[Cite as State v. Williams, 2011-Ohio-5483.]
[Please see original opinion at 2011-Ohio-4812.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 95796
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
BENJAMIN WILLIAMS
DEFENDANT-APPELLANT
JUDGMENT:
REVERSED AND REMANDED
Criminal Appeal from the
Cuyahoga County Common Pleas Court
Case No. CR-532133
BEFORE: E. Gallagher, J., Blackmon, P.J., and Keough, J.
RELEASED AND JOURNALIZED: October 27, 2011
2
ATTORNEYS FOR APPELLANT
Robert L. Tobik
Public Defender
BY: Cullen Sweeney
Assistant Public Defender
310 Lakeside Avenue
Suite 200
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
BY: Gregory Mussman
Assistant County Prosecutor
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
ON RECONSIDERATION1
EILEEN A. GALLAGHER, J.:
{¶ 1} Defendant-appellant, Benjamin Williams, appeals from his convictions in
the Cuyahoga County Court of Common Pleas. For the following reasons, we reverse
the judgment of the trial court and remand for further proceedings.
The original announcement of decision, State v. Williams, Cuyahoga App.
1
No. 95796, 2011-Ohio-4812, released September 22, 2011, is hereby vacated. This
opinion, issued upon reconsideration, is the court’s journalized decision in this
appeal. See App.R. 22(C); see, also, S.Ct.Prac.R. 2.2(A)(1).
3
{¶ 2} Appellant was indicted on December 29, 2009, and charged with
aggravated murder in violation of R.C. 2903.01(A)(Count 1), aggravated murder in
violation of R.C. 2903.01(B) (Count 2), aggravated robbery in violation of R.C.
2911.01(A)(1) (Count 3), aggravated robbery in violation of R.C. 2911.01(A)(3) (Count
4), and discharge of a firearm on or near prohibited premises in violation of R.C.
2923.162(A)(3) (Count 5). One- and three-year gun specifications pursuant to R.C.
2941.141(A) and 2941.145(A), respectively, were attached to all five counts.
{¶ 3} Count 5 was voluntarily dismissed by the state prior to trial that
commenced on July 6, 2010. The jury returned a verdict of not guilty on Counts 1 and 3
as well as to the lesser included offense of murder under Count 1. The jury found
appellant guilty of aggravated murder as to Count 2 and guilty of aggravated robbery as
to Count 4. The jury further found appellant not guilty of the gun specifications on
Counts 2 and 4.
{¶ 4} On September 8, 2010, prison terms of life with parole eligibility after 30
years on Count 2 and ten years on Count 4 were imposed. The trial court ordered the
sentences to run concurrently. Appellant brought the present appeal raising the nine
assignments of error contained in the appendix to this opinion.
{¶ 5} In his first assignment of error, appellant posits that the State failed to
present sufficient evidence that he committed the crimes of aggravated robbery and
aggravated murder.
4
{¶ 6} “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.” State v. Jenks (1991), 61 Ohio St.3d 259, 574 N.E.2d 492, paragraph two of the
syllabus (superseded by statute and constitutional amendment on other grounds). A
reviewing court is not to assess “whether the state’s evidence is to be believed, but
whether, if believed, the evidence against a defendant would support a conviction.”
State v. Thompkins (1997), 78 Ohio St.3d 380, 390, 678 N.E.2d 541, (Cook, J.,
concurring).
{¶ 7} Appellant was convicted of aggravated murder as charged in Count 2 in
violation of R.C. 2903.01(B). Pursuant to R.C. 2903.01(B), “[n]o person shall
purposely cause the death of another * * * while committing or attempting to commit, or
while fleeing immediately after committing or attempting to commit, * * * aggravated
robbery * * *. ”
{¶ 8} Appellant was also convicted of aggravated robbery as charged in Count 4
in violation of R.C. 2911.01(A)(3), which provides that, “[n]o person, in attempting or
committing a theft offense, as defined in section 2913.01 of the Revised Code, or in
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fleeing immediately after the attempt or offense, shall do any of the following: * * * (3)
Inflict, or attempt to inflict, serious physical harm on another.”
{¶ 9} Although theft requires that the accused actually obtain or exert control
over the property, attempted theft has no such requirement. R.C. 2923.02(A) defines
attempt as “conduct that, if successful, would constitute or result in the offense.”
“Criminal attempt” is an act or omission constituting a substantial step in a course of
conduct planned to culminate in the actor’s commission of the crime but that falls short
of completion of the crime. State v. Group, 98 Ohio St.3d 248, 2002-Ohio-7247, 781
N.E.2d 980, at ¶101, citing State v. Woods (1976), 48 Ohio St.2d 127, 357 N.E.2d 1059,
paragraph one of the syllabus, overruled in part on other grounds by State v. Downs
(1977), 51 Ohio St.2d 47, 53, 364 N.E.2d 1140. A “substantial step” requires conduct
that is “strongly corroborative of the actor’s criminal purpose.” Id.
{¶ 10} The elements of an offense may be established by direct evidence,
circumstantial evidence or both. State v. Durr (1991), 58 Ohio St.3d 86, 568 N.E.2d
674. Circumstantial evidence is defined as, “‘[t]estimony not based on actual personal
knowledge or observation of the facts in controversy, but of other facts from which
deductions are drawn, showing indirectly the facts sought proved. * * * ’” State v.
Nicely (1988), 39 Ohio St.3d 147, 150, 529 N.E.2d 1236, quoting Black’s Law
Dictionary (5th Ed.1979) 221. Circumstantial and direct evidence are of equal
evidentiary value. State v. Jenks (1991), 61 Ohio St.3d 259, 272, 574 N.E.2d 492.
