State v. Rosemond

[Cite as State v. Rosemond, 2022-Ohio-111.]

IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO

STATE OF OHIO, : APPEAL NO. C-180221
TRIAL NO. B-1507143
Plaintiff-Appellee, :

vs. :
O P I N I O N.
ANTHONY ROSEMOND, :

Defendant-Appellant. :

Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed in Part, Sentences Vacated in Part, and
Cause Remanded

Date of Judgment Entry on Appeal: January 19, 2022

Joseph T. Deters, Hamilton County Prosecuting Attorney, and Philip R. Cummings,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Jon R. Sinclair, for Defendant-Appellant.
 OHIO FIRST DISTRICT COURT OF APPEALS

MYERS, Judge.

{¶1} Defendant-appellant Anthony Rosemond brings a second appeal of the

judgment of the Hamilton County Court of Common Pleas convicting him of murder

with specifications, three counts of felonious assault with specifications, three counts

of having a weapon while under a disability, trafficking in heroin with a specification,

and trafficking in cocaine with a specification.

{¶2} Rosemond’s convictions stemmed from two separate events, occurring

five days apart. His convictions for trafficking and for two of the weapons counts

stemmed from the December 3, 2015, traffic stop of a car in which police believed

Rosemond had been a passenger. Cincinnati Police Officer Robert Wilson testified

that he and his partner were on patrol in the Fay Apartments, a large apartment

complex, when a car drove past them in the opposite direction at an extremely high

rate of speed. Officer Wilson saw two adults in the front seat of the car.

{¶3} When the officers stopped the car, its only occupants were the driver,

Jourdan Bailey, and her young child in the back seat. The child said that his dad had

been in the car and that he had run off.1 In the car, the officers found a baggie of

cocaine between the passenger seat and the passenger door. In the back seat, the

officers found a large, distinctive Pelle Pelle jacket, with a state-issued identification

card belonging to Rosemond inside the jacket. Officers retained the identification

card and returned the jacket to the car. Then officers found heroin, cocaine,

marijuana, a digital scale, and two handguns in an apartment to which Rosemond

had access. Inside the apartment, they also observed clothing for a large adult male.

{¶4} Rosemond’s convictions for murder, three counts of felonious assault,

and one count of having a weapon while under a disability arose from an event that

1 At first, Officer Wilson thought the child said that “the aunt” had been in the car, so when he
asked the child if it was his aunt, the child said, “[N]o, it was my dad.” The defendant referred to
himself by the nickname “Ant” in recorded jail calls and had “Ant” tattooed on his hand

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occurred on December 8, 2015, when gunmen attacked four individuals in a car,

killing one of them and injuring the other three. The shooting was captured by

various security cameras in the area. Officer Wilson viewed the video recordings and

recognized the Pelle Pelle jacket from the earlier traffic stop. The jacket, when

retrieved by law enforcement, had gunshot residue on the sleeve. One of the injured

victims who testified at trial identified Rosemond as the shooter.

{¶5} Rosemond was indicted for offenses relating to both events in a single

indictment. He was convicted of the offenses after a jury trial. The trial court

sentenced him to an aggregate total of 57 years to life in prison. At the sentencing

hearing, the court did not advise Rosemond about postrelease control, but in its

sentencing entry, it imposed periods of postrelease control for each of the offenses,

including the murder.

{¶6} This court affirmed Rosemond’s convictions on direct appeal, but

remanded for proper calculation and award of jail-time credit. State v. Rosemond,

2019-Ohio-5356, 150 N.E.3d 563 (1st Dist.), appeal not accepted, 159 Ohio St.3d

1435, 2020-Ohio-3634, 148 N.E.3d 592 (“Rosemond I”). Rosemond then filed an

application to reopen his direct appeal under App.R. 26(B), asserting that he had

been denied the effective assistance of appellate counsel.

{¶7} We granted the application to reopen the appeal because it

demonstrated a genuine issue as to a colorable claim of ineffective assistance of

appellate counsel in failing to assign as error trial counsel’s ineffectiveness

concerning the imposition of an unauthorized period of postrelease control for

murder. State v. Rosemond, 1st Dist. Hamilton No. C-180221, 2021-Ohio-768, ¶ 1.

Accordingly, we appointed new appellate counsel and ordered that counsel brief the

issue of the imposition of postrelease control for murder and any other nonfrivolous

assignments of error or arguments not previously considered.

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{¶8} Rosemond presents two assignments of error for our review. We

consider the second assignment of error first.

I. Ineffective Assistance of Counsel
{¶9} In his second assignment of error, Rosemond claims that he was

denied the effective assistance of counsel at both the trial-court and appellate levels

when counsel failed to argue that the gun and drug charges should not have been

joined with the murder and assault charges in the same indictment under Crim.R. 8.

In Rosemond I, we found no prejudice to Rosemond in the trial court’s failure to

sever these charges under Crim.R. 14. Rosemond now argues that his counsel at trial

and on appeal should have argued misjoinder under Crim.R. 8, not severance under

Crim.R. 14.

{¶10} Trial counsel will not be considered ineffective unless counsel’s
performance was deficient and caused actual prejudice to the defendant. Strickland

v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v.

