State v. Trollinger

2012 Ohio 6369

Opinion

[Cite as State v. Trollinger, 2012-Ohio-6369.] IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

STATE OF OHIO, : APPEAL NO. C-110340 TRIAL NO. B-1006545 Plaintiff-Appellee, : O P I N I O N. vs. :

MARIO TROLLINGER, :

Defendant-Appellant. :

Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: May 30, 2012

Joseph T. Deters, Hamilton County Prosecuting Attorney, and Philip R. Cummings, Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Christine Y. Jones, for Defendant-Appellant.

Please note: This case has been removed from the accelerated calendar. OHIO FIRST DISTRICT COURT OF APPEALS

S UNDERMANN , Presiding Judge.

{¶1} Mario Trollinger appeals his convictions for murder with a

specification and having a weapon while under a disability. We conclude that his

nine assignments of error do not have merit, so we affirm the judgment of the trial

court.

{¶2} On September 20, 2010, Kevin Isaac was shot multiple times as he

waited at a bus stop. He died from his injuries. A surveillance camera at a

community center across the street from the bus stop showed Ronnell Parks

approach Isaac and shoot him. Parks was later apprehended by Cincinnati police

officers.

{¶3} Parks, who was 16 years old at the time of the shooting, testified that

Trollinger had given him the gun with which he had shot Isaac. According to Parks,

Trollinger had told Parks to rob Isaac and had threatened to kill Parks’s uncle if

Parks did not commit the robbery. Parks testified that Trollinger had told him to

shoot Isaac if Isaac did not give Parks any money, and that Trollinger had a second

gun with which he threatened Parks. Parks stated that he had approached Isaac and

had told him to give him “something.” When Isaac did not respond, Parks shot him

four times. Parks testified that he had then run behind some buildings and had

returned the gun to Trollinger. According to Parks, Trollinger told him to take off his

shirt and run into the woods.

{¶4} Deron Thomas testified that he had been in the area where the

shooting had occurred. Thomas testified that he had seen Trollinger give a gun to

Parks and had seen Parks shoot Isaac.

2 OHIO FIRST DISTRICT COURT OF APPEALS

{¶5} Juan Allen testified for the defense. According to Allen, he had seen

Parks in the area the night before the shooting. Allen testified that he believed that

Parks had had a gun at that time, and that he believed that Parks had been waiting to

rob Allen’s brother and friend.

{¶6} At the conclusion of the trial, the jury found Trollinger guilty as

charged. The trial court sentenced Trollinger to 15 years to life for murder with a

three-year sentence for the gun specification and to five years for having a gun while

under a disability. The aggravated robbery count was merged with the murder

count. The aggregate sentence was 23 years.

{¶7} In his first assignment of error, Trollinger asserts that the trial court

erred when it allowed the assistant prosecuting attorney to certify that he would not

disclose the names of the state’s lay witnesses prior to trial. We review the trial

court’s regulation of discovery under an abuse-of-discretion standard. State v.

Parson, 6 Ohio St.3d 442, 445, 453 N.E.2d 689 (1983).

{¶8} Crim.R. 16 regulates the discovery process between the state and a

criminal defendant. Under Crim.R. 16(I), “[e]ach party shall provide to opposing

counsel a written witness list, including names and addresses of any witness it

intends to call[.]” But if “[t]he prosecuting attorney has reasonable, articulable

grounds to believe that disclosure will compromise the safety of a witness * * *,” he

may certify to the court that he is not disclosing the state’s witness list. Crim.R.

16(D)(1). Upon motion of the defense counsel, the prosecuting attorney’s

certification of nondisclosure is subject to review by the trial court. Crim.R. 16(F).

During the in-camera hearing, the trial court reviews the prosecuting attorney’s

certification for an abuse of discretion on the part of the prosecuting attorney. Id.

3 OHIO FIRST DISTRICT COURT OF APPEALS

{¶9} In this case, the assistant prosecuting attorney certified that he would

not disclose the names of witnesses because the witnesses had indicated that that

they were fearful of Trollinger. Pursuant to Loc.R. 7(K) of the Court of Common

Pleas of Hamilton County, General Division, an in-camera hearing was held before

the presiding judge. During the hearing, Cincinnati police officer Sandy Hanes

testified that one of the witnesses had seen Trollinger give Parks a gun and had seen

Parks return the gun to Trollinger after the shooting. When the witness confronted

Trollinger about the shooting, Trollinger allegedly told him, “[k]eep your mouth shut

or you’re next.” Three other people who worked in the area where the shooting

occurred expressed their fear of testifying against Trollinger. Based on the testimony

of the police officers, the presiding judge determined that the assistant prosecuting

attorney had not abused his discretion in refusing to disclose the names of the lay

witnesses. And pursuant to Crim.R. 16(F)(5), the court ordered the assistant

prosecuting attorney to disclose the list prior to the commencement of trial. We are

unable to conclude that the presiding judge’s determination with respect to the

nondisclosure was an abuse of discretion.

