State v. Cunningham

[Cite as State v. Cunningham, 2012-Ohio-2794.]

IN THE COURT OF APPEALS OF CLARK COUNTY, OHIO

:
STATE OF OHIO
Plaintiff-Appellee : C.A. CASE NO. 10-CA-57

vs. : T.C. CASE NO. 08-CR-879

: (Criminal Appeal From
CHARLES CUNNINGHAM Common Pleas Court)
Defendant-Appellant :

.........

OPINION

Rendered on the 22nd day of June, 2012.

.........

Lisa M. Fannin, Atty. Reg. No. 0082337, Assistant Prosecuting Attorney, 50 E. Columbia
Street, 4th Floor, P.O. Box 1608, Springfield, OH 45501
Attorney for Plaintiff-Appellee

Brandin D. Marlow, Atty. Reg. No. 0076381, 150 N. Limestone Street, Suite 218,
Springfield, OH 45501
Attorney for Defendant-Appellant

.........
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GRADY, P.J.:

I. Introduction

{¶ 1} On October 4, 2008, Defendant Charles Cunningham was questioned by police

and arrested for the murders earlier that morning of Jessica Serna, an ex-girlfriend and mother

of two of his children, and Heidi Shook. On October 15, 2008, the grand jury returned an

11-count indictment against Defendant relating to the murders of Serna and Shook.

Following a jury trial, Defendant was convicted on ten of the eleven counts in the indictment.

Ultimately, Defendant was sentenced to life in prison without possibility of parole.

{¶ 2} On appeal, Cunningham raises six assignments of error concerning denial of

his motion to suppress evidence obtained from his cellular phone, exclusion of an

African-American from his jury, removal of a juror after jury deliberations had begun, the

admission into evidence of voicemails Defendant had left for Serna, ineffective assistance of

Defendant’s trial counsel, the sufficiency and manifest weight of the evidence presented at

trial, and whether cumulative errors violated Defendant’s right to a fair trial. For the reasons

set forth below, we overrule the six assignments of error and we will affirm Defendant’s

conviction and sentence.

A. Statement of Facts

{¶ 3} On the evening of October 3, 2008, Serna and Heidi Shook were in Springfield

to celebrate Shook’s birthday. They began the evening at dinner with several friends,

including Caitlin Smith and Serna’s boyfriend, Marcus Douthy. Most of the group then went

to G.Z. Pete’s, a bar, to continue celebrating. Douthy, however, went home for the evening.

{¶ 4} Serna and Shook later left G.Z. Pete’s and went to the Night Gallery, another
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bar in Springfield. Defendant appeared at the Night Gallery about ten to fifteen minutes after

Shook and Serna had arrived there. While at the Night Gallery, Defendant approached Shook

and Serna on the dance floor, but the two women avoided him and walked away.

{¶ 5} Serna and Shook then returned to G.Z. Pete’s. Defendant appeared at G.Z.

Pete’s and bought drinks for Serna and Shook. Soon thereafter, Shook and Serna left G.Z.

Pete’s. When they left, Defendant left as well. Caitlin Smith witnessed an altercation

between Defendant and Serna as they left G.Z. Pete’s. Smith heard Defendant say to Serna,

“Bitch, if I can’t have my family, you can’t have anything.” (Trial Tr., p. 1724-1726.)

{¶ 6} Around 2:49 A.M., after leaving G.Z. Pete’s, Serna, Shook, and J.R. Carson

traveled in Shook’s vehicle to the drive thru window at a Burger King restaurant on Main

Street. While they were at the drive thru, Defendant drove his white SUV into the Burger

King drive thru and partially blocked Shook’s vehicle. At that time, Kenneth Robinson was a

passenger in Defendant’s vehicle. Defendant then exited his SUV and went to the passenger

side of Shook’s vehicle and asked Serna to roll down the window. Both Shook and Serna

told Defendant to leave Serna alone. Defendant began arguing with Shook and Serna and

hitting Shook’s vehicle.

{¶ 7} The manager at Burger King heard the argument coming from the drive thru

area and asked all several times to leave. Finally, the manager went outside with another

employee to tell them to leave. While the manager was outside, she heard a man say he was

going to “hurt ‘em.” The employee that accompanied the manager outside heard Defendant

say, “I’ll kill everybody in the truck.”

{¶ 8} Serna, Shook, and Carson drove away from Burger King in Shook’s vehicle.
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Defendant Cunningham followed them, screeching his vehicle’s tires as he pulled out in a

westerly direction onto Main Street directly behind them. After following Serna, Shook, and

Carson for a short time, Defendant pulled in front of them and blocked Shook’s truck with his

Chevy Suburban. The two vehicles were stopped near Bill Marine’s Auto on North Street,

west of its merger with Main Street. Once the vehicles were stopped, Defendant emerged

from his SUV in a rage. Serna exited Shook’s vehicle and began arguing with Defendant

Cunningham outside the passenger side of Shook’s vehicle. Carson exited Shook’s vehicle

and began walking away from the scene.

{¶ 9} During their argument, Serna pushed Defendant off of her. Defendant then

punched Serna in the stomach causing her to fall to the ground. During the altercation

between Serna and Defendant, Shook called 911. The dispatcher heard a girl screaming for

help and saying, “Get off of her.” Serna could be heard in the background screaming

repeatedly for Defendant Cunningham to stop. Defendant could be heard in the 911 call

saying, “I’m not playing man.” The 911 dispatcher heard gunshots and dispatched police to

the scene.

{¶ 10} Carson heard the gunshots and a scream as he walked away from the scene.

He turned around and saw Shook coming through the two trucks towards her driver’s side

door. Carson heard more gunshots and saw Shook fall face first onto the pavement. He then

saw Defendant walk between the trucks, and it appeared to Carson that Defendant was

stuffing something into the back of his pants. Defendant walked up to Carson and told

Carson to walk away with him.

{¶ 11} Kenneth Robinson, a passenger in Defendant’s SUV, saw Defendant shoot
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Serna and then shoot Shook. After shooting Serna and Shook, Defendant told Robinson to

“get the hell out of here.” As Robinson was driving Defendant’s SUV away from the scene,

he saw Defendant approach Carson on the sidewalk and walk away with him.

{¶ 12} Officers arrived at the scene of the gunshots at approximately 3:01 a.m. When

Sergeant Harris arrived on the scene he saw Shook’s vehicle sitting askew in the middle of the

road in a traffic lane. When he exited his vehicle, Sergeant Harris saw Shook lying face

down in a pool of blood on the road outside the driver’s side door of her vehicle. Shook was

dead. Sergeant Harris saw Serna lying on the ground when he stepped to the front of Shook’s

vehicle. She had been shot, but was still alive. He called for additional police units. An

ambulance transported Serna to Miami Valley Hospital where she later died.

