State v. Clark , 2014 Ohio 5704 ( 2014 )

[Cite as State v. Clark, 2014-Ohio-5704.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
TRUMBULL COUNTY, OHIO
STATE OF OHIO, : OPINION
Plaintiff-Appellee, :
CASE NO. 2013-T-0106
- vs - :
RICHARD A. CLARK, :
Defendant-Appellant. :
Criminal Appeal from the Trumbull County Court of Common Pleas, Case No. 2013 CR
225.
Judgment: Affirmed.
Dennis Watkins, Trumbull County Prosecutor, and LuWayne Annos, Assistant
Prosecutor, Administration Building, Fourth Floor, 160 High Street, N.W., Warren, OH
44481-1092 (For Plaintiff-Appellee).
Michael A. Partlow, 112 South Water Street, Suite C, Kent, OH 44240 (For Defendant-
Appellant).
THOMAS R. WRIGHT, J.
{¶1} This appeal is from the Trumbull County Court of Common Pleas. A jury
found Richard A. Clark guilty of aggravated murder, a first degree felony in violation of
R.C. 2903.01(B)&(F) and aggravated robbery, a first degree felony in violation of R.C.
2911.02(A)(1)&(C). The trial court sentenced Clark to life without the possibility of
parole for the aggravated murder and a consecutive sentence of 10 years for the
aggravated robbery. Clark appeals claiming that his convictions are against the
manifest weight of the evidence and that the trial court abused its discretion in
admitting various photographs. For the following reasons, we affirm.
{¶2} Crystal Davis, a friend of the victim Dwyane Hickman, testified that she
knew Hickman through her boyfriend Brian Bayless. According to Davis, Hickman lived
on Williamsburg St. with his mom until she died. At some point, Hickman got into a
motorcycle accident, suffered from a gunshot wound and a stroke, which made it
difficult for him to walk and open items. Therefore, Davis along with other family
members checked-in on Hickman from time to time. Davis visited him about twice a
week. In March of 2013, Davis received a telephone call from Richard Clark who
wanted some tattoo equipment from Bayless; however, Davis informed Clark that
Bayless had already gotten rid of the equipment. Davis testified that she was aware
that Clark was living with Hickman in March of 2013.
{¶3} On March 20, 2013 at around 9:15-9:30 PM, Davis arrived at Hickman’s
house and saw Hickman’s white Malibu in the driveway. She testified that Clark
opened the house door for her. Davis described Clark as wearing a tan sweater and
jeans, which made Clark look “preppy.” Davis testified that she was surprised by his
appearance because Clark sounded like a “gangster type” or “thug type” on the phone
when they spoke. When Hickman left the common area to use the restroom, Davis
testified that Clark remarked “he would not want to live like that.” Upon Hickman’s
return, Davis gave $30 and a pack of cigarettes to Hickman for allowing her and
Bayless to store items at Hickman’s house. Davis testified that Clark was present
when she gave the money to Hickman. Davis left Hickman’s house saying that she
would call tomorrow.
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{¶4} On March 21, 2013, Davis went to check on Hickman but she did not see
his white Malibu in the driveway there. When she called Hickman she got no answer.
She told Brian Bayless about her lack of contact with Hickman. Davis testified that she
went to check on Hickman’s house everyday from March 21–24 and did not see
Hickman’s car there. She testified that from March 21-24 she called Hickman around
20 times.
{¶5} On cross-examination, Davis denied comparing notes between herself
and Bayless as to what they witnessed before each of them talked to the police. She
also noted that Clark was wearing jeans and nice shoes and that it was “a little dark” in
the living room on March 20. She could not remember how long she was in the house
and could not remember what shirt Hickman wore. At trial, the tan sweater that Clark
supposedly wore on the 20th had a reddish-brown substance that appeared to be
blood. However, Davis admitted that she did not know if the red stains on the sweater
were blood or if the stains were blood, how the alleged blood got there. She also
testified that she did not see any rifles in the house and that when she stopped by the
house on March 21-24 she did not look inside the windows.
