State v. Yatson

2022 Ohio 2621

• Court: Ohio Court of Appeals
• Decided: August 1, 2022
• Docket: 20CA011658
• Status: Published

Opinion

[Cite as State v. Yatson, 2022-Ohio-2621.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF LORAIN )

STATE OF OHIO C.A. No. 20CA011658

Appellee

v. APPEAL FROM JUDGMENT ENTERED IN THE RYAN YATSON COURT OF COMMON PLEAS COUNTY OF LORAIN, OHIO Appellant CASE No. 16CR094758

DECISION AND JOURNAL ENTRY

Dated: August 1, 2022

TEODOSIO, Presiding Judge.

{¶1} Defendant-Appellant, Ryan Yatson, appeals from the judgment of the Lorain

County Court of Common Pleas. This Court affirms.

I.

{¶2} Shortly before 6:30 a.m. one Saturday morning, someone fired thirty shots into

C.R.’s home using an AR-15 and armor-piercing rounds. C.R., his sister, and his father were home

at the time, and one of the rounds struck C.R.’s sister in the back of her shoulder. C.R.’s father

was awake when the shooting began and immediately called 911 for help. While his father was

speaking with the dispatcher, C.R. began screaming that he knew Mr. Yatson was responsible for

the shooting.

{¶3} C.R. and Mr. Yatson had been acquainted for over twenty years and generally had

a good relationship. A week before the shooting, however, C.R. drank too much at a small party

Mr. Yatson was hosting and became disruptive. A fight broke out between them, and, during the 2

affray, C.R. was beaten. He walked home after the incident and did not have any contact with Mr.

Yatson over the next week.

{¶4} The night before the shooting, C.R. attended a concert in Cleveland with a large

group of friends. During the concert, he began receiving phone calls from Mr. Yatson and another

man, J.H. He initially answered the calls but stopped after a while because Mr. Yatson and J.H.

were threatening him. When Mr. Yatson and J.H. continued to call, C.R. silenced his cell phone

and allowed the calls to go to voicemail. The calls continued until approximately fifteen minutes

before the shooting and generally consisted of disparaging remarks and taunts, daring C.R. to fight

and threatening him and his family. About twenty minutes before the shooting, C.R. posted on

social media that he had arrived back home safely from the concert. He was already asleep when

the shooting began.

{¶5} The police responded to C.R.’s home in the wake of the shooting, ensured that

C.R.’s sister was transported to the hospital, and began collecting evidence. Several officers then

drove to Mr. Yatson’s home, which was located a few streets away. Mr. Yatson’s garage door

was partially open when the police arrived, and officers heard two voices coming from inside the

garage. Mr. Yatson and J.H. emerged from the garage shortly thereafter, at which point the police

took them into custody. The police found a third man, W.S.-T., passed out on the floor of Mr.

Yatson’s garage and also took him into custody.

{¶6} A car was parked in Mr. Yatson’s driveway, and officers noted that its engine was

still warm. Officers also found casings from three armor-piercing rounds on the back deck of the

car, and an AR-15 with armor-piercing bullets on a shelf inside Mr. Yatson’s bedroom closet. Mr.

Yatson, J.H., and W.S.-T. all tested positive for the presence of gunshot residue, and ballistics

testing confirmed that Mr. Yatson’s AR-15 had been used to shoot C.R.’s home. Based on the 3

angle and spacing of the shots that had been fired into C.R.’s home, the presence of casings inside

the car in Mr. Yatson’s driveway, and the lack of any casings on the ground or street outside C.R.’s

home, the police theorized that all of the shots fired at C.R.’s home had been fired from the vehicle

parked in Mr. Yatson’s driveway while it was traveling on the street directly alongside C.R.’s

home.

{¶7} Mr. Yatson was charged with felonious assault based on serious physical harm,

felonious assault based on physical harm by means of a deadly weapon, improperly discharging a

gun into a habitation, discharging a firearm on a public road, and improperly handling a firearm in

a motor vehicle. Additionally, each of his counts contained two firearm specifications. The first

specification linked to each count related to displaying, brandishing, indicating possession of, or

using a firearm to facilitate his offenses. The second specification linked to each count related to

discharging a firearm from a motor vehicle.

{¶8} At trial, the State argued that Mr. Yatson perpetrated the shooting but also that he

was complicit in the commission of each offense. The jury found Mr. Yatson not guilty of

felonious assault based on serious physical harm but was unable to reach a verdict on his remaining

counts. Thus, the trial court declared a mistrial on those counts and set the matter for further

proceedings. A second jury trial later commenced, and the State once again argued complicity as

an alternative theory.

{¶9} After the evidentiary phase of the second trial concluded and deliberations began,

a variety of issues arose. First, the court received several questions from the jury about complicity

and its application. Second, the court met with a juror in chambers because she alerted the court’s

bailiff that she was struggling with the stressful nature of deliberations. Third, the jury notified

the court on the second day of deliberations that they were at an impasse. The court responded to 4

the jury’s communications by either providing them with written responses or meeting with them

to issue additional instructions. Finally, on the third day of deliberations, the jury notified the court

that they had reached a decision on most counts but were deadlocked on others. At that point, the

court also was notified of two potential issues that caused it to question three jurors. The court

questioned two jurors about a conversation they had with one another during a smoke break. The

court questioned a third juror because she was seen mouthing an apology to people seated in the

gallery of the courtroom during a pause in deliberations. As a result of each of the foregoing

issues, Mr. Yatson repeatedly moved for a mistrial. Each time, the trial court denied his motion.

{¶10} Once the jury confirmed they were deadlocked and further deliberations would

prove futile, the court accepted their partial verdict. The jury found Mr. Yatson guilty of felonious

assault based on physical harm by means of a deadly weapon, improperly discharging a gun into

a habitation, and discharging a firearm on a public road. Further, the jury found Mr. Yatson guilty

of the first firearm specification linked to each of those counts. The jury was unable to reach a

unanimous decision on the remaining count of improperly handling a firearm in a motor vehicle

and the second firearm specification linked to each of his counts (i.e., for discharging a firearm

from a motor vehicle). Mr. Yatson’s remaining count and specifications were later nolled.

{¶11} After the trial court dismissed the jury, the court began collecting the jury’s notes

from the jury room. It then discovered a photocopy of a dictionary page containing a definition of

the word “complicity.” The court notified the attorneys of its discovery, and Mr. Yatson responded

by filing a motion for a new trial or, in the alternative, a motion to declare a mistrial. The State

filed a brief in opposition, and the court conducted a hearing. At the hearing, the court determined

that the best course of action would be to voir dire each juror regarding the photocopy it had found. 5

The court and the parties then individually met with each juror, and each juror answered their

questions about the photocopy and its impact on deliberations.

{¶12} Once each juror had been questioned, Mr. Yatson filed a supplement to his motion

for a new trial, and the State filed a supplement to its brief in opposition. The trial court reviewed

the filings and denied Mr. Yatson’s motion on the record in open court. The court then sentenced

Mr. Yatson to a total of fourteen years in prison.

{¶13} Mr. Yatson now appeals from his convictions and raises five assignments of error

for our review. To facilitate that review, this Court rearranges several of the assignments of error.