6
{¶ 11} The following relevant facts were adduced at trial: James Zagorski was
shot the night of September 15, 2008, in the parking lot of a Food Plus convenient store
situated at Glendale and Lee Road in Cuyahoga County. Zagorski was transported, via
ambulance, to Metro Hospital where he was pronounced dead at 10:05 p.m. Zagorski
had intended to rendevous with Kevin Warner that night in order to purchase marijuana
from Warner. Warner was working at a nearby Popeye’s Chicken at the time Zagorski
arrived in the area and, therefore, he could not immediately conduct the sale. Zagorski
waited for Warner, in his car, in the parking lot of the Food Plus convenient store.
{¶ 12} Passing witnesses observed a number of young men congregating on the
side of the Food Plus store near Zagorski’s car and one witness heard gunshots and then
saw the young men dispersing. Shortly after the gunshots, witnesses observed
Zagorski’s car move from the side of the Food Plus building and crash into a nearby
pole.
{¶ 13} An autopsy performed by the Cuyahoga County Coroner’s Office
established that Zagorski died from a single gunshot wound to the chest. Forensics
established that the fatal shot was fired from the driver’s side of Zagorski’s car.
{¶ 14} In Zagorski’s vehicle police found $60 and two pill bottles containing
marijuana. At Metro Hospital, $1,212.18 was recovered from Zagorski’s person.
{¶ 15} At trial, circumstantial evidence was presented that appellant attempted to
commit a theft offense and in so doing inflicted serious physical harm upon Zagorski.
7
Evidence was presented that, in the course of the attempted aggravated robbery,
appellant purposely caused the death of Zagorski. Police found discarded cigar tips and
saliva at the scene from which DNA was recovered. That DNA placed witnesses
Daquan Jackson and Jermaine Jefferson in the group of young men who were present at
the scene of the crime.
{¶ 16} Jackson and Jefferson both placed appellant at the scene of the crime when
Zagorski was shot. Jefferson testified that the group of young men observed Zagorski
waiting in his car and that there was a discussion about robbing Zagorski. Jefferson
testified that appellant stated that he wanted to rob Zagorski and that appellant turned
and began to approach Zagorski’s car when Jefferson walked away to avoid the situation.
Jackson testified that when he left appellant was standing roughly four or five feet away
from the passenger side of Zagorski’s car. Both Jefferson and Jackson testified to
hearing a gunshot a short time later. Jefferson testified that appellant told him “that he
wasn’t like supposed to have killed him or shot him or anything” which, when
considered in a light most favorable to the prosecution, provides circumstantial
evidence that Zagorski was shot by appellant during a failed robbery.2
Although we consider Jefferson’s testimony in a light most favorable to the prosecution for
2
the purposes of our sufficiency analysis, we note the ambiguity of Jefferson’s choice of words.
Jefferson never identified appellant as the individual to whom Jefferson referred as “he.” Neither
party sought clarification from Jefferson on this issue.
8
{¶ 17} Appellant cites State v. Scott, Cuyahoga App. No. 83477, 2004-Ohio-4631,
for the proposition that “mere words” by a defendant expressing an intent to take
something do not “constitute a substantial step in the commission of a theft offense so as
to support a conviction for aggravated robbery” and aggravated felony murder. Scott is
distinguishable from the case sub judice, however. In Scott, the defendant believed that
one man among a group of men had stolen his jacket. Scott, and the witnesses who later
testified against him, followed the group of men but eventually lost sight of the man
Scott believed to be in possession of his property. Scott told witnesses that he intended
to steal a jacket from another man in the group. However, when Scott confronted the
man, Scott immediately opened fire with a handgun and made no effort to commit a theft
offense. We noted in Scott that, despite his previously stated intentions, the defendant
“made no attempt to deprive [the victim] of any property either before or after this
senseless foray.” The evidence suggested it was more likely that Scott was “seeking
revenge in any form, but settled on inflicting fatal gunshot wounds rather than the pursuit
of [the victim’s] jacket.” We concluded that, “[a]s such, appellant’s mere words to the
effect that he would take [the victim’s] jacket did not constitute a substantial step in the
commission of a theft offense so as to support a conviction for aggravated robbery.” Id.
at ¶14.
{¶ 18} In the present case, unlike Scott, there is evidence that a theft was
attempted but went awry. Appellant expressed his intent to rob Zagorski. Jefferson
9
saw appellant approach Zagorski’s car and did not hear a gunshot until at least a minute
later. Finally, Jefferson’s conversation with appellant after the shooting is
circumstantial evidence that an attempted theft occurred.
{¶ 19} Viewing the above evidence in a light most favorable to the prosecution, a
rational trier of fact could have found the essential elements of aggravated robbery and
aggravated murder proven beyond a reasonable doubt.
{¶ 20} Appellant’s first assignment of error is overruled.
{¶ 21} As appellant’s fourth assignment of error is, in essence, a sufficiency
challenge, we briefly address it out of order here. Appellant argues that he did not
receive a fair trial as required by due process because the jury failed to follow the trial
court’s jury instructions. Appellant’s indictment charged him as the principal offender,
not as an accomplice pursuant to the complicity statute, R.C. 2923.03. The State did not
request and the trial court did not provide the jury with a complicity instruction.
Appellant argues that absent a complicity instruction, the jury could not convict him
based on its own theory that he was complicit in the murder, although he did not actually
commit it.
{¶ 22} Appellant’s argument in this instance is essentially a sufficiency challenge.
