[Cite as State v. Wilcox, 2023-Ohio-2940.]
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-220472 TRIAL NO. B-2004192 Plaintiff-Appellee, :
: O P I N I O N. VS. :
QUANTEZ WILCOX, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed in Part, Reversed in Part, and Cause Remanded
Date of Judgment Entry on Appeal: August 23, 2023
Melissa A. Powers, Hamilton County Prosecuting Attorney, and Paula E. Adams, Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Timothy J. McKenna, for Defendant-Appellant. OHIO FIRST DISTRICT COURT OF APPEALS
BERGERON, Presiding Judge.
{¶1} Following a shooting outside the library in downtown Cincinnati,
defendant-appellant Quantez Wilcox was charged with and found guilty of murder,
felonious assault, having weapons under disability, and tampering with evidence. On
appeal, he raises six assignments of error, claiming, among other things, a violation of
his Confrontation Clause rights. Because we agree that Mr. Wilcox’s Confrontation
Clause rights were violated when the trial court allowed a prejudicial video interview
of a nontestifying witness to be played at trial, we reverse the trial court’s judgment
with respect to Mr. Wilcox’s murder conviction (the felonious assault charge and
second murder charge were merged), and we remand this cause for a new trial to be
held in accordance with this opinion and the law. We otherwise affirm the trial court’s
judgment, including the convictions for tampering with evidence and having weapons
under disability.
I.
{¶2} During an August 2020 evening, Mr. Wilcox parked near the public
library in downtown Cincinnati. As he sat in the driver’s seat of his silver Mazda, he
was approached by victim Keshawn Turner—his ex-girlfriend’s new boyfriend. The
two quarreled. As the dispute escalated, Mr. Wilcox fired a single shot, which struck
Mr. Turner in the chest and later killed him. The sole witness to the shooting was
Doniesha Monroe—Mr. Turner’s girlfriend and Mr. Wilcox’s ex-girlfriend.
{¶3} Kenneth Rue was working as a downtown ambassador for 3CDC that
evening. Walking near the downtown library at approximately 8:45 p.m., he heard a
loud bang and then saw people running. He witnessed Mr. Turner fall to the ground
multiple times then pick himself up, and then followed him into an alley where he
2 OHIO FIRST DISTRICT COURT OF APPEALS
collapsed for the final time. Mr. Rue radioed the police to recount what he had seen.
He then knelt beside Mr. Turner to tell him that police were on the way. Mr. Rue did
not see a gun in Mr. Turner’s possession.
{¶4} Another witness, Haneen Maghathe, also heard the gunshot and saw
Mr. Turner and Ms. Monroe run into the alley. She followed the pair into the alley and
recorded the scene with her phone. She described Ms. Monroe as “frantic” and
“scared.” In the recording, Ms. Monroe identified Mr. Wilcox as the shooter. This
video was shown at trial.
{¶5} Officers David Price and Nicholas Casch of the Cincinnati Police
Department were each dispatched to the scene. They both wore body cameras, which
captured the following events. Officer Price spoke with Ms. Monroe about the events
of the evening, and he also talked with Ms. Maghathe. Officer Casch saw Mr. Turner
lying motionless while another officer performed CPR. Two other officers arrived and
began to render first aid services to the victim. They cut off Mr. Turner’s clothing to
find the bullet hole, and as they rolled him over, they found a loaded firearm in a black
holster behind his back. Officer Casch took possession of the 9 mm handgun,
removing the magazine and a round in the chamber before depositing it in the back of
his cruiser.
{¶6} Minutes earlier, a street over, Cincinnati Police Officer Cian McGrath
had just left the Hamilton County Justice Center and was heading west on Ninth Street
when he heard the gunshot. He saw a silver Mazda fly through an intersection at a red
light, and he initiated a traffic stop. Mr. Wilcox pulled over. As Officer McGrath
approached the car, Mr. Wilcox opened the driver’s door with his hands out. He told
Officer McGrath that his brakes had failed, and Officer McGrath noted that he was
3 OHIO FIRST DISTRICT COURT OF APPEALS
sweating and seemed nervous. After hearing on his radio that Mr. Wilcox was
suspected of the shooting, Officer McGrath took him into custody.
{¶7} William Sweet also witnessed a person driving fast just before he was
pulled over. He saw the driver throw something out of his window. Mr. Sweet crossed
the street to investigate, discovering a gun. He picked it up and turned it over to a
police officer. Mr. Wilcox’s DNA was discovered on the gun. Additionally, a firearms
expert determined that the bullet found in Mr. Turner’s back was fired from the gun
that Mr. Wilcox tossed from his vehicle, and a trace evidence examiner from the
Hamilton County Coroner’s Office prepared a report showing that Mr. Wilcox’s hands
and the driver’s side window of his car tested positive for gunshot residue.
{¶8} During his initial interview with Cincinnati Police Homicide Detective
Sandy Sieving, Mr. Wilcox professed his innocence. By the time of trial, however, Mr.
Wilcox admitted to the shooting but insisted that he acted in self-defense. He testified
that he was sensitive to violence, as he had been shot when he was 18 years old and he
had lost a cousin and two friends in shootings. At trial, when describing what
happened the night of the shooting, Mr. Wilcox explained that Ms. Monroe had called
him earlier in the night and asked him to bring her some food. He picked up the food
and drove downtown to the library, where she requested they meet. After he parked,
Ms. Monroe approached his car and he handed her the food. The two chatted for a bit.
