State v. Walker , 2020 Ohio 1581 ( 2020 )

[Cite as State v. Walker, 2020-Ohio-1581.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-190193
TRIAL NO. B-1603076
Plaintiff-Appellee, :
O P I N I O N.
vs. :
THOMAS WALKER, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: April 22, 2020
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Philip R. Cummings,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Timothy J. McKenna, for Defendant-Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS
M OCK , Presiding Judge.
{¶1} Following a jury trial, defendant-appellant Thomas Walker was
convicted of murder under R.C. 2903.02(A), gross abuse of a corpse under R.C.
2927.01(B), tampering with evidence under R.C. 2921.12(A)(1), and having weapons
while under a disability under R.C. 2923.13(A)(3). The trial court ordered the
sentences on all four counts to be served consecutively, for a total sentence of 25
years to life in prison. We find no merit in Walker’s six assignments of error, and we
affirm his convictions.
I. Factual Background
A. Walker Reports the Shooting to Police
{¶2} The record shows that on Monday, May 30, 2016, at about 10:30 p.m.,
Cincinnati Police Officer Barnabus Blank was working the front desk at District One
when Walker walked in and announced that “I got into it with my girl and I shot and
killed her.” Walker gave him a house key and said, “You will need this to get to the
body.”
{¶3} Officer Blank went into the lobby and put handcuffs on Walker. Blank
described Walker as calm, but also “sweaty and clammy,” and “a little bit out of
breath.” Blank saw that Walker had a gunshot wound to his left leg, so he called an
ambulance.
{¶4} Walker told Blank that the police would find the body at 705 Glenwood
Avenue on the second floor. Blank recognized the address that Walker gave him as
being located in District Four. He arranged for a squad to respond to that address,
and also called District Four to give them “a heads up.”
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{¶5} Police Officer Alisha Bruewer was standing near the front desk when
Walker walked into District One. She said that Walker was sweating profusely and
appeared to be nervous. Walker stated that “it took him a little while because he had
to work himself up to bring himself down to the district,” and that “he and his wife
got into an altercation and he had a bullet stuck in his leg.” He also stated that the
shooting had occurred on the Saturday before.
{¶6} Sergeant John Hein was also present at District One. He
photographed the gunshot wound when the paramedics cut off Walker’s pants leg.
Hein said that “the coloring was definitely of interest,” the wound was not bleeding,
and it appeared to be “scabbed over already.” The bullet was still underneath the
skin, and the colors of the bruises indicated that some time had elapsed since the
wound had been inflicted.
{¶7} Lieutenant William Feckter of the Cincinnati Fire Department was an
EMT who came to treat Walker’s gunshot wound. He said that there was already
bruising around the entry point, and the entry point was “dried, with no blood or
secretions.” A paramedic prepared a report about the incident. The report stated,
“the patient * * * said that his wife had the gun, he didn’t know if she was going to
shoot herself or him, so he tried to grab it * * * and it shot him in the leg.”
B. The Scene of the Crime
{¶8} Police officers went to 705 Glenwood Avenue at approximately 10:43
p.m. Upon entering the residence, they immediately smelled the decomposing body
of Necole Craig, also known as Necole Jones. Rigor mortis had set in, and she was
covered in dried blood and flies. Her shirt was pulled over her head. They found a
gun on the couch in the living room. Written on the bedroom wall was “Necole
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Jones, 1974-2016 7:12 AM * * * Her fam did everything they could to see us
unhappy. They won!!”
{¶9} Criminalist Kim Horning processed the bedroom, where the victim’s
body was found. She noticed that the sheets and rugs were soaked in blood. There
was dried vomit with what appeared to be pills in it on the floor. A roll of duct tape
was found on the bed. In the living room, there was a cell phone under the couch,
which was later determined to be Necole’s. There was also a gun on the couch and
ammunition on the coffee table. The television was on and tuned to a channel that
showed true-crime shows.
{¶10} Criminalist Jimmy Pham also processed the scene. Pham did not find
any cartridge casings, spent bullets, or bullet holes in the apartment. Walker’s
fingerprints were found on a box of ammunition. That box held 50 cartridges.
