[Cite as State v. Drescher, 2016-Ohio-403.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. W. Scott Gwin, P.J.
Plaintiff-Appellee Hon. William B. Hoffman, J.
Hon. John W. Wise, J.
-vs-
Case No. 2015CA00020
ALEX DRESCHER
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Appeal from the Stark County Court of
Common Pleas, Case No. 2014CR1238(A)
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: February 2, 2016
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JOHN D. FERRRERO DONOVAN HILL
Prosecuting Attorney 116 Cleveland Ave. North, Suite 808
Stark County, Ohio Canton, Ohio 44702
By: RENEE WATSON
Assistant Prosecuting Attorney
Appellate Section
110 Central Plaza, South – Suite 510
Canton, Ohio 44702-1413
Stark County, Case No. 2015CA00020 2
Hoffman, J.
{¶1} Defendant-appellant Alex Drescher appeals his convictions entered by the
Stark County Court of Common Pleas on complicity to murder, complicity to felonious
assault and complicity to tampering with evidence. Plaintiff-appellee is the state of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶2} On the evening of July 24, 2014, and into the early morning hours of July
25, 2014, Appellant visited Gatsby’s Bar with X’Avire Cobb. Zebulum Schoolcraft, Dino
Crawford and James Delgado were also at Gatsby’s Bar. At the time Gatsby’s Bar closed,
the five left and got into a car driven by Schoolcraft. Everyone in the car was high and/
or drunk.
{¶3} Appellant was dropped off at a house, and Schoolcraft, Cobb, Crawford and
Delgado proceeded in the car without him. Schoolcraft subsequently lost control of the
car and crashed into a utility pole. As a result of the crash, X’Avire Cobb, who was seated
in the backseat and unrestrained, hit his mouth and chipped and/or loosened a front tooth.
{¶4} After the accident, Schoolcraft, Cobb, Crawford and Delgado all took off
running in separate directions to avoid being arrested. Cobb, who was upset about his
tooth, went looking for Schoolcraft. Cobb asked Appellant to help him seek out
Schoolcraft through the use of Facebook and to set up a meeting for a fight.
{¶5} Schoolcraft received messages via Facebook about the accident, and a
fight was arranged at “Shakes”, an area ice cream parlor and meeting place.
{¶6} Dino Crawford testified at trial relative to the events of the evening/morning,
including the meeting at “Shakes” and the incident leading up the shooting. He stated he
observed Appellant pull a gun from his side, wave it around, point it at Crawford and
Stark County, Case No. 2015CA00020 3
Schoolcraft, and offer it to Cobb. He testified Appellant urged Cobb during the fight to
shoot Schoolcraft. Cobb then fired seven shots at Schoolcraft, ending his life.
{¶7} Testimony at trial also established Appellant later brokered a trade of the
murder weapon for another firearm in the days following the shooting.
{¶8} The Stark County Grand Jury indicted Appellant on charges of complicity to
murder, in violation of R.C. 2923.03(A)(2) and R.C. 2903.02(B); complicity to felonious
assault, in violation of R.C. 2923.03(A)(2) and R.C. 2903.11(A)(1)/(A)(2); and complicity
to tampering with evidence, in violation of R.C. 2923.03(A)(2) and R.C. 2921.12(A)(1).
Both the murder and felonious assault charges carried attendant firearm specifications in
violation of R.C. 2941.145.
{¶9} Following a jury trial, Appellant was convicted on all counts. On January
28, 2015, Appellant was sentenced to a total of twenty-one years to life imprisonment.
{¶10} Appellant appeals, assigning as error:
{¶11} I. APPELLANT’S CONVICTIONS WERE AGAINST THE MANIFEST
WEIGHT AND SUFFICIENCY OF THE EVIDENCE.
{¶12} II. APPELLANT WAS DENIED DUE PROCESS AND A FAIR TRIAL WHEN
THE COURT OVERRULED APPELLANT’S MOTION FOR A MISTRIAL AFTER THE
JURY WAS MADE AWARE OF APPELLANT’S INCARCERATION.
I.
{¶13} In the first assignment of error, Appellant maintains his convictions are
against the manifest weight and sufficiency of the evidence.
