[Cite as State v. Trollinger, 2012-Ohio-6369.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-110340
TRIAL NO. B-1006545
Plaintiff-Appellee, :
O P I N I O N.
vs. :
MARIO TROLLINGER, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: May 30, 2012
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Philip R. Cummings,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Christine Y. Jones, for Defendant-Appellant.
Please note: This case has been removed from the accelerated calendar.
OHIO FIRST DISTRICT COURT OF APPEALS
S UNDERMANN , Presiding Judge.
{¶1} Mario Trollinger appeals his convictions for murder with a
specification and having a weapon while under a disability. We conclude that his
nine assignments of error do not have merit, so we affirm the judgment of the trial
court.
{¶2} On September 20, 2010, Kevin Isaac was shot multiple times as he
waited at a bus stop. He died from his injuries. A surveillance camera at a
community center across the street from the bus stop showed Ronnell Parks
approach Isaac and shoot him. Parks was later apprehended by Cincinnati police
officers.
{¶3} Parks, who was 16 years old at the time of the shooting, testified that
Trollinger had given him the gun with which he had shot Isaac. According to Parks,
Trollinger had told Parks to rob Isaac and had threatened to kill Parks’s uncle if
Parks did not commit the robbery. Parks testified that Trollinger had told him to
shoot Isaac if Isaac did not give Parks any money, and that Trollinger had a second
gun with which he threatened Parks. Parks stated that he had approached Isaac and
had told him to give him “something.” When Isaac did not respond, Parks shot him
four times. Parks testified that he had then run behind some buildings and had
returned the gun to Trollinger. According to Parks, Trollinger told him to take off his
shirt and run into the woods.
{¶4} Deron Thomas testified that he had been in the area where the
shooting had occurred. Thomas testified that he had seen Trollinger give a gun to
Parks and had seen Parks shoot Isaac.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶5} Juan Allen testified for the defense. According to Allen, he had seen
Parks in the area the night before the shooting. Allen testified that he believed that
Parks had had a gun at that time, and that he believed that Parks had been waiting to
rob Allen’s brother and friend.
{¶6} At the conclusion of the trial, the jury found Trollinger guilty as
charged. The trial court sentenced Trollinger to 15 years to life for murder with a
three-year sentence for the gun specification and to five years for having a gun while
under a disability. The aggravated robbery count was merged with the murder
count. The aggregate sentence was 23 years.
{¶7} In his first assignment of error, Trollinger asserts that the trial court
erred when it allowed the assistant prosecuting attorney to certify that he would not
disclose the names of the state’s lay witnesses prior to trial. We review the trial
court’s regulation of discovery under an abuse-of-discretion standard. State v.
Parson, 6 Ohio St.3d 442, 445, 453 N.E.2d 689 (1983).
{¶8} Crim.R. 16 regulates the discovery process between the state and a
criminal defendant. Under Crim.R. 16(I), “[e]ach party shall provide to opposing
counsel a written witness list, including names and addresses of any witness it
intends to call[.]” But if “[t]he prosecuting attorney has reasonable, articulable
grounds to believe that disclosure will compromise the safety of a witness * * *,” he
may certify to the court that he is not disclosing the state’s witness list. Crim.R.
16(D)(1). Upon motion of the defense counsel, the prosecuting attorney’s
certification of nondisclosure is subject to review by the trial court. Crim.R. 16(F).
During the in-camera hearing, the trial court reviews the prosecuting attorney’s
certification for an abuse of discretion on the part of the prosecuting attorney. Id.
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{¶9} In this case, the assistant prosecuting attorney certified that he would
not disclose the names of witnesses because the witnesses had indicated that that
they were fearful of Trollinger. Pursuant to Loc.R. 7(K) of the Court of Common
Pleas of Hamilton County, General Division, an in-camera hearing was held before
the presiding judge. During the hearing, Cincinnati police officer Sandy Hanes
testified that one of the witnesses had seen Trollinger give Parks a gun and had seen
Parks return the gun to Trollinger after the shooting. When the witness confronted
Trollinger about the shooting, Trollinger allegedly told him, “[k]eep your mouth shut
or you’re next.” Three other people who worked in the area where the shooting
occurred expressed their fear of testifying against Trollinger. Based on the testimony
of the police officers, the presiding judge determined that the assistant prosecuting
attorney had not abused his discretion in refusing to disclose the names of the lay
witnesses. And pursuant to Crim.R. 16(F)(5), the court ordered the assistant
prosecuting attorney to disclose the list prior to the commencement of trial. We are
unable to conclude that the presiding judge’s determination with respect to the
nondisclosure was an abuse of discretion.