{¶ 13} Sergeant Meyer responded to the scene and reviewed a surveillance video from

a nearby business. He told Detective Hicks that the surveillance video showed a white SUV

as the other vehicle involved in the incident. Detective Hicks was familiar with Serna and

Defendant’s relationship and the fact that Defendant drove a white SUV. Detective Hicks

began actively searching for Defendant, and received information that Defendant was at

Miami Valley Hospital with Serna’s family. A surveillance video also showed Carson and

Defendant walking side by side away from the scene.

{¶ 14} After Detective Hicks identified Defendant as a suspect in the murders of

Serna and Shook, he went with Detective Baader to Miami Valley Hospital to speak with

Defendant. The detectives transported Defendant to the Springfield Police Department in

order to interview him. The interview room at the police station was equipped with a closed

circuit television that allowed Defendant’s actions and words to be seen and heard by the
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detectives. While in the interview room waiting to be questioned, Defendant was seen using

a cellular phone. Detective Baader went into the interview room and seized the phone from

Defendant to preserve all of the data on the phone until a search warrant could be obtained.

{¶ 15} After being interviewed by the police, Defendant was arrested for the murders

of Serna and Shook. Defendant was transported to the Clark County Jail to be processed into

the jail. While Defendant was being processed, the police discovered that Defendant had

another cell phone on him. The police also seized that phone as evidence. Defendant’s two

cellular phones were not accessed for their contents by the police until search warrants were

obtained.

B. Procedural History

{¶ 16} On October 15, 2008, the grand jury returned an eleven-count indictment

against Defendant, which included two counts of aggravated murder in violation of R.C.

2903.01(A), two counts of felonious assault in violation of R.C. 2903.11(A)(2), two counts of

murder in violation of R.C. 2903.02(A), two counts of felony murder in violation of R.C.

2903.02(B) and 2903.11(A)(2), two counts 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). Counts I and V (aggravated murder) each included four specifications

and the remaining counts each included one specification.

{¶ 17} On February 22, 2010, Cunningham filed a motion to suppress “all evidence

resulting from the warrantless seizure and search of his cellular phones.” (Dkt. 158.) A

hearing on Defendant’s motion was held on March 15 and 20, 2010. The trial court denied

Defendant’s motion on April 9, 2010. (Dkt. 162.)
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{¶ 18} A jury trial began on April 12, 2010. After individual voir dire of the jury

pool, testimony in the trial began on April 22, 2010. The jury found Defendant guilty on all

counts and specifications except those in Count Five, the aggravated murder of Heidi Shook,

and the specification in Count One that specified Jessica Serna was killed because she was a

witness to an offense.

{¶ 19} After Defendant waived his right to have a psychological evaluation and/or

presentence investigation prior to the commencement of the penalty phase, the trial court

proceeded to the sentencing phase. On May 11, 2010, the jury found, by proof beyond a

reasonable doubt, that the aggravating circumstance of which Defendant was found guilty

outweighed any mitigating factors. The jury therefore recommended to the trial court that the

sentence of death be imposed on Defendant. On May 26, 2010, the trial court found that the

aggravating circumstance Defendant was found guilty of did not, by proof beyond a

reasonable doubt, outweigh the mitigating factors presented. Consequently, the trial court

sentenced Defendant to life in prison without the possibility of parole as to Count One. The

trial court then sentenced Defendant on the remaining counts and ordered forfeiture of the

motor vehicle specified in Count One of the indictment. (Dkt. 198.) Cunningham filed a

timely notice of appeal.

II. Legal Analysis

{¶ 20} First Assignment of Error:

{¶ 21} “THE TRIAL COURT ERRED IN OVERRULING DEFENDANT’S

MOTION TO SUPPRESS.”

{¶ 22} When ruling on a motion to suppress, “the trial court assumes the role of trier
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of facts and is in the best position to resolve questions of fact and evaluate the credibility of

witnesses.” State v. Hopfer, 112 Ohio App.3d 521, 679 N.E.2d 321 (2d Dist.1996), quoting

State v. Venham, 96 Ohio App.3d 649, 653, 645 N.E.2d 831 (4th Dist.1994). The court of

appeals must accept the trial court’s findings of fact if they are supported by competent,

credible evidence in the record. State v. Isaac, 2d Dist. Montgomery No. 20662,

2005-Ohio-3733, ¶ 8, citing State v. Retherford, 93 Ohio App.3d 586, 639 N.E.2d 498 (2d

Dist.1994). Accepting those facts as true, the appellate court must then determine, as a

matter of law and without deference to the trial court’s legal conclusion, whether the

applicable legal standard is satisfied. Id.

{¶ 23} On February 22, 2010, Defendant filed a motion to suppress “all evidence

resulting from the warrantless seizure and search of his cellular phones by Springfield police

officers, in violation of the Fourth Amendment.” (Dkt. 158.) Defendant cited State v. Smith,

124 Ohio St.3d 163, 2009-Ohio-6426, 920 N.E.2d 949, in support of his motion to suppress.

The trial court denied Defendant’s motion. (Dkt. 162.)

{¶ 24} On appeal, Defendant argues that the trial court erred in overruling his motion

to suppress evidence obtained from the cell phone the police seized while Defendant waited in

the police department’s interview room. Defendant does not argue on appeal that the trial

court erred in overruling his motion to suppress concerning the second cell phone that the

police obtained from Defendant when he was being processed into jail. Also, Defendant does

not argue the validity of the search warrants obtained to search the two phones.

Consequently, we will limit our analysis to the propriety of the seizure of the first cell phone

while Defendant waited in the police department’s interview room.
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{¶ 25} The Fourth Amendment to the United States Constitution and Article I, Section

14 of the Ohio Constitution guarantee the right of persons to be free from unreasonable

searches and seizures. The constitutional protections, notably, prohibit unreasonable searches

and seizures, not simply every search and seizure. “[A] search conducted without a warrant

issued upon probable cause is ‘per se unreasonable * * * subject only to a few specifically

established and well-delineated exceptions.’” Schneckloth v. Bustamonte, 412 U.S. 218, 219,

93 S.Ct. 2041, 36 L.Ed.2d 854 (1973), quoting Katz v. United States, 389 U.S. 347, 357, 88

S.Ct. 507, 19 L.Ed.2d 576 (1967). The Ohio Supreme Court has recognized six distinct

exceptions to the warrant requirement, including a situation in which probable cause to search

exists along with the presence of exigent circumstances. State v. Akron Airport Post No.

8975, Veterans of Foreign Wars of U.S., 19 Ohio St.3d 49, 51, 482 N.E.2d 606 (1985).

{¶ 26} In Segura v. United States, 468 U.S. 796, 806-808, 104 S.Ct. 3380, 82 L.Ed.2d

599 (1984), the Supreme Court wrote:

Different interests are implicated by a seizure than by a search. * * *

A seizure affects only the person’s possessory interests; a search affects a

person’s privacy interests. * * * Recognizing the generally less intrusive nature

of a seizure, * * * the Court has frequently approved warrantless seizures of

property, on the basis of probable cause, for the time necessary to secure a

warrant, where a warrantless search was either held to be or likely would have

been impermissible. * * *

***

Underlying these decisions is a belief that society’s interest in the
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discovery and protection of incriminating evidence from removal or

destruction can supersede, at least for a limited period, a person’s possessory

interest in property, provided that there is probable cause to believe that that

property is associated with criminal activity.