{¶10} Within this assignment of error, Trollinger also contends that the trial

court further erred when it did not order the disclosure of the state’s witness list until

after the jury had been sworn in. But both at trial and in his appeal, Trollinger did

not demonstrate that he was prejudiced by the timing of the disclosure. Accordingly,

we conclude no abuse of discretion occurred in this regard. The first assignment of

error is overruled.

{¶11} In his second assignment of error, Trollinger asserts that the trial

court erred when it did not grant his motion to dismiss or his motion for a new trial.

Before either side made its opening statement, Trollinger moved to dismiss the

4 OHIO FIRST DISTRICT COURT OF APPEALS

charges against him or, in the alternative, for a mistrial. Trollinger contended that

the state had withheld exculpatory evidence in violation of his due process rights and

Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

{¶12} Pursuant to the trial court’s decision on the state’s certification of

nondisclosure, the state disclosed its witness list and witnesses’ statements after the

jury had been sworn in. Included was a copy of Jasmine Cornett’s statement made to

a police officer shortly after the shooting. According to the statement, Cornett

claimed that another woman, Waneisha McCloud, had told her that a person named

Mickeal Mingo had said that he had given Parks the gun. Trollinger contended that

the state had improperly withheld this statement.

{¶13} In Brady, the United States Supreme Court held that “the

suppression by the prosecution of evidence favorable to an accused upon request

violates due process where the evidence is material either to guilt or to punishment,

irrespective of the good faith or bad faith of the prosecution.” Id. at 87. The Ohio

Supreme Court has clearly stated, however, that no Brady violation can exist when,

as in this case, the evidence in question was presented to the defense during the trial.

State v. Wickline, 50 Ohio St.3d 114, 116, 552 N.E.2d 913 (1990). Accordingly, we

conclude that no Brady violation occurred here.

{¶14} Even if we were to conclude that the state had improperly withheld

the evidence, Trollinger’s motion to dismiss or, in alternative, for a mistrial was

properly denied, as Trollinger did not demonstrate that the evidence was material to

his guilt. For Cornett’s statement to be material, there had to be a reasonable

probability that the result of the trial would have been different. “A ‘reasonable

probability’ is a probability sufficient to undermine confidence in the outcome.”

State v. Johnston, 39 Ohio St.3d 48, 529 N.E.2d 898 (1988), paragraph five of the

5 OHIO FIRST DISTRICT COURT OF APPEALS

syllabus. The statement at issue in this case consists of hearsay and a vague

description about what had allegedly occurred. And following the trial, during the

hearing on his motion for a new trial, Trollinger’s attorneys were unable to

demonstrate specifically how earlier disclosure of the statement would have changed

their strategy. We are unable to conclude that there was a reasonable probability

that the outcome of the trial would have been different had the state disclosed the

statement prior to trial.

{¶15} We conclude that the trial court did not err when it denied

Trollinger’s motion to dismiss or, in the alternative, for a mistrial. The second

assignment of error is overruled.

{¶16} We consider Trollinger’s next three assignments of error together. In

the third, he asserts that his convictions were not supported by sufficient evidence.

In the fourth, he asserts that his convictions were against the manifest weight of the

evidence. And in the fifth, he asserts that the trial court erred when it overruled his

Crim.R. 29 motion for an acquittal. We conclude that none of these assignments of

error has merit.

{¶17} The standard of review for a sufficiency claim and for the denial of a

Crim.R. 29 motion for an acquittal is the same. When an appellant challenges the

sufficiency of the evidence, we must determine whether the state presented adequate

evidence on each element of the offense. State v. Thompkins, 78 Ohio St.3d 380,

386, 678 N.E.2d 541 (1997). On the other hand, when reviewing whether a judgment

is against the manifest weight of the evidence, we must determine whether the jury

clearly lost its way and created a manifest miscarriage of justice. Id. at 387.

{¶18} Trollinger was charged with complicity in the commission of

aggravated robbery and murder. Under R.C. 2923.03(A), Trollinger could be found

6 OHIO FIRST DISTRICT COURT OF APPEALS

complicit in the aggravated robbery and murder of Isaac if he purposely “[s]olicit[ed]

or procure[d] another to commit the offense[s]” or “[a]ided or abet[ted] another in

committing the offenses.” We conclude that the state presented sufficient evidence

of Trollinger’s complicity in the offenses. The state also presented sufficient evidence

that Trollinger had a weapon while under a disability. See R.C. 2923.13(A)(2).