Appellant’s arguments rely on his assertion that the State did not present sufficient
evidence that he shot Zagorski. Appellant cites State v. Frost, 164 Ohio App.3d 61,
2005-Ohio-5510, 841 N.E.2d 336, for the proposition that in the absence of a complicity
10
instruction, he cannot be convicted as an aider and abetter. Appellant’s reliance on
Frost is misplaced. In Frost, unlike the present case, the defendant was tried under the
theory that he was an accomplice. The State provided sufficient evidence that Frost was
an accomplice to robbery and that his co-defendant, Walton, was the principal. The trial
court, however, instructed the jury as though Frost had been a principal and did not
provide the jury with an instruction on aiding and abetting, as requested by the State.
The Second District Court of Appeals reversed Frost’s conviction for robbery because
the record was devoid of any evidence to support Frost’s conviction as a principal in the
crime.
{¶ 23} In the present case, unlike Frost, viewing the evidence in a light most
favorable to the prosecution, the state presented sufficient evidence, as discussed above,
that appellant was the principal offender in both of the crimes for which he was
convicted.
{¶ 24} Appellant’s fourth assignment of error is overruled.
{¶ 25} Appellant argues in his second assignment of error that his convictions
were against the manifest weight of the evidence. The question to be answered when a
manifest-weight issue is raised is whether “there is substantial evidence upon which a
jury could reasonably conclude that all the elements have been proved beyond a
reasonable doubt. In conducting this review, we must examine the entire record, weigh
the evidence and all reasonable inferences, consider the credibility of the witnesses, and
11
determine whether the jury clearly lost its way and created such a manifest miscarriage
of justice that the conviction must be reversed and a new trial ordered.” (Internal
citations and quotations omitted.) State v. Leonard, 104 Ohio St.3d 54, 68,
2004-Ohio-6235, 818 N.E.2d 229.
{¶ 26} The weight of the evidence and the credibility of the witnesses are
primarily for the trier of fact. State v. DeHass (1967), 10 Ohio St.2d 230, 227 N.E.2d
212, paragraph one of the syllabus. Where a judgment is supported by competent,
credible evidence going to all essential elements to be proven, the judgment will not be
reversed as being against the manifest weight of the evidence. State v. Annable,
Cuyahoga App. No. 94775, 2011-Ohio-2029, at ¶60, citing State v. Mattison (1985), 23
Ohio App.3d 10, 14, 490 N.E.2d 926. The power to reverse a judgment of conviction as
against the manifest weight must be exercised with caution and in only the rare case in
which the evidence weighs heavily against the conviction. State v. Martin (1983), 20
Ohio App.3d 172, 175, 485 N.E.2d 717.
{¶ 27} After reviewing the entire record, considering the credibility of the
witnesses and weighing the evidence, we find that the jury clearly lost its way in
resolving conflicts in the evidence, and a manifest miscarriage of justice resulted. The
record lacks consistent, credible evidence to support the jury’s verdict that appellant was
guilty of aggravated robbery and aggravated murder.
12
{¶ 28} As discussed above, appellant was indicted and tried as the principal
offender in the alleged crimes, not as an accomplice. Though the state presented
sufficient evidence to support appellant’s convictions, the weight of the evidence clearly
favored the conclusion that appellant was not the principal offender of these crimes.
{¶ 29} We reach this conclusion based upon the fact that the appellant was not
linked to the crime or crime scene by any tangible evidence. The only link between
appellant and the shooting was the testimony of Jackson and Jefferson. Neither Jackson
nor Jefferson came forward and provided statements to police until after DNA evidence
had physically linked each of them to the crime scene. The credibility of both of these
witnesses was called into question at trial. Jackson had previously been convicted of a
felony and contradicted, at trial, his prior accounts of which specific individuals were
present at the crime scene on the night of the shooting. Jefferson initially lied to police
and claimed that he did not see anything the night of the shooting. Only after
Jefferson’s DNA was tied to the crime scene, and he was threatened with a charge of
obstructing justice, did Jefferson implicate appellant in Zagorski’s shooting. Both
Jackson and Jefferson testified that they conveniently left the scene moments prior to the
shooting despite third-party testimony that multiple young men fled the scene just after
the gunshots were heard. Neither witness saw appellant with a gun the night of the
shooting and no witness saw appellant shoot Zagorski.
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{¶ 30} Finally, forensic evidence established that Zagorski was shot from just
outside the driver’s side of his car. Incongruously, Jackson placed appellant on the
passenger side of Zagorski’s vehicle just prior to the shooting. This inconsistency
particularly stands out in light of Jefferson’s testimony. As discussed above, Jefferson’s
recounting of appellant’s alleged statement, “that he wasn’t like supposed to have killed
him or shot him or anything” was ambiguous because Jefferson did not clarify that the
“he” in the statement referred specifically to appellant as opposed to an accomplice.
{¶ 31} After reviewing the entire record, weighing all of the evidence and
considering the credibility of witnesses, we find that this is the exceptional case where
the “jury clearly lost its way and created such a manifest miscarriage of justice that the
conviction must be reversed and a new trial ordered.” Leonard, 104 Ohio St.3d at 68.
{¶ 32} Appellant’s second assignment of error is sustained.
{¶ 33} In his third assignment of error, appellant argues that the trial court erred in
responding to two jury questions.
{¶ 34} During deliberations the jury posed the following questions:
1. “Under count 1, the lesser charge * * * Based on definition of Purpose: Does
[appellant] have to be holding the gun or does he have to be involved in an action
that brought about the result of [Zagorski’s] death?”
2. “To be charged with any of these counts, does the State have to prove that
[appellant] had the gun in his hand?”
14
{¶ 35} The trial court responded to these questions by referring the jury back to
the provided jury instructions, stating, “All I can tell you is that you have the pertinent
law in the jury charge.”3
{¶ 36} Appellant argues that the trial court erred in failing to respond to the jury’s
questions in greater detail.