{¶ 27} In State v. Smith, 124 Ohio St.3d 163, 2009-Ohio-6426, 920 N.E.2d 949,

syllabus, the Court held: “The warrantless search of data within a cell phone seized incident

to a lawful arrest is prohibited by the Fourth Amendment when the search is unnecessary for

the safety of law-enforcement officers and there are no exigent circumstances.” The Ohio

Supreme Court in Smith, however, like the United States Supreme Court in Segura, stressed

that the police have a legitimate interest in collecting and preserving evidence prior to the

issuance of a search warrant. The Court wrote, at ¶ 23:

Once the cell phone is in police custody, the state has satisfied its

immediate interest in collecting and preserving evidence and can take

preventive steps to ensure that the data found on the phone are neither lost nor

erased. But because a person has a high expectation of privacy in a cell

phone’s contents, police must then obtain a warrant before intruding into the

phone’s contents.

{¶ 28} The police did not search the contents of Defendant’s cell phone at issue until

after a search warrant was obtained to search those contents. Defendant does not challenge

the validity of the search warrant but instead argues that the seizure of the cell phone itself

without a warrant required the trial court to exclude all evidence derived from the cell phone

after the search warrant was issued pursuant to the Supreme Court’s decision in Smith. We
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do not agree.

{¶ 29} The police had identified Defendant as a key suspect in a double homicide that

occurred only hours before Defendant was sitting in the interview room. (Motion to Suppress

Tr., p. 7-10.) Defendant was at police headquarters for purposes of an interview concerning

those crimes and used the phone while waiting to be interviewed. Defendant’s phone was

confiscated by police out of a concern that relevant information memorialized on the phone

would be deleted or lost. At no point between the time that Detective Baader seized

Defendant’s cellular phone and the time when the search warrant was issued did the police

search the records stored inside Defendant’s phone. (Id. at 15, 25, 39, 42, 46, 50.)

{¶ 30} The police had probable cause to seize Defendant’s cellular phone until a

search warrant could be obtained. As the Supreme Court recognized in Smith, the police had

an “immediate interest in collecting and preserving evidence and can take preventive steps to

ensure that the data found on the phone are neither lost nor erased.” Smith, ¶ 23. The

confiscation of Defendant’s phone did just that.

{¶ 31} The first assignment of error is overruled.

{¶ 32} Second Assignment of Error:

{¶ 33} “MULTIPLE ERRORS WITH THE JURY DEPRIVED CUNNINGHAM A

RIGHT TO A FAIR TRIAL.”

{¶ 34} “A. BY EXCLUDING THE ONLY AFRICAN-AMERICAN JUROR ON

THE PANEL, THE STATE DENIED DEFENDANT HIS EQUAL PROTECTION RIGHTS.”

{¶ 35} Defendant argues that the trial court erred in allowing the State to use a

peremptory challenge to remove the last African-American juror from the jury panel. In
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Batson v. Kentucky (1986), 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69, the United States

Supreme Court held that the Equal Protection Clause forbids the prosecution from exercising

a peremptory challenge to excuse a juror solely because of that juror’s race. “The Equal

Protection Clause guarantees the defendant that the State will not exclude members of his race

from the jury venire on account of race, or on the false assumption that members of his race as

a group are not qualified to serve as jurors[.]” Id. at 86 (Citations omitted.)

{¶ 36} The court must undertake a three-step inquiry when a peremptory challenge is

challenged under Batson. First, the defendant must set forth a prima facie case of

discrimination. To establish a prima facie case of discrimination, “the defendant must point

to facts and other relevant circumstances that are sufficient to raise an inference that the

prosecutor used its peremptory challenge specifically to exclude the prospective juror on

account of his race.” State v. Carver, 2d Dist. Montgomery No. 21328, 2008-Ohio-4631, ¶

48, citing Batson, 476 U.S. at 95.

{¶ 37} If the defendant establishes a prima facie case of discrimination, the prosecutor

must state a race-neutral explanation for striking the juror in question. State v. Lewis, 2d

Dist. Montgomery No. 23850, 2011-Ohio-1411, ¶ 76. A race-neutral explanation means one

based on something other than the juror’s race. Hernandez v. New York, 500 U.S. 352, 360,

111 S.Ct. 1859, 114 L.Ed.2d 395 (1991). “Unless a discriminatory intent is inherent in the

prosecutor’s explanation, the reason offered will be deemed race neutral.” Id. “[T]he issue

is the facial validity of the prosecutor’s explanation.” Id.

{¶ 38} If the prosecutor provides a race-neutral explanation, the trial court must

determine whether the defendant met his burden of proving intentional discrimination or
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whether the prosecutor’s explanation was a pretext. Lewis, ¶ 76. “A trial court's finding of

no discriminatory intent will not be reversed on appeal unless clearly erroneous.” State v.

Were, 118 Ohio St.3d 448, 2008-Ohio-2762, 890 N.E.2d 263, ¶ 61 (Citations omitted.)

{¶ 39} The trial court found that the use of a peremptory challenge on the last

African-American juror established a prima facie case of discrimination. Consequently, the

prosecutor was asked by the trial court to give a race-neutral reason for exercising the

peremptory challenge. The prosecutor explained to the trial court that the primary reason that

a peremptory challenge was used was due to the juror’s stated beliefs on the death penalty and

the possibility that she knew members of Defendant’s family. (Trial Tr., p. 1576.)

{¶ 40} The prosecutor’s concerns about the prospective juror’s views on the death

penalty arose because the prospective juror noted on her jury questionnaire that she did not

believe in the death penalty. (Id.) Further, the juror at issue responded as follows when

asked about the potential need to recommend the death penalty:

Q: And you’re obviously sitting 10, 15 feet away from the Defendant,

so it’s gonna be very real. And under those circumstances, do you believe that

if the facts justify it and the law justifies it, that you would be able to put your

name on a verdict form saying death? And under the assumption that that

penalty would actually occur, could you do that? Some people can, some

people can’t. That’s why it’s a tough one.

A. Yeah, that is a tough one. Um, wow, mitigating circumstances - -

if I was - - if I had had all the facts and everything was determined, then I guess

I would have to, even though my beliefs are what they are.
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(Id. at 818-819.)

{¶ 41} The trial court found that the reason given by the State regarding the juror’s

views on the death penalty was sufficient to establish a race-neutral reason for exercising a

peremptory challenge. The Ohio Supreme Court has stated that “[u]ncertainty about how a

prospective juror perceives the death penalty is a ‘race-neutral reason’ for exercising a

peremptory challenge against her.” Were, 2008-Ohio-2762, at ¶ 65.

