State v. Watters

2016 Ohio 8083

• Court: Ohio Court of Appeals
• Decided: December 9, 2016
• Docket: 2015-CA-82
• Status: Published

Opinion

[Cite as State v. Watters, 2016-Ohio-8083.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT CLARK COUNTY

STATE OF OHIO : : Appellate Case No. 2015-CA-82 Plaintiff-Appellee : : Trial Court Case No. 2015-CR-22 v. : : (Criminal Appeal from DAVON WATTERS : Common Pleas Court) : Defendant-Appellant : :

...........

OPINION

Rendered on the 9th day of December, 2016.

MEGAN M. FARLEY, Atty. Reg. No. 0088515, Clark County Prosecutor’s Office, 50 East Columbia Street, Suite 449, Springfield, Ohio 45502 Attorney for Plaintiff-Appellee

TOM O. MERRITT, Atty. Reg. No. 0066661, Merritt Law Office, 818 West Main Street, Tipp City, Ohio 45371 Attorney for Defendant-Appellant

.............

FAIN, J.

{¶ 1} Defendant-appellant Davon Watters appeals from his conviction and -2-

sentence for seven felony offenses. Watters argues that he was denied the right to

effective assistance of counsel, that the convictions are against the manifest weight of the

evidence, and that the trial court erred by imposing consecutive sentences.

{¶ 2} We conclude that the record fails to demonstrate that trial counsel was

ineffective. We further conclude that the convictions are not against the manifest weight

of the evidence. Finally, we conclude that the trial court did not err in imposing

consecutive sentences. Accordingly, the judgment of the trial court is Affirmed.

I. Shots Fired Outside E & J’s Fun Bar Lead to

Pursuit of the Suspected Shooter

{¶ 3} The bill of particulars describes the events leading to the indictment:

On or about January 9, 2015 at E & J’s Bar located at 241 E. Main

St. Springfield, Ohio, the defendant was standing on E. Main St, when he

purposefully used a firearm to shoot into a Volkswagen that had three

individuals located in it. Three rounds hit the vehicle and one struck Marque

Whaley striking her in the head and causing her death. When police located

the defendant he had used hand sanitizer to clean potential evidence off of

his hands. The defendant was taken into custody and when being booked

into jail it was discovered that he had a drug of abuse in his possession. He

was asked prior to transport if he had any illegal items on his person.

{¶ 4} The events that led to the police investigation of Watters started with a 911

call made by a person who was later identified as Adonte Cherry. An audio recording of

the 911 call was played to the jury, after being introduced by the police dispatcher who -3-

took the call. Cherry immediately informs the dispatcher that “someone just been firing

shots at me, I’m following him now on East Main Street.” This statement is immediately

followed by the sound of gun shots, and Cherry states, “someone behind me is shooting

at me too.” The dispatcher also heard the gunshot sounds, and asked to confirm that

the sounds were gunshots, as well as to ask the caller’s location. Cherry said that he

was driving on East Main near Florence. He then reported that the car he was chasing

had just crashed, and the driver had gotten out of the car. As he began to report about

the truck behind him, he realized, and reported, that his passenger had been hit. Cherry

told the dispatcher that he was going to the hospital. He gave the dispatcher a partial

license plate of the vehicle that had crashed, and identified the vehicle as a black Grand

Am. Cherry stated that there were shots being fired from the truck behind him. He

reported that his passenger was hit in the head, but he did not see any holes in the

windshield, and did not know how she had been hit. He said that he had been at E & J’s

Fun Bar.

{¶ 5} A surveillance video from the Shamrock Bar, located in the area of the

incident, showed three vehicles traveling on the road in close succession at 2:22 A.M.

The video reveals that the roads were covered with snow and it was snowing heavily.

Neither the vehicle type nor the occupants of the three vehicles are discernable from the

surveillance video.

{¶ 6} Officer Jerome Montico testified that he arrived at the hospital at about 2:30

A.M. At that time, he saw a black Volkswagen enter the emergency area. He saw two

black males quickly exiting the car and asking for help with the female passenger who

had been shot. The passenger was identified as Marque Whaley, and the second man -4-

was identified as Ian Sheffield. Officer Montico stayed with the Volkswagen to secure it

as evidence. He observed blood on the front passenger seat, and projectile strikes to

the front of the vehicle.

{¶ 7} Sergeant Travis Baader testified that he heard gun shots coming from an

area west of the Pizza Hut on East Main Street. As he headed in the direction where the

gun shots were heard, he found an abandoned car that had crashed into a pole, but was

still running. Officer Terry Nichols was already at the abandoned car. Both Baader and

Nichols testified that no one was in the car. They both were able to see an assault

weapon on the floor of the front passenger side of the car.

{¶ 8} A set of footprints led from the car to an apartment where officers found

Watters sitting on the front porch. Officer Ronnie Terry testified that as he approached

Watters he could smell a scent similar to that of hand sanitizer. Baader initiated a pat-

down for officer safety, and detected a small bottle in Watters’s pants pocket that he

believed was a bottle of hand sanitizer. Although Watters denied being involved in the

crash of the Grand Am, he did admit that he was at E & J’s Fun Bar earlier that evening.

Watters was handcuffed, advised of his Miranda rights, and taken into custody. Officer

Andrew Bronsord assisted in the detention. He also testified that Watters smelled

strongly of a hand sanitizer, and that a small bottle of Purel hand sanitizer was found in

Watters pocket during the pat-down. Bronsord performed a gun residue test on

Watters’s hands.

{¶ 9} A forensic scientist testified that he performed gunshot residue testing on

three samples provided by the police. Of the three, gunshot residue was only found in

the sample obtained from Sheffield. No gunshot residue was found in the samples -5-

obtained from Watters or Cherry.

{¶ 10} Bryan Casto, a forensic pathologist from the coroner’s office, testified that

Whaley had two gunshot injuries to the head. He indicated that there were two entrance

wounds; one in the forehead and one in the right temple area. He removed bullet

fragments from Whaley’s head He testified that she had died from the bullet that entered

her brain.

{¶ 11} Timothy Shepherd, a forensic expert, testified that he examined the

weapon found in the Grand Am. He identified it as a Kal-Tech 5.56 millimeter semi-

automatic rifle. Upon his initial examination he found that it held 27 rounds of

ammunition, but was capable of holding 30 rounds. He determined that it had an operable

thumb safety, and that, as a semi-automatic, it required a separate pull of the trigger each

time to detonate one round of ammunition. Shepherd conducted a firing test with the

rifle. He measured the trigger pull at seven pounds of force.

{¶ 12} Shepherd further testified that he was given bullet fragments to examine

with a forensic ballistics comparison microscope. With regard to the bullet fragments

removed from Whaley’s head, Shepherd found some microscopic striations that were

characteristlically similar to bullets used in a Kal-Tech weapon like the one obtained from

Watters’ vehicle. However, because of the quantity available for testing, he was not able

to say positively that the weapon in Watters’ vehicle was the weapon from which the bullet

was fired. A bullet fragment, removed from the Volkswagen’s engine compartment, did

not reveal anything of evidentiary value. Finally, a fragment removed from the battery of

the Volkswagen, showed striations that, again, were characteristically similar to the class

of weapon that was test fired. -6-

{¶ 13} After Watters was taken into custody, he was interrogated at the police

station. Initially, Watters did not admit to any involvement in the shooting at E & J’s Fun

Bar. Watters did admit that he was at E & J’s Fun Bar earlier that evening, and that he

saw two vehicles parked behind him. Watters stated that a man named Emo showed

him a gun while he was sitting in his car in front of E & J’s Fun Bar, and that he handled

it. Watters stated that Emo opened the passenger door, and that he returned the gun to

Emo. Shortly thereafter, he heard gunshots in the parking lot, which he thought were

fired by Emo. This scared him, so he drove away.