{¶ 37} Where, during the course of its deliberations, a jury requests further
instruction, or clarification of instructions previously given, a trial court has discretion to
determine its response to that request. A reversal of a conviction based upon a trial
court’s response to such a request requires a showing that the trial court abused its
discretion. State v. Carter, 72 Ohio St.3d 545, 552-553, 1995-Ohio-104, 651 N.E.2d
965; State v. Lindsey (2000), 87 Ohio St.3d 479, 488, 721 N.E.2d 995. Absent error in
the original jury instructions, a trial court does not abuse its discretion by referring the
jury to a written copy of the instructions rather than giving further oral instructions. Id.
at 553, 651 N.E.2d 974; Lindsey, 87 Ohio St.3d at 488.
We note that the record is incomplete in that the trial court conducted off the record
3
proceedings with respect to the jury questions and objections throughout the trial. However, in the
affidavit of trial counsel Jeffrey Richardson attached to appellant’s motion for a new trial filed July
26, 2010 and denied on September 8, 2010, Mr. Richardson does aver that he requested that the trial
court respond “no” to both of the jury’s questions in light of the fact that no complicity instruction
was provided. Mr. Richardson avers that the state opposed his suggested answer and that he
objected to the trial court’s ultimate decision to refer the jury back to the previously provided jury
instructions.
15
{¶ 38} In the case sub judice, appellant argues that the trial court erred by not
clarifying for the jury that in order to convict him of the above crimes the jury would
necessarily have to find that he was the principal offender, i.e. the shooter. Appellant
does not take issue with any specific written or oral jury instructions provided by the trial
court. The trial court in this instance did not abuse its discretion by referring the jury
back to the original instructions. See, also, State v. Smith, Belmont App. No. 06 BE 22,
2008-Ohio-1670 (where jury question sought clarification as to whether the State needed
to prove that defendant personally pulled the trigger in order to convict for murder, the
trial court’s reference back to the original instructions was not an abuse of discretion
where the instructions lacked any deficiency).
{¶ 39} Appellant’s third assignment of error is overruled.
{¶ 40} In his fifth assignment of error, appellant argues that the jury’s verdict is
inconsistent because it found him guilty of aggravated robbery and aggravated murder
but not guilty of the firearm specifications attached to those two counts. “Under Ohio
law, the several counts of an indictment containing more than one count are not
interdependent, and an inconsistency in a verdict does not arise out of inconsistent
responses to different counts, but only arises out of inconsistent responses to the same
count.” State v. Houser (May 30, 1996), Cuyahoga App. No. 69639, citing State v.
Brown (1984), 12 Ohio St.3d 147, 465 N.E.2d 889.
16
{¶ 41} We have repeatedly held that a not guilty verdict with regard to a firearm
specification is not inconsistent with a guilty verdict for aggravated robbery. State v.
Hardware, Cuyahoga App. No. 93639, 2010-Ohio-4346, at ¶15. Appellant argues that
based upon the Ohio Supreme Court’s holding in State v. Evans, 113 Ohio St.3d 100,
2007-Ohio-861, 863 N.E.2d 113, a firearm specification is considered dependent on the
underlying charge, and thus the two should be considered the same count. This court
previously rejected this argument in Hardware, relying on our prior holding in State v.
Fair, Cuyahoga App. No. 89653, 2008-Ohio-930, wherein we held that the underlying
offense and the firearm specification constitute different crimes. Id. at ¶24, citing State
v. Boyd (1996), 110 Ohio App.3d 13, 673 N.E.2d 607. We are unwilling to overrule this
court’s holding in Fair.
{¶ 42} Appellant’s fifth assignment of error is overruled.
{¶ 43} In his sixth assignment of error, appellant argues that he was deprived of
his due process right to a fair trial due to prosecutorial misconduct. Specifically,
appellant argues that the prosecutor engaged in misconduct by suggesting to the jury that
he personally believed the defendant was guilty, by soliciting speculative and
inadmissible testimony, by asking the investigating detective to improperly bolster other
witnesses’ testimony and by urging the jury to consider facts not in evidence.
{¶ 44} The test for prosecutorial misconduct is whether the prosecutor’s remarks
were improper and, if so, whether they prejudicially affected substantial rights of the
17
accused. State v. Bey, 85 Ohio St.3d 487, 1999-Ohio-283, 709 N.E.2d 484; State v.
Lott (1990), 51 Ohio St.3d 160, 165, 555 N.E.2d 293, cert. denied, 498 U.S. 1017, 111
S.Ct. 592, 112 L.Ed.2d 596. A prosecutor’s conduct during trial cannot be grounds for
error unless the conduct deprives the defendant of a fair trial. State v. Apanovitch
(1987), 33 Ohio St.3d 19, 24, 514 N.E.2d 394. The focus of that inquiry is on the
fairness of the trial, not the culpability of the prosecutor. Bey, 85 Ohio St.3d at 487.
{¶ 45} Appellant did not object at trial to the comments he now challenges as
improper. In the absence of objection to improper comments, the alleged prosecutorial
misconduct can only be the basis for reversal if it rises to the level of plain error. Crim.R.
52(B). To constitute plain error, the error must be obvious on the record, palpable, and
fundamental, so that it should have been apparent to the trial court without objection.
See State v. Tichon (1995), 102 Ohio App.3d 758, 767, 658 N.E.2d 16. Moreover, plain
error does not exist unless the appellant establishes that the outcome of the trial clearly
would have been different but for the trial court’s allegedly improper actions. State v.
Waddell (1996), 75 Ohio St.3d 163, 166, 661 N.E.2d 1043. Notice of plain error is to be
taken with utmost caution, under exceptional circumstances, and only to prevent a
manifest miscarriage of justice. State v. Phillips, 74 Ohio St.3d 72, 83, 656 N.E.2d 643.