II.

ASSIGNMENT OF ERROR I

THE TRIAL COURT ERRED TO THE PREJUDICE OF THE APPELLANT BY FAILING TO DECLARE A MISTRIAL BASED ON JUROR MISCONDUCT.

{¶14} In his first assignment of error, Mr. Yatson argues that the trial court erred when it

failed to declare a mistrial based on three separate instances of juror misconduct. We do not agree.

{¶15} “A trial court enjoys broad discretion in dealing with matters of juror misconduct.”

State v. Hickman, 9th Dist. Summit No. 27321, 2015-Ohio-4668, ¶ 31. Consequently, a court’s

ruling on a motion for mistrial or a motion for a new trial based on juror misconduct will be

reversed only for an abuse of discretion. State v. Roper, 9th Dist. Summit No. 29466, 2021-Ohio-

188, ¶ 8; State v. Dukes, 9th Dist. Summit No. 27966, 2019-Ohio-2893, ¶ 19. An abuse of

discretion implies the court’s decision is arbitrary, unreasonable, or unconscionable. Blakemore

v. Blakemore, 5 Ohio St.3d 217, 219 (1983). When applying this standard, a reviewing court is

precluded from simply substituting its own judgment for that of the trial court. Pons v. Ohio State

Med. Bd., 66 Ohio St.3d 619, 621 (1993). 6

{¶16} “When analyzing a case of alleged juror misconduct, it must be determined (1)

whether misconduct actually occurred and (2) whether the misconduct materially prejudiced the

defendant’s substantial rights.” State v. Morris, 9th Dist. Summit No. 25519, 2011-Ohio-6594, ¶

28. Accord Roper at ¶ 9. “Thus, even when juror misconduct has, in fact, occurred, a complaining

party must establish prejudice.” Hickman at ¶ 32. “[T]he trial judge is in the best position to

ascertain the nature of the alleged jury misconduct and to fashion the appropriate remedy if the

conduct did occur.” Dukes at ¶ 19. “A juror’s belief in his or her own impartiality is not inherently

suspect and may be relied upon by the trial court.” State v. Phillips, 74 Ohio St.3d 72, 89 (1995).

{¶17} We begin by addressing a short argument Mr. Yatson has made about prejudice in

the context of juror misconduct. Citing State v. Phillips, 74 Ohio St.3d 72 (1989), Mr. Yatson

argues that prejudice is presumed once juror misconduct is discovered. Since Phillips was decided,

however, the Ohio Supreme Court has squarely rejected the notion that a presumption of prejudice

arises in every instance of juror misconduct. See State v. Keith, 79 Ohio St.3d 514 (1997). The

Keith Court “reaffirmed a long-standing rule that a court will not reverse a judgment based upon

juror misconduct unless prejudice to the complaining party is shown.” Keith at 526. To the extent

Mr. Yatson argues otherwise, this Court rejects his argument. As the complaining party, Mr.

Yatson bore the burden of proving that any instances of juror misconduct materially prejudiced his

substantial rights. See Hickman at ¶ 32; Morris at ¶ 28; Roper at ¶ 9.

{¶18} Mr. Yatson claims that three separate instances of juror misconduct deprived him

of a fair trial. First, he argues that he was deprived of a fair trial when a juror brought an outside

definition of the word “complicity” into the jury room during deliberations. Second, he argues

that he was deprived of a fair trial when that same juror communicated with C.R.’s family by

mouthing the words “I’m sorry.” Finally, he argues that he was deprived of a fair trial when 7

members of the jury placed emotional pressure on another juror during deliberations, causing her

to reach out to the trial court. This Court will separately address each instance of alleged

misconduct.

Outside Definition of Complicity

{¶19} The trial court discovered a photocopy of a dictionary page while gathering the

jury’s notes from the jury room at the conclusion of the second trial. The photocopied page

contained a definition of the word “complicity.”1 The discovery of that outside definition

prompted a hearing with the parties and subsequent hearings wherein the court and the parties

questioned each juror about the outside definition and its impact, if any, on the verdict. Nine jurors

said they either did not see the outside definition or could not recall having seen it, did not recall

discussing it, and only relied on the court’s instructions in reaching their decision. Three jurors,

one of whom had brought in the outside definition, recalled the outside definition being discussed,

but clarified that it was only briefly referenced during a much larger conversation about complicity.

Those same three jurors also testified that they had reached their decision based strictly on the

court’s instructions and definitions.

{¶20} The trial court found that juror misconduct had occurred but that it had not

materially prejudiced Mr. Yatson’s substantial rights. The court reached the latter conclusion

based on several different factors. First, the court noted that it had conducted a thorough polling

1 The complicity definition at issue reads: “the state of being an accomplice; partnership or involvement in wrongdoing.” 8

of the jury at the conclusion of trial due to other issues that had arisen during deliberations. Each

juror was asked (1) whether the verdicts reached by the group were also the individual juror’s own

verdicts, (2) whether the juror’s verdicts had been impacted by any pressure exerted by other jurors

or any outside sources, (3) whether sympathy for either side had impacted the juror’s verdicts, and

(4) whether the juror’s verdicts were based on the evidence in the case and the law provided by

the court. The court emphasized that each juror had confirmed their verdict, the fact that his or

her verdict had not been impacted by pressure or sympathy, and the fact that his or her verdict had

been based on the evidence and the law provided by the court.

{¶21} Second, the court noted that a majority of the jury reported being unaware of the

outside definition of complicity or any discussion of it during deliberations. While three jurors

remembered the outside definition being discussed, the court did not consider their testimony to

be in conflict with that of the other jurors. Those three jurors sat next to one another during

deliberations, and the court found it unsurprising that different groups of jurors would be

discussing different issues as the larger conversation unfolded.

{¶22} Third, the court noted that any discussion of the outside definition that did occur

was minimal and was followed by at least another full day of deliberations. The juror who brought

in the outside definition testified that she referenced it a single time during a larger discussion of

complicity. Likewise, the two jurors sitting next to her only recalled the outside definition being

briefly raised in the context of a larger discussion that continued well after that point. The court

found that there was no discussion of the outside definition beyond that brief reference.

{¶23} Fourth, the court compared the outside definition of complicity with the definition

the court had included in its jury instructions. Though the court found its own definition more

precise, it determined that the two definitions were “not that significantly different.” The court 9

noted that the outside definition “wouldn’t have necessarily sent [a] juror on a completely different

path * * * [and] probably would not have calmed the curious juror, either.” Thus, the court did

not find that the outside definition contradicted or detracted from the complicity definition set forth

in the jury instructions.

{¶24} Finally, the court noted that every single juror testified under oath that they reached

their own verdicts based on the court’s instructions of law and its definition of complicity rather

than any outside definition. The court found each juror’s testimony in that regard to be credible.

That testimony, combined with the foregoing factors, led the court to conclude that the introduction

of the outside definition did not materially prejudice Mr. Yatson’s substantial rights.