{¶ 14} Later during the interrogation, Watters changed these facts, stating that he

heard one gunshot as he was handing the gun back to Emo, so he took off in a hurry, and

the gun was left in his vehicle. As he was leaving, he heard another gunshot. Watters

stated that he crashed the car, and that he walked away from it having sustained a head

injury. He stated that he was shaken by the accident, and did not remember using hand

sanitizer in an attempt to wipe away gun residue on his hands.

{¶ 15} The detective questioning Watters, informed him that they were going to be

able to find video from the scene.1 Watters then stated that after the man named Emo

showed him a gun in the parking lot of E & J’s Fun Bar, Watters handled the gun, and

accidentally hit the trigger once, causing the gun to fire up the street. When it was

suggested that the truck behind Cherry’s vehicle was driven by a person named Dougie

or David Hargrove, Watters denied knowing that person. It was later discovered that

1 The police were subsequently unable to obtain a surveillance video from the bar, because the bar’s camera was not working the night of the incident. -7-

Hargrove was Watters’s brother.

II. The Course of Proceedings

{¶ 16} Watters was indicted on one count of Murder, in violation of R.C.

2903.02(A), one count of Felony Murder, in violation of R.C. 2903.02(B), three counts of

Felonious Assault, in violation of R.C. 2903.11(A)(2), one count of Discharging a Firearm

on or Near Prohibited Premises, in violation of R.C. 2923.162(A)(3), one count of Illegal

Conveyance of Prohibited Items onto Grounds of a Government Facility, in violation of

R.C. 2921.36(A)(2), and one count of Tampering with Evidence, in violation of R.C.

2921.12(A)(1). The two Murder charges and the three Felonious Assault charges also

contained gun specification enhancements.

{¶ 17} A motion to suppress evidence was overruled. The State dismissed the

charge of Illegal Conveyance of Prohibited Items onto Grounds of a Government Facility.

A jury trial was conducted in August 2015; Watters was convicted of all remaining counts,

and the gun specifications.

{¶ 18} At sentencing, the parties agreed that the two murder offenses and the

felonious assault of Whaley should be merged. Likewise, they agreed to merge all

firearm specifications into one firearm specification. The State elected to have Watters

sentenced on the charge of Murder. On the Murder conviction, the trial court sentenced

Watters to serve a term of life in prison, with parole eligibility after 15 years, plus three

years for the firearm specification, for a total term of life in prison with parole eligibility

after 18 years. The trial court sentenced Watters to a prison term of eight years on each

of the remaining two counts of Felonious Assault, and a term of eight years for the -8-

Discharge of a Firearm on Prohibited Premises. Watters was sentenced to a three-year

term for Tampering with Evidence. Finally, the trial court ordered all the sentences to

run consecutively, for a total term of life in prison with parole eligibility after 45 years.

{¶ 19} From the judgment of the trial court, Watters appeals.

IV. The Record Fails to Demonstrate Ineffective Assistance of Trial Counsel

{¶ 20} For his First Assignment of Error, Watters asserts:

DEFENDANT WAS DENIED HIS CONSTITUTIONAL RIGHT TO

EFFECTIVE ASSISTANCE OF COUNSEL WHERE COUNSEL FAILED

TO: ADEQUATELY DISCUSS THE CASE AND THE DEFENSE WITH THE

DEFENDANT PRIOR TO TRIAL, FAILED TO APPROPRIATELY

PREPARE FOR TRIAL AND FAILED TO CREATE A COHERENT TRIAL

PLAN AND THEORY OF THE CASE

{¶ 21} Watters argues that defense counsel was ineffective. Specifically, he

claims that counsel failed to: (1) prepare and pursue any coherent trial plan as

evidenced by the lack of any apparent theory of the case; (2) communicate with him; (3)

cross-examine some of the State’s witnesses; (4) effectively examine those he did cross;

(5) call witnesses on his behalf; and (6) explain to the jury the significance of a plea of not

guilty and Watters’s decision not to testify.

{¶ 22} In order to prevail on a claim of ineffective assistance of counsel, a criminal

defendant must show both deficient performance and resulting prejudice. Strickland v.

Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), paragraph two of the

syllabus; State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), paragraph two of -9-

the syllabus. Therefore, a defendant must demonstrate that counsel's representation fell

below an objective standard of reasonableness and that counsel's errors were serious

enough to create a reasonable probability that, but for the errors, the outcome of the

proceeding would have been different. Id. In conducting this analysis, “we will not second-

guess trial strategy decisions, and ‘a court must indulge a strong presumption that

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

State v. English, 2d Dist. Montgomery No. 26337, 2015-Ohio-1665, ¶ 10, citing State v.

Mason, 82 Ohio St.3d 144, 157-158, 694 N.E.2d 932 (1998), quoting Strickland at 689.

(Internal citations omitted.)

{¶ 23} With this standard in mind, we turn first to the claim that trial counsel did not

prepare or pursue a coherent theory of the case. The transcript demonstrates that

defense counsel had a strategy for establishing his theory of the case. That strategy

was built upon establishing reasonable doubt by creating credibility issues regarding

Cherry’s account of the incident, and by demonstrating gaps in the State’s case.

{¶ 24} First, counsel argued that Cherry’s 911 statements were not credible, given

that he stated he was chasing a vehicle that he claimed carried a person who had been

shooting at him. He further pointed out that Sheffield was the only person found with

gunshot residue on his hands. Counsel noted that the State’s only eyewitnesses to the

crime, Cherry and Sheffield, were not called as witnesses. Counsel also noted that

neither Cherry nor Sheffield observed that Whaley was injured until after the car driven

by Watters had crashed, and that the evidence indicated that a truck which had been

followed Cherry had been shooting at Cherry’s vehicle; thereby implying that the truck

driver might be responsible for Whaley’s injury. -10-

{¶ 25} Counsel noted the lack of evidence with regard to gunshot residue on

Watters, as well as the lack of conclusive forensics evidence that the bullet that killed

Whaley had been shot from the gun found in Watters’s car. Based upon the record, we

conclude that the claim that counsel failed to pursue a theory of the case is without merit.

{¶ 26} Next, Watters claims that counsel failed to communicate with him. In

support, he relies upon the following statement made by trial counsel after the State

rested its case:

*** I want to speak to my client for a brief period of time and make a

determination as to whether or not I’m going to call any witnesses and if he’s going

to testify and if we are going to do that, I’d like - - if I can get five minutes alone

with my client in that timeframe.

{¶ 27} Watters appears to argue that this statement indicates that counsel had not

previously talked to him about witnesses or his testimony, and that counsel had not

prepared. We disagree. During voir dire, defense counsel directly and clearly

addressed the fact that he might not call any witnesses, and that Watters might not testify.

