, ¶ 66, quoting State v. Rogers, 2015-Ohio-2459, ¶ 22.
Spivey acknowledges that his counsel failed to object to the evidence
he now challenges on appeal. He separately argues that this constituted ineffective
assistance of counsel. To establish ineffective assistance of counsel, “a defendant
must prove (1) his counsel was deficient in some aspect of his representation, and
(2) there is a reasonable probability that, were it not for counsel’s errors, the result
of the trial would have been different.” State v. Houston, 2018-Ohio-3043, ¶ 18 (8th
Dist.), citing Strickland v. Washington, 466 U.S. 668 (1984). “‘Defense counsel’s
performance must fall below an objective standard of reasonableness to be deficient
for purposes of ineffective assistance of counsel.’” State v. Linville, 2017-Ohio-101,
¶ 6 (8th Dist.), quoting State v. Jones, 2016-Ohio-688, ¶ 14 (8th Dist.). Because
objecting is a tactical decision, “‘“the failure to make objections is not alone enough
to sustain a claim of ineffective assistance of counsel.”’” State v. Washington,
2024-Ohio-1056, ¶ 38, quoting State v. Frierson, 2018-Ohio-391, ¶ 25 (8th Dist.),
quoting State v. Conway, 2006-Ohio-2815, ¶ 103.
Having laid out the relevant standards of review guiding our analysis,
we will address each of Spivey’s first six assignments of error in turn.
I. Detective Vowell’s Testimony — Suspect Description
In Spivey’s first assignment of error, he argues that the admission of
prejudicial hearsay identification testimony by Detective Vowell violated both
Spivey’s Sixth Amendment right to confrontation and Ohio’s rules of evidence and, therefore, constituted plain error. Relatedly, he argues that his counsel’s failure to
object to this testimony constituted ineffective assistance of counsel.
The specific testimony that Spivey challenges in this assignment of
error is Detective Vowell’s testimony that someone known as Little Dave was the
shooter and, further, that an unknown witness described the suspects as having
hoodies pulled over their faces, with both carrying guns, and one was about six feet
tall while the other was about five feet six inches tall. Specifically, Spivey argues that
Detective Vowell’s entire investigation of Spivey was based on a rumor and he was
unable to testify as to the source of this rumor. The only other witness who claimed
to have seen the suspects was the neighbor who testified; while the descriptions
contained similarities, the record does not explicitly reflect that Detective Vowell’s
description came from the neighbor.
Spivey argues that the admission of this testimony constitutes plain
error for two reasons. Spivey argues that the testimony was inadmissible hearsay
and that it violated his Sixth Amendment right to confrontation because he was
unable to confront the witness who provided this description of the suspects. “The
Sixth Amendment to the United States Constitution protects the right of a criminal
defendant ‘to be confronted with the witnesses against him’ [and] [t]he ‘primary
object’ of this provision is to prevent unchallenged testimony from being used to
convict an accused . . . .” State v. Carter, 2024-Ohio-1247, ¶ 27, quoting Mattox v.
United States, 156 U.S. 237, 242 (1895), and Crawford v. Washington, 541 U.S. 36,
42, 53-54 (2004). Neither argument is persuasive. Hearsay is “a statement, other than one made by the declarant while
testifying at the trial or hearing, offered in evidence to prove the truth of the matter
asserted.” Evid.R. 801(C). While Detective Vowell testified as to an unidentified
witness’s description of the suspects, “‘Ohio courts have long held that out-of-court
statements are admissible to explain the actions of a police officer during an
investigation and are not hearsay.’” State v. Perkins, 2020-Ohio-3658, ¶ 13 (8th
Dist.), quoting State v. Johnson, 2018-Ohio-1389, ¶ 44 (8th Dist.), citing State v.
Davis, 2008-Ohio-2; see also State v. Carter, 2017-Ohio-5573, ¶ 47 (8th Dist.),
quoting State v. Blevins, 36 Ohio App.3d 147, 149 (10th Dist. 1987) (“‘[W]here
statements are offered to explain an officer’s conduct while investigating a crime,
such statements are not hearsay.’”).