{¶ 46} Our focus, upon review, is whether the prosecutor’s comments deprived
appellant of a fair trial such that there is a reasonable probability that, but for the
prosecutor’s misconduct, the result of the proceeding would have been different. State
18
v. Onunwor, Cuyahoga App. No. 93937, 2010-Ohio-5587, at ¶42, citing State v. Loza
(1994), 71 Ohio St.3d 61, 78-79, 641 N.E.2d 1082, overruled on other grounds.
{¶ 47} Appellant first argues that the state committed prosecutorial misconduct
when the prosecutor told the jury that he was “here to bring the person that [killed
Zagorski] to justice.” (Tr. 428, 578.) Prosecutors may not express their personal
beliefs or opinions regarding the guilt of the accused. State v. Elliott, Cuyahoga App.
No. 91999, 2009-Ohio-5816, at ¶26, citing State v. Lott (1990), 51 Ohio St.3d 160, 165,
555 N.E.2d 293. Appellant argues that the prosecutor’s statements regarding his
purpose or role at court violated this rule. We disagree. “Isolated comments by a
prosecutor are not to be taken out of context and be given their most damaging
meaning.” State v. Hill (1996), 75 Ohio St.3d 195, 204, 661 N.E.2d 1068, citing
Donnelly v. DeChristoforo (1974), 416 U.S. 637, 647, 94 S.Ct. 1868, 40 L.Ed.2d 431.
A review of the record does not support appellant’s contention that the prosecutor’s
comments amounted to an expression of his personal belief regarding the appellant’s
guilt.
{¶ 48} Appellant’s second prosecutorial misconduct argument is that the state
deprived him of a fair trial by eliciting speculative testimony. Appellant cites the
prosecutor’s direct examination of Jefferson, where it was established that Jefferson did
not actually witness a confrontation between appellant and Zagorski and did not witness
the shooting. Nonetheless, Jefferson testified that when he later heard a gunshot he
19
could “put it together and seen what had happened.” The prosecutor then asked him
what he had “put together,” to which Jefferson replied, “[t]hat they went over to rob him
and shot him and he tried to pull out and probably died while he was trying to pull out.”
There is no indication that Jefferson possessed any personal knowledge to support this
testimony as required by Evid.R. 602. In fact, Jefferson’s testimony leaves no doubt
that he lacked personal knowledge in this instance. Although appellant did not object to
this testimony at trial, it is clear upon review that the prosecutor improperly solicited
from Jefferson testimony that was speculative and was established to be beyond his
personal knowledge. The trial court should not have permitted Jefferson to testify as to
what his imagination had concocted out of the circumstances. The jury was fully
capable of drawing its own inferences from the evidence without the aid of Jefferson’s
speculation. Jefferson’s speculative testimony was improperly elicited and admitted.
{¶ 49} Appellant additionally cites to the direct examination of Detective
Veverka, wherein the following exchange occurred:
{¶ 50} Prosecutor: “Now, at this point, is there anything left to do as part of your
investigation?”
{¶ 51} Detective Veverka: “At this point we were still trying to identify a second
individual.”
{¶ 52} Prosecutor: “And why is that?”
20
{¶ 53} Detective Veverka: “We have reports that two individuals approached
James Zagorski’s car. Our investigation led us to believe that Benjamin Williams was
one of the individuals and we’re still trying to determine who the second individual is.”
{¶ 54} Appellant argues that the prosecutor engaged in misconduct by eliciting
this testimony because it suggested that Detective Veverka reached his own conclusion
about appellant’s guilt based on evidence that was not presented to the jury. Appellant
draws this conclusion from the fact that none of the witnesses at trial testified to a second
individual approaching Zagorski’s car.
{¶ 55} Even assuming that the testimony quoted above was improperly admitted,
we do not find that the statements prejudicially affected appellant’s substantial rights.
When considering the entire record in this case, we cannot say that absent the improper
testimony, the jury verdict would have been different.
{¶ 56} Appellant next argues that the prosecutor improperly used the testimony of
Detective Veverka to bolster the credibility of Carlton Tidmore and Daquan Jackson.
Generally, the opinion of a witness as to whether another witness is being truthful is
inadmissible. State v. Boston (1989), 46 Ohio St.3d 108, 128, 545 N.E.2d 1220
(overruled on other grounds). It is undisputed that a police officer may not testify as to
a witness’s veracity. State v. Black, Cuyahoga App. No. 92806, 2010-Ohio-660, at ¶31,
citing State v. Davis, 116 Ohio St.3d 404, 2008-Ohio-2, 880 N.E.2d 31, ¶122. In our
system of justice, it is the factfinder, not the expert or lay witness, who bears the burden
21
of assessing the credibility or veracity of a witness. State v. Eastham (1988), 39 Ohio
St.3d 307, 312, 530 N.E.2d 409.
{¶ 57} The record does not support appellant’s contention that the prosecutor
elicited testimony from Detective Veverka to bolster the credibility of Tidmore and
Jackson. Tidmore himself admitted that he told the police “about a half-dozen different
stories” about where he got the gun police recovered from him. Detective Veverka’s
testimony was limited to confirming that one of many of Tidmore’s gun acquisition
stories was verified. In regards to Jackson, the record reveals that the prosecutor did not
ask a question seeking Detective Veverka’s opinion on Jackson’s credibility. Rather,
Veverka testified that after Jackson’s DNA was linked to the scene, he was questioned as
part of the investigation “and he testified to what he told us and that is consistent with
what he told us that day.” The prosecutor’s question in no way elicited this response
and, considering the inconsistencies in Jackson’s testimony and Jackson’s admission that
he did not cooperate until his DNA was linked to the scene, it is unclear what effect
Veverka’s ambiguous statement could possibly have had on Jackson’s credibility.