At this point, Mr. Turner came up to the car. Mr. Wilcox explained that he had never
met Mr. Turner before and did not know of his relationship with Ms. Monroe. Mr.
Wilcox felt threatened by statements made by Mr. Turner and testified that he saw
him reach for his gun holster. Fearing that Mr. Turner would shoot him, Mr. Wilcox
grabbed his own gun from the passenger seat and shot Mr. Turner. He then drove off
4 OHIO FIRST DISTRICT COURT OF APPEALS
quickly. Soon after he drove off, he threw the gun out the window before Officer
McGrath stopped him. Mr. Wilcox also admitted that he was not initially truthful with
Detective Sieving about what happened because he did not trust the police.
{¶9} Ms. Monroe did not show up to testify at trial, but police body-worn
camera footage from the night of the murder was played before the jury. The footage
included a nearly 10-minute interview between Officer Price and Ms. Monroe during
which she was questioned about the murder.
{¶10} Mr. Wilcox was indicted on two counts of murder, with specifications,
in violation of R.C. 2903.02(A) and (B); two counts of felonious assault, with
specifications, in violation of R.C. 2903.11(A); one count of having weapons while
under disability, in violation of R.C. 2923.13(A)(3); and one count of tampering with
evidence, in violation of R.C. 2921.12(A)(1). The state dismissed count 4 for felonious
assault immediately before trial. Mr. Wilcox testified at trial, admitting to shooting
Mr. Turner, having a weapon while under disability, and tampering with evidence, but
proceeded to argue that he acted in self-defense. Unpersuaded by his defense, the jury
found Mr. Wilcox guilty of all five remaining charges.
{¶11} The trial court sentenced Mr. Wilcox to an indefinite term of 15 years to
life for count 1 (murder), plus 5 years on the firearm specification, to be served
consecutively. The second murder count and the felonious assault count were merged
with count 1. For counts 5 (weapons under disability) and 6 (tampering with
evidence), Mr. Wilcox received 36 months each, to be served consecutively to both
count 1 and each other. The aggregate sentence totaled 26 years to life in the Ohio
Department of Corrections. Mr. Wilcox now appeals.
5 OHIO FIRST DISTRICT COURT OF APPEALS
II.
{¶12} In his first assignment of error, Mr. Wilcox maintains that the trial court
erred when it allowed into evidence certain statements made by Ms. Monroe, who did
not testify at trial. He takes issue with two videos that were played at trial—the video
recorded by Ms. Maghathe and Officer Price’s body-worn camera footage.
{¶13} “[T]he Confrontation Clause prohibits ‘testimonial statements of a
witness who did not appear at trial unless he was unavailable to testify, and the
defendant had had a prior opportunity for cross-examination.’ ” State v. Smith, 2019-
Ohio-3257, 141 N.E.3d 590, ¶ 10 (1st Dist.), quoting Crawford v. Washington, 541 U.S.
36, 53-54, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), paragraph (a) of the syllabus. The
clause exists “ ‘to ensure the reliability of the evidence against a criminal defendant by
subjecting it to rigorous testing in the context of an adversary proceeding before the
trier of fact.’ ” Id., quoting State v. Madrigal, 87 Ohio St.3d 378, 384, 721 N.E.2d 52
(2000). And “we review objections to evidence based on the Confrontation Clause de
novo.” Id., citing State v. Thomas, 2015-Ohio-5247, 54 N.E.3d 732, ¶ 14 (9th Dist.),
and State v. Burton, 2017-Ohio-322, 77 N.E.3d 449, ¶ 16 (4th Dist.).
{¶14} In Crawford, the United States Supreme Court established a framework
for determining whether the Confrontation Clause bars the admission of evidence.
Crawford at 68-69. The Court distinguished between testimonial and nontestimonial
statements, explaining that nontestimonial statements do not implicate the
Confrontation Clause while testimonial statements by a nontestifying witness are
inadmissible unless the witness is unavailable and the defendant had a prior
opportunity to cross-examine her. Id. At minimum, testimonial statements include
6 OHIO FIRST DISTRICT COURT OF APPEALS
“prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and
to police interrogations.” Id. at 68.
{¶15} We begin by reviewing the admissibility of the video recorded by Ms.
Maghathe. This clip is short—just 15 seconds in length—and features Ms. Monroe
crying and screaming as a police officer attempts to resuscitate Mr. Turner. Ms.
Maghathe asks, “Who did this?” and Ms. Monroe replies, “Quantez Wilcox.” Then,
when questioned by Ms. Maghathe, “Are they still here?” (presumably, in reference to
Mr. Wilcox), Ms. Monroe replies, “No.”
{¶16} Ms. Monroe’s informal and emotional statements are not testimonial in
nature. They were not made in response to police questioning, see Ohio v. Clark, 576
U.S. 237, 249, 135 S.Ct. 2173, 192 L.Ed.2d 306 (2015), nor were they made during any
formal proceeding or questioning. See State v. Hamm, 1st Dist. Hamilton Nos. C-
160230 and C-160231, 2017-Ohio-5595, ¶ 33. Her statements were “volunteered
under circumstances where there was no time for the speaker to reflect and falsify * *
* her account of [the] event.” Id. It cannot be said that Ms. Monroe was “attempting
to create an out-of-court substitute for trial testimony.” See State v. James, 7th Dist.
Mahoning No. 18 MA 0064, 2020-Ohio-4289, ¶ 28. Therefore, these statements are
nontestimonial and do not implicate the Confrontation Clause. The trial court did not
err in admitting the video containing these statements into evidence.