Bradley, 42 Ohio St.3d 136, 141-142, 538 N.E.2d 373 (1989). Trial counsel’s

performance will only be deemed deficient if it fell below an objective standard of

reasonableness. Strickland at 688; Bradley at 142. A defendant is only prejudiced

by trial counsel’s performance if there is a reasonable probability that the outcome of

the proceedings would have been different but for the deficient performance.

Strickland at 694; Bradley at 142.

{¶11} The Supreme Court of Ohio has stated, “Under Strickland, a
reasonable probability is a probability sufficient to undermine confidence in the

outcome of the proceedings.” State v. Simpson, 164 Ohio St.3d 102, 2020-Ohio-

6719, 172 N.E.3d 97, ¶ 14, citing Strickland at 694. An appellant’s failure to satisfy

either prong of the Strickland test is fatal to an ineffective-assistance-of-counsel

claim. State v. Bandy, 1st Dist. Hamilton No. C-160402, 2017-Ohio-5593, ¶ 73;

Strickland at 697.

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{¶12} In a reopened appeal, we review the performance of appellate counsel
under the same standard: an appellant must show that appellate counsel’s

performance was objectively unreasonable and that there is a reasonable probability

that the result of the appeal would have been different but for counsel’s errors. See

Simpson at ¶ 14, citing Strickland at 688; App.R. 26(B)(9) (the inquiry is whether

“the performance of appellate counsel was deficient and the applicant was prejudiced

by that deficiency.”).

{¶13} For purposes of this reopened appeal, we assume that the charges were
misjoined under Crim.R. 8. We further assume that trial counsel was deficient for

not arguing this to the trial court. We further assume that appellate counsel was

deficient for not raising it on appeal.

{¶14} Assuming without deciding that trial and appellate counsel’s
performance was deficient for failing to raise misjoinder under Crim.R. 8, we focus

our analysis on the second prong under Strickland as it is determinative in this case.

As to trial counsel’s failure to raise misjoinder, was there a reasonable probability

that the result of the trial would have been different if the gun and drug charges were

not joined with the murder and assault charges? And, as to appellate counsel’s

failure to raise misjoinder on appeal, was there a reasonable probability that the

result of the appeal would have been different? We answer both of these questions

“no.”

A. The Trial
{¶15} The limited issue before us is whether there is a reasonable probability
that: (1) the jury would not have found Rosemond guilty of murder and assault had

the gun and drug charges not been joined; or (2) the jury would not have found

Rosemond guilty of the gun and drug charges had the murder and assault charges

not been joined. We do not think there is a reasonable probability of either outcome.

Stated another way, there is not a probability sufficient to undermine confidence in

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the outcome of the trial or appeal. The evidence was overwhelming as to each set of

charges.

1. Murder and Assault
{¶16} The evidence considered by the jury as to the murder and assault
charges consisted of, among other things: (1) eyewitness testimony; (2) admissions

by Rosemond in jail calls; (3) video recordings of the shootings, as well as

Rosemond’s actions immediately before and immediately after; and (4) forensic

evidence. Taken together, we cannot say that there is a reasonable probability that

the result of the trial would have been different had the other charges not been tried

at the same time.

a. Eyewitness Testimony
{¶17} Ariontez Nared identified Rosemond as the person who shot him. He
was clearly a reluctant witness, so much so that the trial court called him as its own

witness. In fact, Nared initially told the prosecutor that he was not shot at all, but

rather was hit by a bus.

[PROSECUTOR]: And you and I have met before; correct?

[NARED]: Yep.

[PROSECUTOR]: And you indicated to me that you didn’t want to

participate or testify; right?

[NARED]: Yep.

[PROSECUTOR]: On a prior occasion in court, you even indicated

that you were - - or strike that.

On one occasion you said you didn’t want to testify, and I said

that you had been shot, and that’s why I brought you here. Do you

remember that?

[NARED]: Um-hmm.

***

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[PROSECUTOR]: And you told me you weren’t shot; you were hit by a

bus; right?

[NARED]: Yep.

[PROSECUTOR]: And you weren’t hit by a bus; right?

[NARED]: No, sir.

[PROSECUTOR]: You just didn’t want to testify; right?

[NARED]: I got frustrated. I was tired of being here.

{¶18} At trial, Nared testified as follows:
[PROSECUTOR]: Kind of describe for us how the shooting happened.

[NARED]: I can’t really tell you, for real. I came out the store, I

proceeded to make a left, and I started walking a little bit. Then I

heard the shots. As I heard them, I looked back.

Over my shoulder I seen a flash from the gun, and I seen his

bitch-ass, and I started walking, and basically - - not walking, but I

started running after I seen the flash - -

[PROSECUTOR]: Let me stop you for a moment. When you say you

“seen his bitch-ass,” who you talking about?

[NARED]: Him, right here.

[PROSECUTOR]: Which person?

[NARED]: Ant.

[PROSECUTOR]: Describe him for us.

[NARED]: Him. You-all know who the - - you-all know who he is.

Him, right here.

[PROSECUTOR]: I know this sounds ridiculous, but you have to - -

you have to identify him.

THE COURT: Is he - - what is he wearing?

[NARED]: White shirt and blue pants.

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[PROSECUTOR]: This man right here?

[NARED]: The reason we’re here.

What?

[PROSECUTOR]: This guy right here?

[NARED]: Yeah.

THE COURT: He’s picked the defendant.

[PROSECUTOR]: Thank you, Your Honor.

[PROSECUTOR]: Did you see him before you were in the store?