{¶25} Mr. Yatson argues that the trial court erred when it failed to declare a mistrial. He

argues that complicity was “the ‘hot topic’ issue” at his trial, as evidenced by the jury’s questions

and each juror’s subsequent testimony that it was a focal point of deliberations. He notes that one

juror described two or three other jurors being stuck on the issue of complicity until the outside

definition helped those jurors come to a decision. Further, he notes that there was conflicting

testimony as to whether the outside definition was read aloud to the entire group. If the jurors

considered the outside definition, Mr. Yatson argues, that impropriety could not be cured with

simple assurances from the jurors that it did not influence their decision.

{¶26} The State concedes and the record supports the conclusion that juror misconduct

occurred when a juror brought an outside definition of complicity into the jury room. See, e.g.,

State v. Sheppard, 84 Ohio St.3d 230, 233 (1998); State v. Thomas, 9th Dist. Summit No. 26893,

2014-Ohio-2920, ¶ 37-38. Thus, the only question is whether the trial court abused its discretion

when it determined that the misconduct did not materially prejudice Mr. Yatson’s substantial

rights. See Roper, 2021-Ohio-188, at ¶ 8; Dukes, 2019-Ohio-2893, at ¶ 19. Having reviewed the 10

record, we cannot conclude that the trial court acted arbitrarily, unreasonably, or unconscionably

in reaching that determination. See Blakemore, 5 Ohio St.3d at 219.

{¶27} The record reflects that the trial court conducted extensive inquiries to determine

whether each juror had reached his or her verdicts based on the evidence and law provided by the

court. Each juror repeatedly affirmed that their verdicts were based on the evidence and the court’s

instructions rather than any outside source or definition. Mr. Yatson cites a single portion of one

juror’s testimony, wherein she stated that two or three jurors were stuck on the issue of complicity

and only reached a decision after the outside definition was introduced. That same juror later

clarified, however:

[JUROR]: I’m just saying it -- the conversation of complicity swayed the jurors. I wasn’t sure what you guys were getting at in the beginning of this whole thing. No, I didn’t mean the [outside definition] swayed anybody. I mean, the conversation of complicity did.

[QUESTION]: And what it means, and what the word means itself?

[JUROR]: And what the word means. But the words on that piece of paper were - -

[QUESTION]: Did not sway you; right?

[JUROR]: Correct.

That same juror also testified that she only remembered the outside definition being mentioned

once compared to the “hundreds of times” the jury reviewed the court’s instructions of law.

{¶28} It was not unreasonable for the trial court to rely on each juror’s testimony that the

outside definition did not impact the verdicts in this matter. See Phillips, 74 Ohio St.3d at 89. The

record reflects that the trial court conducted a thorough inquiry regarding the misconduct that

occurred and offered a detailed, well-reasoned rationale for its ruling. The trial court was in the

best position to determine whether a mistrial was warranted under the circumstances, see Dukes,

2019-Ohio-2893, ¶ 19, and this Court will not second-guess its decision, see Pons, 66 Ohio St.3d 11

at 621. Mr. Yatson failed to establish that his substantial rights were materially prejudiced by the

misconduct that occurred. See Hickman, 2015-Ohio-4668, at ¶ 39. Accordingly, the trial court

did not abuse its discretion when it refused to declare a mistrial.

Juror’s Alleged Communication with C.R.’s Family

{¶29} After deliberations commenced, the jury notified the court on several occasions that

they were unable to reach an agreement. The trial court initially addressed the jurors in the jury

room but later returned them to the courtroom to issue a Howard charge. Deliberations resumed

after the initial Howard charge and continued until the jury notified the court that further

deliberations would prove futile. The court then met with the parties to gain input as to its next

steps. At that point, the defense notified the court of two unrelated issues that required attention.

Relevant to the discussion herein, the defense informed the court that Juror 8 had been seen

mouthing an apology “to individuals they perceived as members of the complaining witness’s

family.” Mr. Yatson moved for a mistrial based on the improper communication.

{¶30} The trial court brought Juror 8 into the courtroom to discuss her alleged misconduct.

Juror 8 admitted that the last time the jury had come back into the courtroom as a group, she had

mouthed “I’m sorry” to people sitting in the courtroom.2 She indicated that the reason she

apologized was that she felt bad deliberations were taking so long. She specified that she felt bad

for everyone, including herself, and that her only purpose in apologizing was to convey that she

was sorry about the length of the deliberations. Juror 8 denied that there were any additional

reasons behind her decision to apologize. Further, when the court later polled her about her

2 The trial court later clarified that the side of the courtroom to which Juror 8 had directed her comment was the side of the courtroom where “people * * * generally associated with the State’s witnesses” were seated. 12

verdicts, she affirmed that they were based on the evidence and the law and had not been impacted

by any outside pressure or sympathy.

{¶31} Mr. Yatson argues that the trial court abused its discretion when it failed to declare

a mistrial due to Juror 8’s misconduct. According to Mr. Yatson, Juror 8 spoke with the

complaining witness’ family and did so in front of two other jurors during a smoke break. He

argues that Juror 8’s conduct was prejudicial to him “because it influenced the other two jurors to

have sympathy to the complaining witness’ family and therefore, against [him].”

{¶32} Although a separate instance of alleged juror misconduct took place during a smoke

break between different jurors, Juror 8’s alleged misconduct did not occur in the manner Mr.

Yatson has described. The record reflects that Juror 8 mouthed an apology to the gallery while

inside the courtroom. She did not speak with members of C.R.’s family. Additionally, there is no

indication in the record that any of her fellow jurors were aware she had mouthed an apology to

the gallery. Assuming without deciding that Juror 8 engaged in misconduct, Mr. Yatson has not

explained how her misconduct materially prejudiced his substantial rights under the foregoing

circumstances. See App.R. 16(A)(7). This Court will not create an argument on his behalf. See

Cardone v. Cardone, 9th Dist. Summit No. 18349, 1998 WL 224934, *8 (May 6, 1998). The trial

court questioned Juror 8 regarding her actions, Juror 8 did not express sympathy regarding any

substantive aspect of the case, and she later affirmed that her verdicts were not the result of any

outside pressures or sympathy. Mr. Yatson has not shown that the trial court abused its discretion

by denying his motion for a mistrial under the foregoing circumstances. Accordingly, this Court

rejects his argument insofar as it pertains to Juror 8’s alleged misconduct.

Pressure during Deliberations 13

{¶33} Finally, Mr. Yatson argues that he was deprived of a fair trial when jurors pressured

one of their fellow jurors, Juror 3, to convict him. He notes that, during deliberations, Juror 3

alerted the court that she was experiencing stress and felt the other jurors were not listening to her.

He also notes that a different juror later admitted apologizing to Juror 3 during a smoke break

about the way other jurors had spoken to her. Mr. Yatson argues that juror misconduct occurred

when jurors pressured Juror 3 because the jury clearly ignored the court’s instructions to listen to

their fellow jurors and be open to changing their opinions. Because the verdicts were a product of

peer pressure rather than free will, Mr. Yatson argues, the trial court abused its discretion by

denying his motion for a mistrial.

{¶34} The record reflects that the jury began deliberating just before lunch on a Tuesday.