{¶17} We reach a different conclusion in our analysis of the admissibility of
Officer Price’s body-worn camera footage, which features a lengthy police interview of
Ms. Monroe. Again, Mr. Wilcox argues that the admission of this video violated his
Confrontation Clause rights because Ms. Monroe’s statements contained therein were
7 OHIO FIRST DISTRICT COURT OF APPEALS
testimonial, and she did not testify at trial, nor did he have a prior opportunity to cross-
examine her.
{¶18} In its appellate brief, the state does not substantively address the
argument, beyond making a general allegation that Ms. Monroe’s statements fell
within certain categories of admissible hearsay statements. It seems to acknowledge
that the statements were testimonial in nature, but it does not clarify its position. And
it fails to reconcile the distinction between admissibility for hearsay purposes and
constitutional requirements under the Confrontation Clause.
{¶19} The Supreme Court has held that statements made in response to police
questioning “are testimonial when the circumstances objectively indicate that there is
no * * * ongoing emergency, and that the primary purpose of the interrogation is to
establish or prove past events potentially relevant to later criminal prosecution.”
Davis v. Washington, 547 U.S. 813, 822, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006). This
court elaborated on this point in Smith, 2019-Ohio-3257, 141 N.E.3d 590, at ¶ 12-13,
explaining that police body-worn camera footage of a nontestifying witness included
testimonial statements that were offered in the presence of a police officer—
presumably in his protection—and the witness was no longer in danger. In Smith,
there was no ongoing emergency or threat of harm, and the primary purpose of the
discussion between the officer and the witness was to ascertain what had happened.
Id. at ¶ 13.
{¶20} Unlike the video filmed by Ms. Maghathe, the discussion with Ms.
Monroe captured on Officer Price’s body-worn camera footage lasts for over ten
minutes and involves extensive police questioning. While the video does contain
several statements in response to police questions that could be viewed as addressing
8 OHIO FIRST DISTRICT COURT OF APPEALS
an ongoing emergency—including Ms. Monroe’s answers to questions regarding who
the perpetrator was, what car he was driving, and which direction he drove off after
the shooting—the main thrust of the video implicates the Confrontation Clause.
Officer Price and Ms. Monroe were notified about halfway through the video that Mr.
Wilcox has been apprehended, ending any ongoing emergency.
{¶21} But Officer Price continued asking Ms. Monroe questions about the
offense, including, “So what was the other guy [Mr. Wilcox] mad about?” Ms. Monroe
embarked on a narration of the events that led to the shooting. She implicated Mr.
Wilcox in a variety of unsavory actions, including stalking her and breaking into her
car, and repeatedly indicated that she kept reporting him for these actions. While
making these statements, Ms. Monroe was clearly distraught—crying and her voice
wrought with emotion. Moreover, she shared with the officer that she is pregnant with
Mr. Turner’s child, and another police officer expressed concerns that her emotional
state might result in harm to the fetus. These statements were made in response to
police questioning, see Clark, 576 U.S. at 249, 135 S.Ct. 2173, 192 L.Ed.2d 306, and at
a point when the circumstances objectively indicated that there was no longer an
ongoing emergency. See Davis at 822. We presume, then, that the primary purpose
of Officer Price’s questioning of Ms. Monroe was to gather facts regarding a past crime
for later prosecution. See Smith at ¶ 13.
{¶22} Also during the video, Ms. Monroe shared an account of the shooting
that differed drastically from the account Mr. Wilcox presented at trial. She explained
that she and Mr. Wilcox had been in an ongoing dispute due to him stalking her and
breaking her car windows, and that he shot out of his car window as she and Mr.
Turner were just “walking past.”
9 OHIO FIRST DISTRICT COURT OF APPEALS
{¶23} Having determined that the statements contained in Officer Price’s
body-worn camera footage were testimonial in nature, they could only be admissible
if Ms. Monroe were present and available for cross-examination or if Mr. Wilcox had
a prior opportunity to cross-examine her. See Crawford, 541 U.S. at 68, 124 S.Ct. 1354,
158 L.E.2d 177. As neither of these circumstances occurred, the admission of her
police interview violated the requirements of the Confrontation Clause. We proceed
to review this Confrontation Clause violation for harmless error. See Smith, 2019-
Ohio-3257, 141 N.E.3d 590, at ¶ 14; State v. Beasley, 153 Ohio St.3d 497, 2018-Ohio-
493, 108 N.E.3d 1028, ¶ 178 (“Confrontation Clause claims are * * * subject to
harmless-error analysis.”).
{¶24} Crim.R. 52(A) governs the harmless error standard in the context of a
criminal case: “Under the harmless-error standard of review, the state bears the
burden of demonstrating that the error did not affect the substantial rights of the
defendant.” State v. Smith, 2023-Ohio-603, 209 N.E.3d 883, ¶ 103 (8th Dist.), citing
State v. Graham, 164 Ohio St.3d 187, 2020-Ohio-6700, 172 N.E.3d 841, ¶ 55. Mr.
Wilcox asserts that Ms. Monroe’s statements in Officer Price’s body-worn camera
video substantially prejudiced him by undermining his self-defense claim. The state
did not address the issue, other than to summarily conclude (without analysis) that
any error was harmless.
{¶25} The Ohio Supreme Court established a three-part test for determining
whether an error in the admission of evidence affected the substantial rights of the
defendant, thereby necessitating a new trial, or whether the admission of that evidence
constituted harmless error:
10 OHIO FIRST DISTRICT COURT OF APPEALS
First, it must be determined whether the defendant was prejudiced by
the error, i.e., whether the error had an impact on the verdict. Second,
it must be determined whether the error was not harmless beyond a
reasonable doubt. Lastly, once the prejudicial evidence is excised, the
remaining evidence is weighed to determine whether it establishes the
defendant’s guilt beyond a reasonable doubt.