{¶6} Brian Bayless, the boyfriend of Crystal Davis and friend of Hickman’s,
testified next. Bayless testified that Hickman had lots of medical problems, had
suffered a stroke and had difficulty walking. He testified that Hickman lived on
Williamsburg St. in Warren and that Hickman drove a white Malibu. According to
Bayless, he visited Hickman 3-4 times a week. Bayless further testified that he knew
Clark was interested in buying tattoo equipment and Bayless had seen Clark at
Hickman’s house previously.
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{¶7} On March 20, 2013 at around 6-8 p.m., Bayless went to Hickman’s house.
Bayless testified that Clark was there and Clark was wearing a tan sweater and an
orange Harley-Davidson hat. Finally Bayless testified that Hickman always had a pistol
around him and had an assault rifle near his bed.
{¶8} On cross-examination, Bayless testified that he did not see Clark and
Hickman argue and he testified that the police did not take a DNA sample from him.
Bayless also testified that that he did not know if Hickman let someone borrow his car.
Bayless also testified that after the last time he spoke to Hickman, he called Hickman
for several days and did not receive an answer, which caused Bayless concern.
Finally, Bayless testified that he did not know how Hickman died, when he died or who
killed him.
{¶9} On re-direct Bayless testified that he was concerned when he could not
contact Hickman because it was routine for him to stop by. He also testified that
Hickman did not like other people using his things. Furthermore, Bayless testified that
when he assisted the police perform a welfare check on March 25, 2013, he did not
move any items or touch anything. Bayless also testified that he did not know who
Melody McGlothin was and that he did not bring any items to her house.
{¶10} Officer Dave Weber, a police officer for Warren, testified next. He testified
that he was working on March 25, 2013 and was dispatched to Hickman’s house on
Williamburg St. (“Williamsburg house”). Specifically, Officer Weber was dispatched to
perform a welfare check on Hickman. Officer Weber testified that when he arrived,
Bayless and Cathy Orwig, who was Hickman’s sister, were there. According to Officer
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Weber, he did not see a 2001 Chevy Malibu in the driveway. Officer Weber recalled
that Bayless expressed concern over the vehicle’s absence.
{¶11} Officer Weber testified that the first step in performing a welfare check was
to locate an entry point. Upon not seeing any easy entry point, Officer Weber received
Orwig’s permission to break a window and enter through the back door. At some point,
Officer Weber made his way to the front door and noticed that there were footprints
there. He testified that his investigation would show the same footprint was present at
other doors in the neighborhood, which led him to conclude the footprints belonged to
the mailman. Officer Weber testified that there were no footprints near the backdoor.
{¶12} Officer Weber eventually reached the upstairs bathroom where he saw a
body covered in blood around the upper torso and head. Officer Weber testified at that
time it was clear that the person was dead and the odor of death was unmistakable.
Bayless would confirm that the person was Hickman. Upon leaving the house, Officer
Weber noticed that the front door had pain scrapings that appeared to be evidence of a
prior break-in. However, Officer Weber did not think it was a recent break-in because
there were no pieces of wood from the door jamb on the floor.
{¶13} On cross-examination, Officer Weber testified that it was obvious Hickman
was dead because there was lots of blood and his hand was in an awkward position.
Officer Weber further testified that Orwig did not enter the house. Officer Weber also
testified that he did not believe the house was recently broken into because there were
no remnants of the door jamb stuck in between the front door and storm door. Finally
Officer Weber testified that he did not know how or when Hickman died.
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{¶14} Sergeant Gary Riggins, an officer with the Warren Police Department,
testified next. At roll call for the afternoon shift, he testified that he told officers about a
Be On the Look Out (BOLO) paper describing Hickman, his address, and his missing
vehicle. Later as Sergeant Riggins was driving on Maryland St., he noticed a white car
matching the description of Hickman’s vehicle in a driveway. Sergeant Riggins noticed
that snow was on the top of the car, and so he deduced that it must have been at the
residence at least overnight. Sergeant Riggins asked for backup to be sent to the
residence. Once back up arrived, Sergeant Hick knocked on the front door of the
house (“Maryland house”). A woman named Melody McGlothin answered the door.