Thirty-nine cartridges were found inside of the box, ten were found in a baggie, and a
spent bullet was later removed from Walker’s leg. Pham later went back to the scene
with the investigating detective to search for a cartridge casing that may have been
thrown into the backyard, but he did not find anything.
C. Scientific Evidence
{¶11} DNA swabs were taken from the trigger and the handle grip of the gun
found at the scene. Because the samples on the two swabs were small, they were
combined at the laboratory conducting the DNA analysis. Necole’s DNA was
identified from the combined samples, along with a minority DNA contributor, who
could not be identified.
{¶12} The deputy coroner who examined the body found numerous old,
irregular scars. Post-mortem changes to the body indicated Necole had been
deceased for “a couple of days.” There was a gunshot entrance wound on the right
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side of her head and an exit wound on the left side of her head. There was no fouling
or stippling or any other indication that the gun was fired from close or intermediate
range.
{¶13} The coroner also found substantial bruising on the left side of Necole’s
head, near her temple, which was not caused by the gunshot wound. She also had
bruises on her right arm and wrist. All of those bruises indicated blunt-force trauma.
No pills were found in her stomach, but she tested positive for tramadol, a pain
medication, as well as alcohol and cocaine.
{¶14} A firearm examiner testified that the gun found at the scene was a .32-
caliber semiautomatic pistol, but it did not have a magazine. Therefore, the operator
would have to manually insert the bullet in the chamber and pull the slide back. The
ammunition found at the scene was also .32 caliber. The examiner test-fired the
weapon using the ammunition from the scene and found it to be operable. He also
determined that the bullet recovered from Walker’s leg was fired from that gun.
{¶15} Officer Steven Villing of the forensic video unit, which handles all
digital evidence, was given Walker’s cell phone along with the cell phone found at the
scene, which was later identified as Necole’s. Necoles’s phone contained numerous
text messages from Walker which were abusive and crude. In several, he threatened
to beat her or referenced times when he had beat her in the past.
D. Testimony of the Victim’s Family
{¶16} Necole’s mother, daughter, and sister testified at trial. They
acknowledged that Necole was a drug addict who had prostituted herself for drug
money. Stella Craig, Necole’s mother, testified that they were a very close family.
She described her daughter as “bubbly, silly, always liking to joke, laughing with her
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family, being around us.” She also said that Necole was petite, and that she dressed
“real cute,” wore lipstick, and had her hair done.
{¶17} Stella testified that after Necole started dating Walker, she changed.
She interacted less with her family and was no longer her “bubbly, silly” self. Her
physical appearance changed, and she was not as “dainty and cute as she used to be.”
She also started wearing long sleeves and longer pants when she was around the
family even when it was hot. When Necole wasn’t covered, Stella noticed marks and
scratches on her.
{¶18} Stella testified that Walker would often call her and that when he did,
he was “angry and vulgar.” He sent her texts calling her names, making threats, and
degrading her daughter. He also sent her sexually-explicit photographs of her
daughter. Stella turned these texts and photographs over to the police.
{¶19} Two months before Necole’s death, Stella saw that Necole was missing
a tooth, even though Necole had tried to hide it. Stella “flipped out” because she
believed Walker had been responsible for the missing tooth. She said that Necole
had tried to calm her and did not want her to be upset.
{¶20} Stella described a trip that the family, including Necole, had taken on
May 27, 2016, shortly before Necole’s death, to Lexington, Kentucky for a family
graduation. She said that Necole seemed to be happy and having fun. A few days
later, a police officer came to her door and notified her that her daughter had died.
She was devastated and told the police officer, “He finally did it, * * * he killed her.”
{¶21} Amanda Craig, Necole’s daughter, testified that she and her mother
were close, but that Necole had become distant after she starting dating Walker. She
began to see bruising on Necole’s back and thighs. Amanda stated that Necole would
try to hide the bruises by wearing baggy clothes.
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{¶22} In April 2019, Necole had failed to show up for Stella’s wedding, so,
the following day, Amanda and several other family members went to Necole’s
residence. They stood outside and called Necole’s name for about 15 minutes. They
could tell someone was in the house because they saw the curtains moving on the
second floor.