[NARED]: Yeah; it was mass people out there. I ain’t going to

necessarily say I seen his face, but it was hella people out there.

[PROSECUTOR]: When the shooting started, you saw him?

[NARED]: Yep.

[PROSECUTOR]: Where was he?

[NARED]: Standing right there by the wall.

[PROSECUTOR]: And what - - how many - - could you tell how many

people were firing at you?

[NARED]: No; I just seen that flash. When I turn around, I see him.

Try to run, and I fell.

[PROSECUTOR]: Okay. How many times did you get shot, if you

know?

[NARED]: I got shot seven times by four different calibers.

{¶19} In addition, Nared specifically identified Rosemond as the shooter in
his answers on cross-examination:

[DEFENSE COUNSEL]: So you did not see his face?

[NARED]: I told you I seen his face. You heard me say that.

[DEFENSE COUNSEL]: I’m sorry?

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[NARED]: I said I seen his face. I turn around, the flash from the gun

and his face. That’s what made me see the face; the flash from the gun.

***

[DEFENSE COUNSEL]: Okay. Did you see anybody with a gun that

was shooting?

[NARED]: Yep.

[DEFENSE COUNSEL]; And how many people with guns were

shooting?

[NARED]: The person I seen, one.

{¶20} Even defense counsel conceded that Nared “pointed the finger” at his
client. He only argued that Nared’s testimony was not believable.

b. Jail Calls
{¶21} At trial, several recorded jail calls were introduced into evidence.
These calls show that Rosemond was concerned that law enforcement had him on

videotape. He was particularly concerned that they had him on videotape running to

the car after the shootings, and on camera at the scene, wearing the Pelle Pelle jacket.

But, most telling is his admission when talking to a friend about the shooting:

[ROSEMOND]: But, you know, I got the - - the shit - - the ba-ba shit

beat, though, you feel me? They - - all the witnesses said it wasn’t me.

You feel me?

MAN: Right.

[ROSEMOND]: And then dude - - then dude mama showed up and

was clowning on the detectives, and shit, like, You-all got the wrong

person. Let that boy go. You-all fucking up that boy’s life. You feel

me?

MAN: Right.

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[ROSEMOND]: So they - - then the one n***** who - - he got hit on

my shit, he told him, like, he ain’t get shot; he got hit by a

bus, and all this shit. You hear me? Like, so, like - -

(Emphasis added.)

{¶22} In that call, Rosemond admits shooting Nared, when he says: “So they
- - then the one [individual] who - - he got hit on my shit, he told him, like, he ain’t

get shot; he got hit by a bus, and all this shit.” Detective Greg Gehring testified that

he was familiar with this slang and that it meant, “He got hit on what I did, on my

shootings.” The only reasonable interpretation of this statement is that Rosemond is

telling his friend that the guy who got “hit” (shot) on his “shit” (gun or bullet) is now

saying he got hit by a bus. And this admission comes right after Rosemond has said

that all the witnesses said it was not him, so he is clearly talking about the murder

and assault charges, not the drug charges.

{¶23} In the very next call, Rosemond tells a woman that everyone showed
up and said it was not him. He is laughing about it. The woman says, “But it was

you.” And Rosemond does not deny it.

{¶24} And, in the final call, after Rosemond laughingly claims over and over
that they have nothing on him, the mother of his child reminds Rosemond that she

knows what happened because he came to her house. Rosemond repeatedly states

that they have nothing on him, but she says that she does. Rosemond begins calling

her a “rat,” and makes threatening comments.

{¶25} Taken individually and as a whole, these calls constitute admissions by
Rosemond and are evidence of his guilt. And additional charges of guns and drugs

do not change this evidence that the jury considered.

c. Videotape
{¶26} In addition to Rosemond’s own statements and the eyewitness
testimony identifying Rosemond as one of the shooters, the jury also had videotape

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evidence from the shooting that it considered. Among other things, the video shows

Rosemond following Nared out of the store, approaching the car Nared and the other

victims were in, walking toward the gunfire and not away from it, making

movements as if he were shooting, staying in the area of the gunfire until the

shooting was over, and jumping into a getaway car that had been idling and waiting

for him.

{¶27} As we found in Rosemond I:
And the video recording that captured the incident clearly

shows Rosemond approach the vehicle and dance around it for several

seconds as if firing a weapon. The video also seems to show flashes

around where only Rosemond was standing, indicating that he was

shooting. It was not until the shooting had ended that Rosemond was

seen fleeing from the scene. It strains credibility that someone would

be so close to the scene in which multiple shooters were attacking the

four men and remain there while the shooting occurred, only to run

when it was over. And while all the other cars in the area left, the

Tahoe that Rosemond would eventually get into remained until after

the shooting had ended and he had returned.

Rosemond I at ¶ 82.

{¶28} As the surveillance video recordings were played for the jury, Detective
Gehring described the events depicted in them. Shortly before the shooting

occurred, he noted that Rosemond’s getaway vehicle was in the market parking lot,

its driver “staging up” and “[g]etting ready to pick these guys [up] and get out of

there.” When Nared exited from the Schwarz Market to walk down the sidewalk to

the car where his three companions waited, the detective described Rosemond as

“following or stalking” Nared down the sidewalk. The detective testified that

Rosemond could be seen pointing as he approached the victims’ vehicle. He

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acknowledged that a gun could not be seen in Rosemond’s hand, but stated, “I think

that motion, the action is consistent with someone pointing a gun.” He testified that

Rosemond “put his arm up pointing to where the gunshots are being received,”

noting that Rosemond was “advancing towards that area with his hand outstretched,

clearly[,] towards the time of the shooting.” He said that the video depicted

Rosemond as he continued to advance toward the victims’ car just before four muzzle

flashes could be seen.

