State v. Cultrona , 2020 Ohio 3250 ( 2020 )

[Cite as State v. Cultrona, 2020-Ohio-3250.]
COURT OF APPEALS
TUSCARAWAS COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
: Hon. W. Scott Gwin, P.J.
Plaintiff-Appellee : Hon. Craig R. Baldwin, J.
: Hon. Earle E. Wise, Jr., J.
-vs- :
:
IAN CULTRONA : Case No. 2019 AP 06 0019
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common
Pleas, Case No. 2018 CR 12 0462
JUDGMENT: Affirmed
DATE OF JUDGMENT: June 5, 2020
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
RYAN STYER LINDSEY K. DONEHUE-ANGLER
125 East High Avenue 217 North 8th Street
New Philadelphia, OH 44663 Cambridge, OH 43725
Tuscarawas County, Case No. 2019 AP 06 0019 2
Wise, Earle, J.
{¶ 1} Defendant-Appellant Ian A. Cultrona appeals the May 21, 2019 judgment of
conviction and sentence of the Tuscarawas County Court of Common Pleas. Plaintiff-
Appellee is the State of Ohio.
FACTS AND PROCEDURAL HISTORY
{¶ 2} On December 5, 2018, Cultrona and four co-defendants – Samantha Owen,
Lucian Lambes, Doug Casteel, and Lisa Freetage -- arranged to purchase an ounce of
marijuana from Brennan Wilkin for $200. The actual plan, however, was to rob Wilkin of
drugs and money. Arrangements were made for the purchase via text and Facebook
messaging between Owen and Wilkin. Cultrona and his co-defendants also
communicated via text and cell phone contact throughout the events of the day.
{¶ 3} Cultrona and his co-defendants took 2 cars to meet Wilkin. Instead of
meeting Wilkin at his home near Casteel's home where the plan was hatched, Cultrona
and his cohorts directed Wilkin to a remote country road several miles outside
Newcomerstown. Cultrona drove his blue minivan with Owen as a passenger. Lambes
drove Freetage's black Dodge Dart with Freetage and Casteel as passengers. Cultrona,
Lambes and Casteel all had handguns.
{¶ 4} The group drove to the prearranged secluded pull-off location on Liberty
Road. Cultrona and Owen remained there while the other three drove a short distance
down the road where they backed into a gated lane. All five kept in contact via Cultrona's
and Lambes' Verizon cell phones and calls between Owen's and Casteel's cell phones.
At the same time, Owen was texting Wilken to direct him to her location.
Tuscarawas County, Case No. 2019 AP 06 0019 3
{¶ 5} Wilkin arrived with two passengers and parked his Ford Escape SUV
directly behind Cultrona's minivan. Owen approached Wilkin and asked for a sample of
the marijuana which Wilkin provided. As Owen walked the sample back to Cultrona's van,
Lambes burst onto the scene in Freetage's car. Lambes and Casteel exited the car
wearing bandana facemasks and brandishing handguns. At the same time, Cultrona
exited his van, also wearing a bandana mask and brandishing a handgun.
{¶ 6} The three surrounded Wilkin's SUV, aiming their weapons at the occupants
and demanding Wilkin's marijuana and cash. Wilkin threw a yellow bag containing
marijuana out the window and sped away. As he did, one of the men fired a shot at the
SUV, flattening a rear tire. Lambes and Casteel jumped back into the Dodge and gave
chase for four miles while firing numerous shots at Wilkin's vehicle. Four shots found their
mark, one of which entered the passenger compartment and severed a fingertip of a 17-
year-old passenger. Wilkin stopped when he spotted another motorist behind him. That
person gave Wilkin and his three passengers a ride to the Newcomerstown Police
Department.
{¶ 7} While that was going on, Cultrona drove in the opposite direction of the
chase. After receiving a call from Lambes, Cultrona changed course and headed toward
Kimbolton, a small nearby village. From there Cultrona made several phone calls. Two
hours after the robbery and shooting, Cultrona and Owens went to Owens' residence.