{¶23} When Necole did not come out, they went to Stella’s house, a few
blocks away. A short time later, Necole called Amanda. Amanda said that Necole
sounded “shaken” and “scared.” Amanda and her brother went to get Necole and
brought her to Stella’s house. Amanda testified that her mother appeared tired, and
“kept trying to cover her mouth” because her tooth was gone. Amanda learned that
her mother had been prescribed pain medicine for the missing tooth.
{¶24} Amanda lived near Lexington. She testified that her mother came to
Lexington for the family graduation. She described her mother’s demeanor that day
as “quiet.” Necole received 15 to 20 texts and phone calls that day, which she did not
answer. She acted scared when she received the texts and calls.
{¶25} Finally, Amanda testified that Necole did not like guns. She said that
Necole did not know how to load or use a gun. She also stated that despite Necole’s
use of drugs and alcohol, she had never been violent or suicidal.
{¶26} Mequita Craig, Necole’s sister, lived in Lexington. She testified that
her sister was a happy “giggly” person. After she started dating Walker, she stopped
showing up for family functions, and she and Mequita talked much less. Mequita
stated, “After Walker, there was several bruises, teeth missing, paranoia.”
{¶27} Mequita described a phone call with Necole, in which Necole was
whispering. She heard background noise, and then Walker was on the phone. He
cursed, called Mequita names, and said degrading things about Necole. She hung up,
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but Walker continued to call her. On those calls, he would act “crazy, erratic as
usual.” He also texted Mequita making threats and degrading comments about
Necole. At one point, Walker said that Necole would be returned to her family “in a
body bag.”
{¶28} Mequita was one of the family members who went to get Necole the
day after the wedding. When Necole finally came to Stella’s home, Mequita saw that
her tooth was missing. When Necole told her what had happened, she was “crying,
scared.” Mequita got angry, and told her to leave the relationship.
{¶29} Necole came down to Lexington on May 27 for Mequita’s daughter’s
graduation. In all the pictures, Necole was trying to cover her mouth due to the
missing tooth. Necole’s phone “would not stop ringing” that day, but she did not
answer it. When the phone rang, she appeared to be scared, and she was shaking. At
one point, Mequita’s ten-year-old daughter answered the phone, and Mequita could
hear Walker on the phone angrily asking where Necole was.
{¶30} Mequita also testified that Necole did not like guns. Mequita had tried
to get her to go to the gun range, but Necole would not go. She stated that Necole
did not know how to use or load a gun. Mequita acknowledged that her sister had a
drug problem before she met Walker. She stated that even when Necole was using
drugs, she was never violent. When they were children, Mequita always fought
Necole’s battles for her because Necole would not fight.
E. Walker’s Interviews with the Police
{¶31} In multiple interviews with the police, Walker insisted the shooting
was accidental. He said that Necole had been drunk and possibly suicidal. He
claimed the gun went off as he tried to wrestle it from her grasp. He also told police
that he used the duct tape to tape his wrist to hers for a while to symbolize their
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bond. He explained that he sat with her body for a few days while he worked up the
courage to turn himself in to the police.
{¶32} The police interviewed Walker briefly in the hospital shortly after he
had gone to District One. He admitted to owning the gun. He told the police that
Necole had the gun in her right hand, but the bullet went in the left side of her head
and out the right side, and into his leg. When they tested his hands for gunshot
residue, he claimed that he had been playing with the gun and they would probably
find gunshot residue on his hands. The test later came back negative. Because
certain elements of his story did not make sense, the police planned to interview him
again when he got out of the hospital.
{¶33} The police interviewed Walker at the police station the following day.
He again insisted that the shooting had been an accident. He admitted to disposing
of a shell casing by throwing it out the back window. The police were never able to
find that casing. Walker also said he left the apartment only once, when he went out
to get some orange drinks. He gave the police consent to swab his DNA. Because
police did not have much information at that time, they told Walker he was free to
go.
{¶34} The police subsequently talked to Necole’s family. They also received
information about text messages on Walker’s cell phone and Necole’s phone. Many
of Walker’s texts to Necole on his phone had been deleted, but they were still on
Necole’s phone. Further, though Walker claimed not to have made any calls after the
shooting, Nicole’s phone showed that he had called it several times in an attempt to
locate the phone. After receiving information from the coroner, the firearm
examiner, and others, the police believed that Walker had not been telling them the
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truth. So they had the fugitive unit locate Walker and bring him in for another
interview.