{¶29} We also note that Rosemond himself was concerned with the
inculpatory nature of his actions captured on the videos. In his recorded jail calls,

Rosemond was worried that the videos showed him wearing the Pelle Pelle jacket

and showed him running to the car only after the shooting ended. He was concerned

that DNA tied him to the getaway car. When Rosemond initially spoke with police,

he said he had not heard about the shootings and denied it was him in the still

photos taken from the videos. The videos tell a different story.

{¶30} The dissent in Rosemond I disagreed with the majority as to what the
video showed, and does so again. But the jury reviewed this same evidence and, in

conjunction with the other evidence, found Rosemond guilty of murder and assault.

It reviewed the video, considered the officer’s testimony of what it showed,

considered all of the evidence relied upon by the dissent, and reached its own

conclusion. The issue in this appeal is whether there is a reasonable probability that

the jury would have come to a different conclusion on the murder and assault

charges had the gun and drug charges not been joined for trial.

d. Forensic
{¶31} In addition to the eyewitness identification, Rosemond’s statements,
and the video, the jury also considered forensic evidence. Among other things,

Rosemond’s jacket was tested and found to have gunshot residue (“GSR”) on it. The

dissent argues that the GSR could have been deposited on the jacket from someone

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else’s shooting. While this is true, it is equally true that it may have been deposited

on his jacket because he shot a gun, just like the eyewitness testified. The jury

certainly could have considered the GSR along with all the other evidence in finding

Rosemond guilty of murder and assault. Again, the issue before us is whether there

is a reasonable probability that the result of the trial would have been different if the

murder and assault charges were not joined with the gun and drug charges.

2. Drugs and Guns
{¶32} The evidence considered by the jury as to the drug and gun charges
consisted of: (1) evidence found in Bailey’s apartment and vehicle; and (2)

admissions by Rosemond in jail calls. Taken together, we cannot say that there is a

reasonable probability that the result of the trial would have been different had the

murder and assault charges not been tried at the same time.

a. Evidence from Bailey’s apartment and vehicle
{¶33} As we stated in Rosemond I:
When [Bailey’s car] was first seen, there were two adults in the

front. When police eventually stopped the car, there was only the

driver. Rosemond insinuates that the police somehow coerced Bailey’s

son into saying that he was the one who jumped out of the vehicle.

But, at the time the child made that statement, the record seems to

indicate that the officers had no idea who the other person was. The

statement was made before Rosemond’s identification card was found

in the Pelle Pelle jacket. The drugs found in the car were found on the

passenger’s side of the car, where Rosemond had been sitting.

Additionally, other evidence provided circumstantial links

between Rosemond and the apartment and its contents. There were a

number of clothing items that would have fit someone of Rosemond’s

larger size.

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Rosemond I at ¶ 76-77.

b. Admissions by Rosemond
{¶34} As we said in Rosemond I:
But, more significant than that, the series of recorded jail calls

between Rosemond and Bailey made it relatively clear that, while there

was no actual DNA evidence found on any of the contraband,

Rosemond believed that it would be. The calls from Rosemond to

Bailey began the day he was arrested and brought to the Hamilton

County Justice Center. He asked her to get rid of various items,

providing evidence that they were working together in a criminal

enterprise. He said that “they made me take DNA for them gun.” He

then referred to the two guns in the apartment. In another call, he

essentially admitted the drugs [were] his when he told Bailey “he

didn’t even charge me with the dope, though. You hear me? He

doesn’t understand. Why they asking me about the guns but not my

drugs that were in that house too?” In another call, Rosemond is

talking to another person about Bailey, and he says, “But I’m gonna

tell her, like, man, my DNA all over that shit; the drugs and the guns.”

In another call, he says, “No, I am talking about the drugs. They got

my DNA on the drugs.”

Rosemond believed that his DNA would be or had been found

on the contraband seized from the apartment. And his flight from the

vehicle when police attempted to stop [it] was further evidence of his

consciousness of guilt.

Rosemond I at ¶ 77-78.

{¶35} With respect to the murder and assault charges, the jury considered
Nared’s identification of Rosemond as the shooter, Rosemond’s statements in the jail

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call about the shooting, the videotape evidence, and the forensic evidence, including

the GSR on his jacket. With respect to the gun and drug charges, the jury considered

the testimony of the police officers as to the drugs found in Bailey’s car and as to the

guns and drugs found in her apartment, in addition to Rosemond’s numerous

statements about the guns and drugs in the jail calls. Given the overwhelming

evidence of Rosemond’s guilt as to each set of charges, we do not find a “probability

sufficient to undermine confidence in the outcome of the proceedings.” See

Simpson, 164 Ohio St.3d 102, 2020-Ohio-6719, 172 N.E.3d 97, at ¶ 14. Therefore,

we hold that Rosemond has failed to demonstrate that he suffered prejudice as a

result of trial counsel’s failure to argue that the murder and assault charges should

not have been joined with the gun and drug charges under Crim.R. 8.