Owens was arrested later that evening leaving her child's school Christmas program.
Approximately the same time, Cultrona was arrested in the basement of Owen's home. A
.357 revolver was recovered from the pocket of his coat, and a yellow bag containing
marijuana was recovered among Cultrona's belongings.
Tuscarawas County, Case No. 2019 AP 06 0019 4
{¶ 8} Cultrona was subsequently charged with conspiracy to commit aggravated
robbery, aggravated robbery, three counts of felonious assault and three counts of
attempted murder. Each count included a firearm specification.
{¶ 9} Cultrona pled not guilty to the charges, and on January 29, 2019, was
released on bond. He was placed on pretrial supervision with the intensive supervision
unit of the Tuscarwaras County Probation Department. Cultrona was fitted with a GPS
ankle monitor and advised of the terms and conditions of pretrial supervision. Cultrona
indicated he understood the terms and conditions. Cultrona failed, however, to report to
pretrial supervision as directed, allowed the battery in his ankle monitor to die, cut the
monitor off, and fled the state. On February 22, 2019, investigators from the Tuscarawas
County Sheriff's Department tracked Cultrona down in Pennsylvania and took him into
custody.
{¶ 10} Before trial, counsel for Cultrona filed a motion in limine seeking to prohibit
the introduction of any evidence concerning violations of the conditions of his bond, and
flight from the jurisdiction. Counsel argued Cultrona's flight from the jurisdiction was too
far removed from his alleged crimes to warrant a flight instruction. Before jury selection in
March 2019, the trial court held a hearing on the matter and took the same under
consideration. The court ultimately permitted the testimony and included a flight
instruction in its jury instructions.
{¶ 11} Also before trial, counsel for Cultrona filed a motion in limine objecting to
the admission of a map created by Tuscarawas County Sheriff's Office Detective
Sergeant Hamilton. Hamilton created the map from Cultrona's Verizon Wireless cell
phone records, and showed where Cultrona was located when he made phone calls to
Tuscarawas County, Case No. 2019 AP 06 0019 5
Lambes on the day in question. Hamilton created the map using an FBI program called
Castviz, a program on which he had received training. Counsel argued in part that
Hamilton was not qualified to create such a map. Following a hearing on the matter, the
trial court overruled Cultrona's motion.
{¶ 12} Then, during trial, through the testimony of Hamilton, the state presented
the Verizon Wireless cell phone records of Cultrona and Lambes and the map created by
Hamilton. Each aided in putting Cultrona at the scene of the robbery.
{¶ 13} On cross-examination, counsel for Cultrona suggested Hamilton selectively
chose which records to map, limiting his map to communications between Cultrona and
Lambes, and had excluded exculpatory records from his map. On redirect, Hamilton
denied that accusation, and testified he had simply limited his analysis to the two suspects
in the robbery.
{¶ 14} Following a weekend break in the trial, at the request of the state, Hamilton
produced another map which included all of Cultrona's call data from the day in question.
The new map demonstrated that nothing exculpatory had been omitted from the first map.
The state intended to recall Hamilton to the stand to discuss the new map and counsel
for Cultrona objected to the same on the basis that the map was "prepared during the
middle of trial," and that the information was "somewhat redundant." Transcript of Trial
(T) 813-814. The court heard arguments on the matter and found Cultrona would suffer
no prejudice. The court overruled the objection and permitted the state to recall Hamilton
and present the new map.
{¶ 15} At the conclusion of his 7-day jury trial, Cultrona was found guilty of
aggravated robbery and guilty of three counts of felonious assault and each firearm
Tuscarawas County, Case No. 2019 AP 06 0019 6
specification. He was found not guilty of conspiracy. The jury deadlocked on the
attempted murder charges. A mistrial was declared on thereon and the state declined to
further pursue the charges.
{¶ 16} On May 21, 2019 Cultrona was sentenced to an aggregate prison term of
11 years.