Sergeant Riggins asked to speak to the driver of the vehicle in her driveway, and
McGlothlin replied that she would get the driver. Shortly thereafter, McGlothlin returned
saying that the police had to get in real quick. Sergeant Riggins, upon direction of
McGlothlin, found Clark in a bathtub naked, moaning and groaning with his eyes glazed
over. Accordingly, Sergeant Riggins ordered for an ambulance to come over.
{¶15} McGlothlin informed Sergeant Riggins that Clark was staying at her house
and McGlothlin allowed Sergeant Riggins to search the room where Clark was staying.
Upon looking inside the room, Sergeant Riggins saw gun boxes and hypodermic
needles on the floor and a crack pipe on the dresser. He also noticed some long rifles.
{¶16} On cross-examination, Sergeant Riggins testified that the vehicle was
known to be missing not stolen and that the car was in plain view in the driveway.
Sergeant Riggins also testified that he became aware that Clark was diabetic and
therefore may have needed the needles for injections. Sergeant Riggins also testified
that he did not know how or when Hickman died.
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{¶17} Detective Michael Stabile, an officer and crime scene analyst with the
Warren Police Department, testified next. He arrived at the Williamsburg house to
process the scene and collect evidence. Officer Stabile testified that when he got to
the front door, he noticed the chipped paint on the front door, but the lack of wood
chips indicated that this was not a fresh injury to the door. Eventually, once Officer
Stabile reached the living room, he encountered a garbage bag containing what
appeared to be a tan sweater with red stains on it. Upon further examination, Officer
Stabile discovered the bag also contained a rag wrapped around a knife and several
used 12 oz. soda cans.
{¶18} Officer Stabile testified that the red stains on the tan sweater on the right
sleeve and chest area showed evidentiary value because the red stains could be
blood. Therefore, Officer Stabile handled all of the evidence with latex gloves. Officer
Stabile also testified that the knife blade appeared to have strands of hair on it.
Consequently, Officer Stabile decided that the knife handle and blade and the tan
sweater should be sent to the Bureau of Criminal Investigations (BCI) for testing.
{¶19} Later on March 25, 2013, Officer Stabile is dispatched to the Maryland
house where he processed the scene there, specifically the bedroom where Clark had
been residing. The photographs of the scene showed a knife on a bedroom table and
some hypodermic needles, tablespoons, and a cell phone on a nightstand. Officer
Stabile testified that the presence of the hypodermic needles along with the other items
was consistent with heroin usage. Additionally, Officer Stabile testified that he
manipulated the cell phone to display that cell phone’s number and took a picture of the
phone displaying the number. In a closet, Officer Stabile found several gun cases for
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rifles. Another photograph shows an orange Harley-Davidson hat hung on a wall-
hanger in the bedroom. Finally, next to the bed, Officer Stabile discovered jeans which
had a reddish stain on a pant leg that appeared to be blood. Because the jeans
appeared to contain evidentiary value, Officer Stabile handled this evidence with latex
gloves.
{¶20} Additionally, Officer Stabile recovered several guns at the Maryland
house. Because the guns were deemed to have evidentiary value, Officer Stabile
handled these weapons with latex gloves. One gun was a HiPoint .380 semiautomatic
handgun with a clip and bullets, which had a serial number of P835734. This gun was
found in Clark’s bedroom. The next gun, a New England Firearm Model No. 581 was
found in the closet of Clark’s bedroom; its serial number was NG328130. A third gun,
an Izhmash Saiga Model 223 was found in the same closet; its serial number was
H06163824. Finally a fourth gun, a Remington Model 760 with a serial number 485791
was found in the same closet as the other guns. Engraved on the handle of the
Remington 760 was a basket weave inlay with some grass.