B. The Appeal
{¶36} Because Rosemond has failed to demonstrate that he suffered
prejudice as a result of trial counsel’s failure to raise the issue of misjoinder under

Crim.R. 8, he cannot demonstrate that he was prejudiced by appellate counsel’s

failure to assign as error trial counsel’s deficiency. We hold that there is no

reasonable probability that the result of the appeal would have been different but for

appellate counsel’s deficiency. We overrule the second assignment of error.

II. Postrelease Control
{¶37} In his first assignment of error, Rosemond argues that the trial court
erred by imposing postrelease control as part of his sentence for murder and by

“fail[ing] to state terms of post-release control during sentencing for other

convictions.” The state concedes the error.

{¶38} Murder is a special or unclassified felony to which the postrelease-
control statute does not apply. See State v. Clark, 119 Ohio St.3d 239, 2008-Ohio-

3748, 893 N.E.2d 462, ¶ 36; R.C. 2967.28(B). Rather, an offender convicted of

murder may become eligible for parole after the expiration of the minimum prison

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term. R.C. 2967.13(A)(1). Therefore, the trial court erred in imposing postrelease

control as part of Rosemond’s sentence for murder. See Rosemond, 1st Dist.

Hamilton No. C-180221, 2021-Ohio-768, at ¶ 8. In addition, at the sentencing

hearing, the trial court failed to notify Rosemond about postrelease control when it

sentenced him on the remaining felony offenses. See R.C. 2929.19(B).

{¶39} Prior appellate counsel’s failure to challenge the imposition of
postrelease control prejudiced Rosemond. Therefore, we sustain the first assignment

of error.

III. Conclusion
{¶40} We hold that Rosemond was not sentenced in conformity with the
statutes governing postrelease control, and that prior appellate counsel’s

performance in that regard was prejudicially deficient. See App.R. 26(B)(7).

Accordingly, upon the authority conferred by App.R. 26(B)(9), we vacate that part of

our December 27, 2019 judgment affirming his sentences. And we vacate, and

remand for correction of, the postrelease control portions of those sentences, in

accordance with law and this opinion. In all other respects, the judgment of

conviction is affirmed.

Judgment accordingly.

BOCK, J., concurs.
ZAYAS, P.J., dissents.
ZAYAS, P.J., dissenting.

{¶41} I agree that the trial court erred in imposing postrelease control as part
of Rosemond’s sentence. However, I respectfully disagree with the majority’s

resolution of Rosemond’s second assignment of error. Rosemond’s trial counsel was

deficient for failing to file a motion to sever under Crim.R. 8 because the motion had

a reasonable probability of success. Appellate counsel was also deficient in failing to

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raise the issue on appeal. The misjoinder resulted in substantial prejudice to

Rosemond.

I. Misjoinder
{¶42} “ ‘When a claim of ineffective assistance of counsel is based on
counsel’s failure to file a particular motion, a defendant must show that the motion

had a reasonable probability of success.’ ” State v. Jones, 10th Dist. Franklin No.

11AP–1123, 2012-Ohio-3767, ¶ 31, quoting State v. Carmon, 10th Dist. Franklin No.

11AP–818, 2012-Ohio-1615, ¶ 12. To determine whether trial counsel’s performance

was deficient, we must first determine whether the motion would have been

successful. See id.

{¶43} Joinder under Crim.R. 8 “involves a question of law we review de

novo.” State v. Kennedy, 2013-Ohio-4221, 998 N.E.2d 1189, ¶ 24 (1st Dist.). Crim.R.

8(A) provides that “two or more offenses may be charged in the same indictment” if

the offenses are (1) “of the same or similar character”; (2) “based on the same act or

transaction”; (3) “based on two or more acts or transactions connected together or

constituting parts of a common scheme or plan”; or (4) “part of a course of criminal

conduct.” Crim.R. 8(A). “Ohio law clearly favors joining multiple offenses in a single

trial if the requirements for joinder under Crim.R. 8(A) are met.” State v. Lee, 8th

Dist. Cuyahoga No. 109215, 2021-Ohio-2925, ¶ 12. However, if the charged offenses

do not meet at least one of the four joinder requirements, the charges should be

severed, “even in the absence of prejudice.” Kennedy at ¶ 24.

{¶44} Here, the state argues that joinder was proper under Crim.R. 8(A) as
offenses “connected together” due to the connection of “evidence, witnesses, and

overlapping investigations.” Essentially, the state argues that the charges were

connected together because the witnesses and evidence in both sets of charges

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overlapped. The state cites to no case law interpreting Crim.R. 8. to support that

proposition, and I could find none.

{¶45} Courts have found offenses sufficiently connected together when the

evidence shows the offenses are related to each other. See United States v. Cole, 857

F.2d 971, 973 (4th Cir.1988) (Finding offenses “connected together” where the

evidence established that the “various drug charges stemming from a large-scale

cocaine distribution ring with the defendant’s alien smuggling charges where the

aliens smuggled into the country began to sell cocaine for his distribution ring after

their arrival.”).