{¶14} The Supreme Court has explained the distinction between claims of
sufficiency of the evidence and manifest weight. Sufficiency of the evidence is a question
Stark County, Case No. 2015CA00020 4
for the trial court to determine whether the State has met its burden to produce evidence
on each element of the crime charged, sufficient for the matter to be submitted to the jury.
{¶15} Manifest weight of the evidence claims concern the amount of evidence
offered in support of one side of the case, and is a jury question. We must determine
whether the jury, in interpreting the facts, so lost its way that its verdict results in a
manifest miscarriage of justice, State v. Thompkins (1997), 78 Ohio St.3d 387, citations
deleted. On review for manifest weight, a reviewing court is “to examine the entire record,
weigh the evidence and all reasonable inferences, consider the credibility of the witnesses
and determine whether in resolving conflicts in the evidence, the trier of fact clearly lost
its way and created such a manifest miscarriage of justice that the judgment must be
reversed. The discretionary power to grant a new hearing should be exercised only in the
exceptional case in which the evidence weighs heavily against the judgment.” State v.
Thompkins, 78 Ohio St.3d 380, 387, 1997-Ohio-52, citing State v. Martin (1983), 20 Ohio
App.3d 172, 175. Because the trier of fact is in a better position to observe the witnesses'
demeanor and weigh their credibility, 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,
syllabus 1.
{¶16} The standard of review for a challenge to the sufficiency of the evidence is
set forth in State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991) at paragraph two
of the syllabus, in which the Ohio Supreme Court held, “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.
Stark County, Case No. 2015CA00020 5
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.”
{¶17} Specifically, Appellant maintains his convictions are unreliable in that they
are based upon contradictory testimony, biased and impaired witnesses and insufficient
evidence. In State v. Cobb, Stark App. No. 2014CA00218, 2015-Ohio-3661, this Court
held,
A fundamental premise of our criminal trial system is that ‘the jury is
the lie detector.’ United States v. Barnard, 490 F.2d 907, 912 (C.A.9 1973)
(emphasis added), cert. denied, 416 U.S. 959, 94 S.Ct. 1976, 40 L.Ed.2d
310 (1974). Determining the weight and credibility of witness testimony,
therefore, has long been held to be the ‘part of every case [that] belongs to
the jury, who are presumed to be fitted for it by their natural intelligence and
their practical knowledge of men and the ways of men.’ Aetna Life Ins. Co.
v. Ward, 140 U.S. 76, 88, 11 S .Ct. 720, 724–725, 35 L.Ed. 371 (1891)”.
United States v. Scheffer (1997), 523 U.S. 303, 313, 118 S.Ct. 1261, 1266–
1267.
The jury was free to accept or reject any and all of the evidence
offered by the parties and assess the witness's credibility. “While the jury
may take note of the inconsistencies and resolve or discount them
accordingly * * * such inconsistencies do not render defendant's conviction
against the manifest weight or sufficiency of the evidence”. State v. Craig
(Mar. 23, 2000), Franklin App. No. 99AP–739, citing State v. Nivens (May
Stark County, Case No. 2015CA00020 6
28, 1996), Franklin App. No. 95APA09–1236 Indeed, the jurors need not
believe all of a witness' testimony, but may accept only portions of it as true.
State v. Raver, Franklin App. No. 02AP–604, 2003–Ohio–958, at ¶ 21, citing
State v. Antill (1964), 176 Ohio St. 61, 67, 197 N.E.2d 548.; State v. Burke,
Franklin App. No. 02AP1238, 2003–Ohio–2889, citing State v. Caldwell
(1992), 79 Ohio App.3d 667, 607 N.E.2d 1096.
{¶18} Appellant was convicted of complicity to murder, complicity to felonious
assault and complicity to tampering with evidence for soliciting, procuring, aiding or
abetting another in committing the offenses. To support a conviction for complicity by
aiding and abetting pursuant to R.C. 2923.03(A)(2), the evidence must show that the
defendant supported, assisted, encouraged, cooperated with, advised, or incited the
principal in the commission of the crime, and the defendant shared the criminal intent of
the principal. Such intent may be inferred from the circumstances surrounding the crime.