{¶21} Later on, Officer Stabile towed the white 2001 Chevy Malibu to a secure
location where it could be processed. Upon searching the vehicle, Officer Stabile
found an insurance card with Hickman’s name on it and Hickman’s wallet. Officer
Stabile testified that he did not find any money in the wallet; however he did find credit
cards and a food stamp card with Hickman’s name on it.
{¶22} Finally, after learning that Clark would survive his heroin overdose, Officer
Stabile went to the hospital and obtained Clark’s consent for a DNA sample.
1. The record is inconsistent on the exact serial number. At a later time, Officer Stabile testified the serial
number for this gun was 481579, to the prosecution confirmation question regarding whether the number
was 48579.
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{¶23} On cross-examination, Officer Stabile testified that his job was strictly to
preserve evidence. He further testified that he did not wear “booties” at either
residence, but that he did use several gloves when processing evidence. He could not
remember if either scene was taped off with police tape.
{¶24} As to the rag surrounding the knife found at the Williamsburg house,
Officer Stabile testified that the rag was wet when he touched it, that the rag had
probably touched all of the items in the bag. Officer Stabile testified that the rag and
the knife were not bagged separately. Officer Stabile testified that he did not believe
he preserved the coke cans found in the bag containing the sweater with the rag.
Officer Stabile also could not remember if he changed gloves every time he removed
an item from the bag; however he did testify that he put all of the items that were to be
sent for testing in a paper bag to prevent mold growth. Finally, he did not know if there
might have been blood on the rag.
{¶25} In regard to whether there was a recent break-in at the Williamsburg
house, Officer Stabile admitted that he had no qualifications to determine whether the
damage to the door was fresh.
{¶26} In regard to items found at the Maryland house, Officer Stabile admitted
that just because Hickman’s belongings were found in a wallet does not mean the
wallet belonged to Hickman. Officer Stabile also testified that he did not know how the
weapons found at the Maryland house ended up there. Officer Stabile further testified
that he did not test the orange Harley-Davidson hat or the wallet for DNA.
{¶27} Finally, Officer Stabile testified that he had no firsthand knowledge of how
Hickman was killed, when he was killed or who killed Hickman.
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{¶28} On re-direct, Officer Stabile testified that he did not put the items found in
the bag at the Williamsburg house inside the bag. He also testified that it was possible
that because the bag (containing the rag, sweater and knife) was plastic, that would
explain why the rag was damp. Officer Stabile also testified that nothing in the wallet
indicated the wallet belonged to anyone else. Officer Stabile further testified that he did
not send every possible item for testing because he has to make decisions about what
he tests.
{¶29} On re-cross, Officer Stabile testified that he did not send the rag that
encompassed the knife in for testing.
{¶30} Melody McGlothlin, the owner of the Maryland house, testified next. She
testified that she knew Clark through a friend because she wanted to get a tattoo done.
She testified that on the afternoon of March 25, 2013 the police came to her door and
asked about the vehicle in her driveway. She replied that it had been there for 3-4
days.
{¶31} McGlothlin testified that she provided Clark with a room to stay even
though Clark did not pay rent there. She testified that Clark usually walked over to her
house, and that she had never seen the vehicle parked in her driveway before.
McGlothlin testified that Clark told her a friend let him borrow it.
{¶32} McGlothlin testified that when the police asked her to get Clark, she went
to the bathroom and found him in a tub and yelled for help. McGlothlin testified that the
police called for an ambulance and that Clark was carted off. After that, McGlothlin
gave consent for the police to search her house. McGlothlin testified that she did not
go into Clark’s room very much or into his closet.