{¶46} Courts have found that offenses are not “connected together” when the

offenses are not logically related. See United States v. Terry, 911 F.2d 272, 274 (9th

Cir.1990) (finding “improper joinder of charges of narcotics possession and being a

felon in possession of a firearm, where narcotics were found in the defendant’s

vehicle forty miles away from his home and a search of the defendant’s home

thirteen days later uncovered a shotgun but no evidence of drug activity.”); United

States v. Cardwell, 433 F.3d 378, 387 (4th Cir.2005) (requiring “additional facts”

beyond the discovery of a gun during the investigation of a murder-for-hire plot as a

basis for joinder of the possession of a gun charge with the murder-for-hire charge);

United States v. Hawkins, 776 F.3d 200, 209 (4th Cir.2015) (explaining that “a mere

temporal relationship is not sufficient to establish the propriety of joinder.”).

{¶47} The state relies on State v. Jeffries to support its claim that offenses

are properly joined when they were investigated at the same time and have

overlapping witnesses. See State v. Jeffries, 2018-Ohio-2160, 112 N.E.3d 417, ¶ 55.

In Jeffries, this court found that the sex offense charges and drug charges were

properly joined under Crim.R. 8(A) because “the offenses were part of a course of

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criminal conduct.” Id. at 56. Here, the state does not argue the charges were part of

a course of criminal conduct, and a review of the indictment and the evidence

presented at trial substantiates the lack of a nexus or link between the two sets of

charges.

{¶48} With respect to the overlapping investigations, the Ohio Supreme

Court expressly rejected that argument in State v. Atkinson, 4 Ohio St.2d 19, 211

N.E.2d 665, (1965). In Atkinson, the state argued that joinder was proper because

the charges “arose out of the investigation of counts one and two.” (Emphasis in

original.) Id. at 20. The court concluded that:

This proposal or argument of the prosecuting attorney would create a

new category or classification of offenses that may be joined in an

indictment under the heading of ‘Offenses Connected in their

Discovery.’ The statute does not make any such provision nor does the

record itself show any connection between counts one and two and the

third count in the acts or conduct of the defendant.

Id. at 21.

{¶49} The state further argues that the same witnesses and evidence were
necessary for each group of charges because the officer involved in the drug and gun

arrests found Rosemond’s jacket and provided Rosemond’s name to the officers

investigating the shooting, and Rosemond was wearing the jacket at the time of the

shooting. But, Crim.R. 8(A) provides no category of joinder on that basis.

{¶50} Moreover, Rosemond’s identity was not at issue in the shooting
offenses. In the opening remarks, the defense admitted that Rosemond was present

at the time of the shooting, but was not one of the shooters. Thus, the officer’s

testimony about finding the coat and Rosemond’s ID in the car, was not relevant to

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the shooting offenses. Finally, as we acknowledged in Rosemond I, “the evidence

related to the counts arising from the December 3 traffic stop was distinct from the

evidence related to the December 8 shooting.” Rosemond I at ¶ 16.

{¶51} Therefore, I would hold that the two sets of offenses were not
connected together as contemplated by Crim.R. 8(A) and joinder was improper. Had

trial counsel filed a motion challenging the misjoinder, the motion had a reasonable

probability of success. Accordingly, I conclude that trial counsel’s performance fell

below an objective standard of reasonable representation.

II. The Misjoinder was Prejudicial
{¶52} To show prejudice, Rosemond must establish that “there is a
reasonable probability that, but for counsel's unprofessional errors, the result of the

proceeding would have been different. A reasonable probability is a probability

sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694, 104

S.Ct. 2052, 80 L.Ed.2d 674. Prejudice from defective representation justifies

reversal only where the results were unreliable or the proceeding was fundamentally

unfair as a result of the performance of trial counsel. State v. Carter, 72 Ohio St.3d

545, 558, 651 N.E.2d 965 (1995), citing Lockhart v. Fretwell, 506 U.S. 364, 369, 113

S.Ct. 838, 122 L.Ed.2d 180 (1993).

{¶53} “The prejudice inquiry, thus, focuses not only on outcome
determination, but also on ‘whether the result of the proceeding was fundamentally

unfair or unreliable.’ ” State v. Smith, 2016-Ohio-7566, 76 N.E.3d 551, ¶ 69 (5th

Dist.), quoting Lockhart at 369. See United States v. Cronic, 466 U.S. 648, 658, 104

S.Ct. 2039, 80 L.Ed.2d 657 (1984) (“[T]he right to the effective assistance of counsel

is recognized not for its own sake, but because of the effect it has on the ability of the

accused to receive a fair trial”). “Thus, an analysis focusing solely on mere outcome

determination, without attention to whether the result of the proceeding was

fundamentally unfair or unreliable, is defective.” Lockhart at 369.

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{¶54} The majority’s analysis focuses solely on outcome determination

without any discussion of the unreliability and fundamental unfairness of the trial.

Moreover, the majority’s conclusion that “the evidence was overwhelming as to each

set of charges” is inconsistent with the Rosemond I conclusion that the convictions

on the drug and weapon counts were based upon “circumstantial evidence.”

Rosemond I at ¶ 79. With respect to the drug and gun charges, the Rosemond I

majority acknowledged that the “evidence provided circumstantial links between

Rosemond and the apartment and its contents” and the convictions were based on

“circumstantial evidence [linking] Rosemond to the drugs and weapons seized on

December 3, 2015.” Rosemond I at ¶ 77, 79. Bailey, who possessed the key to the

apartment, lived in the apartment and “faced the same charges related to the drugs

and guns. Id. at ¶ 6, 8, 112. “She resolved the charges by pleading guilty upon

reaching an agreement with the state.” Id. at ¶ 112.