Spivey cites two cases from the Second District to support his
assertion that “rumors” are inadmissible hearsay: State v. Bridgeman, 2009-Ohio-
4578, ¶ 20 (2d Dist.), and State v. Sinkfield, 1998 Ohio App. LEXIS 4644, *16-17 (2d
Dist. Oct. 2, 1998). In Bridgeman, the court held that a detective’s testimony
regarding an anonymous phone tip was prejudicial hearsay largely because the
“State did not present overwhelming evidence of [the defendant’s] guilt” in that case.
Bridgeman at ¶ 20. In Sinkfield, the court held that testimony regarding an
anonymous tip was prejudicial hearsay because the probative value of that evidence
was substantially outweighed by the danger of unfair prejudice, and moreover, the
testimony was unnecessary because it had already been established that the
defendant was a suspect. Sinkfield at *16-17. We find neither case persuasive. Unlike Bridgeman, and despite
Spivey’s arguments in this appeal, the State presented additional evidence linking
Spivey to the shooting. The assertion that the State’s entire case was based on a
“rumor” is a mischaracterization of the record. Moreover, unlike in Sinkfield,
Detective Vowell’s testimony regarding the initial description of the suspects that he
obtained was relevant in explaining the steps he took in his investigation that led to
identifying Spivey as a suspect.
The testimony as to “rumors” that Little Dave was involved, as well as
Detective Vowell’s initial description of the suspects, was introduced to explain how,
in the course of the investigation, Spivey was eventually identified as a person of
interest. Moreover, the State introduced video evidence at trial showing both
suspects; this renders any testimony as to the suspects’ build or clothing harmless
given the jury’s ability to view the suspects.
Because the testimony was not inadmissible hearsay and did not
violate Spivey’s right to confrontation, we cannot say that the admission of this
testimony constituted plain error.
With respect to Spivey’s ineffective-assistance-of-counsel argument,
he is unable to satisfy either prong of the Strickland test. First, because the
testimony was admissible as discussed above, we cannot say that counsel’s failure to
object fell below an objective standard of reasonableness required to satisfy the first
prong of the Strickland test. Second, “the failure of counsel to perform what may
reasonably be deemed a futile act cannot serve as the basis for ineffective assistance of counsel claims nor could the failure be deemed prejudicial.” State v. Freeman,
2023-Ohio-3150, ¶ 49 (8th Dist.), citing State v. Ford, 2007-Ohio-5722, ¶ 9 (8th
Dist.), citing State v. Henderson, 2007-Ohio-2372 (8th Dist.). Because objecting to
admissible testimony can reasonably be deemed a futile act, Spivey is unable to show
prejudice. For these reasons, Spivey’s first assignment of error is overruled.
II. Detective Vowell’s Testimony — Identification
In Spivey’s second assignment of error, he argues that the admission
of Detective Vowell’s testimony regarding the identification of Spivey in the
surveillance footage was plain error and that his counsel’s failure to object to this
testimony constituted ineffective assistance of counsel. In this assignment of error,
Spivey challenges Detective Vowell’s repeated references to the shorter suspect in
the video as Little Dave without any foundation for him to make such an
identification.
During the State’s direct examination of Detective Vowell, he testified
as to his investigation as described above, including the descriptions of the suspects
and how Spivey became a suspect in the case. Following that testimony, the State
played the surveillance footage during its direct examination of Detective Vowell and
the detective narrated the video, identifying both victims by name and describing
the suspects as “the shorter male” and “the taller male.” (Tr. 362-363.) The
following exchange then took place:
ASSISTANT PROSECUTING ATTORNEY: And as you’re observing this [video] on August 3rd of 2020, based on the information that you had gathered and the descriptions, who did you believe the little shorter male to be? DETECTIVE VOWELL: Little Dave.
ASSISTANT PROSECUTING ATTORNEY: Without a first and last name?