(Citations omitted.) State v. Harris, 142 Ohio St.3d 211, 2015-Ohio-166, 28 N.E.3d
1256, ¶ 37, citing State v. Morris, 141 Ohio St.3d 399, 2014-Ohio-5052, 24 N.E.3d 1153.
Applying this analysis to the evidence in this case, we find that the erroneous
admission of Ms. Monroe’s statements to Officer Price regarding the shooting was not
harmless error and affected Mr. Wilcox’s substantial rights with respect to his murder
conviction.
{¶26} First, Mr. Wilcox suffered prejudice by virtue of the absence of other
witnesses to the shooting. Because the only surviving persons with personal
knowledge of the events giving rise to the murder charge were himself and Ms.
Monroe, we can reasonably infer that her statements carried particular weight with
the jury. This is especially true in light of the fact that “ ‘[s]elf-defense claims are
generally an issue of credibility.’ ” State v. Grayson, 8th Dist. Cuyahoga No. 110388,
2021-Ohio-4312, ¶ 24, quoting State v. Walker, 8th Dist. Cuyahoga No. 109328, 2021-
Ohio-2037, ¶ 13. Ms. Monroe’s statements undermined Mr. Wilcox’s credibility, thus
tilting the scale away from the jury finding that he acted in self-defense. And many of
Ms. Monroe’s statements, particularly those expressing her distress at the events and
those regarding her pregnancy, painted her as a sympathetic witness, further chipping
away at Mr. Wilcox’s defense by prejudicing the jury against him. Therefore, Mr.
11 OHIO FIRST DISTRICT COURT OF APPEALS
Wilcox was prejudiced by the erroneous admission of Officer Price’s body-worn
camera footage containing statements that undermined his self-defense claim. See
Harris at ¶ 37, 39.
{¶27} Second, to determine whether error in the admission of evidence is
harmless beyond a reasonable doubt, we consider whether “ ‘there is [no] reasonable
possibility that the improperly admitted evidence contributed to the conviction.’ ”
Smith, 2023-Ohio-603, 209 N.E.3d 883, at ¶ 106, quoting State v. McKelton, 148 Ohio
St.3d 261, 2016-Ohio-5735, 70 N.E.3d 508, ¶ 192. Ohio’s recently amended self-
defense law requires that, “if there is evidence presented at trial that tends to support
that the defendant used force against another in self-defense or in defense of another,
the state must prove beyond a reasonable doubt that the defendant did not use the
force in self-defense or defense of another.” State v. Smith, 1st Dist. Hamilton No. C-
190507, 2020-Ohio-4976, ¶ 49, citing R.C. 2901.05(B)(1). “Once the initial showing
is made, the burden of persuasion requires the state to disprove at least one of the
elements of self-defense * * * beyond a reasonable doubt.” Id. at ¶ 49. Specifically, to
carry its burden of disproving self-defense involving deadly force, the state must
“[prove] beyond a reasonable doubt that the defendant (1) was at fault in creating the
situation giving rise to the affray; or (2) did not have a bona fide belief that [he] was in
imminent danger of death or great bodily harm for which the use of deadly force was
[his] only means of escape.” Id. at ¶ 50; see State v. Mitchell, 1st Dist. Hamilton No.
C-220471, 2023-Ohio-2604, ¶ 17, citing R.C. 2901.09(B) (explaining that a person no
longer has a duty to retreat before using self-defense if that person is in a place in
which he or she has a lawful right to be).
12 OHIO FIRST DISTRICT COURT OF APPEALS
{¶28} In the video, Ms. Monroe’s description of the events of the night differs
critically from Mr. Wilcox’s—she states that he drove past her and Mr. Turner and shot
out of his car window at the pair, hitting Mr. Turner. She mentions nothing of the
interaction that Mr. Wilcox claims occurred between him and Mr. Turner that led to
his belief that he was threatened. Considering this, in addition to the above prejudice
analysis, Ms. Monroe’s statements in Officer Price’s body-worn camera video surely
prejudiced the jury against Mr. Wilcox, making the jurors less likely to believe that he
acted in self-defense. Therefore, there exists a reasonable possibility that the
improperly admitted evidence contributed to his murder conviction. See Smith, 2023-
Ohio-603, 209 N.E.3d 883, at ¶ 106.
{¶29} Finally, as to the third prong of the harmless error analysis, the state’s
case is much weaker without the offending evidence. Again, Mr. Wilcox’s testimony
describing that he saw Mr. Turner reach for his gun and felt threatened, in addition to
the police finding a gun on Mr. Turner, certainly tended to support that he resorted to
the use of deadly force in self-defense. The state was therefore required to disprove
self-defense beyond a reasonable doubt. And in the absence of Ms. Monroe’s
statements casting doubt on Mr. Wilcox’s character, very little evidence presented by
the state tends to prove that he did not act in self-defense. Therefore, her statements
could easily have tipped the scales in favor of a conviction.
{¶30} We sustain Mr. Wilcox’s first assignment of error in part, holding that
the trial court erred in allowing Officer Price’s body-worn camera footage to be shown
at trial. But we overrule this assignment of error insofar as it relates to the admission
of the video recorded by Ms. Maghathe. Mr. Wilcox is entitled to a new trial on the
murder charge at which the jury can reach a decision without considering the
13 OHIO FIRST DISTRICT COURT OF APPEALS
improper and prejudicial statements made by Ms. Monroe in Officer Price’s body-
worn camera footage.