{¶ 17} Cultrona filed an appeal, and the matter is now before this court for
consideration. He raises two assignments of error as follow:
I
{¶ 18} "THE TRIAL COURT COMMITTED AN ERROR WHEN IT PERMITTED
SERGEANT HAMILTON TO TESTIFY A SECOND TIME REGARDING HIS NEWLY
CREATED CELL PHONE MAP, AS THAT TESTIMONY VIOLATED DISCOVERY
RULES AND APPELLANT'S CONSTITUTIONAL RIGHT TO A FAIR TRIAL."
II
{¶ 19} "THE TRIAL COURT COMMITTED ERROR WHEN IT OVERRULED
DEFENDANTS MOTION IN LIMINE AND GAVE THE JURY AN INSTRUCTION ON
"FLIGHT"."
I
{¶ 20} In his first assignment of error, Cultrona argues the trial court erred when it
permitted the state to recall Detective Sergeant Hamilton to testify about the newly
created cell tower map. Specifically, Cultrona argues the trial court's error permitted
Hamilton to testify to facts in contravention of the rules of discovery and further,
deprived him of his constitutional right to a fair trial. We disagree.
Tuscarawas County, Case No. 2019 AP 06 0019 7
{¶ 21} First as to Cultrona's allegation of a discovery violation, as pointed out by
the state, Cultrona never raised this objection below. An error not raised in the trial court
must be plain error for an appellate court to reverse. State v. Long, 53 Ohio St. 2d 91,
372 N.E.2d 804 (1978) at paragraph one of the syllabus; Crim.R. 52(B). In order to
prevail under a plain error analysis, appellant bears the burden of demonstrating that
the outcome of the trial clearly would have been different but for the error. Id. at
paragraph two of the syllabus. Notice of plain error "is to be taken with the utmost
caution, under exceptional circumstances and only to prevent a manifest miscarriage of
justice." Id. at paragraph three of the syllabus.
{¶ 22} Cultrona has not argued plain error. Even if he had, Cultrona
characterizes the map as new evidence that should have been disclosed during
discovery. However, Cultrona was provided with the Verizon records during discovery
and does not dispute that fact. The map was merely a visual representation of the data
contained therein. We therefore reject Cultrona's discovery violation argument.
{¶ 23} Next we find no error in the trial court's decision to permit to the state to
recall Sergeant Detective Hamilton.
{¶ 24} Evid.R. 611(A) provides that the trial court shall exercise control over the
mode and order of interrogating witnesses and the presentation of evidence to ensure
that the interrogation and presentation of evidence are effective in ascertaining the truth.
Whether to permit a witness to be recalled to give additional testimony is a matter
committed to the sound discretion of the trial court. State v. Sims, 3 Ohio App. 3d 321,
329, 445 N.E.2d 235 (8th Dist.1981).
Tuscarawas County, Case No. 2019 AP 06 0019 8
{¶ 25} In order to find an abuse of discretion, we must determine the trial court's
decision was unreasonable, arbitrary or unconscionable and not merely an error of law
or judgment. Blakemore v. Blakemore, 5 Ohio St. 3d 217, 450 N.E.2d 1140 (1983).
{¶ 26} On cross-examination during Hamilton's testimony, Hamilton agreed
Cultrona made calls to people other than Lambes during the relevant time period which
Hamilton did not plot on the map. T. 564. Counsel then suggested Hamilton's map of
Cultrona's phone calls was "* * * trying to show the jury evidence that might be helpful
to the state but not evidence that might be helpful to the defense * * * " Hamilton replied
his purpose was to show communications between two suspects during the time of the
crime. T. 565.
{¶ 27} Following this testimony, counsel for the state asked Hamilton produce a
second map, and rather than limiting his analysis to calls between Cultrona and
Lambes, to instead plot all of Cultrona's cell phone activity on the day of the robbery.
Hamilton completed this task over a weekend break in the trial. T. 811-815.
{¶ 28} On the following Monday the state indicated it wished to recall Hamilton to
the stand to present the new map and counsel for Cultrona objected to the same. T.
