State v. Simpson , 2011 Ohio 4578 ( 2011 )

[Cite as State v. Simpson, 2011-Ohio-4578.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-100789
TRIAL NO. B-1002094
Plaintiff-Appellee, :
O P I N I O N.
vs. :
DANIEL SIMPSON, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: September 14, 2011
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Scott M. Heenan,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Derek W. Gustafson, for Defendant-Appellant.
Please note: This case has been removed from the accelerated calendar.
OHIO FIRST DISTRICT COURT OF APPEALS
D INKELACKER , Presiding Judge.
{¶1} Defendant-appellant Daniel Simpson appeals his conviction for
aggravated robbery under R.C. 2911.01(A)(1), along with the accompanying firearm
specification. We find no merit in his five assignments of error, and we affirm the
trial court’s judgment.
I. Facts and Procedure
{¶2} The record shows that William Knott and his friend Melvin Lunsford
decided to go bar-hopping one evening. That night, Knott met Julie Cooper and
eventually exchanged telephone numbers with her. Knott noticed that Cooper
seemed to be with two or three other men, one of whom he later identified as
Simpson.
{¶3} A short time later, Knott and Lunsford left the bar. While they were
driving home, Knott sent text messages to a person he thought was Cooper, but was
actually Simpson. Simpson told Cooper that Knott would be calling her, and that she
should go where Knott told her to go. When Knott called, he and Cooper arranged to
meet at a Kroger store near Knott’s home. Knott and Lunsford thought that Cooper
was going to have sex with them.
{¶4} Knott met Cooper in the parking lot of the Kroger store. Cooper
followed Knott and Lunsford to Knott’s home. Simpson and his friends followed
Cooper. Once they arrived at Knott’s home, Cooper, Knott and Lunsford went to a
backyard shed because Knott’s live-in girlfriend was asleep in the house.
{¶5} Cooper asked Knott for a drink, and he went inside the house to get it.
When he returned, three men kicked in the door of the shed and jumped out at him.
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OHIO FIRST DISTRICT COURT OF APPEALS
One of the men had a shotgun, and demanded the keys to Lunsford’s car and other
valuables. Cooper ran to her car.
{¶6} Even though he was wearing a bandanna over his face, Knott and
Lunsford recognized one of the men as Simpson, whom they had seen earlier in the
evening. They stated that Simpson had lifted up the bandanna so that he could see,
giving them an unobstructed view of his face.
{¶7} Simpson and his two companions forced Knott and Lunsford to strip
and lie down next to each other on the shed floor. Knott’s girlfriend heard a
commotion and yelled out the window that the police were on their way. The three
robbers then fled on foot.
{¶8} Knott and Lunsford chased after the robbers, who ran by a car that
Knott believed the three men had been driving. The robbers then jumped into what
Knott believed was Cooper’s car. Knott and Lunsford got into Knott’s girlfriend’s car
and chased, but subsequently lost, the robbers.
{¶9} The police arrived and looked into the car that Knott and Lunsford
believed that the three men had been driving. The trunk was already open, and
inside, the police officers saw masks similar to the masks the robbers had worn. The
police subsequently towed the car.
{¶10} A few hours later, as the sun was coming up, Knott and Lunsford saw
an African-American girl walking down Knott’s street. Knott knew that he was the
only African-American living in the neighborhood, so he was suspicious. They
followed the girl and saw her get into a car in which Simpson was also riding. They
called the police, who arrived quickly and stopped the car. Knott and Lunsford
identified Simpson, and he was arrested.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶11} Simpson was indicated for aggravated robbery, with accompanying
firearm specifications, and robbery. A jury found him guilty as charged in the
indictment. The trial court merged the robbery count and firearm specifications for
sentencing. It sentenced Simpson to serve a total of eight years’ imprisonment. This
appeal followed.
II. Improper Civil Jury Instruction
{¶12} In his first assignment of error, Simpson contends that the trial court
erred in instructing the jury. He argues that the trial court improperly gave an
instruction intended for civil trials and, therefore, it misstated the burden of proof
and denied him a fair trial. This assignment of error is not well taken.