DETECTIVE VOWELL: Without a first and last name.
(Tr. 363.) Throughout the remainder of Detective Vowell’s direct examination, he
continued to refer to the shorter suspect seen in the video as Little Dave.
Spivey argues that because the identity of the suspects in the video
cannot be determined, testimony from an experienced detective affirmatively
identifying one of the suspects was highly prejudicial. Specifically, Spivey argues
that the identification of the suspect as Little Dave constituted opinion testimony
from a law enforcement officer about the guilt of a defendant and was, therefore,
inadmissible pursuant to Evid.R. 701. Spivey points to this court’s opinion in State
v. Brunson, 2020-Ohio-5078, ¶ 35 (8th Dist.), in which we concluded that a
detective’s identification of a suspect in surveillance footage as Brunson was
improper opinion testimony. The Brunson Court ultimately concluded that the
testimony was harmless error because the record reflected overwhelming evidence
of Brunson’s guilt, including cell phone location data and DNA evidence similar to
the evidence presented in the instant case. Id. at ¶ 37.
Spivey is correct that beyond the initial reference to the suspect in the
video as Little Dave, Detective Vowell affirmatively identified the suspect as Little
Dave during his testimony. However, viewing the testimony in its entirety, the
context for the testimony is that it was based on Detective Vowell’s perception of the
evidence given his investigation. Even if we agreed with Spivey that Detective
Vowell’s identification testimony was improper, we cannot say that the admission of this testimony constituted plain error. While the testimony, in isolation, may have
been prejudicial, upon a thorough review of the record, we cannot conclude that this
was error, let alone plain error that likely affected the outcome of the trial. The jury
was able to view the video itself, to hear the other witness testimony describing the
circumstances surrounding the shooting, to hear testimony from Devon identifying
Spivey and describing Spivey’s relationship with Dominique, and to consider the cell
phone and DNA evidence implicating Spivey. For these reasons, Spivey has not
satisfied his burden of establishing that Detective Vowell’s testimony constituted
plain error such that reversal is required to correct a manifest miscarriage of justice.
With respect to Spivey’s ineffective-assistance-of-counsel argument,
we likewise find that Spivey has not satisfied the second prong of the Strickland test
because he is unable to show that but for his counsel’s failure to object to Detective
Vowell’s testimony, the outcome of the trial would have been different. Because this
testimony did not constitute plain error and his counsel’s failure to object did not
constitute ineffective assistance of counsel, Spivey’s second assignment of error is
overruled.
III. Palm-Print Evidence
In Spivey’s third assignment of error, he argues that the admission of
Detective Vowell’s testimony regarding the palm-print evidence taken from the door
of the Jeep was highly prejudicial and constituted plain error and that his counsel’s
failure to object to this testimony constituted ineffective assistance of counsel.
Specifically, Spivey argues that because there is no evidence that either of the shooting suspects went anywhere near the door of the Jeep, the palm-print evidence
is irrelevant and therefore inadmissible pursuant to Evid.R. 702.
“Evidence is relevant if it tends ‘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.’” State v. Hartman, 2020-Ohio-4440, ¶ 24,
quoting Evid.R. 401.
Spivey is correct that the entirety of the shooting was captured on
video and presented at trial, and this video does not show either suspect approach
or touch the part of the Jeep where the palm print was found. However, the main
issue for the factfinder to determine at trial was the identity of the suspects. Further,
the record reflects that Dominique got into a physical fight hours before the shooting
took place. Therefore, it is not unreasonable to conclude that the fact that Spivey’s
palm print was on the Jeep tended to make the fact that Spivey got into a fight with
one of the victims hours before the shooting more probable.