{¶31} But the new trial only implicates the murder charge (we have no
jurisdiction to address his felonious assault or second murder counts because they
were merged with the first count for murder). Self-defense is available as a defense to
a defendant’s intentional use of force, see Grayson, 8th Dist. Cuyahoga No. 110388,
2021-Ohio-4312, at ¶ 25, and neither the offense of having weapons while under
disability nor the offense of tampering with evidence involves a use of force. See R.C.
2923.13(A)(3); R.C. 2921.12(A)(1). Therefore, Mr. Wilcox’s self-defense claim would
only serve as a defense to the murder charge, not to his convictions for tampering with
evidence or having weapons while under disability.
{¶32} We proceed to address Mr. Wilcox’s remaining assignments of error
insofar as they relate to his convictions for having weapons under disability and
tampering with evidence, as the improper evidence does not bear on these convictions.
Our resolution of this assignment of error renders Mr. Wilcox’s remaining challenges
to his murder conviction moot, see State v. Parrish, 1st Dist. Hamilton No. C-190379,
2020-Ohio-4807, ¶ 16, citing App.R. 12(A)(1)(c), except for his second assignment of
error—which we explain in further detail below.
III.
{¶33} In his second assignment and third assignments of error—which he
argues together—Mr. Wilcox claims that his conviction for murder was based on
insufficient evidence and against the manifest weight of the evidence. Sustaining the
first assignment of error renders his manifest weight challenge to these convictions
moot. See Parrish at ¶ 16, citing App.R. 12(A)(1)(c). But we are still required to 14 OHIO FIRST DISTRICT COURT OF APPEALS
address Mr. Wilcox’s second assignment of error challenging the sufficiency of the
evidence underpinning his murder conviction, because “[a]n assignment of error
challenging the sufficiency of the evidence is potentially dispositive of a defendant’s
conviction and may not be rendered moot by a remand on any other assignment of
error.” State v. Gideon, 165 Ohio St.3d 156, 2020-Ohio-6961, 176 N.E.3d 720, ¶ 2.
{¶34} To determine the sufficiency of the evidence to support a criminal
conviction, we consider whether, after viewing the evidence in the light most favorable
to the state, any reasonable trier of fact could have found all the essential elements of
the offense proven beyond a reasonable doubt. State v. MacDonald, 1st Dist.
Hamilton No. C-180310, 2019-Ohio-3595, ¶ 12, quoting State v. Martin, 20 Ohio
App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). We review sufficiency determinations
de novo, State v. Dent, 163 Ohio St.3d 390, 2020-Ohio-6670, 170 N.E.3d 816, ¶ 15,
and we must not weigh the evidence. MacDonald at ¶ 12.
{¶35} First, Mr. Wilcox argues that, because the evidence shows that he acted
in self-defense, there exists insufficient evidence to convict on the murder count.
However, this issue is one of manifest weight so we decline to review it for sufficiency.
See State v. Messenger, Slip Opinion No. 2022-Ohio-4562, ¶ 27 (“The state’s new
burden of disproving the defendant’s self-defense claim beyond a reasonable doubt is
subject to a manifest-weight review on appeal, and the [appellate court] correctly
declined to review the state’s rebuttal of self-defense for sufficiency of the evidence.”).
{¶36} Second, Mr. Wilcox insists that the state failed to introduce sufficient
evidence for the factfinder to reasonably conclude that the location of the offense was
in Hamilton County, Ohio.
15 OHIO FIRST DISTRICT COURT OF APPEALS
{¶37} “ ‘Under Article I, Section 10 [of the Ohio Constitution] and R.C.
2901.12, evidence of proper venue must be presented in order to sustain a conviction
for an offense.’ ” State v. Foreman, 166 Ohio St.3d 204, 2021-Ohio-3409, 184 N.E.3d
70, ¶ 13, quoting State v. Hampton, 134 Ohio St.3d 447, 2012-Ohio-5688, 983 N.E.2d
324, ¶ 20. “[V]enue must be proved beyond a reasonable doubt in a criminal case.”
State v. Robinson, 1st Dist. Hamilton No. C-180153, 2018-Ohio-4433, ¶ 4, quoting
State v. Gardner, 42 Ohio App.3d 157, 158, 536 N.E.2d 1187 (1st Dist.1987).
{¶38} Here, Officers Price and Casch, Mr. Sweet, and Detective Sieving all
testified that the crime scene was in Hamilton County, Ohio. Each of them had
personal knowledge of the location of the crime scene. Because a civilian witness, a
Cincinnati Police homicide detective, and multiple police officers who responded to
the scene of the crime—all with personal knowledge of the location of the crime scene—
testified that the offense occurred in Hamilton County, Ohio, any reasonable trier of
fact could have found that venue was proven beyond a reasonable doubt.
{¶39} We overrule Mr. Wilcox’s second assignment of error, and his third
assignment of error is moot and we decline to address it.
IV.
{¶40} In his fourth assignment of error, Mr. Wilcox insists that he was denied
his right to the effective assistance of counsel. He specifically takes issue with trial
counsel’s failure to cross-examine a number of witnesses at trial.
{¶41} “ ‘In criminal proceedings, a defendant has the right to effective
assistance of counsel under both the United States and Ohio Constitutions.’ ” State v.