Furthermore, Jackson’s testimony added little to the state’s case beyond placing the
defendant at the scene, a fact corroborated by Jefferson.
{¶ 58} In his fourth, and final claim of prosecutorial misconduct, appellant takes
issue with comments made by the prosecutor during closing arguments. In general,
prosecutors are given considerable latitude in opening statements and closing arguments.
22
State v. Ballew (1996), 76 Ohio St.3d 244, 255, 667 N.E.2d 369. In closing argument,
a prosecutor may comment on “‘what the evidence has shown and what reasonable
inferences may be drawn therefrom.’” State v. Lott (1990), 51 Ohio St.3d 160, 165, 555
N.E.2d 293, quoting State v. Stephens (1970), 24 Ohio St.2d 76, 82, 263 N.E.2d 773. A
prosecutor may not express his personal belief or opinion as to the credibility of a
witness, the guilt of an accused, or allude to matters that are not supported by admissible
evidence. State v. Smith (1984), 14 Ohio St.3d 13, 14, 470 N.E.2d 883.
{¶ 59} The test for prejudice regarding prosecutorial misconduct in closing
argument is “whether the remarks were improper and, if so, whether they prejudicially
affected substantial rights of the defendant.” State v. Hessler, 90 Ohio St.3d 108, 125,
2000-Ohio-30, 734 N.E.2d 1237, quoting State v. Smith (1984), 14 Ohio St.3d 13, 14,
470 N.E.2d 883.
{¶ 60} The wide latitude given the prosecution during closing arguments “does
not ‘encompass inviting the jury to reach its decision on matters outside the evidence
adduced at trial.’” State v. Hart, Cuyahoga App. No. 79564, 2002-Ohio-1084, quoting
State v. Freeman (2000), 138 Ohio App.3d 408, 419, 741 N.E.2d 566. A prosecutor
must avoid “insinuations and assertions which are calculated to mislead the jury.” State
v. Smith (1984), 14 Ohio St.3d 13, 14, 470 N.E.2d 883. An appellant is entitled to a
new trial only when a prosecutor asks improper questions or makes improper remarks
and those questions or remarks substantially prejudice the appellant. Id. at 15.
23
{¶ 61} Appellant takes issue with three portions of the prosecutor’s closing
argument. The first two excerpts cited by appellant pertain to the characterization of the
testimony of the witnesses at trial and clearly did not substantially prejudice appellant.
The third excerpt challenged by appellant contains a clear misstatement of trial testimony
and the prosecutor references matters outside the evidence adduced at trial.
{¶ 62} At trial, the state called Danielle Simpson, a Food Plus employee who was
working at the store the night of the shooting. Simpson testified that she witnessed
Zagorski’s car crash and that appellant approached her at a later date and inquired about
Zagorski’s death. The prosecutor, treating Simpson as a hostile witness, unsuccessfully
attempted to elicit further testimony regarding incriminating statements appellant
allegedly made to Simpson about his guilty conscience. Neither Simpson nor any other
witness provided such testimony. Nonetheless, at closing argument, the prosecutor
summarized Simpson’s testimony as follows:
{¶ 63} “She told us that [appellant] came to her a week after this murder and told
her: ‘Do you know when that kid died? Did he die before he hit the pole or after he hit
the pole?’ And we know that she said she thought after he hit the pole. And we know
what [appellant] said to her: ‘Good. Now I can sleep at night.’”
{¶ 64} At the conclusion of closing arguments the prosecutor further stated:
{¶ 65} “[The Defense Attorney] asked you not to consider or weigh heavily on
Danielle Simpson’s testimony, not to really consider the fact that [appellant] admitted
24
that he was going to hit that lick, that he said it wasn’t supposed to go down that way, it
was an accident, and he’s trying to get you to not consider whether or not [appellant]
came into that store and said, ‘Now I can sleep at night’ because he didn’t die when he
was shot * * *.”
{¶ 66} The record is clear that Danielle Simpson did not testify as such at trial.
There is no question that the prosecutor’s closing argument invited the jury to reach its
decision on matters outside the evidence adduced at trial and was, therefore, improper.
The only question remaining is whether the prosecutor’s remarks substantially prejudiced
and deprived appellant of a fair trial such that there is a reasonable probability that, but
for the prosecutor’s misconduct, the result of the proceeding would have been different.
{¶ 67} In analyzing whether an appellant was deprived of a fair trial, an appellate
court must determine whether, absent the improper questions or remarks, the jury still
would have found the appellant guilty. State v. Sopko, Cuyahoga App. No. 90743,
2009-Ohio-140, at ¶55, citing State v. Maurer (1984), 15 Ohio St.3d 239, 266, 473
N.E.2d 768; State v. Dixon (Mar. 13, 1997), Cuyahoga App. No. 68338. When the
prosecutor’s comments are found to be improper, it is not enough that there is sufficient
other evidence to sustain a conviction. Instead, it must be clear beyond a reasonable
doubt that absent the prosecutor’s comments, the jury would have found defendant
guilty. State v. Clay, 181 Ohio App.3d 563, 576, 910 N.E.2d 14, 23, citing State v.
Smith (1984), 14 Ohio St.3d 13, 14 OBR 317, 470 N.E.2d 883. Stated another way, “a
25
defendant’s substantial rights cannot be prejudiced where the remaining evidence,
standing alone, is so overwhelming that it constitutes defendant’s guilt, and the outcome
of the case would have been the same regardless of evidence admitted erroneously.”
State v. Hicks, Cuyahoga App. No. 95133, 2011-Ohio-3578, at 30, citing State v.
Williams (1988), 38 Ohio St.3d 346, 349-350, 528 N.E.2d 910.