{¶ 42} We acknowledge that the juror did state after further questioning that she

believed that she could recommend the death penalty if the evidence warranted such a

recommendation, in spite of her beliefs. But that fact alone does not establish that the State’s

race-neutral reason was a pretext. Rather, “[w]hile a prospective juror’s answers may be

sufficient to survive a challenge for cause, both prosecutors and defense attorneys must

remain free to challenge on a peremptory basis jurors whose answers create overall concerns

on the subject at issue.” State v. White, 85 Ohio St.3d 433, 437, 709 N.E.2d 140 (1997).

{¶ 43} On the record before us, we find that the trial court did not err in finding that

the State established a race-neutral reason for exercising its peremptory challenge. Further,

Defendant failed to meet his burden of proving intentional discrimination on the part of the

State when the prosecutor used a peremptory challenge on the last African-American juror.

Consequently, Part A of the second assignment of error is overruled.

{¶ 44} “B. THE TRIAL COURT IMPROPERLY REMOVED A JUROR FROM

THE JURY AFTER THE TRIAL BEGAN.”

{¶ 45} Crim.R. 24(G) and R.C. 2945.29 address removal of jurors during criminal

trials. Crim.R. 24(G) provides, in part, that alternate jurors “shall replace jurors who, prior to
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the time the jury retires to consider its verdict, become or are found to be unable or

disqualified to perform their duties.” R.C. 2945.29 provides that a juror may be discharged

by the court if the “juror becomes sick, or for other reason is unable to perform his duty * * *

.”

{¶ 46} A trial judge is empowered to exercise “‘sound discretion to remove a juror

and replace him with an alternate juror whenever facts are presented which convince the trial

judge that the juror's ability to perform his duty is impaired.’” State v. Lake, 5th Dist.

Richland No. 2009-CA-0011, 2010-Ohio-1113, ¶ 74 (Citations omitted.)

{¶ 47} In AAAA Enterprises, Inc v. River Place Community Urban Redevelopment

Corp., 50 Ohio St.3d 157, 161, 553 N.E.2d 597 (1990), the Supreme Court held:

“Abuse of discretion” has been defined as an attitude that is

unreasonable, arbitrary or unconscionable. Huffman v. Hair Surgeon, Inc.

(1985), 19 Ohio St.3d 83, 87, 19 OBR 123, 126, 482 N.E.2d 1248, 1252. It is

to be expected that most instances of abuse of discretion will result in decisions

that are simply unreasonable, rather than decisions that are unconscionable or

arbitrary.

A decision is unreasonable if there is no sound reasoning process that

would support that decision. It is not enough that the reviewing court, were it

deciding the issue de novo, would not have found that reasoning process to be

persuasive, perhaps in view of countervailing reasoning processes that would

support a contrary result.

{¶ 48} After jury deliberations began, the jury foreperson sent a note to the trial judge
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regarding concerns she had about Juror Number 3, who appeared to be struggling with

comprehending what was going on during the deliberations. Before proceeding on the

matter, the trial judge held a conference in chambers with counsel for Defendant and the State.

The trial judge explained that the foreperson’s note expressed concerns about Juror Number

3's comprehension of what the jurors were doing in deliberations and that some of the jurors

were spending most of their time working with Juror Number 3 to explain what it is they are

doing and explaining some of the testimony that he was not able to comprehend. (Trial Tr.,

p. 3388.) Counsel for Defendant objected twice to the trial judge interviewing Juror Number

3. (Id. at 3388-3390.)

{¶ 49} The trial judge questioned the foreperson about her concerns about Juror

Number 3. According to the foreperson, Juror Number 3 was having difficulty

comprehending the testimony. (Id. at 3391-3392.) The trial judge then questioned the court

reporter. She explained that Juror Number 3 did not appear to recognize her when they went

to look at different parts of the crime scene despite the fact that Juror Number 3 was seated

less than 20 feet away from the court reporter during the trial. (Id. at 3393-3394.) Two

deputies also testified about confusion they noticed on the part of Juror Number 3 when they

were transporting him to the hotel in which the jury was sequestered. (Id. at 3396-3400,

3408-3411.) Further, a deputy and the court’s bailiff stated that Juror Number 3 did not

appear to understand the trial court’s instructions regarding being sequestered and the fact that

no phone calls would be permitted during the time the jury was sequestered. (Id. at

3401-3405.) Finally, the trial judge put his own observations of Juror Number 3 on the

record. He stated that he observed a few instances during voir dire when Juror Number 3
 17

received explanations from other jurors around him before Juror Number 3 responded to

questions from the trial judge. (Id. at 3406-3407.)

{¶ 50} The trial court determined that Juror Number 3 should be removed from jury

deliberations and replaced by an alternate juror. The trial court explained:

Based upon the information that’s been given to the Court and the

Court’s own observations that have been placed on the record regarding this

juror, I do not - - I find there cannot be a fair and impartial trial with [Juror

Number 3] to continue to be on the jury.

I do believe that he has some cognitive problems in comprehending

what’s going on in this trial.

The questions that he had regarding sequestration and what hotel, all

occurred after they had been given detailed instructions as to the fact that they

were going to be sequestered and why; and they were all given a memo from

the Court explaining the process of what they would be allowed to do and not

be allowed to do.

And, in fact, that the rooms would be inspected and that none of the

normal items you would expect to be in a motel such as a clock radio, a radio,

television, telephones, will all be disconnected, if not removed, and not be

working.

All of that had been explained to the jurors by the Court in the

courtroom on the record and was also given written instructions. The fact that

he was still not able to comprehend what was happening is indicative of this
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Court that he should not be sitting on this jury.

(Id. at 3414-3415).

{¶ 51} We also note that when the trial court notified Juror Number 3 that he was

being released from juror duty, the juror validated some of the Court’s concern in the

following colloquy:

THE COURT: [Juror Number 3], there’s been a concern raised to the

Court that at this point in time perhaps in the trial you have had difficulty either

hearing what the Court has said or what the evidence was or understanding

what I have instructed.

[THE JUROR]: You’re right. Occasionally I have.

(Id. at 3415.)

{¶ 52} Defendant argues on appeal that “[w]ithout affording [Juror Number 3] the

opportunity to respond, the Court could not rule out that he was simply an obstinate juror who

may not be agreeing with other jurors. Because of this, the trial court abused its discretion in

dismissing [Juror Number 3] and seating an alternate juror.” (Brief, p. 28-29.)

{¶ 53} Based on our review of the record before us, we cannot find that the trial court

abused its discretion in removing the juror at issue as being unfit to continue his function as a

juror. All of the evidence before the court put Juror Number 3's ability to comprehend

testimony and directions into doubt. Although an interview of Juror Number 3 may have

weighed against those concerns, Defendant twice objected to any interview of Juror Number

3. Any error the trial court made in failing to interview Juror Number 3 was error invited by

Defendant and cannot form the basis for reversal. Royse v. Dayton, 2d Dist. Montgomery
 19

No. 24172, 2011-Ohio-3509, ¶ 11, citing State v. Woodruff, 10 Ohio App.3d 326, 462 N.E.2d

457 (2d Dist.1983).