{¶13} A trial court must fully and completely give the jury all instructions
that are relevant and necessary for the jury to weigh the evidence and to discharge its
duty as the fact-finder.1 A single instruction cannot be judged in isolation, but must
be viewed in the context of the overall charge.2
{¶14} The trial court instructed the jury that “[y]ou may infer a fact or facts
only from other facts and circumstances that have been proven by the greater weight
of the evidence, but you may not make inferences from a speculative or remote basis
that has not been established by the greater weight of the evidence.” Simpson
objected to this instruction as required by Crim.R. 30.3
{¶15} Simpson is correct that this instruction sets forth a civil-trial
standard. The phrase, “greater weight of the evidence,” equates with a
1 State v. Comen (1990), 50 Ohio St.3d 206, 553 N.E.2d 640, paragraph two of the syllabus; State
v. Dieterle, 1st Dist. No. C-070796, 2009-Ohio-1888, ¶22.
2 State v. Price (1979), 60 Ohio St.2d 136, 398 N.E.2d 772, paragraph four of the syllabus;
Dieterle, supra, at ¶22.
3 See State v. Coley, 93 Ohio St.3d 253, 266, 2001-Ohio-1340, 754 N.E.2d 1129; State v. McCrary,
1st Dist. No. C-080860, 2009-Oho-4390, ¶26.
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OHIO FIRST DISTRICT COURT OF APPEALS
preponderance of the evidence, and its use in a criminal case is erroneous.4
Nevertheless, an appellate court will not reverse a conviction due to improper jury
instructions unless the defendant was prejudiced.5
{¶16} In this case, the trial court correctly instructed the jury on reasonable
doubt. It told the jury several times that they could not convict Simpson unless they
found him guilty beyond a reasonable doubt. Viewing the instructions as a whole, we
hold that Simpson was not prejudiced by the error.6
{¶17} Simpson argues that the instruction allowed the jury to use an
inference upon an inference to find that the shotgun used in the robbery was
operable. But the evidence showed that the shotgun was used in a threatening
manner consistent with it being operable.7 The finding did not require an inference
upon an inference. Consequently, we overrule Simpson’s first assignment of error.
III. Prior Inconsistent Statements
{¶18} In his second assignment of error, Simpson contends that the trial
court erred in refusing to admit into evidence two tape-recorded telephone
conversations between Simpson and Knott. In those conversations, Knott allegedly
asked Simpson for money in exchange for not testifying against him. Simpson
argues that Knott’s statements were inconsistent with his trial testimony and should
have been admitted as prior inconsistent statements, and as evidence of bias,
prejudice and motive to lie. This assignment of error is not well taken.
4 State v. Scott, 7th Dist. No. 07 MA 152, 2009-Ohio-4961, ¶64-66; State v. Young, 7th Dist. No.
07 MA 120, 2008-Ohio-5046, ¶23-24; State v. Doan (Feb. 28, 2000), 12th Dist. No. CA97-12-014;
State v. Coe (June 4, 1998), 2nd Dist. No. 13-97-46.