{¶10} Within this assignment of error, Trollinger also contends that the trial
court further erred when it did not order the disclosure of the state’s witness list until
after the jury had been sworn in. But both at trial and in his appeal, Trollinger did
not demonstrate that he was prejudiced by the timing of the disclosure. Accordingly,
we conclude no abuse of discretion occurred in this regard. The first assignment of
error is overruled.
{¶11} In his second assignment of error, Trollinger asserts that the trial
court erred when it did not grant his motion to dismiss or his motion for a new trial.
Before either side made its opening statement, Trollinger moved to dismiss the
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OHIO FIRST DISTRICT COURT OF APPEALS
charges against him or, in the alternative, for a mistrial. Trollinger contended that
the state had withheld exculpatory evidence in violation of his due process rights and
Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).
{¶12} Pursuant to the trial court’s decision on the state’s certification of
nondisclosure, the state disclosed its witness list and witnesses’ statements after the
jury had been sworn in. Included was a copy of Jasmine Cornett’s statement made to
a police officer shortly after the shooting. According to the statement, Cornett
claimed that another woman, Waneisha McCloud, had told her that a person named
Mickeal Mingo had said that he had given Parks the gun. Trollinger contended that
the state had improperly withheld this statement.
{¶13} In Brady, the United States Supreme Court held that “the
suppression by the prosecution of evidence favorable to an accused upon request
violates due process where the evidence is material either to guilt or to punishment,
irrespective of the good faith or bad faith of the prosecution.” Id. at 87. The Ohio
Supreme Court has clearly stated, however, that no Brady violation can exist when,
as in this case, the evidence in question was presented to the defense during the trial.
State v. Wickline, 50 Ohio St.3d 114, 116, 552 N.E.2d 913 (1990). Accordingly, we
conclude that no Brady violation occurred here.
{¶14} Even if we were to conclude that the state had improperly withheld
the evidence, Trollinger’s motion to dismiss or, in alternative, for a mistrial was
properly denied, as Trollinger did not demonstrate that the evidence was material to
his guilt. For Cornett’s statement to be material, there had to be a reasonable
probability that the result of the trial would have been different. “A ‘reasonable
probability’ is a probability sufficient to undermine confidence in the outcome.”
State v. Johnston, 39 Ohio St.3d 48, 529 N.E.2d 898 (1988), paragraph five of the
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OHIO FIRST DISTRICT COURT OF APPEALS
syllabus. The statement at issue in this case consists of hearsay and a vague
description about what had allegedly occurred. And following the trial, during the
hearing on his motion for a new trial, Trollinger’s attorneys were unable to
demonstrate specifically how earlier disclosure of the statement would have changed
their strategy. We are unable to conclude that there was a reasonable probability
that the outcome of the trial would have been different had the state disclosed the
statement prior to trial.
{¶15} We conclude that the trial court did not err when it denied
Trollinger’s motion to dismiss or, in the alternative, for a mistrial. The second
assignment of error is overruled.
{¶16} We consider Trollinger’s next three assignments of error together. In
the third, he asserts that his convictions were not supported by sufficient evidence.
In the fourth, he asserts that his convictions were against the manifest weight of the
evidence. And in the fifth, he asserts that the trial court erred when it overruled his
Crim.R. 29 motion for an acquittal. We conclude that none of these assignments of
error has merit.
{¶17} The standard of review for a sufficiency claim and for the denial of a
Crim.R. 29 motion for an acquittal is the same. When an appellant challenges the
sufficiency of the evidence, we must determine whether the state presented adequate
evidence on each element of the offense. State v. Thompkins, 78 Ohio St.3d 380,
386, 678 N.E.2d 541 (1997). On the other hand, when reviewing whether a judgment
is against the manifest weight of the evidence, we must determine whether the jury
clearly lost its way and created a manifest miscarriage of justice. Id. at 387.
{¶18} Trollinger was charged with complicity in the commission of
aggravated robbery and murder. Under R.C. 2923.03(A), Trollinger could be found
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complicit in the aggravated robbery and murder of Isaac if he purposely “[s]olicit[ed]
or procure[d] another to commit the offense[s]” or “[a]ided or abet[ted] another in
committing the offenses.” We conclude that the state presented sufficient evidence
of Trollinger’s complicity in the offenses. The state also presented sufficient evidence
that Trollinger had a weapon while under a disability. See R.C. 2923.13(A)(2).
