State v. Stephen

2025 Ohio 693

• Court: Ohio Court of Appeals
• Decided: February 27, 2025
• Docket: 2024CA00047
• Status: Published

Opinion

[Cite as State v. Stephen, 2025-Ohio-693.]

COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO JUDGES: Hon. Craig R. Baldwin, P.J. Plaintiff-Appellee Hon. William B. Hoffman, J. Hon. Andrew J. King, J. -vs-

CORDERO M. STEPHEN Case No. 2024CA00047

Defendant-Appellant OPINION

CHARACTER OF PROCEEDINGS: Appeal from the Stark County Court of Common Pleas, Case No. 2023CR1684

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: February 27, 2025

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

KYLE L. STONE DONOVAN R. HILL Prosecuting Attorney 122 Market Avenue, North Stark County, Ohio DeWalt Building, Suite 101 Canton, Ohio 44702 VICKI L. DESANTIS Assistant Prosecuting Attorney Appellate Division 110 Central Plaza South, Suite 510 Canton, Ohio 44702-1413 Hoffman, J. {¶1} Defendant-appellant Cordero Stephen appeals the judgment entered by the

Stark County Common Pleas Court convicting him following jury trial of felonious assault

(R.C. 2903.11(A)(D)(1)(a)) with a firearm specification (R.C. 2941.145(A)) and tampering

with evidence (R.C. 2921.12) with a firearm specification, and after bench trial of a repeat

violent offender specification attached to the felonious assault charge (R.C. 2941.149(A))

and having weapons under disability (R.C. 2923.13(A)(2)(B)) with a firearm specification.

The trial court sentenced him to an aggregate term of incarceration of 10-12 years.

STATEMENT OF THE FACTS AND CASE

{¶2} On, July 22, 2023, the victim’s brother was speaking to her on the phone

while she was arguing with Appellant, who was her boyfriend. The victim’s brother heard

the victim say “don’t shoot” to Appellant. Tr. 210. The victim’s brother heard a gunshot,

and called 9-1-1.

{¶3} Multiple Canton police officers responded to the scene. Officers noted a

blood droplet trail leading to an upstairs apartment, and blood also leading to apartment

two on the lower level. Officers knocked on the door of apartment two, but no one

answered. Officers forced entry into the apartment, where they spoke to a woman in a

wheelchair. The woman, who was Appellant’s cousin, lived in the apartment with

Appellant and the victim.

{¶4} Officers found Appellant hiding behind a locked bedroom door, and the

victim hiding in the closet of the bedroom. Appellant was arrested. The victim was

transported to the hospital for treatment of a gash over her left eye. Officers found a gun

in Appellant’s cousin’s bedroom, underneath the mattress. The gun was operable. {¶5} Appellant was interviewed by police. He admitted he put the gun under his

cousin’s mattress, and admitted to possessing the gun while outside the building. Swabs

of Appellant’s hands tested positive for gunshot residue.

{¶6} Appellant made phone calls from the Stark County Jail after his arrest,

which were recorded. In one call, Appellant stated, “I wish I didn’t do it.” In another, he

stated, “I hit her in the head with a gun.” Appellant stated in one call it had to be his cousin

who told police where the gun was, because she was the only one who saw him put it in

her room.

{¶7} While at the hospital, the victim told healthcare providers Appellant

physically assaulted her and she maced him in the face for protection. The victim stated

Appellant went downstairs, and she heard two gunshots. He ran back up the stairs and

struck her in the face with a gun. She told medical personnel she woke up a short while

later bleeding from a cut above her eye, and Appellant gave her a diaper to put on the

wound.

{¶8} Appellant was indicted by the Stark County Grand Jury with one count of

felonious assault with a repeat violent offender specification, one count of tampering with

evidence, and one count of having weapons under disability.

{¶9} The parties appeared before the trial court on November 8, 2023, at which

time a plea agreement was presented to the court. Appellant wanted additional time to

consider the agreement. The trial court gave Appellant one week, until November 15,

2023, to discuss the plea with his family.

{¶10} On November 30, 2023, the State filed a superseding indictment adding a

three-year firearm specification to the charges of felonious assault and having weapons under disability, and a one-year firearm specification to the charge of tampering with

evidence.

{¶11} Appellant entered a plea of not guilty to the superseding indictment on

December 5, 2023. On the same date he filed a motion to dismiss the superseding

indictment. At his arraignment on the superseding indictment, the State represented the

plea offer presented on November 8 had been rejected. Appellant represented the offer

had been accepted and Appellant had signed the plea form, but later learned the offer

had been withdrawn.