5 Dieterle, supra, at ¶22; State v. Robinson, 1st Dist. No. C-060434, 2007-Ohio-2388, ¶18.
6 See Scott, supra, at ¶66-75; Young, supra, at ¶25-36; Doan, supra; Coe, supra.
7 See State v. Thompkins, 78 Ohio St.3d 380, 1997-Ohio-52, 678 N.E.2d 541, paragraph one of the
syllabus; State v. Griffin (Jan. 29, 1999), 1st Dist. No. C-970773.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶19} Though there was some argument at trial about whether the tapes
were properly authenticated, the record shows that the trial court ultimately
excluded the taped conversations under Evid.R. 613(B), which allows for the
admission of extrinsic evidence of a prior inconsistent statement when a proper
foundation is laid. First, a witness must be afforded an opportunity to explain or
deny the statement and then the opposing party must be afforded the opportunity to
interrogate the witness on the statement.8
{¶20} A proper foundation was laid for the introduction of the taped
statements, because Simpson cross-examined Knott about the statements and Knott
denied making them. But the subject matter of the extrinsic evidence must also be a
“fact that is of consequence to the determination 0f the action other than the
credibility of a witness.”9 A party may not present extrinsic evidence to contradict a
witness on a collateral matter.10 The decision whether to admit a prior inconsistent
statement that is collateral to the issue being tried and pertinent to the credibility of
a witness is a matter within the trial court’s discretion.11
{¶21} In this case, the trial court found that the taped statements went
solely to Knott’s credibility and involved matters collateral to the robbery itself. We
agree. Knott’s testimony about the robbery was generally consistent except for some
minor details. Further, the attacks on Knott’s credibility did not undermine
Lunsford’s testimony. He also testified about the details of the robbery and
identified Simpson as one of the perpetrators. Whether Knott was willing to not
testify in exchange for a bribe does not go to the central issue of whether Simpson
8 State v. Mack, 73 Ohio St.3d 502, 514-515, 1995-Ohio-273, 653 N.E.2d 329; State v. Carusone,
1st Dist. No. C-010681, 2003-Ohio-1018, ¶36; State v. Davenport (July 30, 1999), 1st Dist. No. C-
980516.
9 Evid.R. 613(B)(2)(a).
10 State v. Wilson, 2nd Dist. No. 22120, 2008-Ohio-4130, ¶27.
11 Carusone, supra, at ¶37; State v. Soke (1995), 105 Ohio App.3d 226, 239, 663 N.E.2d 986.
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OHIO FIRST DISTRICT COURT OF APPEALS
committed the robbery. Under the circumstances, we cannot hold that the trial
court’s decision to exclude the evidence was so arbitrary, unreasonable or
unconscionable as to connote an abuse of discretion.12
{¶22} Further, even if the trial court had erred in excluding the taped
statements from evidence, that error would not have contributed to the conviction
given the quantum of evidence against Simpson. Consequently, any error would
have been harmless beyond a reasonable doubt.13 We overrule Simpson’s second
assignment of error.
IV. Hearsay/Relevance
{¶23} In his third assignment of error, Simpson contends that the trial court
erred in refusing to allow Simpson to testify about out-of-court statements made by
Cooper and another individual, Sean Hall, on the basis that the statements
constituted hearsay. He argues that the statements were admissible under Evid.R.
803(3) as statements of the declarants’ then existing mental state. While this
argument has some merit, we ultimately hold that this assignment of error is not well
taken.
{¶24} Evid.R. 803(3) sets forth a hearsay exception for “[a] statement of the
declarant’s then existing state of mind, emotion, sensation, or physical condition
(such as intent, plan, motive, design, mental feeling, pain, and bodily health), but not
including a statement of memory or belief to prove a fact remembered or believed[.]”
The hearsay statement must point towards the future, rather than the past. Thus,
12 See State v. Clark, 71 Ohio St.3d 466, 470, 1994-Ohio-43, 644 N.E.2d 331.
13 See Robinson, supra, at ¶16.
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OHIO FIRST DISTRICT COURT OF APPEALS
statements of current intent to take future actions are admissible for the inference
that the intended act was performed.14
{¶25} Simpson sought to introduce testimony that Cooper and Hall had
approached him about a week before the offense and asked him to participate in a
robbery. These statements fall squarely within the exception, and the trial court
should have admitted them into evidence if the only issue affecting their admission
was whether they were hearsay.
{¶26} But, in our view, the statements were not relevant to the main issue at
trial. Relevant evidence is “evidence having any tendency to make the existence of
any fact that is of consequence to the determination of the action more probable or
less probable than it would have been without the evidence.”15
{¶27} The issue before the jury in this case was whether Simpson had
participated in the robbery. Both eyewitnesses testified that Simpson was one of the
robbers. Who had planned the robbery was not of consequence to the determination
of Simpson’s guilt in participating in it. Therefore, the statements were irrelevant
and not admissible into evidence.16 Consequently, the trial court did not err in
excluding them.
{¶28} Even if the court did err, Simpson was able to present evidence to the
jury through cross-examination of the state’s witnesses and the testimony of defense
witnesses that he did not commit the robbery and that it was the work of Cooper and
Hall. Therefore, any error was harmless,17 and we overrule Simpson’s third
assignment of error.