State v. Johnson, 93 Ohio St.3d 240, 245, 754 N.E.2d 796, 2001-Ohio-1336.
{¶19} Officer Bill Adams of the Canton Police Department testified at trial he
identified Appellant through the use of Facebook, and through his interview with Dino
Crawford following the shooting.
{¶20} Dino Crawford testified at trial, on cross-examination,
Q. And Alex [Appellant] and X [Cobb] show up for a fight, Zeb
[Schoolcraft] meets them - -
A. Yeah, but somebody brought a gun.
Q. Yeah, that’s right, and Zeb [Schoolcraft] winds up getting shot.
That wasn’t the point, though, right?
Stark County, Case No. 2015CA00020 7
A. I couldn’t tell you. Usually when someone brings a gun, that could
be the point very easily, right?
Q. Okay. You say that Alex [Appellant] pulls the gun out and starts
waving it around?
A. Waving it around, pointing it at us, asked me if I wanted hit too.
Obviously I’m not going to try to fight somebody when they got a gun pointed
at me, right?
Q. Yeah, but Zeb [Schoolcraft] did. Why didn’t you guys just leave?
A. I don’t know. I guess - - I guess we’re not little girls, I don’t know.
Q. I mean - -
A. I wish we would have.
***
Q. Again, you show up for a fight, somebody brings a gun to a fight,
you see it first thing, right?
A. Yeah.
Q. Why didn’t you go at that point?
A. I couldn’t tell you that.
Q. Okay. But it didn’t stop them from squaring up, right? Zeb
[Schoolcraft] and X [Cobb] still squared up?
A. No, I’m pretty sure Lexx [Appellant] was telling them to square up.
Q. He wasn’t telling Zeb [Schoolcraft] or you to square up, right? I
mean, it’s not like somebody put a gun to your head - -
A. No, he was telling X’Avire [Cobb].
Stark County, Case No. 2015CA00020 8
Q. Okay. And they fought, right?
A. I wouldn’t say so. They squared up, ain’t nobody get hit.
Q. They didn’t throw any blows?
A. They probably threw a couple punches, but X’Avire [Cobb] kept
backing up so nobody got punched.
Q. Okay. Did they even get to a point where they were standing - -
A. Before they - -
Q. - - face-to-face talking about X’s [Cobb’s] tooth?
A. Yeah, and Zeb [Schoolcraft] tried to apologize.
Q. What did X [Cobb] say?
A. Obviously he didn’t take the apology.
Q. And how did Zeb [Schoolcraft] react to that?
A. I don’t know. They started arguing again, started arguing with
Lexx [Appellant]. Lexx [Appellant] started saying he was from the
northwest, and blah, blah, blah, that’s how the argument got to a bigger - -
Q. Who started to say they were from the northwest?
A. Lexx [Appellant] started saying Zeb [Schoolcraft] was from the
northwest.
Q. Okay. That pissed him off?
A. Yes, sir.
Q. Pissed you off?
A. No, I didn’t really care. I thought it was kind of corny.
Stark County, Case No. 2015CA00020 9
Q. And all this time you’re jawing with a guy who’s waving a gun
around?
A. Yeah, I was telling him to put it down. I know him. I thought - - I
thought maybe I could talk some sense into him.
Q. At some point they start to walk back; is that true?
A. Zeb [Schoolcraft] started - -
Q. They started to walk away from you and Zeb [Schoolcraft]?
A. No.
Q. No?
A. No, I don’t remember ever seeing that.
Q. Okay. And at some point does Zeb [Schoolcraft] charge at X
[Cobb]?
A. No.
Q. What prompted - -
A. Zeb [Schoolcraft] went to leave - -
Q. What prompted - -
A.- - and then X’Avire [Cobb] asked for the gun at the end of the
situation, after Lexx [Appellant] already offered it to him a couple times. And
I told Lexx [Appellant] to put the gun down, and he didn’t give it to him
because of me.
Q. What did Zeb [Schoolcraft] say when he saw X [Cobb] with the
gun?
Stark County, Case No. 2015CA00020 10
A. I mean it was a matter of a second. He put his arms up and said,
fuck it, shoot me. Nobody charged anybody.