{¶ 54} The second assignment of error is overruled.

{¶ 55} Third Assignment of Error:

{¶ 56} “THE REPETITIVE USE OF RECOVERED VOICE MAILS AND THE 911

TAPE VIOLATED CUNNINGHAM’S RIGHT TO A FAIR TRIAL.”

{¶ 57} “A. THE OCTOBER 1 MESSAGE WAS IMPROPERLY ADMITTED AS

IT WAS A PRIOR BAD ACT AND NOT RELEVANT TO THE CHARGES BEFORE THE

COURT.”

{¶ 58} “[T]he admission of evidence lies within the broad discretion of the trial court

and a reviewing court should not disturb evidentiary decisions in the absence of an abuse of

discretion that has created material prejudice.” State v. Conway, 109 Ohio St.3d 412,

2006-Ohio-2815, 848 N.E.2d 810, ¶ 62, citing State v. Issa, 93 Ohio St.3d 49, 64, 752 N.E.2d

904 (2001).

{¶ 59} At trial, the State introduced into evidence a number of voicemails that

Defendant had left for Serna. In this portion of his third assignment of error, Defendant

argues that the trial court abused its discretion in admitting into evidence and playing for the

jury the October 1, 2008 voicemail that Cunningham left for Serna.

{¶ 60} Following Serna’s death, the State was able to access Serna’s voicemail

through one of Serna’s friends, Tiffany Ridder. At trial, the State called Ridder as a witness

to identify the voicemails she accessed. The following excerpt from the transcript of the trial

includes the October 1, 2008 voicemail that was played for the jury:
 20

Q: Miss Ridder, again, please just listen to this; and I will ask you some

questions afterwards.

SPEAKER ONE: First saved message. Received October 1st at 4:05

p.m.

SPEAKER TWO: Yeah. So how was your lunch today? I wasn’t

trying to piss you off. I wasn’t trying to say too much at length. You know, I

said that little shit; but that’s how I felt. You know what I mean? Like, fuck

it. I feel like ending it sometimes ‘cause - - you know what I’m saying? I

already know - - I’m already frustrated by other little things. You know what

I’m saying? Things that ain’t working out the way I want ‘em to work out

anyway. And things ain’t working out the other way I want to work out

between us either. You know what I’m saying?

You talking about it was my fault, this, this, and that. You know what

I’m saying? That’s why (Inaudible) you know what I mean? So why should I

try to hurt somebody else, do something to somebody. I go ahead and just hurt

myself. You know?

Sometimes I feel like, you know what I mean, me and you, I know we

both meant to be together, this, this, and that. And other times, you know

what I’m saying, I wish I could just choke you and just make you just listen to

me and pay attention and, you know, listen to me what I’m trying to understand

what I’m trying to say to you how I really feel. But it’s like it’s going in one

ear and out the other. But, you know, something I just gonna have to deal
 21

with; but I wasn’t trying to be funny about that little shit or anything. I was

just being for real, man. I was just feeling like fuck it, tell my kids I try

sometimes, you know? I do try. I been trying hard to get us together and

have us stay together or whatever. But anyway, I know you don’t want to hear

that.

But I was calling to see how dinner was though, our little lunch thing.

Was it okay? (Inaudible) I wasn’t trying to argue or nothing. I wasn’t trying to

piss you off or anything what I said, trying to kill myself. I was for real.

(Inaudible) like that. But I don’t know, (Inaudible) like that or whatever.

You know.

(Trial Tr., p. 2353-2354) (Emphasis added.)

{¶ 61} Defendant argues that the October 1, 2008 voicemail was evidence of his

character inadmissible pursuant to Evid.R. 404(A)(1), and not otherwise admissible pursuant

to Evid.R. 404(B), which provides:

Other crimes, wrongs or acts. Evidence of other crimes, wrongs, or

acts is not admissible to prove the character of a person in order to show action

in conformity therewith. It may, however, be admissible for other purposes,

such as proof of motive, opportunity, intent, preparation, plan, knowledge,

identity, or absence of mistake or accident.

{¶ 62} Further, R.C. 2945.59 provides:

In any criminal case in which the defendant’s motive or intent, the

absence of mistake or accident on his part, or the defendant’s scheme, plan, or
 22

system in doing an act is material, any acts of the defendant which tend to

show his motive or intent, the absence of mistake or accident on his part, or the

defendant’s scheme, plan, or system in doing the act in question may be

proved, whether they are contemporaneous with or prior or subsequent thereto,

notwithstanding that such proof may show or tend to show the commission of

another crime by the defendant.

{¶ 63} Defendant argues that “the October 1, voice mail was too remote in time, and

not closely enough related in nature, time and place to the offense charged to be admitted for

motive purposes. It referenced choking, not shooting, and was clearly a statement made to

express frustration, not an intention to harm Serna.” (Brief, p. 31.)

{¶ 64} The fact that the violent behavior toward Serna that Defendant threatened was

choking her and not shooting her is immaterial with respect to its admissibility under Evid.R.

404(B). Evidence of a criminal defendant’s other crimes, wrongs, or acts is admissible as

circumstantial evidence of the actor’s guilt so long as (1) the particular matter which the

evidence is offered to show is probative of the defendant’s guilt, and not merely proof of

conforming conduct, and (2) the evidence offered is relevant to prove the particular matter

concerned.

{¶ 65} At the conclusion of his opening statement to the jury (Trial Tr., p. 1646),

Defendant’s counsel told the jurors:

Now, much has been made about this 9-1-1 tape. It is compelling. It is upsetting.

There’s no way to describe it other than that. You do hear gunshots, and you do hear final

words of the individuals. The problem with the tape is it doesn’t say who’s shooting that
 23

gun.

At the end of this case, we will be submitting to you that Kenneth Robinson did this,

not Charles Cunningham. We’re going to be asking you to find that there’s reasonable doubt

that Charles Cunningham did these acts that are alleged against him. All the various types of

accounts of murder, the tampering with evidence, and the weapons under disability.

Thank you.

{¶ 66} Kenneth Robinson was Defendant Cunningham’s companion and on the scene

when Serna and Shook were shot. Defendant’s accusation of Robinson made relevant to the

State’s case-in-chief any evidence that Defendant had a motive to kill Serna, and then Shook.

Statements Defendant made within days before the killings that demonstrate the intensity of

his anger and hostility toward Serna were admissible to prove a motive that caused him to

commit those violent crimes. State v. Kinley, 72 Ohio St.3d 491, 497, 651 N.E.2d 419

(1995). The recorded statement to which Defendant objected was therefore admissible

pursuant to Evid.R. 404(B).