{¶ 68} In State v. Hill, Cuyahoga App. No. 95379, 2011-Ohio-2523, we were
faced with a situation where a prosecutor’s closing argument repeatedly misstated and
mischaracterized the evidence adduced at trial. Though we explicitly stated that such
conduct could not be condoned, we held that the repeated misstatements did not
constitute plain and prejudicial error due to the “overwhelming proof of guilt” in the
matter. Id. at ¶41.
{¶ 69} Such is not the case here. The state’s case was built entirely upon
circumstantial evidence and was heavily reliant upon the testimony of Jermaine Jefferson
who initially lied to police about his presence at the scene of the crime. When Danielle
Simpson did not testify consistent with the prosecutor’s theory at trial, the prosecutor
effectively substituted his own testimony for hers as to the incriminating statements
allegedly made by appellant to Simpson. During closing arguments, the prosecutor, in
two separate instances, relied on this alleged conversation as though it had been testified
to by Simpson and was properly in evidence. The prosecutor explicitly implored the
jury to rely on the statement as well.
26
{¶ 70} “A hallmark of our system of criminal jurisprudence is that even those
charged with despicable crimes are entitled to a fair trial. If we retreat from this
proposition, we denigrate the fundamental proposition that our system is one of laws.
And, while the prosecutor is permitted, even expected, to zealously seek conviction of
those accused, there are limits applicable to prosecutorial trial practice.” State v. Willard
(2001), 144 Ohio App.3d 767, 777, 761 N.E.2d 688.
{¶ 71} In this case, as in Willard, the record reveals that the prosecution, “in an
effort to secure an edge, crossed the line and the result is that defendant was deprived of
a fair trial.” Id. We conclude that in the context of the entire case, the prosecutor’s
misconduct constituted plain error and affected the substantial rights of appellant.
{¶ 72} Appellant’s sixth assignment of error is sustained.
{¶ 73} In his seventh assignment of error, appellant argues that his due process
right to a fair trial was violated when the state introduced testimony regarding appellant
having been seen “in the past” with a revolver.
{¶ 74} No bullet shell casings were found at the crime scene, leading police to
believe it was most likely a revolver that was used in the murder. At trial, the state
introduced a revolver recovered from Carlton Tidmore, who denied being present at the
scene the night of the shooting. Forensics were unable to make a determination as to
whether the recovered revolver was the same gun as that used in Zagorski’s shooting.
27
{¶ 75} Although not raised as a separate error, and not objected to at trial, we
initially note that it is unclear why the gun recovered from Tidmore was admitted into
evidence at all. Nothing in the record provides how Tidmore’s gun was, in any sense,
relevant to the present case. Relevant evidence is defined as “evidence having any
tendency to make the existence of any fact that is of consequence to the determination of
the action more probable or less probable than it would be without the evidence.”
Evid.R. 401. Forensics could not link Tidmore’s revolver to this crime with any more
certainty than any other revolver in the world. In fact, there is no evidence that the gun
used in the shooting was a revolver. It was assumed to be the case due to the fact that
no shell casings had been recovered. The sole connection between the gun used to
shoot Zagorski and Tidmore’s revolver was the tenuous link that it was believed,
although there was no evidence to support the theory, that both weapons were
revolver-style handguns. This link did not make Tidmore’s revolver any more likely to
be the murder weapon than any other revolver in existence. Tidmore himself denied any
personal connection with appellant. There was no evidence linking Tidmore’s revolver
to appellant, nor did the state attempt to explain how the revolver, if it was the murder
weapon, came to be in Tidmore’s possession shortly after appellant allegedly used it in
the present crime.
{¶ 76} Besides the unclear relevance of Tidmore’s gun, no witness testified to
having seen appellant possess a gun on the night of the shooting or at any other point in
28
time contemporaneous with the shooting. However, Daquan Jackson testified that he
had seen appellant with a black revolver at some unknown point “in the past.”
Appellant argues that such testimony violated Evid.R. 404(B)’s prohibition of other acts
evidence.
{¶ 77} Pursuant to Evid.R. 404(B), “[e]vidence 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.” See, also, R.C. 2945.59.
{¶ 78} In regards to the admissibility of other-acts evidence involving a defendant
having been previously seen in possession of a gun, the Ohio Supreme Court stated in
State v. Watson (1971), 28 Ohio St.2d 15, 275 N.E.2d 153, that the, “‘general rule of
exclusion does not apply where the evidence of another crime is relevant and tends
directly * * * to prove * * * [the] accused’s guilt of the crime charged, or to connect him
with it, or to prove some particular element or material fact in such crime; and evidence
of other offenses may be received if relevant for any purpose other than to show mere
propensity or disposition on [an] accused’s part to commit the crime.’” Id. at 21, quoting
22A Corpus Juris Secundum (1962) Criminal Law, Section 683.
{¶ 79} “Stated another way, the rule is that ‘except when it shows merely criminal
disposition, * * * evidence that is relevant is not excluded because it reveals the
29
commission of an offense other than that charged.’” Id. at 21, quoting People v. Peete
(1946), 28 Cal.2d 306, 314, 169 P.2d 924.
{¶ 80} We find the present case analogous to State v. Crosby, 186 Ohio App.3d
453, 2010-Ohio-1584, 928 N.E.2d 795. The gun used in the murder in Crosby was not
recovered. Similarly, the gun recovered in the present case could not be tied to
Zagorski’s murder. In Crosby, the state introduced evidence of past instances of gun
possession by Crosby. However, none of the instances bore a relationship to the murder
in that there was no testimony that Crosby was seen with a gun on or near the date of the
offense. Such is the case here. Jackson’s testimony that he had seen appellant in
possession of a revolver “in the past” bears absolutely no relationship, whether temporal
or logical, to the present shooting.