The jury had two questions for the court by the end of the first day of deliberations, and the court

provided them with a written response before releasing them for the evening. Day two of their

deliberations began the following day and, sometime that morning, Juror 3 alerted the court’s

bailiff that she was feeling “very stressed.” The trial court then met with Juror 3 and the parties in

chambers to discuss her concerns.

{¶35} Juror 3 became upset while speaking with the court and apologized for being

emotional. She indicated that she was only in her mid-20s, her best friend had recently died, and

she felt that she was the only one in the jury room who was “maybe looking at things differently

* * *.” She expressed feeling “like the kid in the room” and not liking how she felt there. Even

so, Juror 3 indicated that she just needed a short break because she had gotten a bit overwhelmed

in the moment. She affirmed that she was capable of serving on the jury and would just like

another few minutes before resuming deliberations. 14

{¶36} Once Juror 3 left the trial court’s chambers, the court spoke with the attorneys. Mr.

Yatson initially asked the court to instruct Juror 3 about the unimportance of a juror’s age. After

further discussion, he also asked the court to issue a Howard charge. The trial court felt a Howard

charge was premature at that juncture but offered to reinstruct the jury about considering each

other’s opinions and deliberating with the objective of reaching an agreement. Mr. Yatson

assented to that instruction, and the court addressed the jury in the jury room. Deliberations

resumed after the court’s instruction but stalled later that same day. The court then issued a

Howard charge, and deliberations continued until the afternoon of the following day (i.e.,

Thursday).

{¶37} Once the jury notified the court that further deliberations would prove futile, the

court met with the parties to gain input as to its next steps. At that point, the defense notified the

court of two unrelated issues that required attention. Relevant to the discussion herein, Mr.

Yatson’s attorney informed the court that he had seen the jury foreman, Juror 10, speaking with

Juror 3 on a smoke break and waving his hand. Because that exchange occurred not long before

the jury notified the court that they had reached a decision on most of the counts, Mr. Yatson

believed Juror 10 might have spoken to Juror 3 about changing her vote. In response to that

concern, the trial court separately questioned Juror 10 and Juror 3.

{¶38} Juror 10 acknowledged that he had spoken with Juror 3 during a smoke break but

denied that they had talked about the merits of the case. He indicated that they had briefly spoken

about the deliberative process in general. While speaking with Juror 3, Juror 10 apologized to her

because she felt other jurors had not spoken to her nicely.

{¶39} Juror 3 likewise told the court that she and Juror 10 had discussed the deliberative

process in general. She stated that they had briefly talked about her “internal frustration of feeling 15

not being heard and being berated and belittled in the jury room.” Juror 3 confirmed that the

conversation had not been about the case itself. She also confirmed that the discussion had not

impacted her consideration of the merits of the case.

{¶40} Mr. Yatson subsequently moved for a mistrial, in part, because he continued to

believe that Juror 3 had been influenced by other jurors. The trial court refused to grant a mistrial

but added several questions to its inquiry when polling the jurors. As noted, each juror was asked

(1) whether the verdicts reached by the group were also the individual juror’s own verdicts, (2)

whether the juror’s verdicts had been impacted by any pressure exerted by other jurors or any

outside sources, (3) whether sympathy for either side had impacted the juror’s verdicts, and (4)

whether the juror’s verdicts were based on the evidence in the case and the law provided by the

court. Each juror, including Juror 3, confirmed their verdicts, the fact that their verdicts had not

been impacted by pressure or sympathy, and the fact that their verdicts had been based on the

evidence and the law provided by the court.

{¶41} Having reviewed the record, this Court cannot conclude that the trial court abused

its discretion when it denied Mr. Yatson’s motion for a mistrial. See Dukes, 2019-Ohio-2893, at

¶ 19. The Ohio Supreme Court has rejected the notion that juror misconduct occurs when jurors

place pressure on one another during deliberations. State v. Hessler, 90 Ohio St.3d 108, 120

(2000).

“The very object of the jury system is to secure unanimity by a comparison of views, and by arguments among the jurors themselves.” Allen v. United States, 164 U.S. 492, 501 (1896). The requirement of a unanimous decision, however, does not come without a price. Heightened emotions and intense feelings are part and parcel of this process. Experience tells us that during deliberations, it is not unusual to find heavy-handed influencing, browbeating, and even bullying to a certain extent. For always there is the possibility that “articulate jurors may intimidate the inarticulate, the aggressive may unduly influence the docile.” People v. De Lucia, 20 N.Y.2d 275, 278 (1967); People v. Redd, 164 A.D.2d 34, 37 (1990) (both cases providing policy reasons for rule prohibiting jurors to impeach their own verdicts). 16

Id. Given the foregoing, this Court is not convinced that Mr. Yatson demonstrated actual

misconduct based on the jury’s treatment of Juror 3.

{¶42} Even assuming Mr. Yatson successfully demonstrated misconduct on the part of

the jury, the record supports the trial court’s conclusion that he failed to establish material prejudice

to his substantial rights. See Hickman, 2015-Ohio-4668, at ¶ 39. The trial court questioned Juror

3 by herself on two separate occasions. She indicated that the stress she felt was due to a variety

of issues, including the recent death of her best friend, and that she was capable of remaining on

the jury. She repeatedly affirmed both in chambers and during the polling of the jury that her

decisions were her own and had not been impacted by any pressure or sympathy. Juror 3 “was

given the chance to declare in open court her assent to or dissent from the recommendations. Thus,

she was given the opportunity to change her mind if she desired.” Hessler at 121. Juror 3 never

did so. Under the foregoing circumstances, this Court cannot conclude that the trial court abused

its discretion when it denied Mr. Yatson’s motion for a mistrial. Thus, Mr. Yatson’s first

assignment of error is overruled.

ASSIGNMENT OF ERROR IV

THE VERDICT IN THIS CASE IS AGAINST THE SUFFICIENCY OF THE EVIDENCE AND SHOULD BE REVERSED BECAUSE IT VIOLATES THE FIFTH, SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION, AND ARTICLE I, SECTION 10 OF THE CONSTITUTION OF THE STATE OF OHIO.

{¶43} In his fourth assignment of error, Mr. Yatson argues that his convictions are based

on insufficient evidence. Specifically, he argues that the State failed to prove he was complicit in

the commission of any of his offenses. For the following reasons, this Court rejects his argument.

{¶44} Whether a conviction is supported by sufficient evidence is a question of law, which

this Court reviews de novo. State v. Thompkins, 78 Ohio St.3d 380, 386 (1997). “A challenge to 17

the sufficiency of the evidence concerns the State’s burden of production * * *” and is, “[i]n

essence, * * * a test of adequacy.” In re R.H., 9th Dist. Summit No. 28319, 2017-Ohio-7852, ¶

25; Thompkins at 386. “The relevant inquiry is whether, after viewing the evidence in a light most

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

the crime proven beyond a reasonable doubt.” State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph

two of the syllabus. However, “we do not resolve evidentiary conflicts or assess the credibility of

witnesses, because these functions belong to the trier of fact.” State v. Hall, 9th Dist. Summit No.

27827, 2017-Ohio-73, ¶ 10.

{¶45} A person commits felonious assault if he “knowingly * * * [c]ause[s] or attempt[s]

to cause physical harm to another * * * by means of a deadly weapon or dangerous ordnance.”