{¶ 67} “B. THE CUMULATIVE USE OF THE VOICE MAILS AND 911 TAPE

WAS ERROREOUS [SIC]”

{¶ 68} Defendant argues that “[t]he fact that the voicemails and 911 were replayed

again, in contravention of the Court’s directive, at the end of the testimony of the State’s last

witness, resulted in an unfair trial to [Defendant].” (Brief, p. 32.) Defendant refers to the

following colloquy between the trial judge and counsel for Defendant and the State:

MR. SCHUMAKER: At this time, Your Honor, the State would request

leave to play those excerpts of State’s Exhibit 53 to Miss Morris that were
 24

previously played to Miss Ridder.

THE COURT: Approach the bench, please.

***

THE COURT: You want to replay what they just heard?

MR. SCHUMAKER: Yes, sir. This is another witness that can verify

and recognize the Defendant on those tapes and the State has the burden of

proof to prove that.

THE COURT: How many witnesses do you plan on doing this with?

MR. SCHUMAKER: I think that’s all of them. There may be Keisha

Serna at the end of the case, but this will be - - this is the last one I think that’s

testifying, so this would be the last one, except possibly Keisha Serna.

THE COURT: No, this will be the last time that they’re played to the

jury. If they want to listen to them. They’re not gonna play it.

MR. SCHUMAKER: Well, is the Defendant going to stipulate that

that’s his voice and he made those calls?

THE COURT: Don’t know that he has.

MR. MERRELL: We are repeating evidence.

MR. SCHUMAKER: It’s not repeating evidence. It’s brand new

testimony as far as the voice recognition.

THE COURT: She’s heard the disc already? Can she identify the

disc?
 25

MR. SCHUMAKER: I don’t know about in the form that it’s in. She’s

heard voice mail before.

MR. MERRELL: I think I was going to object to it being somewhat

repetitive, but I guess I would prefer it if she just asked whether she’s heard it

and whether she can identify the voice rather than repeating it.

MR. SCHUMAKER: There’s a number of voice mails on this. The

only way she can say specifically which once [sic] is to hear and tell the jurors

that yeah, that’s the Defendant’s voice.

COURT: Okay. For this witness, you can replay it but I’m not gonna

have it replayed again. If you want the witness to identify the disc and

message on these particular lines or between these particular times and that’s

his voice, that’s fine; but weren’t not gonna keep replaying it for the jury.

(Trial Tr., p. 2362-2365.)

{¶ 69} After this colloquy, the State played the voicemails at issue for Miss Morris.

Later, the State called Keisha Serna, Jessica Serna’s sister, as a witness and played the 911

tape so that Keisha could identify the voices in the 911 call. Defendant argues that the trial

court erred to his prejudice by allowing the 911 tape to be played again after the trial court, in

the colloquy quoted above, decided to limit the State’s ability to play the 911 tape again.

Defendant concedes, however, that his trial counsel failed to object to the replaying of the

voicemails and the 911 tape. (Brief, p. 33.) Consequently, Defendant waived any error

because he failed to object to the testimony at trial. State v. Burgess, 2d Dist. Montgomery

No. 20870, 2006-Ohio-772, ¶ 12 (Citations omitted.) Plain error is not demonstrated.
 26

{¶ 70} The third assignment of error is overruled.

{¶ 71} Fourth Assignment of Error:

{¶ 72} CUNNINGHAM RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL.

{¶ 73} Defendant argues on appeal that he received ineffective assistance of counsel

during his trial because his counsel “did not object to the replaying of the voicemails and 911

tape as part of Keisha Serna’s testimony, even after the Court indicated that the last time the

voicemails were to be played was through Morris testimony.” (Brief, p. 33.)

{¶ 74} Counsel’s performance will not be deemed ineffective unless and until

counsel’s performance is proved to have fallen below an objective standard of reasonable

representation and, in addition, prejudice arises from counsel’s performance. Strickland v.

Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674. To show that a defendant

has been prejudiced by counsel’s deficient performance, the defendant must affirmatively

demonstrate to a reasonable probability that were it not for counsel’s errors, the result of the

trial would have been different. Id.; State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373

(1989). “A reasonable probability is a probability sufficient to undermine confidence in the

outcome.” Strickland, 466 U.S. at 694. Further, the threshold inquiry should be whether a

defendant was prejudiced, not whether counsel’s performance was deficient. Strickland.

{¶ 75} Evid.R. 403(B) authorizes the court, in its discretion, to exclude relevant

evidence “if its probative value is substantially outweighed by considerations of undue delay,

or needless presentation of cumulative evidence.” The record supports a finding that the

court’s ruling excluding a second, additional playing of the recorded conversation after it had

been played for the witness Morris was made pursuant to Evid.R. 403(B). That ruling
 27

provided counsel for Defendant grounds to object when the recording was again played for

Keisha Serna. However, per Strickland, the threshold issue is whether Defendant was

prejudiced, that is, whether had an objection been made and sustained by the court, there is a

reasonable probability that the result of the proceeding would have been different. 466 U.S.

at 694. That reasonable probability is not shown on the record before us.

{¶ 76} The fourth assignment of error is overruled.

{¶ 77} Fifth Assignment of Error:

{¶ 78} “CUNNINGHAM’S CONVICTIONS WERE NOT SUPPORTED BY

SUFFICIENT EVIDENCE AND THE MANIFEST WEIGHT OF THE EVIDENCE DOES

NOT SUPPORT CUNNINGHAM’S CONVICTIONS.”

{¶ 79} A sufficiency of the evidence argument challenges whether the State has

presented adequate evidence on each element of the offense to allow the case to go to the jury

or to sustain the verdict as a matter of law. State v. Thompkins, 78 Ohio St.3d 380, 386, 678

N.E.2d 541 (1997). The proper test to apply to such an inquiry is the one set forth in

paragraph two of the syllabus of State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991):

An appellate court's function when reviewing the sufficiency of the

evidence to support a criminal conviction is to examine the evidence admitted

at trial to determine whether such evidence, if believed, would convince the

average mind of the defendant's guilt beyond a reasonable doubt. 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.
 28

{¶ 80} When reviewing a judgment under a manifest weight standard of review:

[t]he court, reviewing the entire record, weighs the evidence and all

reasonable inferences, considers the credibility of witnesses and determines

whether in resolving conflicts in the evidence, the [factfinder] clearly lost its

way and created such a manifest miscarriage of justice that the conviction must

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

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

heavily against the conviction.

Thompkins, at 387, quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st

Dist.1983).

{¶ 81} Defendant was convicted of one count of aggravated murder in violation of

R.C. 2903.01(A), two counts of felonious assault in violation of R.C. 2903.11(A)(2), two

counts of murder in violation of R.C. 2903.02(A), two counts of felony murder in

violation of R.C. 2903.02(B) and 2903.11(A)(2), two counts 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). We will briefly summarize the elements the

State needed to prove beyond a reasonable doubt in order to secure convictions on the

counts set forth in the indictment.

{¶ 82} R.C. 2903.01(A) provides: “No person shall purposely, and with prior

calculation and design, cause the death of another or the unlawful termination of another’s

pregnancy.”