Q. That’s when X [Cobb] shot?
A. Yeah.
Q. When was Alex [Appellant] running?
A. He handed him the gun and said, fuck it, shoot him, and took off
running immediately.
Q. Is that the story you told the police the next morning or that night?
A. Yeah, it was that night?
Q. Okay. Do you blame Alex [Appellant]?
A. Yeah, I believe if Alex [Appellant] wouldn’t have brought a gun,
my friend would still be here.
Tr. at 150-157.
{¶21} Appellant argues the testimony offered by the witnesses presented by the
State at trial was biased and inconsistent. Specifically, Appellant cites the testimony of
Jason Smith as inconsistent with the testimony offered by Crawford. Smith testified at
trial, while he was incarcerated with Appellant, Appellant told him of the murder of
Schoolcraft and related he had told Cobb, “You got to shoot that nigga before he shoots
you.” Tr. at 267. Appellant told Smith he then handed Cobb the gun. Tr. at 267. Smith
testified Appellant told him he hit Crawford over the head as Crawford was the only person
who could identify him. Tr. at 267-268. Smith testified Appellant had further described
the firearm to Smith. Tr. at 267. Appellant argues Smith’s testimony was offered as a
result of a plea deal; therefore, biased. Appellant further maintains the testimony is in
Stark County, Case No. 2015CA00020 11
contrast to the statements testified to by Crawford, as the testimony of Crawford never
claimed Appellant hit him.
{¶22} Upon review, we do not find Smith’s statements contradictory to the
evidence presented at trial. While there was no evidence offered Appellant hit Crawford
over the head, Smith’s testimony was offered to corroborate the testimony of Robert Pryor
and Dino Crawford regarding Appellant’s incitement of Cobb to shoot Schoolcraft and of
Appellant providing Cobb with the murder weapon. Smith testified Appellant told him he
provided Cobb with the murder weapon and Appellant told Cobb to shoot Schoolcraft.
{¶23} Further, Appellant argues the testimony of Robert Pryor, a neighbor who
witnessed the incident from his window, is in contrast to the testimony of Dino Crawford.
Pryor testified his dog started barking on the night of the incident and he could see the
incident from his home window. He testified to the events of the evening as he observed
them. Tr. at 169. He could hear arguing back and forth, and someone state, “Pop this
fucking nigger.” Tr. at 169. He testified he then saw a gun flash.
{¶24} Appellant cites Pryor’s testimony, “I don’t even think they got to the point of
where they fought. Honestly, I don’t remember seeing swinging. I think the gun came out,
he shot him before they actually went to blows.” Tr. at 176. Appellant maintains the
testimony is inconsistent with Crawford’s testimony, the shooting happened after the fight.
However, upon review of Crawford’s testimony, he states, “they probably threw a couple
of punches, but nobody got punched.” He describes the incident as more of a “squaring
up.” Therefore, we do not find the testimony inherently contradictory, and the jury was
free to accept all or any part of Pryor and Crawford’s testimony.
Stark County, Case No. 2015CA00020 12
{¶25} Appellant further cites the testimony of Emily Smith as evidence Cobb, not
Appellant, brought the gun to the fight. Emily Smith testified at trial she and Ashleigh
Brown picked Appellant and Cobb up after the fight. Tr. at 193. She testified Appellant
later told her Cobb had shot someone, and Appellant told her he had given Cobb the gun.
Tr. at 194. She learned of the shooting later on Facebook. Tr. at 195.
{¶26} Dino Crawford testified at trial as to Appellant’s involvement on Facebook
leading up to the fight and his presence at the incident. He further testified as to Appellant
having a gun at the fight and waving it around, offering it to Cobb. He stated Appellant
incited Cobb to shoot Schoolcraft. This is further supported by the testimony of both Pryor
and Jason Smith. Emily Smith testified Appellant himself testified he provided the gun to
Cobb. Accordingly, the evidence provided at trial is sufficient to prove each and every
element of complicity to murder and complicity to felonious assault. We find the jury did
not lose its way in convicting Appellant herein.
{¶27} Appellant was also convicted of complicity to tampering with evidence, in
violation of R.C. 2921.12(A)(1). Anwar Shelton testified at trial Appellant approached him
regarding a gun his friend had to trade, and he traded him another firearm for the gun.