R.C. 2903.11(A)(2). The crime of improperly discharging a firearm into a habitation occurs when

a person, “without privilege to do so, [] knowingly * * * [d]ischarge[s] a firearm at or into an

occupied structure that is a permanent or temporary habitation of any individual * * *.” R.C.

2923.161(A)(1). Finally, a person commits the crime of discharging a firearm on or near a

prohibited premises if he “[d]ischarge[s] a firearm upon or over a public road or highway.” R.C.

2923.162(A)(3).

{¶46} Complicity is governed by R.C. 2923.03. Relevant to this appeal, the statute

prohibits any person “acting with the kind of culpability required for the commission of an offense”

from “[a]id[ing] or abet[ting] another in committing the offense * * *.” R.C. 2923.02(A)(2). “To

support a conviction for complicity by aiding and abetting * * *, the evidence must show that the

defendant supported, assisted, encouraged, cooperated with, advised, or incited the principal in the

commission of the crime, and that the defendant shared the criminal intent of the principal.” State

v. Johnson, 93 Ohio St.3d 240 (2001), syllabus. “Such intent may be inferred from the 18

circumstances surrounding the crime,” id. at syllabus, and “the presence, companionship, and

conduct of the defendant before and after the offense is committed.” In re T.K., 109 Ohio St.3d

512, 2006-Ohio-3056, ¶ 13.

{¶47} C.R. testified that he and Mr. Yatson were friends before this incident occurred and

had known each other for more than twenty years. The two lived in the same neighborhood, and,

the week before the shooting, C.R. went to a small party at Mr. Yatson’s house. C.R. became

extremely intoxicated during the party and ended up engaging in a fistfight with Mr. Yatson before

walking home. Although C.R. tried visiting Mr. Yatson a few times over the following week to

apologize for his behavior, he was never able to speak with him.

{¶48} The weekend after the fight, C.R. went to a concert in Cleveland with a large group

of friends. While at the concert, he began receiving phone calls and realized that the caller was

Mr. Yatson and another individual named J.H. C.R. had known J.H. for more than ten years and

acknowledged that they did not get along. He testified that Mr. Yatson and J.H. sounded

intoxicated on the calls and kept taunting him and encouraging him to return to Mr. Yatson’s house

to fight. C.R. eventually let the calls go to voicemail, and the State played the voicemails at trial.

Although the sound quality was poor, C.R. identified Mr. Yatson’s and J.H.’s voices on the calls.

He testified that they were talking about having sexual relations with his mother and his sister. He

also heard (1) Mr. Yatson remark that J.H. was “about to walk down there and do something[,]”

and (2) J.H. say he was “about to come do something with a shotgun and kablam.”

{¶49} C.R. estimated that he returned home from the concert between 5:30 and 6:00 a.m.

Before going to sleep, he posted on social media that he had arrived home safely. He then went to

bed and was awoken about twenty minutes later by the sound of gunfire. C.R. testified that he told

the police Mr. Yatson and J.H. were responsible for the shooting because of the threatening phone 19

calls they had made throughout the evening. C.R. also knew that Mr. Yatson owned an AR-15.

He testified that Mr. Yatson had allowed him to fire the gun sometime during the week preceding

their fight. C.R. fired the gun into the ground in Mr. Yatson’s backyard.

{¶50} Officer Brook Stewart responded to C.R.’s home after the shooting and remained

there for about an hour and a half before he and other officers went to Mr. Yatson’s home. Officers

slowly approached Mr. Yatson’s home on foot from different directions due to their concern that

he had a firearm. As they came closer, Officer Stewart testified, they could hear music and voices

coming from Mr. Yatson’s garage. The garage door was partially opened, and the officers waited

outside to further assess the situation. As the officers continued to wait, Mr. Yatson and J.H.

emerged from the garage, and officers took them into custody. The officers also found a third

man, W.S.-T., either sleeping or passed out on the floor of the garage and secured him.

{¶51} Mr. Yatson, J.H., and W.S.-T. had already been taken into custody by the time

Captain Kevin Jones arrived at Mr. Yatson’s home. Captain Jones testified that there was a four-

door vehicle parked in the middle of Mr. Yatson’s driveway. The car had recently been driven

because Captain Jones could feel that the engine compartment was warm. Additionally, when he

looked through the rear window, he spotted three spent casings on the back deck of the car on the

rear passenger’s side. The casings were consistent with AR-15 style rounds and collected for

testing.

{¶52} Captain Jones returned to Mr. Yatson’s house later that same day to help execute a

search warrant. Inside Mr. Yatson’s bedroom closet, he found an AR-15 and a rifle bag lying on

top of a storage cabinet. There was an armor piercing round chambered inside the AR-15, and the

weapon’s selector switch was in the “fire” position rather than the “[s]afe” position. The police

also found boxes of ammunition and two magazines with the AR-15, one of which was loaded 20

with armor piercing rounds and one of which was loaded with traditional AR-style rounds.

Additionally, the police found six spent casings inside a garbage can in Mr. Yatson’s bedroom and

six spent casings in a loft area inside Mr. Yatson’s garage. Captain Jones confirmed that Mr.

Yatson, J.H., and W.S.-T. were each swabbed for the presence of gunshot residue and all three

men tested positive.

{¶53} Officer Ian Wilshire acted as the evidence technician at C.R.’s house and employed

a laser measurement system to study the shots fired at the house. He identified thirty separate

gunshot holes in the house and indicated that the shots had not been fired from a single location.

Rather, each shot had been fired from a different point, meaning that the shooter was moving while

firing. He testified that he was at the house for four or five hours performing his analysis and

examining the area, but never found a single spent casing between the yard and the street.

{¶54} Lieutenant Greg Petek also responded to Mr. Yatson’s house after the shooting. He

was on scene when Mr. Yatson, J.H., and W.S.-T. were taken into custody and confirmed that all

three men were intoxicated. He testified that the men were patted down for weapons, and, inside

J.H.’s pocket, the police found the keys to the car parked in Mr. Yatson’s driveway. When

Lieutenant Petek asked Mr. Yatson and J.H. where the gun was, both men denied having a gun.

The lieutenant testified that Mr. Yatson specifically said “he didn’t have a gun, he didn’t know

where a gun would be[, and] * * * he didn’t know if anybody was in [his] house.”

{¶55} Lieutenant Petek testified that the police examined C.R.’s call history because he

told them he had received threatening calls before the shooting. The call history showed that C.R.

initially began receiving phone calls from Mr. Yatson’s number and, once he began ignoring them,

he began receiving calls from a second number belonging to J.H. and then a third number

belonging to W.S.-T. W.S.-T.’s phone number was used to call C.R. five times between 5:52 a.m. 21

and 6:05 a.m., approximately fifteen minutes before the shooting. Lieutenant Petek confirmed that

both Mr. Yatson’s and J.H.’s voices could be heard on the voicemails stemming from those calls.

{¶56} The following day, Lieutenant Petek met Mr. Yatson at the jail for an interview.