{¶ 83} R.C. 2903.02(A) provides: “No person shall purposely cause the death of
 29

another or the unlawful termination of another’s pregnancy.”

{¶ 84} R.C. 2903.11(A)(2) provides: “No person shall knowingly do either of the

following: (2) Cause or attempt to cause physical harm to another or to another’s unborn by

means of a deadly weapon or dangerous ordnance.”

{¶ 85} R.C. 2903.02(B) provides: “No person shall cause the death of another as a

proximate result of the offender’s committing or attempting to commit an offense of violence

that is a felony of the first or second degree and that is not a violation of section 2903.03 or

2903.04 of the Revised Code.”

{¶ 86} R.C. 2923.13 provides, in part:

(A) Unless relieved from disability as provided in section 2923.14 of

the Revised Code, no person shall knowingly acquire, have, carry, or use any

firearm or dangerous ordnance, if any of the following apply:

***

(3) The person is under indictment for or has been convicted of any

felony offense involving the illegal possession, use, sale, administration,

distribution, or trafficking in any drug of abuse or has been adjudicated a

delinquent child for the commission of an offense that, if committed by an

adult, would have been a felony offense involving the illegal possession, use,

sale, administration, distribution, or trafficking in any drug of abuse.

{¶ 87} R.C. 2921.12(A)(1) provides:

(A) No person, knowing that an official proceeding or investigation is

in progress, or is about to be or likely to be instituted, shall do any of the
 30

following:

(1) Alter, destroy, conceal, or remove any record, document, or thing,

with purpose to impair its value or availability as evidence in such proceeding

or investigation * * *.

{¶ 88} A review of the evidence at trial establishes that the State presented evidence

adequate to permit any rational trier of fact to find that the essential elements of the crimes

proven beyond a reasonable doubt. Robinson was in the car with Defendant on the night of

the murders. (Id. at 2572-2573.) Robinson testified that Defendant followed Serna and

Shook and then blocked Shook’s vehicle with Defendant’s SUV. (Id. at 2570, 2669.) After

Defendant cut them off with his SUV, Defendant got out of his vehicle in a rage. (Id. at

2571.) Robinson witnessed Defendant punch Serna in the stomach and then shoot Serna and

Shook. (Id. at 2572-73.) Defendant then pointed the gun at Robinson and told him to “get

the hell out of here.” (Id. at 2572-73.) As Robinson drove away in Defendant’s SUV, he

noticed Defendant approach Carson on the sidewalk and walk off with him. (Id. at

2573-2574.)

{¶ 89} Carson corroborated Robinson’s testimony by testifying that he got out of

Shook’s vehicle and started walking when he heard gunshots and a scream. (Id. at 2674.)

He turned around and saw Shook coming through the two trucks towards her driver’s side

seat. Then he heard more gunshots and saw Shook fall face first on the pavement. (Id. at

2674-76.) Carson then saw Defendant coming through the trucks and it looked like

Defendant was stuffing something in the back of his pants. (Id. at 2676-2678.) At that

point, Defendant then told Carson to walk with him and they proceeded to walk towards the
 31

south end of Springfield. (Id. at 2678.) While they were walking, Defendant told Carson,

“You didn’t see anything. Don’t say anything.” (Id. at 2679.)

{¶ 90} The surveillance video from near the scene of the crimes was played for Carson

while he was on the witness stand at trial. He identified himself and Defendant on the video

walking. (Id. at 2681-82.) Carson testified that they were walking side by side because he

was not sure if Defendant would shoot again. (Id. at 2683-84.)

{¶ 91} Further, the jurors heard the 911 call that Shook placed around the time of the

murders. On the 911 tape, the jury could hear a woman screaming for help and saying, “Get

off of her.” (Id. at 1652.) Amy Morris and Keisha Serna were able to identify the voices on

the 911 call. (Id. at 2372-75; 2968-2972.) They stated that Shook was the one calling 911

dispatchers, and they both identified Serna in the background screaming repeatedly for

Defendant to stop. (Id. at 2372-2375, 2972.) They also identified Defendant as the person

on the 911 call who said, “I’m not playing man.” (Id. at 2373, 2375, 2972.) The gunshots

themselves can be heard on the 911 tape. No one at trial identified Robinson’s voice on the

911 call.

{¶ 92} Donna Rose, a forensic scientist in the Trace Unit at the Bureau of Criminal

Identification and Investigation, stated that she examined two samples from Defendant and

was able to detect a particle that was highly indicative of gunshot residue on one of

Defendant’s samples. (Id. at 2739-2745.) These samples were from Defendant’s right and

left hands. (Id.) The samples were collected by Detective Hicks on October 4, 2008 around

7:00 or 8:00 a.m. while Cunningham was at Miami Valley Hospital with Serna’s family. (Id.

at 2764-2765.)
 32

{¶ 93} Further, several witnesses testified to threats that Defendant made to Serna

throughout the evening and early morning of October 3rd and 4th, 2008. Caitlin Smith saw

an altercation between Defendant and Serna while she was standing outside of G.Z. Petes.

During the altercation, she heard Defendant threaten Serna by saying, “Bitch, if I can’t have

my family, you can’t have anything.” (Tr. 1725-1726.) At Burger King, Defendant argued

with Serna and Shook and hit Shook’s vehicle. (Id. at 2568, 2665.) The manager heard

Defendant say he was going to “hurt ‘em.” (Id. at 2482-2484.) Another Burger King

employee, Robert Farmer, heard Defendant say, “I’ll kill everybody in the truck.” (Id. at

2502.)

{¶ 94} Serna also made statements to Marcus Douthy the night of the murders about

Defendant, and she sounded panicked. She was yelling and almost crying when she stated,

“[Defendant’s] following me baby. he’s following me, he’s crazy, he’s crazy * * * .” (Id. at

2440.) During this conversation, Douthy heard Shook in the background saying, “What’s he

doing?”, and then the phone went dead. (Id. at 2443-2444.)

{¶ 95} Damon Burks, who resided with Defendant for a short period of time around

the time of the murders, testified that on the morning of the shootings Defendant spoke with

him on the telephone. Defendant said, “I messed up, I messed up.” (Id. at 2758.)

{¶ 96} Moreover, just two and one-half days before the murders, Defendant left Serna

a voicemail in which he said he wished he could choke her and make her listen and pay

attention to him. (Id. at 2349-2355; 2369-2371.) Shortly before Serna and Shook were

killed, Defendant left Serna two voicemails in which he stated his frustration that Serna would

not answer his calls to her. (Id. at 2349-55; 2365-68.) Defendant called Serna’s phone
 33

eleven times between 2:17 a.m. and 2:46 a.m. the morning of the murders. (Id. at

2895-2900.)