Solorio, 1st Dist. Hamilton No. C-210526, 2022-Ohio-3749, ¶ 33, quoting State v.
Evick, 12th Dist. Clinton No. CA2019-05-010, 2020-Ohio-3072, ¶ 45, citing the Sixth
16 OHIO FIRST DISTRICT COURT OF APPEALS
Amendment to the United States Constitution, and Article I, Section 10, Ohio
Constitution. To prevail on an ineffective assistance of counsel claim, the defendant
must demonstrate that (1) “counsel’s performance was deficient,” and (2) “the
deficient performance prejudiced the defense.” Strickland v. Washington, 466 U.S.
668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To show prejudice, a defendant
“must prove that there exists a reasonable probability that, were it not for counsel’s
errors, the result of the trial would have been different.” State v. Bradley, 42 Ohio
St.3d 136, 143, 538 N.E.2d 373 (1989).
{¶42} On the record before us, it cannot be said that trial counsel’s failure to
cross-examine the identified witnesses resulted in prejudice to Mr. Wilcox with respect
to his weapons under disability and tampering with evidence charges. While
testifying, Mr. Wilcox admitted to having weapons under disability and to tampering
with evidence. These charges almost certainly resulted in convictions due to Mr.
Wilcox’s admission of guilt, so there does not exist a reasonable probability cross-
examining certain witnesses would have changed the outcome of the trial with respect
to these two convictions. Because a defendant must prove both deficient performance
and prejudice in order to prevail on an ineffective assistance claim, see Strickland at
687, and Mr. Wilcox cannot show prejudice, there is no need to consider whether trial
counsel’s performance was deficient. We overrule his fourth assignment of error.
V.
{¶43} In his fifth assignment of error, Mr. Wilcox argues that the trial court
abused its discretion when it refused to include certain requested jury instructions on
self-defense. This assignment of error relates only to his murder conviction, so it is
moot in light of our resolution of the first assignment of error. See App.R. 12(A)(1)(c).
17 OHIO FIRST DISTRICT COURT OF APPEALS
VI.
{¶44} In his sixth and final assignment of error, Mr. Wilcox challenges the
length of his sentence. He argues that, based on the record before it, the trial court
should have made his sentences for counts 5 and 6—for having weapons under
disability and tampering with evidence, respectively—concurrent to his murder
sentence.
{¶45} Because our resolution of the first assignment of error reverses Mr.
Wilcox’s murder conviction and sentence and orders a new trial on that charge, there
no longer presently exists a sentence on the murder charge to which Mr. Wilcox’s
tampering with evidence and weapons under disability sentences could run
concurrently. This issue is therefore moot. See App.R. 12(A)(1)(c).
* * *
{¶46} In light of the foregoing analysis, we sustain Mr. Wilcox’s first
assignment of error in part. We reverse the trial court’s judgment in part and remand
this cause for a new trial on the murder charge, consistent with this opinion and the
law. We otherwise affirm the trial court’s judgment, overruling his fourth assignment
of error with respect to Mr. Wilcox’s convictions for having weapons under disability
and tampering with evidence. We also overrule his second assignment of error, and
his third, fifth, and sixth assignments of error are moot.
Judgment accordingly. KINSLEY, J., concurs. WINKLER, J., concurring in part and dissenting in part.
WINKLER, J., concurring in part and dissenting in part.
18 OHIO FIRST DISTRICT COURT OF APPEALS
{¶47} I respectfully dissent from the majority’s holding that Monroe’s
statements captured by Officer Price’s body-worn camera were testimonial, and that
therefore, their admission into evidence violated Wilcox’s right to confront the
witnesses against him. I am convinced that Monroe’s statements were nontestimonial
and were admissible into evidence under the excited-utterance exception to the
hearsay rule.
{¶48} The Sixth Amendment to the United States Constitution states, “In all
criminal prosecutions, the accused shall enjoy the right * * * to be confronted with the
witnesses against him.” In Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158
L.Ed.2d 177 (2004), the United States Supreme Court held that the Confrontation
Clause bars “testimonial statements of a witness who did not appear at trial unless he
was unavailable to testify, and the defendant had a prior opportunity for cross-
examination.” Id. at 53-54.
{¶49} The Court stated in Crawford that the “use of ex parte examinations as
evidence against the accused” is the principal evil the clause was meant to remedy.
State v. Robinson, 1st Dist. Hamilton No. C-060434, 2007-Ohio-2388, ¶ 13, quoting
Crawford at 50. It distinguished between testimonial and nontestimonial hearsay and
held that only testimonial statements implicate the Confrontation Clause. Crawford
at 68; State v. Stahl, 111 Ohio St.3d 186, 2006-Ohio-5482, 855 N.E.2d 834, ¶ 15-16.
{¶50} The right to confrontation does not extend to nontestimonial hearsay
because that form of hearsay does not implicate the “Sixth Amendment’s core
concerns.” Crawford at 51; State v. Lewis, 1st Dist. Hamilton Nos. C-050989 and C-
060010, 2007-Ohio-1485, ¶ 30. “Where nontestimonial hearsay is at issue, it is wholly
consistent with the Framers’ design to afford States flexibility in their development of
19 OHIO FIRST DISTRICT COURT OF APPEALS
hearsay law * * *,” or to adopt an “approach that exempt[s] such statements from
Confrontation Clause scrutiny altogether.” Crawford at 68.