Moreover, even if we were to conclude that this evidence was
irrelevant and therefore inadmissible, we cannot conclude that the admission of the
evidence constituted plain error. Our review of the record reveals additional
evidence that Spivey was one of the suspects. Moreover, the record reflects that
Spivey’s arguments against the admission of this evidence — that neither suspect is
shown touching the door in the surveillance footage and that the presence of Spivey’s
print on the Jeep door could be explained by his relationship with Dominique and
with the vehicle’s owner — were presented to the jury at trial. Thus, it cannot be said that there is a reasonable probability that the admission of this evidence resulted in
prejudice.
With respect to Spivey’s ineffective-assistance-of-counsel argument,
we reiterate our reasoning from Spivey’s first and second assignments of error.
Spivey is unable to satisfy either prong of the Strickland test. Because the admission
of the palm-print evidence was not plain error and the failure to object to this
evidence did not constitute ineffective assistance of counsel, we overrule Spivey’s
third assignment of error.
IV. Firearm Evidence
In Spivey’s fourth assignment of error, he argues that Detective
Gonzalez’s testimony that he had determined Spivey was living in Dayton because
he received an accident report in which Spivey reported that a .40 caliber firearm
had been taken from his girlfriend’s vehicle was prejudicial. Spivey argues that this
was irrelevant weapons evidence that amounted to prejudicial error requiring
reversal because it created an inference that Spivey was dangerous and that the
stolen firearm could have been used in the shooting. Spivey argues that the
admission of this evidence was plain error and the failure to object to the evidence
amounted to ineffective assistance of counsel. We disagree.
The admission of Detective Gonzalez’s testimony was not plain error.
Detective Gonzalez’s testimony was introduced to explain why his investigation led
him to try to locate Spivey in Dayton, Ohio; such evidence is admissible to explain
law enforcement’s conduct during an investigation. Moreover, considering the other evidence admitted at trial, we cannot conclude that the admission of Detective
Gonzalez’s testimony that Spivey reported a firearm stolen was prejudicial error.
We reiterate that because the admission of this evidence was not plain
error, counsel’s claimed failure to object to this evidence was not deficient and
therefore did not constitute ineffective assistance of counsel. For these reasons,
Spivey’s fourth assignment of error is overruled.
V. Devon’s Testimony
In Spivey’s fifth assignment of error, he argues that the entirety of
Devon’s testimony violated Evid.R. 602 because Devon lacked personal knowledge
on which to base his testimony. Specifically, Spivey argues that because Devon did
not witness the shooting, he lacked personal knowledge to narrate the surveillance
footage. For this reason, Spivey argues that the admission of Devon’s testimony was
plain error and his counsel’s failure to object to the testimony constituted ineffective
assistance of counsel.
Evid.R. 602 provides that a “witness may not testify to a matter unless
evidence is introduced sufficient to support a finding that the witness has personal
knowledge of the matter.” The rule goes on to state that evidence to prove personal
knowledge “may, but need not, consist of the witness’ own testimony.” Further, the
personal knowledge requirement may be satisfied where a witness bases their
testimony “‘partly upon firsthand knowledge and partly upon the accounts of
others[.]’” Dublin City School Dist. Bd. of Edn. v. Franklin Cty. Bd. of Revision,
1997-Ohio-327, ¶ 12, quoting McCormick, Evidence, at 40 (4th Ed. 1992). A witness may have personal knowledge of video evidence even if they
did not make or appear in the video. State v. Groce, 2019-Ohio-1007, ¶ 46-47 (10th
Dist.), rev’d on other grounds, 2020-Ohio-6671. Here, although Devon did not
make or appear in the surveillance video, the record reflects that he lived in the
house depicted in the video and was familiar with three of the four individuals shown
in the video. Spivey argues that it was impermissible for Devon to identify Spivey in
the video even though neither suspect’s face is clearly discernible in the video. While
Spivey is correct that the video does not clearly depict either suspect, this issue was
fully developed during defense counsel’s cross-examination of Devon at trial.
Further, the jury was able to view the video during trial and reach its own
conclusions about the activities and individuals it saw depicted therein.
Because our review of the record reflects that Devon’s testimony was
largely based on his personal knowledge, we cannot conclude that Spivey has
satisfied the high burden of establishing that the admission of this testimony
constituted plain error requiring reversal.