{¶35} In the third interview, the police officers used a much more accusatory
tone. They testified that Walker’s answers to their questions seemed “prepared” as if
“he knew what he was going to say.” He continued to maintain the shooting was an
accident, but the details he provided were inconsistent with what he had said
previously and with the scientific evidence.
II. Prosecutorial Misconduct
{¶36} In his first assignment of error, Walker contends that prosecutorial
misconduct in closing arguments denied him a fair trial. He argues that prosecutor
improperly stated that she was not lying, thereby implying that defense counsel was
lying, and denigrated the defendant. This assignment of error is not well taken.
{¶37} Prosecutors are normally entitled to wide latitude in their remarks.
State v. Mason, 82 Ohio St. 3d 144, 162, 694 N.E.2d 932 (1998); State v. Wallace, 1st
Dist. Hamilton No. C-160613, 2017-Ohio-9187, ¶ 65. The test for prosecutorial
misconduct is (1) whether the remarks were improper, and (2) if so, whether the
remarks affected the accused’s substantial rights. State v. Lott, 51 Ohio St. 3d 160,
165, 555 N.E.2d 293 (1990); Wallace at ¶ 65. The conduct of the prosecuting
attorney cannot be grounds for error unless it deprives the defendant of a fair trial.
State v. Keenan, 66 Ohio St. 3d 402, 405, 613 N.E.2d 203 (1993); Wallace at ¶ 65.
{¶38} Walker takes issue with two comments in the prosecutor’s rebuttal
argument. First, the prosecutor stated, “[A]nd I am not making up things. Please
use your collective memory and not—I don’t—it is not my job to just come here and
lie to you.”
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{¶39} The prosecutor’s comment must be viewed in context. In his
argument, defense counsel had implied that the police had done a slip-shod
investigation and that the state had fabricated facts because it had insufficient
evidence. In rebuttal, the prosecutor talked about how Walker’s stories to the police
did not match the scientific evidence. She then stated, “I submit to you, and some
people don’t need to change their stories. They don’t have one. * * * I want to talk
about Nicole now. Necole only had one story. That story is she loved the wrong
person. You heard from the family * * *. They believed that Walker was verbally
abusing Necole, physically harming her as well.” Defense counsel objected, saying,
“It’s not the evidence testified to.”
{¶40} The trial court overruled the objection, and then the prosecutor
continued with “With Necole before Walker—and I am not making up things. Please
use your collective memory and not—I don’t—it is not my job to just come up here
and just lie to you.” After the trial court overruled Walker’s objection and refused to
give a curative instruction, the prosecutor discussed the family’s testimony about
Necole’s changed behavior after she met Walker.
{¶41} The prosecutor’s comment was a direct response to the defense
counsel’s argument, and thus, it was not improper. See State v. Hopkins, 2018-
Ohio-1864, 112 N.E.3d 98, ¶ 97-99 (2d Dist.); State v. Carter, 2017-Ohio-1328, 88
N.E.3d 513, ¶ 23 (1st Dist.). The rest of her statements were fair comments on the
evidence.
{¶42} Next, Walker takes issue with the following comment in the
prosecutor’s rebuttal argument. She stated, “That is how he felt about Necole. Not
this little, ooh, boo-hoo in court where he is [c]rying. Where never did he ever show
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OHIO FIRST DISTRICT COURT OF APPEALS
any remorse in any of his three interviews.” Prior to this statement, the prosecutor
was talking about Walker’s text messages with degrading comments about Necole.
{¶43} First, Walker did not object to this comment, so we review it for plain
error. State v. Underwood, 3 Ohio St. 3d 12, 13, 444 N.E.2d 1332 (1983); State v.
Thomas, 1st Dist. Hamilton No. C-120561, 2013-Ohio-5386, ¶ 38. The statement was
a fair comment on the evidence. Further, it is not improper for a prosecutor to
comment on the defendant’s lack of remorse. See State v. Bryan, 101 Ohio St. 3d 272,
2004-Ohio-971, 804 N.E.2d 433, ¶ 184; State v. Awkal, 76 Ohio St. 3d 324, 335-336,
667 N.E.2d 960 (1996). We cannot hold that the comment was improper much less
that it rose to the level of plain error.