Although Mr. Yatson admitted that he owned the AR-15 the police found in his bedroom closet,

he claimed that he could not remember anything around the time of the shooting. He told the

lieutenant that he had a problem with alcohol and had blacked out from drinking. He did not

remember calling C.R. or having anything to do with the shooting. He told the lieutenant that he

remembered shooting his AR-15 in his backyard with J.H. and W.S.-T. the previous evening before

they started drinking. After that, he recalled playing beer pong at some later point and crawling

out from under his garage door before the police arrested him.

{¶57} One of Mr. Yatson’s neighbors also testified for the State. The neighbor testified

that she lived three houses down from Mr. Yatson and was hosting a sleepover for her son and his

friends the evening before the shooting. Because the kids were sleeping in the backyard, the

neighbor kept her windows open all night. She testified that she would have heard any loud noises

that evening because she was listening for issues with the children. Yet, the only gunfire she heard

in the neighborhood came sometime around 6:00 a.m. The neighbor confirmed that she had heard

gunfire in the neighborhood before, so she recognized the sound. She confirmed that she never

heard any gunfire the previous evening.

{¶58} The neighbor testified that, after she heard the gunfire, she got out of bed and went

outside to check on the children. She then came back into the house and made coffee. It is not

clear from the record exactly how long the neighbor remained inside, but she testified that she next

opened her garage door, went outside, and tried calling her husband. As she was standing in her

driveway, she saw an unfamiliar car come toward her and pull into Mr. Yatson’s driveway. The 22

neighbor knew Mr. Yatson and did not see him inside the car. She only saw “a tall blond kid” who

was not Mr. Yatson. Phone records showed calls between the neighbor and her husband at 7:09

a.m. and 8:02 a.m.

{¶59} The State introduced forensic evidence related to firearms analysis and DNA

analysis. A firearms analyst tested Mr. Yatson’s AR-15 and confirmed that the gun was operable.

He also compared cartridge cases he test-fired from the AR-15 with cartridge cases retrieved from

C.R.’s home and testified that they bore matching marks. He confirmed that the marks were

particular to Mr. Yatson’s AR-15, meaning that his AR-15 had been used in the shooting at C.R.’s

house. Mr. Yatson’s DNA profile was the only major profile found on a swab of the AR-15’s

magazine, and no additional profiles of sufficient quality were detected on any other swabs taken

from the gun. Of the swabs taken from a variety of spots throughout the car found in Mr. Yatson’s

driveway, J.H.’s DNA profile was the only major profile detected. His DNA profile was detected

on the steering wheel of the car.

{¶60} Lieutenant Petek testified that Mr. Yatson’s AR-15 would produce a very loud

sound when it was discharged. Indeed, he confirmed that the police received numerous calls when

the shooting at C.R.’s home occurred. Lieutenant Petek testified that the police were never able

to locate any individuals in Mr. Yatson’s neighborhood who heard gunfire at any point during the

previous evening when Mr. Yatson claimed he, J.H., and W.S.-T. had fired his AR-15 in his

backyard.

{¶61} Mr. Yatson argues that the State failed to prove he aided, abetted, or solicited J.H.

to commit the crimes with which he was charged.3 According to Mr. Yatson, Captain Jones

3 In his brief, Mr. Yatson repeatedly argues that the State failed to set forth sufficient evidence of conspiracy. Because the State only argued complicity as an alternative theory, this Court assumes that any reference to “conspiracy” on the part of Mr. Yatson amounts to a scrivener’s error. 23

specifically acknowledged that there was no evidence to establish his guilt. Further, Mr. Yatson

argues, his neighbor testified that she did not see him in J.H.’s car when it pulled into his driveway

shortly after the shooting. Mr. Yatson notes that there was no testimony about any agreement

between him, J.H., and W.S.-T. to commit the shooting or evidence that he was even aware the

shooting had occurred. Thus, he argues that his convictions are based on insufficient evidence.

{¶62} Viewing the evidence in a light most favorable to the State, a rational trier of fact

could have concluded that the State proved, beyond a reasonable doubt, that Mr. Yatson either

fired his AR-15 into C.R.’s house or was complicit in the commission of that shooting. See Jenks,

61 Ohio St.3d 259 at paragraph two of the syllabus. The jury heard testimony that Mr. Yatson

fought with C.R. the week before the shooting, that he and J.H. left threatening messages on C.R.’s

phone up until about fifteen minutes before the shooting, that his AR-15 was the gun used during

the shooting, that his DNA profile was the only major DNA profile detected anywhere on the gun,

that police found the gun back in his bedroom closet after the shooting, 24

that he initially lied about having a gun, and that swabs of his hands tested positive for the presence

of gunshot residue. While the evidence against Mr. Yatson was circumstantial in nature, it is well

established that “[c]ircumstantial evidence and direct evidence inherently possess the same

probative value.” Id. at paragraph one of the syllabus. Based on the circumstantial evidence

produced at trial, the jury reasonably could have concluded that Mr. Yatson perpetrated the

shooting or, in the alternative, that he aided and abetted J.H. in the commission of the shooting

while sharing his criminal intent. See Johnson, 93 Ohio St.3d 240, at syllabus. See also In re T.K.,

109 Ohio St.3d 512, 2006-Ohio-3056, at ¶ 13 (intent for complicity may be inferred from “the

presence, companionship, and conduct of the defendant before and after the offense is

committed”).

{¶63} To the extent Mr. Yatson claims that Captain Jones conceded there was no evidence

in support of the State’s case, the record reflects that Mr. Yatson has taken the captain’s testimony

out of context. Captain Jones testified as follows:

[DEFENSE COUNSEL]: As we sit here right now, do you have any evidence that somehow [Mr. Yatson] helped further shoot up a house?

[CAPTAIN JONES]: I don’t understand the question, sir.

[DEFENSE COUNSEL]: All right. Do you have any evidence that [Mr. Yatson] said to [J.H.], hey, go get [C.R.]?

[CAPTAIN JONES]: I do not.

[DEFENSE COUNSEL]: Or that [Mr. Yatson] said to [J.H.] or [W.S.-T.], hey, go shoot this house up?

[DEFENSE COUNSEL]: Do you have any evidence that [Mr. Yatson] somehow helped them further this act?

[CAPTAIN JONES]: I – other than what’s being presented here. 25

[DEFENSE COUNSEL]: So, * * * if someone was to come in here and say that somehow [Mr. Yatson] coerced, or forced somebody, or engaged them to do this act, we don’t have any evidence of that, do we?

[CAPTAIN JONES]: No.

(Emphasis added.) Captain Jones only testified that he was not aware of evidence against Mr.

Yatson beyond the evidence the State was already presenting. Further, the State was not required

to prove that Mr. Yatson “coerced,” “forced,” or “engaged” J.H. or W.S.-T. to perform the

shooting. To sustain Mr. Yatson’s convictions, the State had to prove that he perpetrated the

shooting or that he “supported, assisted, encouraged, cooperated with, advised, or incited” another

to do so while sharing their criminal intent. Johnson at syllabus. Captain Jones never conceded

that the State lacked evidence to convict Mr. Yatson under the foregoing theories. Thus, this Court

rejects Mr. Yatson’s argument to the contrary.