{¶ 97} Finally, a deputy clerk with the Clark County Common Pleas Clerk of Courts

stated that Defendant had two prior convictions. (Id. at 2393-2395.) These convictions were

for aggravated assault and possession of crack. (Id. at 2394-2395.) Officer Douglas Hobbs

confirmed that the person he arrested for the possession of crack charge was in fact

Defendant. (Id. at 2401-2403.) The deputy clerk further testified that neither of the files

pertaining to the two convictions contained a court order relieving Defendant from his

disability to carry firearms. (Id. at 2397.)

{¶ 98} Based on a review of the testimony and evidence presented at trial, and

viewing the evidence in a light most favorable to the prosecution, we conclude that any

rational trier of fact could have found the essential elements of the crimes proven beyond a

reasonable doubt.

{¶ 99} Further, the evidence summarized above is competent, credible evidence of

Defendant’s guilt. Based on this record, we cannot find that Defendant’s convictions are

against the manifest weight of the evidence.

{¶ 100} Despite the overwhelming evidence of his guilt presented at trial,

Defendant argues that he should not have been convicted of any of the offenses set forth in the

indictment because the State failed to prove, beyond a reasonable doubt, that Defendant shot

Serna and Shook and that he had possession of a gun to do so. Defendant bases his argument

on his own testimony that Robinson committed the murders and that Robinson lacked

credibility. The credibility of the witnesses and the weight to be given to their testimony are
 34

matters for the trier of facts to resolve. State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212

(1967).

{¶ 101} In State v. Lawson, 2d Dist. Montgomery No. 16288, 1997 WL 476684,

*4 (Aug. 22, 1997), we observed:

Because the factfinder * * * has the opportunity to see and hear the

witnesses, the cautious exercise of the discretionary power of a court of appeals

to find that a judgment is against the manifest weight of the evidence requires

that substantial deference be extended to the factfinder’s determinations of

credibility. The decision whether, and to what extent, to credit the testimony

of particular witnesses is within the peculiar competence of the factfinder, who

has seen and heard the witness.

{¶ 102} This court will not substitute its judgment for that of the trier of facts

on the issue of witness credibility unless it is patently apparent that the trier of facts lost its

way in arriving at its verdict. State v. Bradley, 2d Dist. Champaign No. 97-CA-03, 1997 WL

691510 (Oct. 24, 1997). Based on our review of the record before us, we cannot find that the

jury lost its way in arriving at its verdict.

{¶ 103} Defendant also argues that even if he committed the murders of Shook

and Serna, “the State did not prove beyond a reasonable doubt that those murders were

conducted with prior calculation and design. The jury acquitted Cunningham of the

aggravated murder of Shook – meaning they did not find that her death was the result of prior

calculation and design.” In short, Defendant appears to argue that the jury’s not guilty verdict

on the count charging Defendant with aggravated murder of Shook is inconsistent with the
 35

guilty verdict on the count charging Defendant with aggravated murder of Serna. We do not

agree.

{¶ 104} In State v. Hawkins, 2d Dist. Montgomery No. 21691, 2007-Ohio-2979,

at ¶ 23-24, we wrote:

Courts in Ohio have held on numerous occasions that an inconsistency

in a verdict cannot arise from inconsistent responses to different counts. State

v. Brown (1984), 12 Ohio St.3d 147, 12 OBR 186, 465 N.E.2d 889, syllabus;

State v. Hayes, 166 Ohio App.3d 791, 2006-Ohio-2359, 853 N.E.2d 368, at

¶35. Instead, an inconsistency only arises when a jury gives inconsistent

responses to the same count. State v. Washington (1998), 126 Ohio App.3d

264, 276, 710 N.E.2d 307. The Ohio Supreme Court has explained that “each

count in an indictment charges a distinct offense and is independent of all other

counts. Following that reasoning, the court found that a jury’s decision as to

one count is independent of and unaffected by the jury’s finding on another

count.” Id. See, also, Browning v. State (1929), 120 Ohio St. 62, 165 N.E.2d

566, paragraph three of the syllabus.

Moreover, in the context of inconsistent verdicts of conviction and

acquittal, the United States Supreme Court has provided, “‘The most that can

be said in such cases is that the verdict shows that either in the acquittal or the

conviction the jury did not speak their real conclusions, but that does not show

that they were not convinced of the defendant’s guilt. We interpret the acquittal

as no more than their assumption of a power which they had no right to
 36

exercise, but to which they were disposed through lenity.’” Dunn v. United

States (1932), 284 U.S. 390, 393, 52 S.Ct. 189, 76 L.Ed. 356, quoting Steckler

v. United States (C.A.2, 1925), 7 F.2d 59, 60. In United States v. Powell

(1984), 469 U.S. 57, 105 S.Ct. 471, 83 L.Ed.2d 461, the Court reiterated its

holding in Dunn, explaining that inconsistencies between verdicts on separate

counts do not necessarily mean that a jury made a mistake. Even if an

inconsistency was found to be an error working against a defendant, the Court

stated that review is unwarranted, for “an individualized assessment of the

reason for the inconsistency would be based either on pure speculation, or

would require inquiries into the jury’s deliberations that courts generally

will not undertake.” Id. at 66.

{¶ 105} The aggravated murders of Serna and Shook were set forth in separate

counts of the indictment. Further, it is not necessarily inconsistent for a jury to find that

Defendant had the requisite, prior calculation and design in murdering Serna, who he had

threatened a number of times leading up to the morning of the murder, while he did not have

the prior calculation and design to murder Shook. Therefore, we decline to find that a not

guilty finding on Count 5 of the indictment is inconsistent with or precludes a finding of guilty

on Count 1 of the indictment.

{¶ 106} The fifth assignment of error is overruled.

{¶ 107} Sixth Assignment of Error:

{¶ 108} “THE CUMULATIVE EFFECT OF ERRORS COMMITTED

DURING CUNNINGHAM’S TRIAL DEPRIVED HIM OF A FAIR TRIAL.”
 37

{¶ 109} Separately harmless errors may violate a defendant’s right to a fair trial

when the errors are considered together. State v. Madrigal, 87 Ohio St.3d 378, 397, 721

N.E.2d 52 (2000). To find cumulative error present, we first must find multiple errors

committed at trial. Id. at 398. We then must find a reasonable probability that the outcome

below would have been different but for the combination of separately harmless errors. State

v. Thomas, 2d Dist. Clark No. 2000-CA-43, 2001 WL 1103328, * 9 (Sept. 21, 2001)

(Citations omitted.)

{¶ 110} In order to have cumulative error, multiple errors must be present.

Because we have not found multiple, prejudicial errors, there is no cumulative error.

Madrigal; State v. Ruby, 149 Ohio App.3d 541, 2002-Ohio-5381, 778 N.E.2d 101, ¶ 78 (2d

Dist.). The sixth assignment of error is overruled.

III. Conclusion

{¶ 111} Having overruled all of the assignments of error, we will affirm the

judgment of the trial court.

DONOVAN, J., And HALL, J., concur.

Copies mailed to:

Lisa M. Fannin, Esq.
Brandin D. Marlow, Esq.
Hon. Richard J. O’Neill