{¶44} Further, even if the prosecutor’s comments were improper, they were
two isolated remarks in an otherwise proper argument. “Isolated comments by a
prosecutor are not to be taken out of context and given their most damaging
meaning.” State v. Carter, 89 Ohio St. 3d 593, 603, 734 N.E.2d 345 (2000). None of
the comments that Walker complains about were so egregious as to affect his
substantial rights or deny him a fair trial. Further, the trial court instructed the jury
that opening and closing arguments are not evidence. We presume that the jury
followed that instruction. See State v. Garner, 74 Ohio St. 3d 49, 59, 656 N.E.2d 623
(1995); State v. Bell, 2015-Ohio-1711, 34 N.E.3d 405, ¶ 21 (1st Dist.). Therefore, we
overrule Walker’s first assignment of error.
III. Other-Acts Evidence
{¶45} In his second assignment of error, Walker contends that the trial court
erred by allowing other-acts testimony into evidence. He argues that the court
should not have allowed Necole’s family members to testify regarding alleged acts of
domestic violence in the relationship between Walker and Necole because they were
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unrelated and irrelevant, and the only purpose of that testimony was to show his bad
character. This assignment of error is not well taken.
{¶46} Generally, the prosecution in a criminal case may not present evidence
that the defendant has committed other crimes or acts independent of the crime for
which the defendant is being tried to establish that he acted in conformity with his
bad character. Evid.R. 404(B); State v. Wright, 2017-Ohio-1568, 90 N.E.3d 162, ¶
43 (1st Dist.). But Evid.R. 404(B) provides that other bad acts are admissible to
show “motive, opportunity, intent, preparation, plan, knowledge, identity, or absence
of mistake or accident.” State v. Shedrik, 61 Ohio St. 3d 331, 337, 574 N.E.2d 1065
(1991); Wright at ¶ 43.
{¶47} Because Evid.R. 404(B) codifies an exception to the general rule, it
must be strictly construed against admissibility. State v. Coleman, 45 Ohio St. 3d
298, 299, 544 N.E.2d 622 (1989); Wright at ¶ 44. Nevertheless, the other bad acts
need not be similar to the crime at issue. If the other acts tend to show by substantial
proof any of the items enumerated in Evid.R. 404(B), evidence of other acts is
admissible. Coleman at 299-300; Wright at ¶ 44.
{¶48} Walker’s entire defense was that the shooting was an accident. The
state, on the other hand, had to prove that Walker purposely caused Necole’s death.
The Ohio Supreme Court has indicated that evidence of prior acts of domestic
violence is admissible to show motive, intent, and absence of mistake or accident.
State v. Nields, 93 Ohio St. 3d 6, 22, 752 N.E.2d 859 (2001); State v. Ash, 2018-Ohio-
1139, 108 N.E.3d 1115, ¶ 57 (7th Dist.); State v. Newcomb, 3d Dist. Logan No. 8-01-
07, 2001 WL 1504260, *2 (Nov. 27, 2001); see State v. Griffin, 1st Dist. Hamilton No.
C-020084, 2003-Ohio-3196, ¶ 14-23.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶49} The evidence of threats and domestic violence in this case was
admissible to show motive, intent, and lack of accident. The other-acts evidence
showed the violent nature of the relationship between Walker and Necole, her fear of
him, and the control he exercised over her. Thus, the nature of Walker and Necole’s
relationship bore directly on whether he purposely killed Necole and rebutted his
claim that the shooting was an accident. See Newcomb at *2-3. Based on that
evidence, the jury could have reasonably inferred that Walker acted purposefully in
killing Necole. See State v. Hunter, 131 Ohio St. 3d 67, 2011-Ohio-6524, 960 N.E.2d
955, ¶ 114. The fact that the other acts differ in some details from the charged
offense does not affect the admissibility of the other-acts evidence. Those differences
go to weight, not admissibility. Id. at ¶ 115.