The record shows that counsel conducted a comprehensive voir dire on this subject, and

that he made it clear to the jury that Watters had an absolute right not to call witnesses

or testify. Counsel even stated that he might make a legal decision not to call witnesses

or have Watters testify if he thought the State did not prove its case. Thus, from the

record, it appears that the issue of witness presentation and whether Watters would testify

were not last-minute considerations at the close of the State’s case. It is common to

reserve a final decision whether to have a defendant testify until all the other evidence is -11-

in, at which time the need for the defendant’s testimony can be weighed against the risks

inherent in having the defendant testify and be subject to cross-examination.

Furthermore, a claim of lack of communication between a defendant and his trial counsel

is not one that can be borne out by the record. It relies upon information necessarily

outside the record, and is therefore not an issue we can review on direct appeal.

{¶ 28} We next address the claim that counsel was ineffective for failing to cross-

examine some of the State’s witnesses, and for being “lackadaisical” in his cross-

examination of other witnesses. Watters specifically refers to the failure to conduct

cross-examination of the pathologist who testified as to Whaley’s cause of death, and to

his ineffective cross-examination of the forensic expert who testified regarding the bullets

removed from Whaley’s head.

{¶ 29} We have held that “trial counsel's decision to cross-examine a witness and

the extent of such cross-examination are tactical matters.” State v. Russell, 2d Dist.

Montgomery No. 21458, 2007-Ohio-137, ¶ 55. “A reviewing court may not second-guess

decisions of counsel which can be considered matters of trial strategy.” State v. Conley,

2015-Ohio-2553, 43 N.E.3d 775, ¶ 56 (2d Dist.), citing State v. Smith, 17 Ohio St.3d 98,

477 N.E.2d 1128 (1985). “Debatable strategic and tactical decisions may not form the

basis of a claim for ineffective assistance of counsel, even if, in hindsight, it looks as if a

better strategy had been available.” Id., citing State v. Cook, 65 Ohio St.3d 516, 524, 605

N.E.2d 70 (1992).

{¶ 30} We have reviewed the record, and find nothing to indicate that counsel was

ineffective with regard to cross-examination. Watters contends that the cause of death

was “a huge issue in this case,” and thus, counsel was ineffective for failing to cross- -12-

examine the pathologist who performed the autopsy and testified as to the cause of death.

But from the record it is apparent the cause of death, as testified to by the pathologist,

was not at issue. What was at issue was whether Watters fired the gun that killed

Whaley. The pathologist testified, simply, that a bullet to the brain caused her death.

The pathologist removed those bullet fragments, but he did not testify that Watters was

the person who fired the fatal bullet.

{¶ 31} We have also reviewed counsel’s cross-examination of the forensic expert,

whom Watters claims was not properly questioned regarding the result of the gunshot

residue tests. The record shows that counsel did, through his cross-examination,

emphasize that only Sheffield tested positive for gunshot residue. From our review of

the entire transcript, we do not conclude that counsel was ineffective with regard to his

cross-examination of the State’s witnesses.

{¶ 32} Next Watters complains that counsel failed to call any witnesses on his

behalf. Again, it is clear that this was an issue that counsel had considered, as he

discussed it during voir dire. And it may well have been an issue of trial strategy. In

any event, we conclude that the record fails to establish that counsel’s decision not to call

any witnesses was either unsound, or prejudicial to Watters.

{¶ 33} Finally, Watters claims that trial counsel failed to explain the significance of

entering a plea of not guilty, as well as the right not to testify, to the jury. We disagree.

The record reflects that these issues were covered by counsel at the beginning of the

trial.

{¶ 34} We conclude that the record fails to demonstrate that trial counsel’s

representation fell below an objective standard of reasonableness. The First -13-

Assignment of Error is overruled.

V. The Judgment Is Not Against the Manifest Weight of the Evidence

{¶ 35} Watters asserts the following as his Second Assignment of Error:

THE TRIAL COURT ERRED, ACTING AGAINST THE MANIFEST

WEIGHT OF THE EVIDENCE IN FINDING THE APPELLANT GUILTY DUE

TO COUNSEL’S FAILURE TO DEVELOP A COHERENT TRIAL

STRATEGY AND APPROPRIATELY DEFEND HIS CLIENT.

{¶ 36} Watters contends that his convictions are against the manifest weight of the

evidence because his counsel was ineffective in presenting a defense. Thus, he argues

that the “persuasive spin of the case” was effectively ceded to the prosecution.

{¶ 37} A reviewing court considering a manifest-weight claim “review [s] the entire

record, weighs the evidence and all reasonable inferences, [and] considers the credibility

of witnesses.” State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist. 1983).

The question for the reviewing court is “whether in resolving conflicts in the evidence, the

jury clearly lost its way and created such a manifest miscarriage of justice that the

conviction must be reversed and a new trial ordered. The discretionary power to grant a

new trial should be exercised only in the exceptional case in which the evidence weighs

heavily against conviction.” Id.

{¶ 38} As stated above, we conclude that the record fails to demonstrate that trial

counsel was ineffective. Thus, Watters’s argument in this regard lacks merit.

Furthermore, we conclude that the judgment is not against the manifest weight of the

evidence – that this is not a case in which the evidence weighs heavily against conviction. -14-

{¶ 39} There is evidence in this record that police dispatch received a call

indicating that a person in a vehicle, described as a black Pontiac Grand Am, had shot at

a vehicle occupied by Cherry, Sheffield and Whaley. Cherry, who made the call, also

indicated that the car had wrecked on Florence and East Main Street. Police located the

car, which had hit a pole. Police observed a weapon in the car. Footsteps from the car

led to Watters. After initially denying that he discharged the weapon, Watters eventually

confessed to shooting at least one round from the gun. A bullet found in Cherry’s car,

as well as a bullet removed from Whaley, had characteristics similar to those fired from

the gun by a forensic expert.

{¶ 40} We conclude that this not the rare case where the jury lost its way. The

Second Assignment of Error is overruled.

VI. The Imposition of Consecutive Sentences Is Not Clearly

and Convincingly Unsupported by the Record

{¶ 41} Watters’s Third Assignment of Error states as follows:

THE TRIAL COURT ERRED IN SENTENCING APPELLANT

WATTERS TO CONSECUTIVE SENTENCES, RATHER THAN

CONCURRENT SENTENCES

{¶ 42} Watters claims that the imposition of consecutive sentences is contrary to

law because he was denied the effective assistance of counsel at trial, and because the

convictions are against the manifest weight of the evidence. He further contends he did

not get a fair opportunity to address the court regarding sentencing, and that counsel did -15-

not communicate with him regarding the benefits of addressing the court.

{¶ 43} We have concluded, in Part IV, above, that the record fails to demonstrate

ineffective assistance of trial counsel, and in Part V, above, that the convictions are not

against the manifest weight of the evidence. Whether counsel communicated with

Watters regarding addressing the court at sentencing is not something that can be

determined from this record. Watters was given the opportunity to, and did, address the

court at sentencing. We conclude, therefore, that none of these arguments have merit.