{¶12} The parties appeared before the court on December 21, 2023, for a hearing.

Appellant rejected the State’s plea offer on the superseding indictment, which included

the same sentencing recommendation as the offer presented November 8, 2023, on the

earlier indictment. The State represented to the trial court despite Appellant’s claim he

had accepted the State’s earlier offer, the “agreement” Appellant signed had been altered

by counsel.

{¶13} On March 13 and 15, 2024, Appellant filed a motion to enforce the

negotiated plea agreement, attaching the agreement he signed November 15, 2024. The

“agreement” included numerous handwritten changes which were initialed only by

Appellant and his attorney. The trial court overruled the motion, stating there was no

meeting of the minds so as to enforce a negotiated plea.

{¶14} The case proceeded to trial. The charges of felonious assault and

tampering with evidence, with the attached firearm specifications, were tried to a jury.

The jury returned verdicts of guilty. In a separate hearing, the repeat violent offender

specification and weapons under disability charge, with its accompanying firearm specification, were tried to the court. The trial court found Appellant guilty. The trial court

convicted Appellant on all counts, and sentenced him to an aggregate term of

incarceration of 10-12 years.

{¶15} It is from the April 3, 2024 judgment of conviction and sentence Appellant

prosecutes his appeal, assigning as error:

I. THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY

FAILING TO ENFORCE THE PLEA AGREEMENT ENTERED ON THE

RECORD.

II. THE STATE’S WITHDRAWAL OF THE PLEA OFFER AND

SUBSEQUENT FILING OF A SUPERSEDING INDICTMENT WAS

VINDICTIVE AND VIOLATED APPELLANT’S RIGHT TO DUE PROCESS.

III. THE TRIAL COURT ERRED IN ALLOWING THE STATE TO

PLAY THE JAIL PHONE CALLS BECAUSE THEY WERE NOT

PROPERLY AUTHENTICATED.

IV. APPELLANT’S CONVICTIONS WERE NOT SUPPORTED BY

LEGALLY SUFFICIENT EVIDENCE.

V. APPELLANT’S CONVICTIONS WERE AGAINST THE

MANIFEST WEIGHT OF THE EVIDENCE.

I.

{¶16} In his first assignment of error, Appellant argues the trial court erred in

overruling his motion to enforce the plea agreement. We disagree. {¶17} “A plea bargain itself is contractual in nature and subject to contract-law

standards.” State v. Butts, 112 Ohio App.3d 683, 686, (8th Dist. 1996). A contract is

generally defined as a promise, or a set of promises, actionable upon breach. Essential

elements of a contract include an offer, acceptance, contractual capacity, consideration

(the bargained for legal benefit and/or detriment), a manifestation of mutual assent and

legality of object and consideration. State v. Robinson, 2004-Ohio-740, ¶ 12 (8th Dist.).

A meeting of the minds as to the essential terms of the contract is a requirement to

enforcing the contract. Id.

{¶18} In the instant case, the first time the plea agreement signed by Appellant

appears in the record before this Court is March 13, 2024, months after the deadline of

November 15, 2023, given by the trial court for consideration of the State’s offer. Although

this agreement bears a signature date of November 15, 2023, the document itself

contains numerous handwritten changes, initialed by Appellant and his counsel, but not

by the prosecutor. The altered agreement is not signed by the prosecutor or by the trial

court. We find the trial court did not err in finding no meeting of the minds existed on the

plea agreement sufficient to render it enforceable as a contract.

{¶19} The first assignment of error is overruled.

II.

{¶20} In his second assignment of error, Appellant argues the State’s withdrawal

of the plea offer and subsequent filing of a superseding indictment was vindictive and

violated due process. We disagree.

{¶21} The Due Process Clause guarantees against prosecutorial vindictiveness,

and the State may not constitutionally retaliate against a defendant for exercising his rights. Blackledge v. Perry, 417 U.S. 21, 28-29 (1974). Appellant concedes in the pretrial

context, as in the instant case, there is no presumption of vindictiveness, and therefore

he must show actual vindictiveness. See, e.g., State v. Nash, 2001WL520973 (5th Dist.),

citing State v. Semenchuk, 122 Ohio App.3d 30, 38 (8th Dist. 1997) (in pretrial setting,

prosecutor is free to seek indictment on whatever charges the evidence can support, and

no presumption of vindictiveness will attach if the defendant was clearly subject to those

charges at the outset).