Further, Spivey has not satisfied either prong of the Strickland test
with respect to Devon’s testimony. We reiterate that the failure to object, on its own,
is not necessarily deficient performance sufficient to satisfy the first prong of the
Strickland test. “Generally, trial counsel’s tactical decisions and strategies, even if
‘debatable,’ do not constitute ineffective assistance of counsel.” State v. Harris,
2022-Ohio-4630, ¶ 50 (8th Dist.), citing State v. Scarton, 2020-Ohio-2952, ¶ 90
(8th Dist.). Further, because we are required to give great deference to counsel’s performance, we “‘“will ordinarily refrain from second-guessing strategic decisions
counsel [makes] at trial.”’” Id., quoting Scarton, quoting State v. Myers, 2002-
Ohio-6658, ¶ 152. Thus, although Spivey now argues that there was “no strategic
benefit” in not objecting to Devon’s testimony, we decline to second-guess trial
counsel’s decision not to object to the testimony of the victims’ brother.
Because the admission of Devon’s testimony was not plain error and
the failure to object to the testimony was not ineffective assistance of counsel, we
overrule Spivey’s fifth assignment of error.
VI. Surveillance Footage
In Spivey’s sixth assignment of error, he argues that the surveillance
footage introduced at trial was not properly authenticated as required by
Evid.R. 901. We disagree.
Evid.R. 901 provides that authentication or identification is a
condition precedent to admissibility that is “satisfied by evidence sufficient to
support that the matter in question is what its proponent claims.” Evid.R. 901(A).
“‘“The authentication requirement is a low threshold that does not require
conclusive proof of authenticity, but only sufficient foundation evidence for the trier
of fact to conclude that the evidence is what its proponent claims it to be.”’” State v.
Ladson, 2022-Ohio-3670, ¶ 20 (8th Dist.), quoting State v. Heard, 2022-Ohio-
2266, ¶ 31 (8th Dist.), quoting State v. Toudle, 2013-Ohio-1548, ¶ 21 (8th Dist.),
citing Yasinow v. Yasinow, 2006-Ohio-1355, ¶ 81 (8th Dist.). Further, “[v]ideo
. . . evidence may be admissible under one of two theories: the ‘pictorial testimony’ theory or the ‘silent witness’ theory.” Id. at ¶ 21, citing Midland Steel Prods. Co. v.
Internatl. Union, United Auto., Aero. & Agricultural Implement Workers, Local
486, 61 Ohio St.3d 121, 129 (1991). “Under the silent witness theory, the evidence is
a ‘“silent witness” which speaks for itself, and is substantive evidence of what it
portrays independent of a sponsoring witness,’ and the evidence may be admitted
‘upon a sufficient showing of the reliability of the process or system that produced
the evidence.’” Id., quoting Midland at 129. For example, a detective testifying that
he obtained surveillance footage from a crime scene and further testifying that the
footage accurately reflected the scene is sufficient to properly authenticate video
evidence. Id. at ¶ 22, citing State v. Freeze, 2012-Ohio-5840, ¶ 68 (12th Dist.).
Here, Detective Vowell testified that he obtained the neighbor’s
surveillance footage as part of the initial investigation in the case. He further
testified, as did other witnesses, that the surveillance footage accurately captured
the crime scene. Detective Vowell and other responding law enforcement testified
as to the crime scene as they saw it immediately following the shooting, and Devon
testified as to the crime scene shortly before and after the shooting. This testimony
is sufficient to have properly authenticated the video evidence.
Although Spivey’s statement of his assignments of error refers to an
ineffective-assistance-of-counsel argument related to the surveillance footage, this
argument is not included elsewhere in Spivey’s appellate brief. Therefore, pursuant
to App.R. 12 and 16, we decline to address this argument. Kaba v. Cuyahoga Cty.