{¶ 44} We turn to the issue of whether the trial court erred in imposing consecutive

sentences. In imposing multiple sentences, a sentencing judge has discretion to order

an offender to serve individual prison terms consecutively. R.C. 2929.14(C)(4) provides:

If multiple prison terms are imposed on an offender for convictions of

multiple offenses, the court may require the offender to serve the prison

terms consecutively if the court finds

[1] that the consecutive service is necessary to protect the public

from future crime or to punish the offender and

[2] that consecutive sentences are not disproportionate to the

seriousness of the offender's conduct and to the danger the offender poses

to the public, and if the court also finds

[3] any of the following:

(a) The offender committed one or more of the multiple offenses

while the offender was awaiting trial or sentencing, was under a sanction

imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised

Code, or was under post-release control for a prior offense. -16-

(b) At least two of the multiple offenses were committed as part of

one or more courses of conduct, and the harm caused by two or more of

the multiple offenses so committed was so great or unusual that no single

prison term for any of the offenses committed as part of any of the courses

of conduct adequately reflects the seriousness of the offender's conduct.

(c) The offender's history of criminal conduct demonstrates that

consecutive sentences are necessary to protect the public from future crime

by the offender.

{¶ 45} In imposing consecutive sentences, the trial court must make the statutory

findings and incorporate them in its sentencing entry, but the trial court is not required to

state reasons to support its findings. State v. Bonnell, 140 Ohio St.3d 209, 2014–Ohio–

3177, 16 N.E.3d 659, ¶ 37. As stated by the Supreme Court, “a word-for-word recitation

of the language of the statute is not required, and as long as the reviewing court can

discern that the trial court engaged in the correct analysis and can determine that the

record contains evidence to support the findings, consecutive sentences should be

upheld.” Bonnell at ¶ 29.

{¶ 46} In reviewing felony sentences, appellate courts must apply the standard of

review set forth in R.C. 2953.08(G)(2), rather than an abuse of discretion standard. See

State v. Marcum, 146 Ohio St.3d 516, 2016–Ohio–1002, 59 N.E.3d 1231, ¶ 9. Under R.C.

2953.08(G)(2), an appellate court may increase, reduce, or modify a sentence, or it may

vacate the sentence and remand for resentencing, only if it “clearly and convincingly”

finds either: (1) that the record does not support certain specified findings; or (2) that the -17-

sentence imposed is contrary to law. We do not review a trial court's sentence for an

abuse of discretion. Marcum at ¶ 10.

{¶ 47} In the case before us, the trial court stated, both at the sentencing hearing,

and in the termination entry, that it had considered the appropriate statutory reasons for

imposing consecutive sentences. Watters does not argue that the trial court’s findings

regarding consecutive sentences are not supported by the record. Indeed, he appears

to concede this issue in his appellate brief. And we do not clearly and convincing find

that the trial court's decision to impose consecutive sentences is unsupported by the

record.

{¶ 48} The Third Assignment of Error is overruled.

VII. Conclusion

{¶ 49} All of Watters’s assignments of error having been overruled, the judgment

of the trial court is Affirmed.

............

WELBAUM, J. (concurring):

{¶ 50} I concur with the well-written decision to affirm the convictions and

sentence. I very respectfully write solely to discuss the Confrontation Clause, which is

the only area of alleged ineffective assistance of counsel that the dissent mentions.

{¶ 51} As a preliminary point, I note that Watters did not raise any issues on appeal

pertaining to the Confrontation Clause. In fact, the issue was never mentioned in the

appellate briefs. -18-

{¶ 52} Our role as an appellate court is to address the issues raised by the parties,

not to insert issues that were neither raised nor discussed. See, e.g., State v. Murnahan,

117 Ohio App.3d 71, 82, 689 N.E.2d 1021 (2d Dist.1996) (refusing to consider error

asserted in reply brief, because “[a]n appellant may not use a reply brief to raise new

issues or assignments of error”)2; State v. McComb, 2d Dist. Montgomery No. 26481,

2015-Ohio-2556, ¶ 14 (again refusing to consider error raised for the first time in reply

brief.); State v. Shaffer, 11th Dist. Portage No. 2002-P-0133, 2004-Ohio-336, ¶ 39

(refusing to consider issue that trial counsel was ineffective in failing to object to testimony

of police officers, where issue was raised only in appellant’s reply brief); State ex rel.

Petro v. Gold, 166 Ohio App.3d 371, 2006-Ohio-943, 850 N.E.2d 1218, ¶ 76 (10th Dist.)

(refusing to consider issue that was raised only in reply brief); and State v. Hale, 7th Dist.

Monroe No. 04 MO 14, 2005-Ohio-7080, ¶ 10 (disregarding assignment of error relating

to statute’s alleged unconstitutionality where appellant’s argument was only five

sentences long and contained no citation of authority on the issue). In Gold, the court

further stressed that it is “not appropriate for this court to construct the legal arguments in

support of an appellant's appeal.” Gold at ¶ 94.

{¶ 53} In the case before us, Watters made no attempt to raise the Confrontation

Clause even in a reply brief, and the issue was neither raised nor argued by the parties

on appeal. As a result, we are precluded from inserting this issue and then basing our

decision on it.

2We refused to follow Murnahan on unrelated grounds in State v. Skrip, 2d Dist. Greene No. 2001-CA-74, 2002 WL 538930, *6 (Apr. 12, 2002). -19-

{¶ 54} Even if we could consider the issue, I disagree with the dissent’s

characterization of the objection to the 911 call, and to the dissent’s conclusion that

defense counsel’s objection fell below an objective standard of reasonableness.

{¶ 55} “Ohio courts have consistently held that trial counsel's failure to make

objections is within the realm of trial tactics and does not establish ineffective assistance

of counsel.” State v. Taylor, 9th Dist. Lorain No. 01CA007945, 2002-Ohio-6992, ¶ 76,

citing State v. Cureton, 9th Dist. Medina No. 01CA3219-M, 2002–Ohio–5547, ¶ 55.

Accord State v. Huckleby, 2d Dist. Montgomery No. 25597, 2013-Ohio-4613, ¶ 9.

{¶ 56} The Supreme Court of Ohio has stressed that “to fairly assess counsel's

performance, ‘a court must indulge a strong presumption that counsel's conduct falls

within the wide range of reasonable professional assistance.’ ” State v. Conway, 109

Ohio St.3d 412, 2006-Ohio-2815, 848 N.E.2d 810, ¶ 101, quoting Strickland v.

Washington, 466 U.S. 668, 689, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

{¶ 57} Consistent with these principles, we have observed that “ ‘[h]indsight is not

permitted to distort the assessment of what was reasonable in light of counsel's

perspective at the time, and a debatable decision concerning trial strategy cannot form

the basis of a finding of ineffective assistance of counsel.’ ” State v. Hartman, 2d Dist.

Montgomery No. 26609, 2016-Ohio-2883, ¶ 46, quoting State v. Woullard, 158 Ohio

App.3d 31, 2004-Ohio-3395, 813 N.E.2d 964, ¶ 37 (2d Dist.) (Other citations omitted.)

In addition, we have stressed that “[a] reviewing court may not second-guess decisions

of counsel which can be considered matters of trial strategy * * *.” (Citation omitted.)