{¶51} I agree with the majority that Monroe’s statements in the cell phone
video taken by Maghathe were nontestimonial. They were admissible as excited
utterances under Evid.R. 803(B)(2). It provides, “The following are not excluded by
the hearsay rule, even though the declarant is available as a witness: * * * [a] statement
relating to a startling event or condition made while the declarant was under the stress
of excitement caused by the event or condition.”
{¶52} Monroe was reacting to the startling effect of her boyfriend being shot
minutes earlier by Wilcox. Maghathe described her as “frantic and scared.” Officer
Price described her as hysterical, crying and beating her chest, all of which is
confirmed by the video. Monroe’s statements were volunteered under circumstances
where there was no time to reflect and falsify her account of the event. See State v.
Goshade, 1st Dist. Hamilton No. C-120586, 2013-Ohio-4457, ¶ 8-9; State v.
Washington, 1st Dist. Hamilton No. C-090561, 2010-Ohio-3175, ¶ 26-29.
{¶53} Similarly, I would hold that Monroe’s statements to Officer Price
minutes after the shooting were nontestimonial. In Crawford, the Supreme Court
declined to “spell out a comprehensive definition” of “testimonial.” It stated that the
term “applies at a minimum” to prior testimony at a preliminary hearing, before a
grand jury, or at a former trial, and to police interrogations. Stahl, 111 Ohio St.3d 186,
2006-Ohio-5482, 855 N.E.2d 834, at ¶ 15; State v. Robinson, 1st Dist. Hamilton No.
C-060434, 2007-Ohio-2388, ¶ 13. Police interrogations “fall squarely within” the class
of statements the Confrontation Clause seeks to exclude.” Crawford, 541 U.S. at 53,
124 S.Ct. 1354, 158 L.Ed.2d 177; Stahl at ¶ 17. Nevertheless, the Court made clear that
20 OHIO FIRST DISTRICT COURT OF APPEALS
it was using the term “interrogation” in “its colloquial, rather than any technical legal
sense.” Police interrogation could take many forms and not all would result in
testimonial statements. Davis v. Washington, 547 U.S. 813, 822, 126 S.Ct. 2266, 165
L.Ed.2d 224 (2006); State v. Nix, 1st Dist. Hamilton No. C-030696, 2004-Ohio-5502,
¶ 74.
{¶54} In the context of excited utterances made to police officers, the United
States Supreme Court has held that the key to determining whether statements are
testimonial is whether the questioning by police or a police counterpart was seeking
information needed to respond to a present emergency or whether it was seeking
information about past events as part of the investigation of a crime. Davis at 822;
Washington, 1st Dist. Hamilton No. C-090561, 2010-Ohio-3175, at ¶ 35.
{¶55} It stated:
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.
{¶56} In assessing whether a statement is testimonial, the court must
“objectively evaluate the circumstances in which the encounter occur[red] and the
statements and actions of the parties.” State v. Jones, 135 Ohio St.3d 10, 2012-Ohio-
21 OHIO FIRST DISTRICT COURT OF APPEALS
5677, 984 N.E.2d 948, ¶ 150, quoting Michigan v. Bryant, 562 U.S. 344, 359, 131 S.Ct.
1143, 179 L.Ed.2d 93 (2011). The focus is not on the subjective or actual purpose or
intent of the interrogator or the declarant, but on “the purpose that reasonable
participants would have had under the same circumstances.” Jones at ¶ 105; Goshade,
1st Dist. Hamilton No. C-120586, 2013-Ohio-4457, at ¶ 15. The focus must be on the
parties at the time of the interrogation and not based on hindsight. Jones at ¶ 150;
Goshade at ¶ 15. Whether an emergency existed is “a highly context-dependent
inquiry.” Jones at ¶ 151.
{¶57} Through most of the approximately ten minute video captured by
Officer Price’s body worn camera, Monroe was shaking and crying and clutching her
chest. The scene was chaotic. Another police officer seemingly told several loud
bystanders to get back. Another bystander attempted to comfort Monroe. Paramedics
had arrived and were tending to Turner’s injuries. CPR was being performed on
Turner, who appears to be in extremis a few feet from Monroe. Emergency personnel
are seen walking past Monroe carrying a gurney. These circumstances did not, as the
majority states, indicate that “there was no longer an ongoing emergency.”
{¶58} In response to Officer Price’s questions, Monroe identified Wilcox as the
shooter, stated his age, and described his clothing and the car he was driving. After
six minutes, Officer Price indicates that they have the suspect “maybe.” He asked
Monroe for her name and address and other personal information. Next, he asked
her what “the other guy” was so mad about. Then Monroe began to talk about her
former relationship with Wilcox. She was speaking quickly, and the information
seemed to just spill out. At that time, she again began audibly sobbing. A female
officer approached Monroe, asked her if she was alright and tried to comfort her. She
22 OHIO FIRST DISTRICT COURT OF APPEALS
asked Monroe if she had any “kids,” and Monroe stated that she was pregnant. The
female officer told her that she needed to try and calm down. Subsequently, Monroe
and the female officer walked out of the camera range. Officer Price then asked,
“Didn’t they say they had him in custody, or is that someone else?” A voice on the
radio confirmed that they did.
{¶59} Officer Price’s interview of Monroe was not the sort of “evil” the
Confrontation Clause was designed to prevent. The situation was fluid, and the police
were responding to an ongoing emergency. The questioning was not a structured
police interview. It was informal, and occurred just minutes after the shooting, as
opposed to hours. See State v. Smith, 2019-Ohio-3257, 141 N.E.3d 590, ¶ 12 (1st Dist.)