Further, having reviewed the record, we are unable to conclude that the jury lost its

way in rendering its guilty verdicts. Trollinger takes issue with the testimony of

Parks, but the jury was in best position to judge the credibility of Parks and the other

witnesses. We overrule the third, fourth, and fifth assignments of error.

{¶19} The sixth assignment of error is that the trial court erred in imposing

an aggregate prison term of 23 years’ incarceration. Our review of Trollinger’s

sentences has two parts. First, we must determine whether the sentences were

contrary to law. State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d

124, at ¶ 14. Then, if the sentences were not contrary to law, we must review the

sentences to determine whether the trial court abused its discretion. Id. at ¶ 17.

Trollinger’s sentences fell within the applicable ranges for the offenses for which he

was convicted. R.C. 2929.02; R.C. 2929.14. And we are unable to conclude that the

trial court abused its discretion in imposing the sentences. The sixth assignment of

{¶20} In his seventh assignment of error, Trollinger asserts that the trial

court erred when it permitted Parks to testify. Trollinger contends that Parks, who

had a history of mental illness and mental retardation, was incompetent to testify as

a witness. See Evid.R. 601(A); R.C. 2317.01. Absent an abuse of discretion,

competency determinations of the trial judge will not be disturbed on appeal. State

v. Clark, 71 Ohio St.3d 466, 469, 644 N.E.2d 331 (1994). Here, the trial court

7 OHIO FIRST DISTRICT COURT OF APPEALS

conducted a voir dire of Parks and concluded that Parks was competent to testify.

We conclude that trial court did not abuse its discretion in so concluding. The

seventh assignment of error is overruled.

{¶21} The eighth assignment of error is that the trial court erred when it

allowed testimony about Trollinger’s involvement in a prior robbery. Trollinger

contends that the court improperly allowed testimony about Trollinger’s alleged

involvement in the robbery of Parks’s uncle two months before Parks shot Isaac.

Although the state mentioned in its opening statement that Trollinger had

threatened Parks that, if he did not commit the robbery of Isaac, “what happened to

your Uncle Dink is going to happen to you,” the state did not ask Parks about the

robbery during its direct examination. Rather, defense counsel questioned Parks

extensively about the robbery. Having elicited Parks’s testimony about the earlier

robbery during cross-examination, Trollinger cannot now claim that he was

prejudiced. We conclude that any error in admitting the testimony was invited error.

See State v. LaMar, 95 Ohio St.3d 181, 2002-Ohio-2128, 767 N.E.2d 166, ¶ 102. The

eighth assignment of error is overruled.

{¶22} In his final assignment of error, Trollinger asserts that his equal-

protection rights were violated when the trial court permitted the state to exclude

potential jurors based on race in violation of Batson v. Kentucky, 476 U.S. 79, 106

S.Ct. 1712, 90 L.Ed.2d 69 (1986).

{¶23} Evaluation of a Batson challenge has three steps: “First, the opponent

of the strike must make a prima facie showing of discrimination. Second, the

proponent must give a race-neutral explanation for the challenge. Third, the trial

court must determine whether, under all the circumstances, the opponent has

proven purposeful racial discrimination.” State v. White, 85 Ohio St.3d 433, 436,

8 OHIO FIRST DISTRICT COURT OF APPEALS

709 N.E.2d 140 (1999), citing Batson at 96-98. A trial court’s determination that the

state did not have a discriminatory intent will be reversed only if it is clearly

erroneous. State v. Hernandez, 63 Ohio St.3d 577, 583, 589 N.E.2d 1310 (1992).

{¶24} In this case, the state used two of its peremptory challenges to excuse

two African-Americans from the jury. When Trollinger’s counsel objected to the

dismissal of the first prospective juror, the prosecutor stated that he was excusing

her because she was a medical assistant at Planned Parenthood, which, in his view,

meant he might not be able to make her understand the importance of a lost life, and

that she had indicated that she really did not want to be on the jury. With respect to

the dismissal of the second African-American from the jury, the prosecutor stated

that the man had had six prior convictions for driving under the influence and had

expressed concern about the media’s perception of certain verdicts. The trial court

overruled Trollinger’s objections, concluding that the prosecutor had given race-

neutral explanations with respect to both potential jurors. We hold that the trial

court’s conclusions were not clearly erroneous. The ninth assignment of error is

overruled.

{¶25} We therefore affirm the judgment of the trial court.

Judgment affirmed.

H ENDON and F ISCHER , JJ., concur.

Please note: The court has recorded its own entry this date.