State v. Conley, 2015-Ohio-2553, 43 N.E.3d 775, ¶ 56 (2d Dist.) Of course, in the case -20-

before us, we do not have a situation where trial counsel failed to object; the situation is

one in which the dissent wishes to specify the manner in which trial counsel is required

to object.

{¶ 58} Contrary to the dissent’s implication, the trial court and parties discussed

the Confrontation Clause issue in detail at trial, and defense counsel specifically objected

to the admission of the 911 call and to the trial court’s ruling on the Confrontation Clause.

See Transcript of Proceedings, Vol. I, pp. 101-105.

{¶ 59} Prior to the time the audio of the 911 call was played, the trial court asked

the parties to approach the bench. At that time, defense counsel objected to the call on

a foundational basis. The court then expressed concern over whether the person who

made the call to the police would be present to testify, and about the possibility of a

Confrontation Clause issue. Id. at p. 101. At that point, the State commented that case

law would indicate the call was not testimonial, and that the State could present the court

with case law over the recess. Defense counsel then said he would like to see the case

law, and that he would not object if the caller were going to testify. In response, the State

represented that the 911 caller was not going to testify. Id. at p. 102.

{¶ 60} After the recess, the State provided the court with extensive case law

indicating that 911 calls made during emergencies are not testimonial. Id. at pp. 104-

105. At this point, the following exchange occurred:

THE COURT: Okay. Do you want to add anything?

MR. PIERSON: Is the U.S. case Davis vs –

MRS. MCCORMICK: Yes, and it says the court revisited the issue

in the consolidated cases of Davis v Washington and Hammon v. Indiana. -21-

The same thing. The Supreme Court of Ohio talks about it in State v. Stahl.

The Second District talks about it in State v. Eicholtz.

(Judge Reading)

THE COURT: Based upon that I do find that the 911 call then would

not be testimonial, and that would come in under 803(1) and 803(2), present

sense impression and excited utterance.

MR. PIERSON: I’ll just make an objection for the record.

THE COURT: Note the objection.

Id. at p. 105.

{¶ 61} As a result, defense counsel did explicitly object to admission of the 911

call, and the trial court and parties were aware of the relevant case law, including authority

from our own district. Defense counsel also objected again at the end of the State’s case

to admission of the CD of the 911 call. Transcript of Proceedings, Vol. II, p. 295. It is

hard to imagine what more trial counsel could have done. Even if counsel had failed to

object, this would be a matter of trial strategy.

{¶ 62} Furthermore, under pertinent standards, the entire 911 call was properly

admitted. “The Sixth Amendment's Confrontation Clause provides that, ‘[i]n all criminal

prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses

against him.’ ” Crawford v. Washington, 541 U.S. 36, 42, 124 S.Ct. 1354, 158 L.Ed.2d

177 (2004). Crawford involved the State’s attempt to introduce a recorded statement

from the defendant’s wife, who had been interrogated twice by the police. The wife did

not testify at trial, due to the marital privilege, and her recorded testimony was presented

to show that her husband had not acted in self-defense when he stabbed another man. -22-

Id. at 38-41. The United States Supreme Court concluded that the wife’s statement was

testimonial and that its admission violated the Confrontation Clause of the Sixth

Amendment. Id. at 68-69.

{¶ 63} The court held that “[w]here testimonial evidence is at issue * * * the Sixth

Amendment demands what the common law required: unavailability and a prior

opportunity for cross-examination.” Id. at 68. However, the court also held that where

evidence is non-testimonial, the Confrontation Clause is not implicated, and the States

have flexibility in developing their hearsay law. Id. See also State v. Stahl, 111 Ohio

St.3d 186, 2006-Ohio-5482, 855 N.E.2d 834, ¶ 16, discussing Crawford at 68.

{¶ 64} In Stahl, the court observed that Crawford had declined to define the term

“ ‘testimonial.’ ” Id. at ¶ 19. Stahl also noted that the United States Supreme Court had

provided additional guidance about testimonial statements in two cases that involved the

“excited-utterance exception to the hearsay rule.” Id. at ¶ 22, citing Davis v. Washington,

547 U.S. 813, 126 S.Ct. 2266, 165 L.Ed.2d 224.3 One case in Davis involved a 911 call

that a domestic violence victim made, and the other involved statements that a domestic

violence victim made after officers questioned her and her husband (the alleged

aggressor) after coming to their home. In both situations, the victim did not testify at trial.

Davis at 817-821.

{¶ 65} In Davis, the Supreme Court of the United States stressed that:

3 Davis consisted of two separate cases, as one case occurred in Washington State (Washington v. Davis), and the other occurred in Indiana (Indiana v. Hammon). However, the United States Supreme Court considered both cases during the same opinion. Davis at 817-819. These are the cases referenced during the discussion of the Confrontation Clause issue in the trial court. Transcript of Proceedings, Vol. I, p. 105. -23-

Without attempting to produce an exhaustive classification of all

conceivable statements – or even all conceivable statements in response

to police interrogation – as either testimonial or nontestimonial, it suffices to

decide the present cases to hold as follows: Statements are nontestimonial

when made in the course of police interrogation under circumstances

objectively indicating that the primary purpose of the interrogation is to

enable police assistance to meet an ongoing emergency. They are

testimonial when the circumstances objectively indicate that there is no

such ongoing emergency, and that the primary purpose of the interrogation

is to establish or prove past events potentially relevant to later criminal

prosecution.

Davis at 822.

{¶ 66} In distinguishing the 911 call in Davis from the circumstances involved in

Crawford, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177, the court made the following

observations, which are pertinent to the case before us:

The question before us in Davis, then, is whether, objectively

considered, the interrogation that took place in the course of the 911 call

produced testimonial statements. When we said in Crawford, supra, at 53,

124 S.Ct. 1354, that “interrogations by law enforcement officers fall squarely

within [the] class” of testimonial hearsay, we had immediately in mind (for

that was the case before us) interrogations solely directed at establishing

the facts of a past crime, in order to identify (or provide evidence to convict) -24-

the perpetrator. The product of such interrogation, whether reduced to a

writing signed by the declarant or embedded in the memory (and perhaps

notes) of the interrogating officer, is testimonial. It is, in the terms of the

1828 American dictionary quoted in Crawford, “ ‘[a] solemn declaration or

affirmation made for the purpose of establishing or proving some fact.’ ”

541 U.S., at 51, 124 S.Ct. 1354. (The solemnity of even an oral declaration

of relevant past fact to an investigating officer is well enough established by

the severe consequences that can attend a deliberate falsehood. * * * ) A

911 call, on the other hand, and at least the initial interrogation conducted

in connection with a 911 call, is ordinarily not designed primarily to

“establis[h] or prov[e]” some past fact, but to describe current circumstances

requiring police assistance.

The difference between the interrogation in Davis and the one in

Crawford is apparent on the face of things. In Davis, McCottry [the

domestic violence victim] was speaking about events as they were actually

happening, rather than “describ [ing] past events,” Lilly v. Virginia, 527 U.S.

116, 137, 119 S.Ct. 1887, 144 L.Ed.2d 117 (1999) (plurality opinion).