(startling event occurred hours before police questioning). Contrary to the majority’s
assertion, Officer Price was not sure that the suspect had been apprehended. His
questions were not leading, and he sought to discover what had happened and why, so
as to appropriately respond to an ongoing emergency, not to gather facts for a later
prosecution. Under the totality of the circumstances, Monroe’s statements in the
body-camera video were nontestimonial. The majority’s interpretation of testimonial
would render testimonial anything said to a police officer involved in investigating a
crime and render Evid. R. 803(2) meaningless when police officers are involved. See
Nix, 1st Dist. Hamilton No. C-030696, 2004-Ohio-5502, at ¶ 77.
{¶60} Wilcox did not specifically argue below or in his brief that Monroe’s
statements were testimonial. He contends that they lacked adequate indicia of
reliability. In Crawford, the Supreme Court overruled in part its previous decision in
Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980), which had
permitted the admission of hearsay statements made by unavailable witnesses against
23 OHIO FIRST DISTRICT COURT OF APPEALS
criminal defendants if the statements bore “adequate indicia of reliability.” Crawford,
541 U.S. at 40, 124 S.Ct. 1354, 158 L.Ed.2d 177; Lewis, 1st Dist. Hamilton Nos. C-
050989 and C-060010, 2007-Ohio-1485, at ¶ 29. Shortly after Crawford was decided,
this court stated, “Crawford does not appear to affect the continuing viability of
Roberts with respect to nontestimonial hearsay.” Nix at ¶ 73, fn. 9.
{¶61} Under Roberts, an out-of-court statement had adequate indicia of
reliability if it either fell “within a firmly rooted hearsay exception” or “exhibited
particular guarantees of trustworthiness.” Roberts at 66. The excited-utterance
exception has been found to be a firmly rooted hearsay exception. See White v. Illinois,
502 U.S. 346, 355, 112 S.Ct. 736, 116 L.Ed.2d 848 (1992), fn. 8; State v. Jordan, 8th
Dist. Cuyahoga No. 70783, 1997 Ohio App. LEXIS 5107, 15-18 (Nov. 13, 1997); State v.
Stapleton, 2d Dist. Montgomery No. 13579, 1993 Ohio App. LEXIS 2680, 9-10 (June
22, 1994); State v. Barton, 71 Ohio App.3d 455, 466-467, 594 N.E.2d 702 (1st
Dist.1991).
{¶62} Monroe’s statements in the body-camera video clearly fell within the
hearsay exception for excited utterances. Her demeanor depicted in the video
demonstrates that she was still under the influence of the startling event, having
observed her boyfriend being shot minutes earlier. See State v. Hamm, 1st Dist.
Hamilton Nos. C-16230 and C-16231, 2017-Ohio-5595, ¶ 33; Goshade, 1st Dist.
Hamilton No. C-120586, 2013-Ohio-4457, at ¶ 9. The fact that she was responding to
Officer Price’s questions did not prelude the admission of her statements as excited
utterances. The admission of statements as excited utterances is not precluded by
questioning that (1) is not coercive or leading, (2) facilitates the declarant’s expression
of what is already the natural focus of the declarant’s thoughts, and (3) does not
24 OHIO FIRST DISTRICT COURT OF APPEALS
destroy “the domination of the nervous excitement over the declarant’s reflective
facilities.” Washington, 1st Dist. Hamilton No. C-090561, 2010-Ohio-3175, ¶ 28,
quoting State v. Leonard, 104 Ohio St.3d 54, 2004-Ohio-6235, 818 N.E.2d 229, ¶ 95.
Officer Price’s questioning met these requirements.
{¶63} Even if the admission of Monroe’s statements was error, a constitutional
violation can be harmless error if it did not, beyond a reasonable doubt, contribute to
the conviction. State v. Matthews, 1st Dist. Hamilton Nos. C-060669 and C-060092,
2007-Ohio-4881, ¶ 13; Robinson, 1st Dist. Hamilton No. C-060434, 2007-Ohio-2388,
at ¶ 16. The majority asserts that the state’s case was “weaker without the offending
statements.” I disagree.
{¶64} Shortly after the gunshot was heard, Wilcox’s car appeared on a video
surveillance camera speeding away from the scene. He threw away the gun before
Officer McGrath saw him “flying through the intersection against the red light.” After
he stopped Wilcox’s car, Wilcox was “sweaty” and “nervous.” He claimed that he had
been in northern Kentucky, not near the library, and that his brakes had failed. When
Detective Sieving interviewed him, he again lied to the police about his whereabouts.
It was only after he had been indicted that he claimed the shooting was in self-defense.
{¶65} At trial, Wilcox testified that he believed that when Turner leaned back
and put his hand on the left side where Turner’s gun holster was located Turner was
going to pull the gun out of his holster, so Wilcox grabbed his own gun and shot
Turner. This claim was contradicted by the video showing that when paramedics
rolled Turner over, his gun holster was tucked in his pants in the middle of his back.
{¶66} The majority’s contention that Monroe’s statements affected the jury is
purely speculative. Under the circumstances, I would hold that the admission of
25 OHIO FIRST DISTRICT COURT OF APPEALS
Monroe’s statements in the body camera video did not contribute to Wilcox’s
conviction, and therefore, any error was harmless.
{¶67} In sum, I would hold that Monroe’s statements to Officer Price in the
officer’s body-camera video were nontestimonial and were properly admitted into
evidence as excited utterances. Accordingly, I would overrule Wilcox’s first
assignment of error. I would also overrule his remaining assignments of error and
affirm his convictions.
Please note:
The court has recorded its entry on the date of the release of this opinion.