{¶64} This Court likewise rejects Mr. Yatson’s argument that there was no evidence he

was ever in the car during the shooting. As previously noted, a sufficiency review requires a

reviewing court to view all of the evidence in a light most favorable to the State. See Jenks, 61

Ohio St.3d 259, at paragraph two of the syllabus. J.H.’s DNA profile was detected on the steering

wheel of the car, and Mr. Yatson’s DNA profile was the only major DNA profile detected on the

AR-15. The police found spent casings on the back deck of the car on the rear passenger’s side,

suggesting that one person was driving the car while a second person was shooting from the

passenger’s or rear passenger’s side. Mr. Yatson’s hands also tested positive for gunshot residue.

While Mr. Yatson’s neighbor only saw one person inside the car before it pulled into Mr. Yatson’s

driveway, the neighbor was viewing the car from three houses down and did not know what time

it was when she saw the car. She only knew it was around the time she called her husband, and

phone records showed calls at 7:09 a.m. and 8:02 a.m. The shooting occurred at approximately 26

6:19 a.m., so there was a significant time delay between the shooting and her first call. The jury

reasonably could have concluded that the neighbor either just did not see any rear seat passenger(s)

from her perspective at that distance or that the driver dropped off any passenger(s) at an earlier

time before returning to Mr. Yatson’s house. Viewing the evidence in a light most favorable to

the State, a rational trier of fact could have found that the State set forth sufficient evidence that

Mr. Yatson was inside the car during the shooting.

{¶65} Upon review, Mr. Yatson has not shown that his convictions are based on

insufficient evidence. Accordingly, his fourth assignment of error is overruled.

ASSIGNMENT OF ERROR V

THE CONVICTIONS ARE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE IN VIOLATION OF THE DUE PROCESS CLAUSE OF THE 14TH AMENDMENT TO THE U.S. CONSTITUTION AND OF THE OHIO CONSTITUTION.

{¶66} In his fifth assignment of error, Mr. Yatson argues that his convictions are against

the manifest weight of the evidence. For the following reasons, this Court rejects his argument.

{¶67} A challenge to the manifest weight of the evidence concerns the State’s burden of

persuasion. State v. Klafczynski, 9th Dist. Medina No. 18CA0084-M, 2020-Ohio-3221, ¶ 7. This

Court has stated:

In determining whether a criminal conviction is against the manifest weight of the evidence, an appellate court must review the entire record, weigh the evidence and all reasonable inferences, consider the credibility of witnesses and determine whether, in resolving conflicts in the evidence, the trier of fact clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.

State v. Otten, 33 Ohio App.3d 339, 340 (9th Dist.1986). “[W]hen reversing a conviction on the

basis that it was against the manifest weight of the evidence, an appellate court sits as a ‘thirteenth

juror,’ and disagrees with the factfinder’s resolution of the conflicting testimony.” State v. Tucker, 27

9th Dist. Medina No. 06CA0035-M, 2006-Ohio-6914, ¶ 5. This discretionary power “should be

exercised only in the exceptional case in which the evidence weighs heavily against the

conviction.” Thompkins, 78 Ohio St.3d at 387, quoting State v. Martin, 20 Ohio App.3d 172, 175

(1st Dist.1983). See also Otten at 340.

{¶68} Mr. Yatson argues that his convictions are against the manifest weight of the

evidence because there was “no evidence” placing him at the shooting and “no evidence” placing

him in the car. He once again argues that his neighbor never saw him inside the car used during

the shooting and that Captain Jones conceded evidence of his guilt was lacking. Further, he notes

that even the trial court admitted there was “ little direct evidence with regard to this matter.’”

{¶69} An argument that there is “no evidence” in support of a conviction “sounds in

sufficiency rather than weight.” State v. Betts, 9th Dist. Summit Nos. 29575, 29576, 29577, 2020-

Ohio-4800, ¶ 34. While Mr. Yatson has included the manifest weight standard in his brief, his

argument is a reiteration of the one he set forth when contesting the sufficiency of the evidence.

He has not challenged the persuasiveness of the State’s evidence (i.e., its reliability or

believability). See State v. Peck, 9th Dist. Wayne No. 19AP0031, 2021-Ohio-1685, ¶ 17 (manifest

weight challenges test the reliability or believability of the State’s evidence). Nor has he suggested

that any of the State’s witnesses lacked credibility. See State v. McCain, 9th Dist. Medina No.

18CA0108-M, 2019-Ohio-4392, ¶ 12. Instead, Mr. Yatson has presented this Court with a limited

argument that once again targets the adequacy of the State’s evidence. See State v. Webb, 9th Dist.

Summit No. 28437, 2018-Ohio-4199, ¶ 6 (noting that sufficiency tests the adequacy of evidence).

{¶70} This Court has already determined that the State set forth sufficient evidence in

support of Mr. Yatson’s convictions. See Discussion of Assignment of Error Number Four, supra.

We are loath to formulate and address a manifest weight argument on Mr. Yatson’s behalf when 28

he has not done so. State v. Baker, 9th Dist. Summit No. 29167, 2020-Ohio-19, ¶ 18; State v.

Jackson, 9th Dist. Summit No. 28691, 2018-Ohio-1285, ¶ 47. Because Mr. Yatson has not

presented this Court with a manifest weight argument in support of his claim, we decline to conduct

a merits review. See App.R. 16(A)(7); Cardone, 1998 WL 224934, at *8. His fifth assignment of

error is overruled on that basis.

ASSIGNMENT OF ERROR III

THE TRIAL COURT ERRED WHEN IT INSTRUCTED THE JURY ON COMPLICITY.

{¶71} In his third assignment of error, Mr. Yatson argues that the trial court erred when it

instructed the jury on complicity. Specifically, he argues that the State failed to present sufficient

evidence to warrant the instruction. We disagree.

{¶72} “[A] trial court must fully and completely give the jury all instructions which are

relevant and necessary for the jury to weigh the evidence and discharge its duty as the fact finder.”

State v. Comen, 50 Ohio St.3d 206 (1990), paragraph two of the syllabus. “This Court reviews a

trial court’s decision to give or not give jury instructions for an abuse of discretion under the

particular facts and circumstances of the case.” State v. Calise, 9th Dist. Summit No. 26027, 2012-

Ohio-4797, ¶ 68. An abuse of discretion implies the court’s decision is arbitrary, unreasonable, or

unconscionable. Blakemore, 5 Ohio St.3d at 219.

{¶73} This Court has recognized that “‘[a] complicity instruction is proper if ‘the evidence

adduced at trial could reasonably be found to have proven the defendant guilty as an aider and

abettor[.]’’” State v. Lanik, 9th Dist. Summit Nos. 26192, 26224, 2013-Ohio-361, ¶ 47, quoting

State v. Kirk, 9th Dist. Summit No. 26358, 2012-Ohio-5655, ¶ 4, quoting State v. Perryman, 49

Ohio St.2d 14 (1976), paragraph five of the syllabus, vacated in part on other grounds, sub nom.