{¶50} Walker also argues that the trial court should have excluded the other-
acts evidence under Evid.R. 403(A), which provides that relevant evidence is not
admissible if its “probative value is substantially outweighed by the danger of unfair
prejudice.” The decision whether to admit or exclude relevant evidence under
Evid.R. 403(A) rests within the trial court’s discretion. State v. Sage, 31 Ohio St. 3d
173, 510 N.E.2d 343 (1987), paragraph two of the syllabus; State v. Johnson, 1st Dist.
Hamilton No. C-170371, 2018-Ohio-4131, ¶ 36. An appellate court will not disturb
the trial court’s decision to admit or exclude evidence absent an abuse of discretion
and a showing that the accused has suffered material prejudice. State v. Martin, 19
Ohio St. 3d 122, 129, 483 N.E.2d 1157 (1985); Johnson at ¶ 36.
{¶51} While the admission of the other-acts evidence was undoubtedly
prejudicial, the rule only required exclusion for “unfair prejudice.” See Bell, 2015-
Ohio-1711, 34 N.E.3d 405, at ¶ 48. The evidence was not presented for the sole
purpose of appealing to the jurors’ emotions, sympathies or biases, and the other acts
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were “inextricably interwoven” with the murder charge. See Wright, 2017-Ohio-
1568, 90 N.E.3d 162, at ¶ 45; Bell at ¶ 48. Consequently, the trial court did not abuse
its discretion by allowing the other acts to be admitted into evidence. See Wright at ¶
45; State v. Carusone, 1st Dist. Hamilton No. C-010681, 2003-Ohio-1018, ¶ 29. We
overrule Walker’s second assignment of error.
IV. Weight and Sufficiency
{¶52} In his third assignment of error, Walker contends that the evidence
was insufficient to support his conviction for murder. He argues that the evidence
failed to show that he purposefully caused the victim’s death because the death was
the result of an accident. This assignment of error is not well taken.
{¶53} R.C. 2903.02(A) provides that “[n]o person shall purposely cause the
death of another * * *.” A person acts purposefully when “it is the person’s specific
intention to cause a certain result, or, when the gist of the offense is a prohibition
against conduct of a certain nature, regardless of what the offender intends to
accomplish thereby, it is the offender’s specific intention to engage in conduct of that
nature.” R.C. 2901.22(A).
{¶54} A person is presumed to intend the natural, reasonable and probable
consequents of his or her acts. State v. Johnson, 56 Ohio St. 2d 35, 39, 381 N.E.2d
637 (1978); State v. Robinson, 132 Ohio App. 3d 830, 838, 726 N.E.2d 581 (1st
Dist.1999). The determination of whether the accused acted with the required
culpable mental state must be gathered from the surrounding facts and
circumstances. Johnson at 38; Robinson at 838; State v. Heard, 1st Dist. Hamilton
No. C-980443, 1999 WL 636555, *7 (Apr. 13, 1999).
{¶55} “[A]n intent to kill may be presumed where the natural and probable
consequence of the wrongful act done is to produce death. It may be deduced from
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the surrounding circumstances, including the instrument used, its tendency to
destroy life if designed for that purpose, and the manner of inflicting the wound.”
State v. Robinson, 161 Ohio St. 213, 218-219, 118 N.E.2d 517 (1954).
{¶56} The text messages sent by Walker to the Necole and her family
members showed that he had threatened to kill her in the past. When Walker turned
himself in to the police, his first statement was that he had shot and killed his
girlfriend. He made no mention of an accident. The story that he later told police
did not match with the scientific evidence. If the shooting had happened as Walker
claimed, which he said was at close range, there likely would have been fouling or
stippling on Necole’s head or face, but none was found. Necole’s family testified that
she did not like guns, she did not know how to use one, and they had never seen her
hold one. Additionally, the coroner found substantial bruising on the side of Necole’s
face, indicating blunt-force trauma.
{¶57} The evidence also showed that Walker was furious when Necole did
not answer his calls or texts shortly before the shooting. Additionally, the delay in
reporting the shooting, his tampering with evidence at the scene, his erasure of text
messages from his phone, and his attempts to locate Necole’s phone all indicate a
consciousness of guilt and show that he acted purposefully. Finally, in his interview
with the police, the investigating detective indicated that Walker’s answers about the
shooting were “prepared,” but when he was pressed, the details of his story were
inconsistent and changed over time.