{¶ 81} There is no evidence that appellant possessed a revolver the night of the
shooting nor at any point near the date of the offense. There is no evidence linking the
gun that Jackson allegedly observed appellant to possess at some prior time to the gun
recovered from Tidmore nor is there any evidence connecting Tidmore’s gun to
Zagorski’s shooting.
{¶ 82} Without some link between appellant’s alleged gun possession “in the
past” and the present criminal act, the testimony regarding appellant’s prior possession of
a gun could have been used only for one purpose in this case and that was to prove that
appellant acted in conformity with his implied reputation for carrying a firearm and that
30
he was carrying a firearm the night of Zagorski’s murder. This was an improper
purpose for admitting other-acts evidence and the trial court’s admission of such
evidence was error. See State v. Craig, Cuyahoga App. No. 93137, 2010-Ohio-1857, at
¶31.
{¶ 83} Though the court erred in the admission of this other-acts evidence,
appellant did not object at trial and in light of the other evidence discussed in our
sufficiency analysis, we cannot say that the outcome of the trial would have been
different solely but for this improper admission.
{¶ 84} Appellant’s seventh assignment of error is overruled.
{¶ 85} For ease of discussion we address appellant’s ninth assignment of error out
of order. Appellant argues in his ninth assignment of error that the cumulative effect of
the errors addressed above deprived him of a fair trial.
{¶ 86} In State v. DeMarco (1987), 31 Ohio St.3d 191, 598 N.E.2d 1256, the Ohio
Supreme Court recognized the doctrine of cumulative error. Pursuant to this doctrine, a
conviction will be reversed where the cumulative effect of errors in a trial deprives a
defendant of the constitutional right to a fair trial even though each of numerous
instances of trial court error does not individually constitute cause for reversal. State v.
Baker, Cuyahoga App. No. 95300, 2011-Ohio-2784, at ¶59, citing State v. Garner
(1995), 74 Ohio St.3d 49, 656 N.E.2d 623.
31
{¶ 87} “In order to find ‘cumulative error’ present, we first must find that multiple
errors were committed at trial. We then must find a reasonable probability that the
outcome of the trial would have been different but for the combination of the separately
harmless errors.” State v. Djuric, Cuyahoga App. No. 87745, 2007-Ohio-413, at ¶52.
(Internal citations omitted.)
{¶ 88} To affirm in spite of multiple errors, we would have to determine that the
cumulative effect of the errors is harmless beyond a reasonable doubt. State v.
Williams, Cuyahoga App. No. 94261, 2011-Ohio-591, at ¶25, citing DeMarco at 195,
509 N.E.2d 1256 (stating that the errors can be considered harmless if there is
overwhelming evidence of guilt or other indicia that the errors did not contribute to the
conviction).
{¶ 89} In this case, multiple errors were committed at trial. As previously
discussed, the prosecutor elicited and the court allowed Jefferson to speculate as to
events that were unquestionably established to be beyond his personal knowledge, the
trial court allowed the introduction of the revolver recovered from Tidmore despite the
fact that there was absolutely no evidence linking this particular revolver to this case and
finally, and most importantly, as we addressed in appellant’s seventh assignment of
error, the trial court improperly admitted other-acts evidence that we concluded to be
harmless by itself. However, in conjunction with these other errors and considering that
the record does not contain overwhelming evidence of appellant’s guilt, we find that the
32
accumulation of these errors was unfairly prejudicial. There is a reasonable probability
that, but for the above errors, the result of the proceeding would have been different.
Therefore, we cannot say that the cumulative effect of the errors was harmless beyond a
reasonable doubt.
{¶ 90} Appellant’s second, seventh, and ninth assignments of error are sustained,
rendering the eighth assignment of error moot. See App.R. 12(A)(1)(c).
{¶ 91} Accordingly, the judgment of the lower court is reversed and this matter is
remanded for a new trial.
Judgment reversed and remanded.
It is ordered that appellant recover from appellee costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this judgment
into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
EILEEN A. GALLAGHER, JUDGE
PATRICIA A. BLACKMON, P.J., and
KATHLEEN ANN KEOUGH, J., CONCUR
33
Appendix
Assignment of Error No. 1:
“Benjamin Williams’s convictions are not supported by legally sufficient
evidence as required by State and Federal Due Process.”
Assignment of Error No. 2:
“Benjamin Williams’s convictions are against the manifest weight of the
evidence.”
Assignment of Error No. 3:
“The trial court violated Benjamin Williams’s Due Process right to a fair trial
when it did not provide a meaningful response to jury questions and permitted a
conviction on a theory of criminal liability on which the jury was not instructed.”
Assignment of Error No. 4:
“Benjamin Williams did not receive a fair trial as required by State and Federal
Due Process because the jury failed to follow the trial court’s jury instructions.”
Assignment of Error No. 5:
“Benjamin Williams’s convictions for aggravated murder and aggravated robbery
violate due process because they are inconsistent with the not guilty verdicts
within the same count on the firearm specifications.”
Assignment of Error No. 6:
“Benjamin Williams was denied his Due Process right to a fair trial as a result of
prosecutorial misconduct.”
Assignment of Error No. 7:
“The trial court plainly erred and violated Williams’s Due Process right to a fair
trial in admitting testimony regarding Williams being seen ‘in the past’ with a gun
similar to the murder weapon.”
Assignment of Error No. 8:
“Benjamin Williams was denied effective assistance of counsel in violation of the
Sixth and Fourteenth amendments to the United States Constitution and Article 1,
Section 10 of the Ohio Constitution. “
Assignment of Error No. 9:
34
“The cumulative errors committed in this case deprived Benjamin Williams of a
fair trial.”
State v. Williams
Combined Opinion