{¶55} Additionally:

Rosemond did not live at the Nottingham apartment where the

drugs and gun were located. His identification card listed his address

as Hewett Avenue, and the docketing statement in this case reflects his

Hewett address. The search did not yield any mail or personal papers

belonging to Rosemond. Other than a pair of pants that “could” be

large enough to fit Rosemond, there is no evidence that Rosemond

lived there or was an overnight guest prior to the search.

Id. at ¶ 95 (Zayas, J., concurring in part and dissenting in part).

{¶56} Similarly, after viewing the evidence in the light most favorable to the

state, the majority in Rosemond I relied on circumstantial evidence to conclude the

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evidence was sufficient to support the convictions on the murder and assault

charges. Id. at ¶ 81-83. The alleged motive for the murders was that Austin, one of

the victims, “was executed for having testified in another murder trial.” Id. at ¶ 73.

“Austin had been trying to keep a low profile because he had testified in the trial of a

man who had killed Austin’s cousin.” Id. at ¶ 9. Yet the state presented no evidence

tying Rosemond to Austin, the person accused of murdering Austin’s cousin, or

Austin’s cousin. The state did not recover a murder weapon, and the video does not

depict Rosemond holding or firing a gun. The video confirms what Rosemond

admitted at trial: he was present during the shooting.

{¶57} The video also depicts two individuals who appear to be shooting

toward the victims, one on the sidewalk to the left of Rosemond, and one inches

away from him on the right. As the trace examiner explained, the GSR found on

Rosemond’s coat was the result of the jacket “having been in the vicinity” of a

discharged firearm. The trace examiner also testified that she did not know whether

the GSR was on the sleeve of the jacket or the body of the jacket. Thus, I note that

the majority’s assertion that the GSR was on the sleeve of the jacket is contrary to the

trace examiner’s testimony. Accordingly, the GSR evidence, at most, establishes

what Rosemond admitted at trial: he was present during the shooting.

{¶58} The shooting ended 15 seconds after it started, and at that time,

Rosemond ran to the parking lot. The video shows that the driver of the Tahoe

attempted to leave multiple times but was blocked in its parking spot by other cars

that were leaving. When Rosemond arrived at the parking lot, the driver, who finally

had a clear path, was leaving when Rosemond arrived. Thus, it cannot be said that

the video evidence conclusively established that the Tahoe deliberately remained at

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the scene to serve as the “getaway car.” Unlike the majority, I rely on the events as

depicted in the video rather than the detective’s interpretation of the video.

{¶59} Additionally, as I previously articulated,

One of the victims testified that Rosemond did not shoot him,

and that he was shot by a skinny man in red. Notably, the video shows

a skinny man in red in the street, to the right of Rosemond, who

appears to be dancing as if he were shooting,2 and moving towards the

victim’s car. A second victim did not see any of the shooters.

A third victim, Nared was shot seven times by four different

calibers of guns. Initially, he did not implicate Rosemond in the

shooting. However, at trial, he testified for the first time that he saw

Rosemond standing by the wall after the shooting started. But, the

video shows that it was not Rosemond standing by the wall when the

shooting started. Instead, it was a man in white tennis shoes standing

on the sidewalk by the wall, moving his feet as if he were firing a gun,

who then ran down the sidewalk toward Nared.

Although Rosemond was visible in the video, he was never seen

with a gun. When the shooting started, he ducked next to the driver’s

side of the white car and was no longer visible. Simultaneously, the

skinny man entered the video and appeared to be shooting for the next

six seconds. Once the skinny man ran away from the scene, Rosemond

again appeared, plodding up the sidewalk next to the white car.

Rosemond is a very large man who is 6 feet 2 inches tall and weighs

300 pounds. He does not appear to move very quickly, and it took him

2 Gehring testified that when the feet are moving as if dancing, the person may be firing a weapon.

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a full second to run the length of the white car. Notably, he was not

carrying a gun, and his hands were in his pockets.

Two seconds after Rosemond ducked behind the white car, four

flashes can be seen, but those appear to be coming from the right of

the victim’s car, which was approximately 54 feet away from where

Rosemond ducked behind the car. Three seconds after the flashes

stop, Rosemond plodded by the white car. It appears that he had been

hiding between the white car and the Honda, because he did not run in

front of the headlight of the victim’s car.

During the shooting, several people called 911 and provided

descriptions of the shooters. One of the callers described the suspect

as a black male, wearing a brown jacket with fur that left the scene in a

white Bronco. Another witness, Teresa, described one shooter as a

black male, 30-40, whose nickname was possibly Capone, wearing a

brown, puffy coat with a fur collar and standing next to a white SUV.

She also described a second shooter as an 18-19 year old male black

wearing a red shirt or sweatshirt and dark pants, who fled on foot.

According to one witness, the shooters were wearing masks. Another

witness stated that three suspects fled on foot. One witness provided

the nicknames of four suspects. Yet none of the witnesses who called

described Rosemond as one of the shooters.

Finally, I am not convinced that Rosemond’s statement that

Nared was “hit [on] my shit” was correctly interpreted by the majority.

The majority characterized this statement as a joking admission to

shooting Nared. However, in a different call where he is discussing the

accusations made by the police, he stated, “They hit me with some fake

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shit.” Based on the context of this statement, I cannot conclude that

“hit me” refers to shooting.

Rosemond I at ¶ 113-118.