Sylvia Crawford's interrogation, on the other hand, took place hours after

the events she described had occurred. Moreover, any reasonable listener

would recognize that McCottry (unlike Sylvia Crawford) was facing an

ongoing emergency. Although one might call 911 to provide a narrative

report of a crime absent any imminent danger, McCottry's call was plainly a

call for help against bona fide physical threat. Third, the nature of what -25-

was asked and answered in Davis, again viewed objectively, was such that

the elicited statements were necessary to be able to resolve the present

emergency, rather than simply to learn (as in Crawford ) what had happened

in the past. That is true even of the operator's effort to establish the identity

of the assailant, so that the dispatched officers might know whether they

would be encountering a violent felon. * * * And finally, the difference in the

level of formality between the two interviews is striking. Crawford was

responding calmly, at the station house, to a series of questions, with the

officer-interrogator taping and making notes of her answers; McCottry's

frantic answers were provided over the phone, in an environment that was

not tranquil, or even (as far as any reasonable 911 operator could make

out) safe.

We conclude from all this that the circumstances of McCottry's

interrogation objectively indicate its primary purpose was to enable police

assistance to meet an ongoing emergency. She simply was not acting as

a witness; she was not testifying. What she said was not “a weaker

substitute for live testimony” at trial, United States v. Inadi, 475 U.S. 387,

394, 106 S.Ct. 1121, 89 L.Ed.2d 390 (1986), like Lord Cobham's statements

in Raleigh's Case, 2 How. St. Tr. 1 (1603), or Jane Dingler's ex parte

statements against her husband in King v. Dingler, 2 Leach 561, 168 Eng.

Rep. 383 (1791), or Sylvia Crawford's statement in Crawford. In each of

those cases, the ex parte actors and the evidentiary products of the ex parte

communication aligned perfectly with their courtroom analogues. -26-

McCottry's emergency statement does not. No “witness” goes into court to

proclaim an emergency and seek help.

{¶ 67} (Emphasis sic.) (Citations omitted.) Davis, 547 U.S. at 826-828, 126 S.Ct.

2266, 165 L.Ed.2d 224.

{¶ 68} Subsequently, the United States Supreme Court further explained “the

‘ongoing emergency’ circumstance addressed in Davis.” Michigan v. Bryant, 562 U.S.

344, 359, 131 S.Ct. 1143, 179 L.Ed.2d 93 (2011). In contrast to Davis, which involved

the domestic violence context, the court in Bryant confronted a nondomestic dispute, and

“circumstances in which the ‘ongoing emergency’ discussed in Davis extends beyond an

initial victim to a potential threat to the responding police and the public at large.” Id.

The court concluded that this required additional clarification of what Davis meant by

stating that “ ‘the primary purpose of the interrogation is to enable police assistance to

meet an ongoing emergency.’ ” Id., quoting Davis at 822. The court then clarified that

in order to make this determination, it would “objectively evaluate the circumstances in

which the encounter occurs and the statements and actions of the parties.” Id.

{¶ 69} In this regard, the court observed in Bryant that

An objective analysis of the circumstances of an encounter and the

statements and actions of the parties to it provides the most accurate

assessment of the “primary purpose of the interrogation.” The

circumstances in which an encounter occurs – e.g., at or near the scene of

the crime versus at a police station, during an ongoing emergency or

afterwards – are clearly matters of objective fact. The statements and

actions of the parties must also be objectively evaluated. That is, the -27-

relevant inquiry is not the subjective or actual purpose of the individuals

involved in a particular encounter, but rather the purpose that reasonable

participants would have had, as ascertained from the individuals’

statements and actions and the circumstances in which the encounter

occurred.

(Footnote omitted.) Bryant at 360. Accord State v. Jones, 135 Ohio St.3d 10, 2012-

Ohio-5677, 984 N.E.2d 948, ¶ 150.

{¶ 70} The court stressed in Bryant that the existence of an ongoing emergency is

one of the most important factors in assessing an interrogation’s primary purpose,

because it focuses participants on something other than proof of past events for purposes

of criminal prosecutions, and the prospect of fabrication is “presumably significantly

diminished.” Bryant at 361. The court likened this to the logic for permitting the

“excited utterance” exception to hearsay. Id. In addition, the court noted that Davis

involved a domestic violence situation with “a known and identified perpetrator” and “a

narrower zone of potential victims than cases involving threats to public safety.” Id. at

363. In this latter situation, “[a]n assessment of whether an emergency that threatens

the police and public is ongoing cannot narrowly focus on whether the threat solely to the

first victim has been neutralized because the threat to the first responders and public may

continue.” (Citation omitted.) Id.

{¶ 71} The court further emphasized that “the duration and scope of an emergency

may depend in part on the type of weapon employed.” Bryant, 562 U.S. at 364, 131

S.Ct. 1143, 179 L.Ed.2d 93. Again, the court distinguished Davis because the assault in

Davis involved fists, rather than guns. Id. The court did note that an emergency -28-

interrogation could evolve into testimonial statements in certain instances. For example,

the declarant could give police information indicating that what seemed to be an

emergency was no longer such, or that what appeared to be a public threat was actually

private. Id. at 365. Similarly, this could occur “if a perpetrator is disarmed, surrenders,

is apprehended, or, as in Davis, flees with little prospect of posing a threat to the public.”

Id.

{¶ 72} The court also observed that “the statements and actions of both the

declarant and interrogators provide objective evidence of the primary purpose of the

interrogation.” (Emphasis added.) Id. at 367. Bryant involved questions asked by the

police of a victim, who was lying mortally wounded in a gas station parking lot. The

shooter was not on the scene, and the shooting had occurred a few blocks away, at the

shooter’s residence. Id. at 371-374. However, the court concluded that the primary

purpose of the questions was to meet an ongoing emergency. In this regard, the court

noted that the questions the police asked – “ ‘what had happened, who had shot him, and

where the shooting occurred,’ * * * – were the exact type of questions necessary to allow

the police to ‘ “assess the situation, the threat to their own safety, and possible danger to

the potential victim” ’ and to the public, * * * including to allow them to ascertain ‘whether

they would be encountering a violent felon * * * .’ ” (Citations and footnote omitted.) Id.

at 376, quoting Davis at 832 and 827.

{¶ 73} In my view, Davis and Bryant, and the “primary purpose” test are dispositive

of any Confrontation Clause issue. The 911 call clearly occurred during an ongoing

emergency, as the caller was in the middle of a shoot-out on a public highway. During

the course of the call, the only “interrogation” consisted of questions from the 911 -29-

dispatcher. She repeatedly attempted to clarify the events as they were happening, the

location, and a description of the people and vehicles, while gunshots could be heard in

the background. The caller realized during the call that the front seat passenger had

been shot and told the dispatcher that he was now driving her to a hospital. These are

circumstances objectively indicating that the primary purpose of the dispatcher’s

questions and the caller’s statements were to enable police assistance to meet an

ongoing emergency. The Confrontation Clause was not violated because the call was

made during the course of an ongoing gun battle in which a victim was murdered. There

is no indication from the record that a reasonable person in the caller’s position would

have had the purpose that his statement would be used against the accused in

investigating and prosecuting the crime.