811-816. The trial court overruled the objection and permitted the state to recall
Hamilton. T. 816. Hamilton then testified using the new visual aid of the call data which
contained all of Cultrona's cell phone activity on the day of the robbery. Our review of
the record indicates Hamilton's testimony on recall did not conflict with his previous
testimony, and further, presented nothing exculpatory. T. 530-540, 829-838.
{¶ 29} We find the trial court did not abuse its discretion when it allowed the state
to recall Detective Sergeant Hamilton as the decision cannot be viewed as
Tuscarawas County, Case No. 2019 AP 06 0019 9
unreasonable, arbitrary, or unconscionable. Rather it clarified questions raised by the
defense.
{¶ 30} The first assignment of error is overruled.
II
{¶ 31} In his second assignment of error, Cultrona argues the trial court abused
its discretion when it gave the jury a flight instruction. Cultrona argues because there
was a two-month time span between his crimes and his flight, the matter was a bond
violation rather than a flight from justice and did not warrant a flight instruction. We
disagree.
{¶ 32} The giving of jury instructions is within the sound discretion of the trial
court and will not be disturbed on appeal absent an abuse of discretion. State v.
Martens, 90 Ohio App. 3d 338, 629 N.E.2d 462 (1993). In order to find an abuse of
discretion, we must determine the trial court's decision was unreasonable, arbitrary or
unconscionable and not merely an error of law or judgment. Blakemore v. Blakemore, 5
Ohio St. 3d 217, 450 N.E.2d 1140 (1993). Jury instructions must be reviewed as a
whole. State v. Coleman, 37 Ohio St. 3d 286, 525 N.E.2d 792 (1988).
{¶ 33} The Ohio Supreme Court has held that flight from justice, and its
analogous conduct, may be indicative of consciousness of guilt. State v. Eaton, 19 Ohio
St.2d 145, 146, 249 N.E.2d 897, (1969) paragraph six of the syllabus, vacated in part on
other grounds (1972), 408 U.S. 935, 92 S. Ct. 2857, 33 L. Ed. 2d 750. In Eaton, the Court
quoted 2 Wigmore on Evidence (3 Ed.), 111, Section 276:
Tuscarawas County, Case No. 2019 AP 06 0019 10
Flight from justice, and its analogous conduct, have always been
indicative of a consciousness of guilt. * * *
It is today universally conceded that the fact of an accused's flight,
escape from custody, resistance to arrest, concealment,
assumption of a false name, and related conduct, are admissible as
evidence of consciousness of guilt, and thus of guilt itself.
{¶ 34} Eaton at 160.
{¶ 35} In State v. Hand, 107 Ohio St.3d, 378, the Ohio Supreme Court found "* *
* admissibility of evidence of flight does not depend upon how much time passes
between the offense and the defendant's flight. See State v. Alexander (Feb. 26, 1987),
Cuyahoga App. No. 51784, 1987 WL 7079, *2. Indeed, flight on the eve of trial can carry
the same inference of guilt as flight from the scene. Id."
{¶ 36} While Cultrona acknowledges Hand, he attempts to distinguish that matter
from his own by pointing out that the defendant in Hand was charged with escape, while
he was not. This is a distinction without a difference. Simply because Cultrona was not
charged with escape does not make Hand any less applicable. “[F]light may be proven
where it occurs after any event which would tend to spark a sharp impulse of fear of
prosecution or conviction in a guilty mind.” State v. Jeffries, 182 Ohio App. 3d 459, 477,
913 N.E.2d 493, (11th Dist. 2009) quoting United States v. Dillon, 870 F.2d, 1125, 1128
(C.A.6, 1989).
{¶ 37} Under the circumstances presented here, we conclude the trial court did
not abuse its discretion in adopting the state's flight instruction.
Tuscarawas County, Case No. 2019 AP 06 0019 11
{¶ 38} The second assignment of error is overruled.
{¶ 39} The judgment of conviction and sentence of the Tuscarawas Court of
Common Pleas is affirmed.
By Wise, Earle, J.
Gwin, P.J. and
Baldwin, J. concur.
EEW/rw