Further, having reviewed the record, we are unable to conclude that the jury lost its
way in rendering its guilty verdicts. Trollinger takes issue with the testimony of
Parks, but the jury was in best position to judge the credibility of Parks and the other
witnesses. We overrule the third, fourth, and fifth assignments of error.
{¶19} The sixth assignment of error is that the trial court erred in imposing
an aggregate prison term of 23 years’ incarceration. Our review of Trollinger’s
sentences has two parts. First, we must determine whether the sentences were
contrary to law. State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d
124, at ¶ 14. Then, if the sentences were not contrary to law, we must review the
sentences to determine whether the trial court abused its discretion. Id. at ¶ 17.
Trollinger’s sentences fell within the applicable ranges for the offenses for which he
was convicted. R.C. 2929.02; R.C. 2929.14. And we are unable to conclude that the
trial court abused its discretion in imposing the sentences. The sixth assignment of
error is overruled.
{¶20} In his seventh assignment of error, Trollinger asserts that the trial
court erred when it permitted Parks to testify. Trollinger contends that Parks, who
had a history of mental illness and mental retardation, was incompetent to testify as
a witness. See Evid.R. 601(A); R.C. 2317.01. Absent an abuse of discretion,
competency determinations of the trial judge will not be disturbed on appeal. State
v. Clark, 71 Ohio St.3d 466, 469, 644 N.E.2d 331 (1994). Here, the trial court
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OHIO FIRST DISTRICT COURT OF APPEALS
conducted a voir dire of Parks and concluded that Parks was competent to testify.
We conclude that trial court did not abuse its discretion in so concluding. The
seventh assignment of error is overruled.
{¶21} The eighth assignment of error is that the trial court erred when it
allowed testimony about Trollinger’s involvement in a prior robbery. Trollinger
contends that the court improperly allowed testimony about Trollinger’s alleged
involvement in the robbery of Parks’s uncle two months before Parks shot Isaac.
Although the state mentioned in its opening statement that Trollinger had
threatened Parks that, if he did not commit the robbery of Isaac, “what happened to
your Uncle Dink is going to happen to you,” the state did not ask Parks about the
robbery during its direct examination. Rather, defense counsel questioned Parks
extensively about the robbery. Having elicited Parks’s testimony about the earlier
robbery during cross-examination, Trollinger cannot now claim that he was
prejudiced. We conclude that any error in admitting the testimony was invited error.
See State v. LaMar, 95 Ohio St.3d 181, 2002-Ohio-2128, 767 N.E.2d 166, ¶ 102. The
eighth assignment of error is overruled.
{¶22} In his final assignment of error, Trollinger asserts that his equal-
protection rights were violated when the trial court permitted the state to exclude
potential jurors based on race in violation of Batson v. Kentucky, 476 U.S. 79, 106
S.Ct. 1712, 90 L.Ed.2d 69 (1986).
{¶23} Evaluation of a Batson challenge has three steps: “First, the opponent
of the strike must make a prima facie showing of discrimination. Second, the
proponent must give a race-neutral explanation for the challenge. Third, the trial
court must determine whether, under all the circumstances, the opponent has
proven purposeful racial discrimination.” State v. White, 85 Ohio St.3d 433, 436,
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OHIO FIRST DISTRICT COURT OF APPEALS
709 N.E.2d 140 (1999), citing Batson at 96-98. A trial court’s determination that the
state did not have a discriminatory intent will be reversed only if it is clearly
erroneous. State v. Hernandez, 63 Ohio St.3d 577, 583, 589 N.E.2d 1310 (1992).
{¶24} In this case, the state used two of its peremptory challenges to excuse
two African-Americans from the jury. When Trollinger’s counsel objected to the
dismissal of the first prospective juror, the prosecutor stated that he was excusing
her because she was a medical assistant at Planned Parenthood, which, in his view,
meant he might not be able to make her understand the importance of a lost life, and
that she had indicated that she really did not want to be on the jury. With respect to
the dismissal of the second African-American from the jury, the prosecutor stated
that the man had had six prior convictions for driving under the influence and had
expressed concern about the media’s perception of certain verdicts. The trial court
overruled Trollinger’s objections, concluding that the prosecutor had given race-
neutral explanations with respect to both potential jurors. We hold that the trial
court’s conclusions were not clearly erroneous. The ninth assignment of error is
overruled.
{¶25} We therefore affirm the judgment of the trial court.
Judgment affirmed.
H ENDON and F ISCHER , JJ., concur.
Please note:
The court has recorded its own entry this date.
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