{¶ 74} In State v. Ward, 2d Dist. Montgomery No. 26773, 2016-Ohio-5354, we

concluded that very similar statements made during a 911 call were not testimonial. Id.

at ¶ 25-29. The case before us presents even stronger circumstances than Ward, as the

victim in Ward called 911 after the perpetrator had already fled the scene in an auto. Id.

at ¶ 28. However, we cited authority indicating that “an ongoing emergency situation can

exist after the perpetrator has left the scene if a potential threat to the police or the public

remains.” Id., citing Cleveland v. Merritt, 8th Dist. Cuyahoga No. 103275, 2016-Ohio-

4693, ¶ 10, 19. This is also consistent with the decisions in Davis and Bryant.

{¶ 75} In the case before us, not only were the individuals in Cherry’s car in danger,

the public was in danger due to the fact that people were shooting firearms on public

highways. Even at the end of 911 call, the police did not know if the individual who was

fleeing was armed and presented a danger to the public. The police were entitled to ask -30-

questions of the 911 caller to address these matters.

{¶ 76} In State v. Byrd, 160 Ohio App.3d 538, 2005-Ohio-1902, 828 N.E.2d 133

(2d Dist), we discussed two alleged Confrontation Clause situations: a 911 call by a

female who had seen the defendant beating his girlfriend in front of his home, and an

officer’s testimony about statements made by the alleged victim, the defendant’s

girlfriend. Id. at ¶ 2-4. Neither of these individuals testified at trial. Id. at ¶ 8.

{¶ 77} Regarding the 911 call, we concluded that the content was not testimonial

in nature and was properly admitted. In this regard, we stated that:

“The 911 call – usually, a hurried and panicked conversation

between an injured victim and a police telephone operator – is simply not

equivalent to a formal pretrial examination by a justice of the peace in

Reformation England. If anything, it is the electronically augmented

equivalent of a loud cry for help. The Confrontation Clause was not

directed at such a cry.

“Moreover, a 911 call can usually be seen as part of the criminal

incident itself, rather than as part of the prosecution that follows. Many 911

calls are made while an assault or homicide is still progress. Most other

911 calls are made in the immediate aftermath of the crime. Indeed, the

reason why a 911 call can qualify as an ‘excited utterance’ exempt from the

rules of evidence barring hearsay is that very little time has passed between

the exciting event itself and the call for help; the 911 call qualifies as an

excited utterance precisely because there has been no opportunity for the -31-

caller to reflect and falsify her (or his) account of events.”

Byrd at ¶ 19-20, quoting People v. Moscat, 3 Misc.3d 739, 746, 777 N.Y.S.2d 875

(N.Y.Crim.Ct.2004).

{¶ 78} Byrd is wholly supportive of admitting the content of the 911 call in the case

before us.

{¶ 79} There is also no doubt that Cherry’s statements during the 911 call fit within

the hearsay exception in Evid.R. 803(2) for excited utterances, and the dissent does not

argue otherwise. In addition to the stress evidenced during the 911 call, a police officer

who responded to the hospital as a result of the 911 call was on the scene when the car

with the gunshot victim arrived. Transcript of Proceedings, Vol. I (Testimony of Officer

Jerome Montico), pp. 108-109. This officer described the demeanor of the two males in

the car (who were motioning for help) as “[f]rantic, panicked, hysterical.” Id. at 110.

{¶ 80} Finally, I disagree with the dissent’s position that Watters was prejudiced by

counsel’s alleged failure to properly argue the Confrontation Clause. Again, this issue

was correctly argued in the trial court; the evidence, in fact, was properly admitted; and

the matter has not been raised on appeal. And, as was noted by Judge Fain, the

judgment is not against the manifest weight of the evidence. Majority Opinion, ¶ 38.

{¶ 81} Contrary to the implication in the dissent, there was substantial evidence

beyond the testimony of the “sole eyewitnesses.” As an initial matter, Watters’ car would

have been discovered by the police almost immediately, anyway. Specifically,

Springfield Police Sergeant Travis Baader was on duty at the time of the incident, and

was at a Pizza Hut on East Main Street in Springfield when he heard several shots being -32-

fired. Baader then called police dispatch to see if any calls had been received about

shots having been fired. After being informed that dispatch had received a call about

shots further down on East Main Street, Baader proceeded that way, and discovered the

car that had wrecked. Once Baader arrived at the scene, he made sure no one was in

the car. At that time, Baader saw a firearm on the floorboard of the car, as well as tracks

in the snow, heading into the cemetery. Transcript of Proceedings, Vol. I, Testimony of

Travis Baader, pp. 139-140. After following the tracks, the police discovered Watters.

{¶ 82} Moreover, “ ‘direct evidence of a fact is not required.’ ” State v. Lott, 51

Ohio St.3d 160, 167, 555 N.E.2d 293 (1990), quoting Michalic v. Cleveland Tankers, Inc.,

364 U.S. 325, 330, 81 S.Ct. 6, 5 L.Ed.2d 20 (1960). (Other citation omitted.) The

Supreme Court of Ohio has also stressed that “ ‘[c]ircumstantial evidence * * * may also

be more certain, satisfying and persuasive than direct evidence.’ ” Id., quoting Michalic

at 330. In Lott, the court emphasized that “[m]urder convictions and death sentences

can rest solely on circumstantial evidence.” (Citations omitted.) Id. As a result,

Watters’ convictions could have been sustained solely on the basis of circumstantial

evidence.

{¶ 83} The circumstantial evidence in the case before us includes tracks of

footprints leading directly from the wrecked car to Watters, who was outside on the steps

of an apartment building in extremely cold temperatures and a snow storm without being

properly dressed for the weather. Watters was shivering, smelled strongly of hand-

sanitizer, and did not even claim that he was visiting someone at the apartment building.

Instead, he stated that he was coming from a friend’s house, but he could not recall

exactly where the house was. Transcript of Proceedings, Vol. I, Testimony of Officer Deric -33-

Nichols, pp. 134-136; Testimony of Sergeant Travis Baader, p. 140; Testimony of Officer

Ronnie Terry, pp. 143-146; and Testimony of Officer Andrew Bronsord, pp. 151-153.

{¶ 84} The Volkswagen in which the victim was riding as a front seat passenger

sustained three shots in the front, one of which entered the car through the front

windshield. Transcript of Proceedings, Vol. I, Testimony of Officer Jeffrey Steinmetz, pp.

192-194, and 200-203. “Coincidentally,” the firearm in the car that Watters had been

driving had a capacity of thirty rounds of ammunition, and three rounds were missing. Id.

at 187-190. No other firearms were found, including in the 911 caller’s car.4 One of the

bullet fragments in the victim was identified as having similar class characteristics as

bullets used in the type of firearm found in the car Watters had been driving. However,

the bullet parts removed from the victim were only fragments, and there was not enough

material present to positively state that they matched the firearm. Transcript of

Proceedings, Vol. II, Testimony of Dr. Bryan Castro, pp. 233-236, and Testimony of

Timothy Shepherd, pp. 245-249. The firearm was also in excellent operating condition.

Shepherd at p. 244.