14 State v. Hand, 107 Ohio St.3d 378, 2006-Ohio-18, 840 N.E.2d 151, ¶99; State v. Byrd, 1st Dist.
No. C-050490, 2007-Ohio-3787, ¶31.
15 Evid.R. 401.
16 Evid.R. 402.
17 See Robinson, supra, at ¶16.
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OHIO FIRST DISTRICT COURT OF APPEALS
V. Jury Instruction on Eyewitness Identification
{¶29} In his fourth assignment of error, Simpson contends that the trial
court erred in refusing to give his proposed jury instruction on eyewitness
identification. He argues that because the witnesses identified him through a
nonobjective process, the jury should have been instructed that those procedures
could have led to misidentification. This assignment of error is not well taken.
{¶30} Generally, the trial court must give requested special instructions
when they are correct, pertinent and timely presented.18 The court need not give a
requested jury instruction when it is included, in substance, in the general charge.19
{¶31} Simpson’s proposed instruction stated, “In this case there was
testimony that the defendant was viewed by the [sic] Mr. Knott and Mr. Lunsford
shortly after the event. Single person lineups have long been disfavored in the law as
inherently suggestive. Suspects being viewed singly can lead to misidentification.
You are to consider this fact along with all other factors in deciding whether
identification of the defendant by Mr. Knott and Mr. Lunsford was in fact accurate.”
{¶32} Initially, we note that this proposed instruction was not a correct
statement of Ohio law. No prohibition exists against a victim viewing a suspect alone
in a “one-man showup” when it occurs near the time of the alleged criminal offense.
This court has stated, “Such a course does not tend to bring about misidentification
but rather tends under some circumstances to insure accuracy.”20 The instructions
18 State v. Joy, 74 Ohio St.3d 178, 181, 1995-Ohio-259, 657 N.E.2d 503; State v. Wellman, 173
Ohio App.3d 494, 2007-Ohio-2953, 879 N.E.2d 215, ¶26.
19 Wellman, supra, at ¶26.
20 State v. Richards, 1st Dist. No. C-050938, 2007-Ohio-172, ¶14, quoting State v. Madison
(1980), 64 Ohio St.2d 322, 332, 415 N.E.2d 272.
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OHIO FIRST DISTRICT COURT OF APPEALS
the trial court gave to the jury accurately conveyed the law on eyewitness
identification.21
{¶33} Further, in this case, there was no lineup or showup of any kind.
Knott and Lunsford happened to see Simpson driving through the neighborhood the
morning after the robbery and alerted the police. Under the circumstances, the trial
court did not err in failing to give the proposed instruction, and we overrule
Simpson’s fourth assignment of error.
VI. Cumulative Error
{¶34} In his fifth assignment of error, Simpson argues that the court’s
multiple errors had a cumulative effect that denied him a fair trial. The cumulative
effect of errors may deprive a defendant of a fair trial, even though the individual
instances of error do not warrant a reversal.22 The defendant must demonstrate that
a reasonable probability exists that the outcome of the trial would have been
different absent the alleged errors.23
{¶35} Simpson has not demonstrated that, but for any errors by the trial
court, the outcome of the trial would have been different. He received a fair trial and
the evidence was sufficient to support his conviction.24 Consequently we overrule his
fifth assignment of error and affirm the trial court’s judgment.
Judgment affirmed.
H ILDEBRANDT and F ISCHER , JJ., concur.
Please Note:
The court has recorded its own entry this date.
21 See State v. Guster (1981), 66 Ohio St.2d 266, 270-272, 421 N.E.2d 157; State v. Witherspoon,
8th Dist. No. 94475, 2011-Ohio-704, ¶21-26; State v. Peoples (Sept. 20, 1995), 1st Dist. No. C-
940809.
22 State v. DeMarco (1987), 31 Ohio St.3d 191, 509 N.E.2d 1256, paragraph two of the syllabus;
Dieterle, supra, at ¶38.
23 Dieterle, supra, at ¶38.
24 See State v. Jenks (1991), 61 Ohio St.3d 259, 574 N.E.2d 492, paragraph two of the syllabus.
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