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{¶33} After being shown the four firearms that Officer Stabile previously testified
to, McGlothlin stated that she had never seen any of those firearms before. Because
some of the firearms were rifles, McGlothlin testified that she would have noticed if
some of those firearms were in her house. She testified that she had a policy of not
having guns in the house because of her concern for her safety as well as her
children’s safety. Additionally, McGlothlin testified she did not recognize the
hypodermic needles, tablespoons and cigarette lighters that Officer Stabile testified
were consistent with heroin use. She also did not see Clark use the blue cell phone on
the nightstand. After being shown a picture of what appears to be firearm cases in the
closet in her bedroom, McGlothlin testified that she did not know how those cases got
there. Finally, McGlothlin testified that after Clark was taken in an ambulance, she
noticed that the screen to the window in Clark’s bedroom was removed and laying on
the ground outside. McGlothlin testified that she did not remove the screen and that
the screen was too high for her young children to remove it.
{¶34} On cross-examination, McGlothlin admitted that because she uses
glasses she has a problem with her vision. She also admitted that she did not know
Clark’s last name when she let him stay at her house. She testified that she would not
let her children “hang out” with Clark when he was at the house. McGlothlin further
testified that she would never leave the children alone with Clark, but that her kids
would have some contact with Clark. She also testified that she knew Clark was a
diabetic but was nevertheless unaware of the needles in the bedroom. McGlothlin
further testified that she did not see Clark take the screen off the window, and that no
other screens in her house were missing. McGlothlin testified that she did not see any
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footprints outside of Clark’s bedroom window and that she did not believe that the
police conducted any testing on the screen. Finally, in her recorded statement to the
police McGlothlin acknowledged that she previously stated that she did not do drugs;
however, on the stand, she admitted that she smoked marijuana. According to
McGlothlin, when the police questioned her, she thought the police were only asking
about drugs that were injected.
{¶35} On re-direct, McGlothlin testified that she did not know Hickman, Bayless
or Davis and she did not know how any property belonging to any of those persons
would get into her house.
{¶36} On re-cross, McGlothlin testified that she did not know what happened to
Hickman the night he was killed.
{¶37} On further re-direct, McGlothlin testified that she did not know how the
jeans with Hickman’s blood on it would be found in her room.
{¶38} Cathy Orwig, Hickman’s sister, testified next. She testified that Hickman
had medical problems that made it hard to move around, and that she would check on
Hickman once or twice a week. She testified that Hickman lived at the Williamsburg
house, possessed a white Malibu and would not go on vacations for four or five days.
{¶39} Orwig then testified that her father possessed a firearm with a distinctive
basket-like engraving on the handle and that this firearm had been passed down to
Hickman. According to Orwig, Hickman possessed the firearm at the Williamsburg
house. Upon being shown the same firearm that Officer Stabile identified as a firearm
with the basket weave inlay, Orwig identified that firearm as her father’s firearm.
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{¶40} Orwig then testified that she went to Hickman’s house on March 25, 2013
because she was concerned by Hickman not returning her phone calls. Orwig testified
that when she arrived, Brian Bayless and the police were at the house and Hickman’s
car was not there. Because Orwig did not have a working key to the house, Orwig
testified that they broke a window to get into the house.
{¶41} Orwig then identified that the blue cell phone recovered at the Maryland
house belonged to Hickman. She made this identification by being shown a picture of
the cell display of the phone number belonging to that phone. Orwig also testified that
James Earl Hickman was her older brother and that Shirley Lea Ball was her mother.
Orwig further testified that she did not know Clark or see him at the Williamsburg
house, but she did know that Hickman would let people stay at his house from time to
time. Orwig also testified that she did not know Melody McGlothlin. Finally, Orwig
testified that Hickman would not let other people drive his car.
{¶42} On cross-examination, Orwig testified that she last saw Hickman on March
13, 2013, and that between March 13-25 she drove by Hickman’s house occasionally.
She testified that she did not go inside the house with the police, and that she did not
know if the police talked to any of Hickman’s other friends. Orwig testified that she did
not know if Hickman drove to “swap meets” or if Hickman owed anyone money. Orwig
further testified that she did not know of any prior break-ins to the house or why
Hickman carried guns in his house. Finally, Orwig testified that she could not say for
certain whether Hickman would loan his car out to someone.