Perryman v. Ohio, 438 U.S. 911 (1978). As set forth in our discussion of Mr. Yatson’s challenge 29

to the sufficiency of the evidence, the State presented evidence that he fought with C.R. the week

before the shooting, that he and J.H. left threatening messages on C.R.’s phone up until about

fifteen minutes before the shooting, that his AR-15 was the gun used during the shooting, that his

DNA profile was the only major DNA profile detected anywhere on the gun, that police found the

gun back in his bedroom closet after the shooting, that he initially lied about having a gun, and that

swabs of his hands tested positive for the presence of gunshot residue. “Based upon the foregoing,

the trial court did not abuse its discretion in determining that the evidence adduced at trial could

reasonably support [Mr. Yatson’s] convictions as [an] aider[] and abettor[].” Lanik at ¶ 45. Mr.

Yatson’s argument that the trial court erred by instructing the jury on complicity lacks merit.

Accordingly, his third assignment of error is overruled.

ASSIGNMENT OF ERROR II

THE TRIAL COURT’S ERRORS, WHEN TAKEN TOGETHER AND CONSIDERING THE CUMULATIVE ERROR DOCTRINE, DEPRIVED APPELLANT OF A FAIR TRIAL AS GUARANTEED BY THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION SIXTEEN OF THE OHIO CONSTIUTTION (sic) DUE PROCESS CLAUSES.

{¶74} In his second assignment of error, Mr. Yatson argues that cumulative errors

deprived him of a fair trial. We do not agree.

{¶75} Under the doctrine of cumulative error, “a conviction will be reversed when the

cumulative effect of errors in a trial deprives a defendant of a fair trial even though each of the

numerous instances of trial-court error does not individually constitute cause for reversal.” State

v. Powell, 132 Ohio St.3d 233, 2012-Ohio-2577, ¶ 223. To succeed on a claim of cumulative error,

a defendant must establish that there were multiple instances of trial court error, State v. Stahl-

Francisco, 9th Dist. Medina No. 19CA0093-M, 2020-Ohio-5456, ¶ 17, and that he sustained

prejudice as a result of those errors, State v. Froman, 162 Ohio St.3d 435, 2020-Ohio-4523, ¶ 156. 30

If a defendant “‘fail[s] to demonstrate any prejudice resulting from the errors he has alleged, he

cannot demonstrate cumulative error.’” State v. Straughan, 9th Dist. Summit No. 29549, 2021-

Ohio-1054, ¶ 68, quoting In re F.B., 9th Dist. Summit Nos. 28960, 28985, 2019-Ohio-1738, ¶ 47.

The Supreme Court has recognized that “‘there can be no such thing as an error-free, perfect trial,

and * * * the Constitution does not guarantee such a trial.’” State v. Hill, 75 Ohio St.3d 195, 212

(1996), quoting United States v. Hasting, 461 U.S. 499, 508-509 (1983).

{¶76} Mr. Yatson argues that multiple errors occurred during his second trial. The errors

he has identified are as follows: (1) an outside definition of complicity being shared in the jury

room; (2) a juror Googling the definition of complicity; (3) Juror 8 mouthing “I’m sorry” to

individuals seated in the courtroom; (4) members of the jury placing significant pressure on Juror

3; (5) Juror 8 complaining, wanting the trial to end so that she could go on vacation, and pressuring

others jurors to reach a decision; (6) the trial court’s error in instructing the jury on complicity;

and (7) the trial court’s failure to ask the jurors whether they were comfortable participating in the

trial once a State of Emergency had been declared due to Covid-19. According to Mr. Yatson, the

combined effect of these errors resulted in an unfair trial.

{¶77} As noted, to succeed on a claim of cumulative error, a defendant first must establish

that multiple instances of trial court error occurred during his trial. See Stahl-Francisco, 2020-

Ohio-5456, at ¶ 17. We have already determined that Mr. Yatson did not establish trial court error

as a result of pressure allegedly placed on Juror 3 by other members of the jury or the trial court’s

instructing the jury on complicity. See Discussion of Assignments of Error Numbers One and

Three, supra. Because he has not established that error occurred in those instances, they cannot

support his claim of cumulative error. See State v. Montgomery, 148 Ohio St.3d 347, 2016-Ohio-

5487, ¶ 148; Stahl-Francisco at ¶ 17. 31

{¶78} Likewise, this Court cannot conclude that trial court error occurred when a juror

allegedly Googled a definition of complicity, when Juror 8 allegedly became frustrated with the

length of her jury service, or when the trial court did not ask the jury questions related to its Covid-

19 safety protocols. Mr. Yatson has not shown that he brought any of these alleged errors to the

attention of the trial court so as to create an adequate record for this Court’s review. Further, he

has not separately assigned any of the foregoing issues as error on appeal or cited any case law in

support of his argument that the issues resulted in trial court error. His brief only contains a limited

description of each of the foregoing issues.

{¶79} “It is the duty of the appellant, not this [C]ourt, to demonstrate his assigned error

through an argument that is supported by citations to legal authority and facts in the record.” State

v. Taylor, 9th Dist. Medina No. 2783-M, 1999 WL 61619, *3 (Feb. 9, 1999). This Court will not

create an argument on Mr. Yatson’s behalf. See App.R. 16(A)(7); Cardone, 1998 WL 224934, at

*8. Because he has not established that the foregoing issues resulted in trial court error, this Court

cannot conclude that they support his claim of cumulative error. See Stahl-Francisco at ¶ 17.

{¶80} The only remaining instances of trial court error that Mr. Yatson has alleged in

support of his argument are the errors related to an outside definition of complicity being brought

into the jury room and Juror 8 mouthing “I’m sorry” to individuals seated in the courtroom. This

Court previously examined each alleged error and concluded that neither materially prejudiced

Mr. Yatson’s substantial rights. See Discussion of Assignment of Error Number One, supra. Mr.

Yatson’s cumulative error claim cannot succeed in the absence of “multiple instances of harmless

error.” State v. Haywood, 9th Dist. Summit No. 28040, 2017-Ohio-8299, ¶ 68. To the extent he

has identified two instances of trial court error, this Court is “unconvinced that the cumulative

effect of these errors deprived [him] of a fair trial.” State v. McKelton, 148 Ohio St.3d 261, 2016- 32

Ohio-5735, ¶ 322. See also Straughan, 2021-Ohio-1054, at ¶ 68, quoting In re F.B., 2019-Ohio-

1738, at ¶ 47 (cumulative error claim requires defendant to demonstrate prejudice resulting from

alleged errors). Accordingly, his second assignment of error is overruled.

III.

{¶81} Mr. Yatson’s assignments of error are overruled. The judgment of the Lorain

County Court of Common Pleas is affirmed.

Judgment affirmed.

There were reasonable grounds for this appeal.

We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of

this journal entry shall constitute the mandate, pursuant to App.R. 27.

Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period

for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to

mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the

docket, pursuant to App.R. 30.

Costs taxed to Appellant.

THOMAS A. TEODOSIO FOR THE COURT 33

HENSAL, J. CALLAHAN, J. CONCUR.

APPEARANCES:

GIOVANNA V. BREMKE, Attorney at Law, for Appellant.

J.D. TOMLINSON, Prosecuting Attorney, and LINDSEY C. POPROCKI, Assistant Prosecuting Attorney, for Appellee.