{¶58} Walker relies heavily on the fact that Necole’s DNA was found on the
gun. But this argument ignores the fact that Walker had two days to tamper with the
crime scene and spent time watching true-crime shows. The scientific evidence
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showed that DNA could transfer from surface to surface, and Walker could have
easily transferred Necole’s DNA onto the gun.
{¶59} The state’s evidence regarding Walker’s intent was circumstantial, but
circumstantial and direct evidence have the same probative value. State v. Jenks, 61
Ohio St. 3d 259, 574 N.E.2d 492 (1991), paragraph one of the syllabus; State v.
Durgan, 1st Dist. Hamilton No. C-170148, 2018-Ohio-2310, ¶ 39. Our review of the
record shows that a rational trier of fact, after viewing the evidence in a light most
favorable to the prosecution, could have found that the state proved beyond a
reasonable doubt all of the elements of murder. Therefore, the evidence was
sufficient to support the conviction. See Jenks at paragraph two of the syllabus;
State v. Hackney, 1st Dist. Hamilton No. C-150375, 2016-Ohio-4609, ¶ 29.
{¶60} Walker argues that his version of events was more credible than the
state’s evidence. But in deciding if the evidence was sufficient, we neither resolve
evidentiary conflicts nor assess the credibility of witnesses. Wright, 2017-Ohio-1568,
90 N.E.3d 162, at ¶ 58. Consequently, we overrule Walker’s third assignment of
error.
{¶61} In his fourth assignment of error, Walker contends that his conviction
for murder was against the manifest weight of the evidence. After reviewing the
record, we cannot say that the trier of fact lost its way and created such a manifest
miscarriage of justice that we must reverse the conviction and order a new trial.
Therefore, the conviction was not against the manifest weight of the evidence. See
State v. Thompkins, 78 Ohio St. 3d 380, 387, 678 N.E.2d 541 (1997); State v. Cedeno,
192 Ohio App. 3d 738, 2011-Ohio-674, 950 N.E2d 582, ¶ 25 (1st Dist.).
{¶62} Walker is again arguing that his version of events is more credible. But
matters as to the credibility of evidence were for the trier of fact to decide. Bryan,
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OHIO FIRST DISTRICT COURT OF APPEALS
101 Ohio St. 3d 272, 2004-Ohio-971, 804 N.E.2d 433, at ¶ 116; Wright at ¶ 59. We
overrule Walker’s fourth assignment of error.
V. ineffective Assistance of Counsel
{¶63} In his fifth assignment of error, Walker contends that he was denied
the effective assistance of counsel. He argues that his defense counsel failed to hire a
crime scene reconstruction expert when it was crucial to showing the order of events
and how the shooting occurred. This assignment of error is not well taken.
{¶64} A court will presume that a properly licensed attorney is competent,
and the defendant bears the burden to show ineffective assistance of counsel. State
v. Hamblin, 37 Ohio St. 3d 153, 155-156, 524 N.E.2d 476 (1988); Hackney, 1st Dist.
Hamilton No. C-150375, 2016-Ohio-4609, at ¶ 36. To sustain a claim for ineffective
assistance of counsel, the defendant must demonstrate that counsel’s performance
was deficient and that the deficient performance prejudiced the defense. Strickland
v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); Hackney
at ¶ 36.
{¶65} Generally, the decision not to call an expert witness does not constitute
ineffective assistance of counsel because that decision is solely a matter of trial
strategy. Coleman, 45 Ohio St. 3d at 307-308, 544 N.E.2d 622; Durgan, 1st Dist.
Hamilton No. C-170148, 2018-Ohio-2310, at ¶ 43. Because the decision not to
present expert testimony may be tactical, the decision of trial counsel to rely on
cross-examination of the state’s experts did not equate to ineffective assistance of
counsel. See State v. McRae, 1st Dist. Hamilton No. C-180669, 2020-Ohio-773, ¶ 19.
{¶66} The record shows that Walker’s counsel provided him with a diligent
and thorough defense. He has not demonstrated that his counsel’s representation
fell below an objective standard of reasonableness or that, but for his counsel’s
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OHIO FIRST DISTRICT COURT OF APPEALS
unprofessional errors, the results of the proceeding would have been otherwise.