{¶22} While Appellant argues the State refused to move forward with the plea offer

after he produced a signed agreement on November 15, 2023, the deadline set by the

trial court, the record demonstrates the signed plea agreement was covered in

handwritten changes initialed only by Appellant and his counsel, and therefore did not

represent a meeting of the minds on the terms of the agreement. The evidence

demonstrated support for the firearm specifications existed at the time the original

charges were filed, as Appellant admitted to police he handled the firearm. Further, after

the superseding indictment, the State continued to offer a plea agreement with the same

recommended sentence as originally offered, and offered dismissal of the added firearm

specifications as a part of the plea agreement. We find Appellant has not demonstrated

actual vindictiveness on the part of the prosecutor.

{¶23} The second assignment of error is overruled.

III.

{¶24} In his third assignment of error, Appellant argues the trial court erred in

admitting the recordings of his telephone calls from the jail because they were not properly

authenticated. We disagree. {¶25} Appellant did not object to the admission of the evidence on the basis the

calls were not properly authenticated; in fact, when raising his other objections to the

calls, counsel for Appellant stated the calls were authenticated. Tr. 329. Because

Appellant failed to object to the authentication of the calls, we must find plain error in order

to reverse. To establish plain error, Appellant must show an error occurred, the error was

obvious, and there is a reasonable probability the error resulted in prejudice, meaning the

error affected the outcome of the trial. State v. McAlpin, 2022-Ohio-1567, ¶66, citing State

v. Rogers, 2015-Ohio-2459, ¶ 22.

{¶26} “Ordinarily, a trial court is vested with broad discretion in determining the

admissibility of evidence in any particular case, so long as such discretion is exercised in

line with the rules of procedure and evidence.” State v. Romy, 2021-Ohio-501, ¶ 49

(Citation omitted) (5th Dist.). The appellate court must limit its review of the trial court's

admission or exclusion of evidence to whether the trial court abused its discretion. Id. The

abuse of discretion standard is more than an error of judgment; it implies the court ruled

arbitrarily, unreasonably, or unconscionably. Blakemore v. Blakemore, 5 Ohio St.3d 217

(1983). “When applying the abuse-of-discretion standard, a reviewing court must not

substitute its judgment for that of the trial court.” In re E.L.C., 2015-Ohio-2220, ¶ 16 (12th

Dist.).

{¶27} Pursuant to Evid. R. 901(A), “[t]he requirement of authentication or

identification as a condition precedent to admissibility is satisfied by evidence sufficient

to support a finding that the matter in question is what its proponent claims.” Evid. R.

901(A). “In accordance with Evid. R. 901(B)(1), the requirement of authentication or

identification can be satisfied by testimony of a witness with knowledge ‘that a matter is what it is claimed to be.’” Halcomb v. Greenwood, 2019-Ohio-194, ¶ 53. (12th Dist.).

“Authentication or identification can also be satisfied through voice identification under

Evid. R. 901(B)(5) ‘whether heard firsthand or through mechanical or electronic

transmission or recording, by opinion based upon hearing the voice at any time under

circumstances connecting it with the alleged speaker.’” Id.

{¶28} “This threshold requirement for authentication of evidence is low and does

not require conclusive proof of authenticity.” State v. Lewis, 2022-Ohio-1850, ¶ 30

(Citation omitted) (5th Dist.). “The proponent of the evidence need show only a

reasonable likelihood of authenticity.” Id. (Citation omitted). “Circumstantial, as well as

direct, evidence may be used to show authenticity.” Id. (Citation omitted). In other words,

“[t]he authentication requirement contemplated by Evid. R. 901(A) invokes a very low

threshold standard, requiring only sufficient foundational evidence for the trier of fact to

conclude that the item is what the proponent claims it to be.” Weisbecker v. Weisbecker,

2006-Ohio-5840, ¶ 22 (Citation omitted) (12th Dist.).

{¶29} Michael Waltz, a corrections officer at the jail, testified Appellant’s PIN

number was used to place the calls. Officer Waltz also testified for verification purposes,

Appellant was required to state his name and say “United States of America” before

Appellant could place the calls. We find Officer Waltz’s testimony was sufficient to meet

the low threshold requirement for authenticity, and Appellant has not demonstrated plain

error. Furthermore, the content of the recorded calls was related to the incident giving

rise to the charges and demonstrated knowledge of information unique to Appellant.

{¶30} The third assignment of error is overruled. IV. & V.