{¶60} I am equally unpersuaded by the majority’s interpretation of two other
jail calls as “admissions.” The majority claims that Rosemond did not deny an

accusation that he was the shooter. Having listened to the call, Rosemond was

speaking when the comment was made. Rosemond continued to speak as if he did

not hear the comment when the call was abruptly disconnected. The final call was a

contentious call with a woman named Brie. During that call, Brie threatened to harm

Rosemond’s mother, then he threatened to harm her. When she realized the call

was being recorded, she claimed that she knew what happened and would testify

against him. Rosemond repeatedly stated that there was nothing for her to testify

about. Then he offered to give her telephone number to the prosecutor, and she told

him not to. Rosemond called her a “rat” after she discussed working with the DEA

and building a case against him as a detective. The two bickered throughout the call,

and when Rosemond asked to speak with his daughter, she claimed he was not the

father. Given the context of the calls, I do not interpret them as admissions of guilt,

and I disagree with the majority’s conclusion that “the evidence was overwhelming as

to each set of charges.”

{¶61} But, our task is not to determine whether the evidence was sufficient.
The issue here is whether Rosemond was prejudiced by the misjoinder. Because the

evidence here is circumstantial and subject to multiple interpretations, the

misjoinder resulted in the improper admission of prejudicial evidence that rendered

the trial “unreliable” and “fundamentally unfair.” See State v. Carter, 72 Ohio St.3d

545, 558, 651 N.E.2d 965 (1995), citing Lockhart, 506 U.S. at 369, 113 S.Ct. 838, 122

L.Ed.2d 180.

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{¶62} The admission of drugs and a gun unrelated to the shooting was
irrelevant and highly prejudicial and “leads only to inferences about matters that

were not properly provable in this case, i.e., the defendant’s dangerous character.”

State v. Thomas, 152 Ohio St.3d 15, 2017-Ohio-8011, 92 N.E.3d 821, ¶ 41, quoting

Walker v. United States, 490 F.2d 683, 684-685 (8th Cir.1974). The evidence of an

unrelated gun “could only have inflamed the passions of the jury. This evidence

added absolutely nothing to the [murder] case against the defendant except to

suggest to the jury that he was a bad man.” Id. at ¶ 43, quoting People v. Drake, 142

Mich.App. 357, 360, 370 N.W.2d 355 (1985). The admission of the gun was

“presumptively harmful error because of the danger the jury will consider the

accused’s bad character or propensity to crime as evidence of guilt.” Id. at ¶ 42,

quoting Agatheas v. State, 77 So.3d 1232 (Fla.2011).

{¶63} Likewise, the evidence related to the murder and felonious-assault
charges was unrelated to the drug and gun charges and would have been

inadmissible if the offenses had not been improperly joined. The admission of the

other acts evidence “suggested that Rosemond has a general propensity to commit

serious and violent crimes which can have a ‘substantial and injurious effect or

influence in determining the jury’s verdict.’ ” Rosemond I at ¶ 120, citing United

States v. Lane, 474 U.S. 438, 449, 106 S.Ct. 725, 88 L.Ed.2d 814 (1986), quoting

Kotteakos v. United States, 328 U.S. 750, 776, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946).

{¶64} As I previously explained,
The bad conduct offered in evidence to prove the unrelated

offenses certainly had a substantial effect on the jury’s verdict. See,

e.g., United States v. Holloway, 1 F.3d 307, 312, (5th Cir.1993)

(concluding that by failing to sever the weapons charge from the

unrelated robbery charges, “the jury emphatically was told that [the

defendant] was a bad and dangerous person ‘by his very nature,’ and

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that a felon who carried a gun was just the sort of character who was

most likely to have committed the robberies charged in the

indictment.”). Here, as in Holloway, Rosemond “was unjustifiably

tried, at least in part, on the basis of who he was, and not on the basis

of the material evidence presented against him.” See id.

The evidence submitted to support the unrelated charges

portrayed Rosemond as a violent and dangerous person as evidenced

by the prosecutor’s remarks that Rosemond “shot up people” and

“executed” and “gunned down” the victim in the shooting, and that he

was a guy who bought, sold, and used drugs and carried guns. The

jury was told that Rosemond was a violent, drug trafficker who

possessed guns and was likely to commit all of the charged offenses.

See id.

And the record reflects that the jurors became fearful about

their names being publicly released during the course of the trial.

During an unrecorded break, the trial court, prosecutor, and defense

counsel had a conversation regarding the jurors’ concerns regarding

the murder case. By agreement, the trial court spoke with the jurors

and attempted to allay those concerns. On that same day, the court

ordered that all records with personally identifying information about

the jurors, including the entirety of the voir dire, be sealed from the

public view. The bad-conduct evidence regarding the unrelated

charges had a strong impact on the jurors’ emotions.

Rosemond I at ¶ 120-122.

{¶65} I conclude that the misjoinder resulted in a trial that was unreliable

and fundamentally unfair because of the deficient performance of trial counsel. See

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Smith, 2016-Ohio-7566, 76 N.E.3d 551, at ¶ 69. I would reverse Rosemond’s

convictions and remand the cause for two new trials. Ultimately, “[s]ociety wins not

only when the guilty are convicted but when criminal trials are fair; our system of the

administration of justice suffers when any accused is treated unfairly.” Brady v.

Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

Please note:
The court has recorded its own entry this date.

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