{¶ 85} In addition to the above circumstantial evidence, the State presented direct

evidence in the form of Watters’ own statements. Notably, Watters told the police three

different stories. First, he denied even being in an accident. Next, Watters admitted

handling the gun while at E&J’s Fun Bar, but claimed the gun did not go off. Walters

identified a person allegedly nicknamed “Emo,” who had handed him the gun, but the

4 As was noted, no firearms were found in the 911 caller’s car. That car was under observation by officers from the time it arrived at the hospital, and was later processed by the police. Transcript of Proceedings, Vol. I, Testimony of Officer Jerome Montico, pp. 110, and Officer Jeffrey Steinmetz, pp. 191-192 and 204. -34-

police were never able to locate this individual, because they only had his nickname and

no such person was in the police database. Transcript of Proceedings, Vol. II, Testimony

of Detective Ronald Jordan, pp. 276-279 and 292.

{¶ 86} In the third version, Watters admitted firing the gun. He stated that he hit

the trigger once and the gun “fired up the street.” Id. at pp. 279-280, and 282. However,

the trigger would have to be pulled each time to detonate a round of ammunition, because

the firearm was a semi-automatic weapon, not a fully automatic weapon. Transcript of

Proceedings, Volume II, Testimony of Timothy Shepherd, pp. 244-245. Again, according

to Watters, this occurred at the bar, and he then pulled off, or drove away. Jordan at p.

280. Other direct evidence included surveillance video from a business establishment

on East Main Street, close to where the vehicle crashed. The video, which was taken

around the time of the 911 call, showed one vehicle in front, heading east with no

headlights or taillights on. About thirteen seconds later, a second vehicle appeared, with

lights and taillights on, and this vehicle was followed about one second later, by a third

vehicle, which was larger, maybe a truck. Id. at pp. 284-285, 288. Although the cars

could not be specifically identified, the sequence is completely consistent with Watters

fleeing and being chased by the 911 caller, who was being chased, in turn, by a truck.

{¶ 87} Among other things, Watters was convicted of Murder, in violation of R.C.

2903.02(A). This statute provides, in pertinent part, that “[n]o person shall purposely

cause the death of another * * *.”

{¶ 88} “Purpose requires an intention to cause a certain result or to engage in

conduct that will cause that result.” (Emphasis added.) State v. Seiber, 56 Ohio St.3d

4, 13, 564 N.E.2d 408 (1990), citing R.C. 2901.22(A). “ ‘It is a fundamental principle that -35-

a person is presumed to intend the natural, reasonable and probable consequences of

his voluntary acts.’ ” Id., quoting State v. Johnson, 56 Ohio St.2d 35, 39, 381 N.E.2d 637

(1978). (Other citation omitted.)

{¶ 89} The court stressed in Seiber that:

Intent can be determined from the surrounding facts and circumstances.

See State v. Johnson, supra, 56 Ohio St.2d at 38, 10 O.O.3d at 80, 381

N.E.2d at 640; State v. Robinson (1954), 161 Ohio St. 213, 53 O.O. 96, 118

N.E.2d 517, paragraph five of the syllabus. “[A] firearm is an inherently

dangerous instrumentality, the use of which is likely to produce death.”

State v. Widner (1982), 69 Ohio St.2d 267, 270, 23 O.O.3d 265, 266, 431

N.E.2d 1025, 1028.

Seiber at 13-14.

{¶ 90} Watters was also convicted of Felony Murder, which requires only that a

death be caused as a “proximate result of the offender's committing or attempting to

commit an offense of violence that is a felony of the first or second degree * * *.” R.C.

2903.02(B). This statute does not have a mens rea requirement, as the predicate

offense contains the mens rea element. State v. Fry, 125 Ohio St.3d 163, 2010-Ohio-

1017, 926 N.E.2d 1239, ¶ 43 (noting that a “defendant may be found guilty of felony

murder even if there was no intent to cause the victim's death”). (Citation omitted.)

{¶ 91} Purposeful Murder and Felony Murder also “do not require a finding of

premeditation and deliberation * * *.” State v. Dillon, 2d Dist. Clark No. 2014-CA-36,

2016-Ohio-1561, ¶ 28.

{¶ 92} The predicate offense in the case before us is Felonious Assault, which -36-

requires a culpable mental state of “knowingly.” Fry at ¶ 45. The indictment charged

Watters with having violated R.C. 2903.11(A)(2), which prohibits persons from knowingly

causing or attempting to cause harm to another “by means of a deadly weapon or

dangerous ordnance.” “A person acts knowingly, regardless of purpose, when the

person is aware that the person's conduct will probably cause a certain result or will

probably be of a certain nature. A person has knowledge of circumstances when the

person is aware that such circumstances probably exist.” R.C. 2901.22(B).

{¶ 93} Again, Watters’ own statement indicates that, at a minimum, he shot the

firearm in a public area, up the street behind him where two cars were located, and the

entirety of the evidence indicates that Watters, in fact, shot the gun three times at the

Volkswagen containing the murder victim. “When * * * the accused has discharged a

firearm multiple times in a populated area, he may be found to have acted ‘knowingly’ as

to, and thus may be convicted of deadly-weapon felonious assault upon, any person in

the line of fire.” State v. Derkson, 1st Dist. Hamilton No. C-130844, 2014-Ohio-3831,

¶ 15, citing State v. Mills, 62 Ohio St.3d 357, 369, 582 N.E.2d 972 (1992). (Other

citations omitted.) See also, State v. Gray, 10th Dist. Franklin No. 04AP-938, 2005-Ohio-

4563, ¶ 12 (“firing a gun where there is a risk of injury to one or more persons is sufficient

evidence to prove that the defendant knowingly attempted to cause physical harm. Even

firing a weapon randomly in the direction of individuals arguably within range of the

shooter is sufficient to demonstrate an attempt to cause physical harm.”) (Citation

omitted.)

{¶ 94} Motive also “is not an element of the crime of felonious assault,” and the

State need not establish motive in criminal trials to secure convictions. State v. Wilson, -37-

9th Dist. Summit No. 26683, 2014-Ohio-376, ¶ 19. Accord State v. Herron, 2d Dist.

Montgomery No. 19894, 2004-Ohio-773, ¶ 57; State v. Chapman, 2d Dist. Clark No. 95-

CA-80, 1996 WL 596533, *4 (Oct. 11, 1996); State v. Youngblood, 2d Dist. Clark No. 07-

CA-118, 2009-Ohio-3008, ¶ 13.

{¶ 95} Accordingly, I very respectfully concur with Judge Fain’s opinion that the

judgment of the trial court should be affirmed. However, I also very respectfully disagree

with the dissenting opinion.

DONOVAN, P.J., dissenting:

{¶ 96} I disagree. In my view, this record establishes ineffective assistance of

counsel. Without the testimony of the sole eyewitnesses, Cherry and Sheffield, a

meaningful defense strategy necessarily should have included an argument as well as

citation of authority for the proposition that Watters was being denied his right to confront

the witnesses against him under the Ohio and United States Constitution. Instead, when

the entire 911 call was played and admitted, a general objection was made, which was

completely unsupported by any cogent argument or citation to case authority. This falls

below an objective standard of reasonableness and Watters was prejudiced thereby. I

would reverse and order a new trial.

..........

Copies mailed to:

Megan M. Farley Tom O. Merritt Hon. Douglas M. Rastatter