{¶31} In his fourth and fifth assignments of error, Appellant argues his convictions

of felonious assault, tampering with evidence, and having weapons under disability, with

the attendant firearm specifications, are against the manifest weight of the evidence and

not supported by sufficient evidence. We disagree.

{¶32} In determining whether a verdict is against the manifest weight of the

evidence, the appellate court acts as a thirteenth juror and “in reviewing the entire record,

weighs the evidence and all reasonable inferences, considers the credibility of witnesses,

and determines whether in resolving conflicts in evidence the jury ‘clearly lost its way and

created such a manifest miscarriage of justice that the conviction must be reversed and

a new trial ordered.’” State v. Thompkins, 78 Ohio St. 3d 380, 387, 1997-Ohio-52, 678

N.E.2d 541, quoting State v. Martin, 20 Ohio App. 3d 172, 175, 485 N.E.2d 717 (1983).

{¶33} An appellate court's function when reviewing the sufficiency of the evidence

is to determine whether, after viewing the evidence in a light most favorable to the

prosecution, any rational trier of fact could have found the essential elements of the crime

proven beyond a reasonable doubt. State v. Jenks, 61 Ohio St. 3d 259, 574 N.E.2d 492,

paragraph two of the syllabus (1991).

{¶34} Appellant was convicted of felonious assault in violation of R.C. 2903.11(A):

(A) No person shall knowingly do either of the following:

(1) Cause serious physical harm to another or to another's unborn;

(2) Cause or attempt to cause physical harm to another or to

another's unborn by means of a deadly weapon or dangerous ordnance. {¶35} The firearm specification alleged Appellant had a firearm on or about his

person or under his control while committing the offense, and displayed the firearm,

brandished the firearm, indicated he possessed the firearm, or used it to facilitate the

offense.

{¶36} The victim did not testify at trial. However, her redacted health records from

the incident were admitted into evidence. The victim told healthcare providers she was

involved in a verbal and physical altercation with her boyfriend. She maced him in the

face. She reported her boyfriend went downstairs, and she heard two gunshots. He then

ran back upstairs with a gun and struck her in the face. Photographs were admitted

showing the victim had a large gash above her eye. The State presented evidence the

gash required x-rays and stitches. The victim’s brother testified he was on the phone with

the victim while the victim was in an altercation with Appellant, who was her boyfriend.

He heard the victim say “don’t shoot” to Appellant. Tr. 210. He heard two gunshots and

called 911. In one of the jail calls admitted into evidence, Appellant admitted he hit the

victim with a gun.

{¶37} We find the evidence presented by the State was sufficient to convict

Appellant of felonious assault with a firearm specification, and the conviction is not against

the manifest weight of the evidence.

{¶38} As to his convictions of tampering with evidence and having a weapon

under disability, Appellant argues there was no evidence he handled a gun or possessed

the gun found under his cousin’s mattress.1

1 Appellant does not challenge the fact he was under a disability at the time of the offense. {¶39} Appellant was convicted following jury trial of tampering with evidence, with

a firearm specification, in violation of R.C. 2921.12:

(A) No person, knowing that an official proceeding or investigation is

in progress, or is about to be or likely to be instituted, shall do any of the

following:

(1) Alter, destroy, conceal, or remove any record, document, or thing,

with purpose to impair its value or availability as evidence in such

proceeding or investigation;

(2) Make, present, or use any record, document, or thing, knowing it

to be false and with purpose to mislead a public official who is or may be

engaged in such proceeding or investigation, or with purpose to corrupt the

outcome of any such proceeding or investigation.

{¶40} Following bench trial in a separate hearing, Appellant was convicted of

having a weapon under a disability in violation of R.C. 2923.13, which prevented him from

knowingly acquiring, having, carrying, or using any firearm or dangerous ordnance as a

result of his prior conviction.

{¶41} Appellant admitted to police he put the gun under his cousin’s mattress. In

statements to medical personnel, the victim stated Appellant took the gun downstairs,

and when he came back upstairs, he was in possession of the gun. Appellant’s hands

tested positive for gunshot residue. Further, in the jail calls, Appellant admitted to hitting

the victim with the gun. We find the judgments convicting Appellant of tampering with evidence and having a weapon under disability, with the accompanying firearm

specifications, are supported by sufficient evidence and are not against the manifest

weight of the evidence.

{¶42} The fourth and fifth assignments of error are overruled.

{¶43} The judgment of the Stark County Common Pleas Court is affirmed.

By: Hoffman, J. Baldwin, P.J. King, J. concur