Tr. at 232. The trade happened a day or two after the shooting. Tr. at 233. Appellant
was at the trade with Cobb, and the firearm traded later proved to be the murder weapon.
Tr. at 234. Again, the evidence is sufficient to support Appellant’s conviction on complicity
to tampering with evidence, and the jury did not lose its way in convicting Appellant of the
same.
{¶28} The first assignment of error is overruled.
Stark County, Case No. 2015CA00020 13
II.
{¶29} In the second assignment of error, Appellant maintains the trial court erred
in denying his motion for a mistrial after the jury was made aware of Appellant’s
incarceration.
{¶30} Specifically, Appellant cites the testimony of Jason Smith, during which
Smith testified he was incarcerated with Appellant.
{¶31} At trial, the following exchange occurred on the record,
Q. And you know Alex Drescher?
A. Not on the - - like, when we were free. I met him in the county jail
when we was down in the hole.
Q. And you met him sometime in October or - -
A. Yes.
MR. CAZANTZES: Objection, Your Honor, may we approach?
THE COURT: Yeah, please.
------------
(A conference was held at the bench outside the hearing of the jury.)
MR. CAZANTZES: Your Honor, unfortunately, the cat is out of the
bag. The point that he -- I’ll move to strike that last statement. For the
record, I’m going to move for a mistrial on the basis that he has indicated to
the jury that the Defendant is an inmate at the Stark County Jail and was in
the hole. So he must have done something to get into that. He does have
a constitutional right to not have the jury know that he is currently
incarcerated. That information in and of itself could be prejudicial.
Stark County, Case No. 2015CA00020 14
THE COURT: Well, here’s where I’m at. Number one, I’ll give a
curing instruction because we heard testimony that the marshals picked him
up in front of his house earlier this morning. So I will strike that comment.
I can’t strike that comment because they’ve already heard that he’s been
incarcerated, but - -
MS. MLINAR: He didn’t say he’s currently incarcerated.
THE COURT: No, he said he was in the hole, that’s what he said.
Go to the next issue. Is it going to be a statement he made to him while in
jail?
MS. MLINAR: Yes.
THE COURT: How are we going to get around this issue?
MS. MLINAR: I don’t know that we had - -
THE COURT: Yeah, I mean - -
MS. CAZANTZES: While it is a statement from the Defendant just to
get it is going to cross that prejudicial issue of, you know, he’s incarcerated
and he’s in the hole.
THE COURT: The cat was out of the bag this morning when he was
aware that he was arrested by the marshals, okay? So I’ll give a curing
instruction to this and indicate that to the jury – whether he was incarcerated
at that time or not has no reflection on the case. I mean that’s all that I can
do.
MR. CAZANTZES: Well, I guess - -
THE COURT: Can’t give you a mistrial on this.
Stark County, Case No. 2015CA00020 15
MS. MLINAR: But, you know, this statement comes from the jail,
you’ve known it for—I gave it to you in October.
MR. CAZANTZES: I got it. I made my motion, he denied the motion.
***
THE COURT: Okay, ladies and gentlemen of the jury, I’ll sustain the
statement regarding the hole. Where the statement—or where the
statement is made is not relative in this case. And we will proceed further.
So go ahead, counsel.
Tr. at 263-266.
{¶32} As indicated in the record, the jury was aware through another witness
Appellant had been arrested by the U.S. Marshal’s office and there was no objection to
that testimony. The trial court sustained the objection and gave a curative instruction
advising the jury the statement had no bearing on the case. Further, the evidence was
cumulative evidence in support of the testimony offered by the State’s other witnesses.
{¶33} We note, the declaration of a mistrial is an extreme remedy and the granting
of a mistrial lies within the sound discretion of the trial court. State v. Trimble, 122 Ohio
St.3d 297, 2009-Ohio-2961. Accordingly, we find the trial court did not abuse its discretion
herein in not granting a mistrial due to the testimony cited.
{¶34} The second assignment of error is overruled.
Stark County, Case No. 2015CA00020 16
{¶35} Appellant’s convictions in the Stark County Court of Common Pleas are
affirmed.
By: Hoffman, J.
Gwin, P.J. and
Hoffman, J. concur