Treasurer of Ohio, 2026-Ohio-355, ¶ 15 (8th Dist.) (“An appellate court may disregard an assignment of error presented for review if the party raising it . . . fails
to argue the assignment separately in the brief, as required under App.R. 16(A).”).
Spivey’s sixth assignment of error is overruled.
VII. Manifest Weight of the Evidence
In Spivey’s seventh assignment of error, he argues that his convictions
are against the manifest weight of the evidence. Specifically, he asserts that the
State’s case was built on “low-quality” evidence and heavily dependent on a rumor
from an unknown source.
“Weight of the evidence concerns ‘the inclination of the greater
amount of credible evidence, offered in a trial, to support one side of the issue rather
than the other. . . . Weight is not a question of mathematics, but depends on its effect
in inducing belief.’” Eastley v. Volkman, 2012-Ohio-2179, ¶ 12, quoting State v.
Thompkins, 1997-Ohio-52, ¶ 24. “‘A conviction should be reversed as against the
manifest weight of the evidence only in the most “exceptional case in which evidence
weighs heavily against conviction.”’” State v. Travis, 2022-Ohio-1233, ¶ 28 (8th
Dist.), quoting State v. Crenshaw, 2020-Ohio-4922, ¶ 243 (8th Dist.), quoting
Thompkins at ¶ 25.
The entirety of Spivey’s argument in support of this assignment of
error is a reiteration of his arguments in support of the foregoing six assignments of
error. “‘App.R. 16 requires a party to separately argue each assignment of error[,
and] [p]ursuant to App.R. 12(A)(2), an appellate court may disregard any
assignment of error, or portion thereof, if the appellant fails to make a separate argument.’” Cleveland v. Taylor, 2021-Ohio-584, ¶ 87 (8th Dist.), quoting State v.
Wells, 2013-Ohio-3722, ¶ 55 (8th Dist.). Because Spivey has failed to separately
argue this assignment of error, we disregard his seventh assignment of error.
VIII. Juror Bias
In Spivey’s eighth and final assignment of error, he argues that the
trial court abused its discretion when it took no steps to safeguard Spivey’s rights
after the foreperson of the jury reported that another juror exhibited bias during
deliberations. Spivey argues that the existence of juror bias requires reversal. We
disagree.
“The determination of whether a juror is impartial or biased involves
a judgment of credibility, which may not be apparent from the record on appeal.”
Hunt v. E. Cleveland, 2019-Ohio-1115, ¶ 37 (8th Dist.). Therefore, appellate courts
generally defer to the trial judge who sees and hears the juror because trial courts
have discretion in determining a juror’s ability to be impartial. Id., citing Chang v.
Cleveland Clinic Found., 2003-Ohio-6167, ¶ 6 (8th Dist.).
Further, we note that defense counsel did not object to how the trial
court handled the alleged issue during deliberations. On the contrary, the record
reflects that the court discussed the issue with both parties at length both before and
after inquiring about the issue to the foreperson and all parties agreed as to how the
trial court should handle the situation.
The record reflects that in the context of the jury being unable to reach
a unanimous verdict after a brief period of deliberations, the foreperson reported to the court that one other member of the jury may be biased and did not appear to be
taking deliberations very seriously. Upon further inquiry, the foreperson stated that
the juror did not want to employ an analogy used by the State during voir dire
regarding circumstantial evidence. The foreperson went on to state that all jurors,
including this particular juror, were being civil and engaged in deliberation, and the
foreperson believed that with further deliberations, the jury might be able to reach
a verdict.
Based on our review of the record, the trial court did not abuse its
discretion by failing to separately inquire of a juror in this situation. Spivey’s eighth
assignment of error is overruled.
Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
common pleas court to carry this judgment into execution. The defendant’s
conviction having been affirmed, any bail pending appeal is terminated.
A certified copy of this entry shall constitute the mandate pursuant to Rule
27 of the Rules of Appellate Procedure.
TIMOTHY W. CLARY, JUDGE
LISA B. FORBES, P.J., and KATHLEEN ANN KEOUGH, J., CONCUR