{¶43} Phillip Russell, a supervisor at the Bureau of Alcohol, Tobacco and
Firearms (ATF) National Tracing Center, testified next. His testimony largely consisted
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of authenticating various documents that identified the ownership of various firearms
that Officer Stabile collected at the Maryland house. Collectively, these tracing records
show the following: (1) the HiPoint CF380 .380 caliber firearm had a serial number of
P835734 and was purchased by Shirley Lea Ball, (2) the Harrington and Richardson
1871 .410 caliber firearm had a serial number of NG328130 and was purchased by
James Earl Hickman, (3) the Izhmash Saiga .223 caliber firearm had a serial number of
H06163824 and was purchased by Hickman, and (4) the Remington Arms Company
760 .30-06 caliber firearm had a serial number of 481579. Russell testified because
the Remington 760 was purchased before the Gun Control Act of 1968, there was no
purchaser information on the firearm.
{¶44} On cross-examination, Russell testified that he did not have firsthand
knowledge of the information of what was on the documents. He also testified that
there is no information on any private sales of guns between individuals. Therefore,
Russell conceded it was possible that the HiPoint CF380 did not belong to Hickman.
{¶45} On re-direct, Russell also acknowledged that it was possible that the
HiPoint CF380 belonged to Hickman.
{¶46} Lindsey Prunski, a forensic scientist employed by BCI’s biology section,
testified next. Her testimony largely consisted of admitting a document indicating
whether the tan sweater and knife recovered at the Williamsburg house and the jeans
recovered at the Maryland house contained blood on them. The BCI document
indicates that the samples taken from the clothes all revealed a presumptive positive
test for blood.
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{¶47} On cross-examination, Prunski testified that the government pays BCI.
Prunski testified that she did not have experience as a crime scene investigator and
that she did not know how the items were collected and which items were sent for
analysis. Prunski testified that when she received the items, none of them were moist
or moldy. Prunski further testified that presumptive testing was a screening procedure
used for bodily fluid analysis to indicate whether a bodily fluid was present. She
testified that her lab performs confirmatory tests only in cases where there is reason to
believe animal blood might be present. Prunski also testified that animal blood, certain
body tissue and bleach can cause a false positive test for blood; however, she also
testified that BCI uses two reagents to help color code when a false positive test for
bleach has occurred. Prunski testified that the blood she recovered could have been
animal blood. Prunski also testified that the hair found on the blade of the knife was
not tested. Prunski also testified that she tested the handle of the knife for blood not
the whole knife. Prunski further testified that two stains on the pair of jeans collected
presumptively tested negative for blood and that she did not know what those items
were.
{¶48} On re-direct, Prunski testified that a presumptive test for blood indicates
that blood is present, but when a DNA analysis indicates there is no human DNA a
confirmatory test for human blood is performed. Prunski testified that she was not
requested to perform a confirmatory test. She also testified that if a sample tested
positive for DNA, it is known that the sample does not contain animal blood.
{¶49} Stacey Violi, a forensic scientist in the DNA section of BCI, testified next.
At the beginning of her testimony, she acknowledged that she was paid by the state,
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but also works on DNA exoneration cases for the wrongfully convicted. However, her
testimony largely consisted of admitting the document containing the results of the
DNA tests performed on the samples provided by Prunski. That report contains the
following information.
{¶50} The partial DNA profiles from the swab from the stain on the knife blade
and two swabs from the stain on the knife handle, as well as a sample of a red stain on
the sweater were consistent with Hickman’s DNA profile. The DNA profile from the
cutting of the sweater tag, and the swab from the neck area of the sweater were
mixtures; the major profile was consistent with contributions from Clark, minor profiles
were consistent with Hickman, and a partial minor profile was consistent with one
unknown source. The DNA profile from the swab from the stain on the jeans was a
mixture. The major profile was consistent with Hickman, while the partial minor profile
was consistent with Richard Clark.