Therefore, he has failed to meet his burden to show ineffective assistance of counsel.
See Strickland at 687-689; Hackney at ¶ 37-38. We overrule Walker’s fifth
assignment of error.
VI. Sentencing
{¶67} Finally, in his sixth assignment of error, Walker contends that the
aggregate sentence imposed by the trial court was contrary to law. He argues that
the court erred by imposing consecutive sentences without making the proper
findings, and where a concurrent sentence would have met the statutory principles
and purposes of sentencing. This assignment of error is not well taken.
{¶68} Before a reviewing court can modify or vacate a felony sentence, it
must clearly and convincingly find that the sentence is contrary to law or that the
record does not support the trial court’s findings. Former R.C. 2953.08(G)(2); State
v. Marcum, 146 Ohio St. 3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 1; State v. White,
2013-Ohio-4225, 997 N.E.2d 629, ¶ 11 (1st Dist.). When imposing consecutive
sentences, a trial court must make the required findings as part of the sentencing
hearing and incorporate those findings in the sentencing entry. State v. Bonnell, 140
Ohio St. 3d 209, 2014-Ohio-3177, 16 N.E.3d 659, syllabus; State v. Cephas, 1st Dist.
Hamilton No. C-180105, 2019-Ohio-52, ¶ 43. The court need not use “talismanic
words” but the record must show that the court engaged in the requisite analysis and
that the evidence supports the findings. Cephas at ¶ 43; State v. Schwarm, 1st Dist.
Hamilton No. C-160677, 2017-Ohio-7626, ¶ 15.
{¶69} The trial court incorporated its findings into the judgment entry. At
the sentencing hearing, the prosecutor discussed the domestic violence Walker had
inflicted on Necole, his prior criminal record that included previous convictions for
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OHIO FIRST DISTRICT COURT OF APPEALS
domestic violence, and his lack of remorse. The family was allowed to speak and
they talked of their love for Necole and their grief and anger about her murder. As to
the murder, the abuse of a corpse, and the tampering with evidence charges, the
court stated:
The defendant on or about May 28, purposely shot and killed his
girlfriend Necole Craig. He shot her in the head, thus causing physical
harm by means of a deadly weapon and also serious physical harm
which proximately caused her death.
The defendant has a long history of physically abusing his partners.
Necole Craig was no exception.
After killing Nicole he allowed her body to remain in the apartment
with him for a 48-hour period. At one point in time he Duck-Taped
[sic] his hand to hers. He allowed her body to start decaying without
notifying the proper authorities, which he knew would outrage
reasonable community sensibilities.
The defendant also threw away the casing from the homicide with
purpose to impair its availability as evidence, knowing than an official
investigation was about to be or likely to be instituted.
{¶70} After announcing the sentences on the individual charges, the court
stated:
The Court finds that consecutive sentences are necessary to protect the
public from future crime and to adequately punish the offender. The
sentence is not disproportionate to the seriousness of the offender’s
conduct and the danger that the offender poses to the public. And the
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OHIO FIRST DISTRICT COURT OF APPEALS
offender’s history of criminal conduct demonstrates it is necessary to
protect the public from future crime by the offender.
{¶71} Thus, the record shows that the court engaged in the requisite analysis
and made the findings at the sentencing hearing necessary to justify the imposition
of consecutive sentences. The record supports the trial court’s findings, and we
cannot hold that the sentences imposed were contrary to law. Consequently, we
overrule Walker’s sixth assignment of error
VII. Summary.
{¶72} In sum, we hold that (1) Walker was not denied the right to a fair trial
by prosecutorial misconduct; (2) the trial court did not err by allowing other-acts
testimony into evidence; (3) the evidence was sufficient to support Walker’s murder
conviction; (4) his murder conviction was not against the manifest weight of the
evidence; (5) he was not denied the effective assistance of counsel; and (6) he was
properly sentenced. Consequently, we overrule Walker’s six assignments of error,
and we affirm the trial court’s judgment.
Judgment affirmed.
Z AYAS and B ERGERON , JJ., concur.
Please note:
The court has recorded its own entry this date.
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