{¶51} The conclusions drawn from this information were as follows. Hickman
could not be excluded as the source of the DNA from the knife and the cutting from the
stain on the sweater and as a major source of DNA from the swab from the stain on the
jeans. Based upon computer calculations provided by the FBI, the expected frequency
of occurrence from the stain on the knife blade is 1 in 1.219 sextillion unrelated
individuals. As for Clark, he was excluded from the source of DNA from the knife or the
cutting from the stain on the sweater; however he could not be excluded as the major
source of the DNA from the cutting from the sweater tag and the swab of the neck area
of the sweater. Based upon the computer calculations from the FBI, the expected
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frequency of occurrence of the major DNA profile from the cutting from the sweater tag
and the swab of the neck area of the sweater is 1.41 septillion unrelated individuals.
{¶52} Finally, Violi testified that it was possible for someone to touch something
and not leave DNA on the item.
{¶53} On cross-examination, Violi testified that it was possible that someone
holding a knife tightly and being sweaty could increase the chance of DNA being left on
the knife. She also testified that she had no discretion as to what items from a scene
are tested and she did not know how DNA got on these items or how long it was there.
Violi also testified that dirty unkempt homes could increase the chances of DNA being
left on an item; however, she questioned whether current DNA testing methods could
detect that sort of DNA. Violi testified that her DNA tests were limited by the quality of
the sample provided to them. She also testified that certain parts of the loci being
tested from Hickman could not be detected, which lowered the probability of finding an
unrelated individual with the same DNA profile. She also testified that if an item was
wet, that could increase the possibility of a DNA transfer to the item. Violi also testified
that if two people wore the same shirt, there might be multiple DNA profiles on that shirt
and that if there were multiple DNA profiles present, there was no way to tell who wore
the shirt last. She further testified that the fact that the knife, handle, blade, and
sweater were all found in one bag could be contaminated by virtue of rubbing together.
Violi also testified that the fact that drunk 12 oz. soda cans being found in the bag
would increase the chances of a DNA transfer from the soda can to other items in the
bag.
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{¶54} On re-direct, Violi testified that if DNA is taken from a blood sample and
there is a major contributor to that DNA, the blood most likely came from the major
contributor.
{¶55} On re-cross, Violi testified that it was possible that none of the DNA
samples on the tested items were from a person’s blood.
{¶56} Detective John Greaver with the Warren Police Department and lead
detective on this case, testified next. His testimony on direct examination largely
consisted of delegating tasks to the other members of the police department at the
Williamsburg house and Maryland house. He also took the statements of Bayless,
Orwig, McGlothlin, and Daniel Pigg, McGlothlin’s husband.
{¶57} On cross-examination, Detective Greaver testified that he spoke with
Orwig and Bayless for about five to ten minutes and that both witnesses acted
concerned over Hickman’s lack of contact with friends and family. Detective Greaver
also testified that Detective Stabile made decisions over what should be tested.
Detective Greaver was aware that a lockbox was opened at the Williamsburg address
but did not know what the contents were, if the lockbox or content thereof were tested,
and why no testing was performed. He also testified that he did not know if Bayless
was swabbed, if Bayless’ fingerprints were on the front door of the Williamsburg house,
and that he did not believe the guns recovered at the Maryland house were tested.
Detective Greaver also testified that he did not recommend that the wet rag found with
blood2 recovered at the Williamsburg house should be tested. He also did not know
why the orange Harley Davidson hat was not tested. Detective Greaver also did not
2. Detective Greaver disputed defense counsel’s suggestion that there was blood on the rag; however
Detective Greaver conceded that there was a possibility that blood was on the rag.
18
have personal knowledge of how the recovered guns got into the Maryland house, and
he did not know why Hickman’s credit cards were not used. Finally, Detective Greaver
did not know if fingerprints were taken from the white Malibu.
{¶58} Finally, Dr. Humphrey Don Germaniuk, the Coroner for Trumbull County,
testified. Dr. Germaniuk testified that he became informed that Hickman died under
suspicious circumstances on March 25, 2013 at approximately 11:00 a.m. Dr.
Germaniuk testified that his speculative examination of the body at the scene revealed
that “this was a sharp force injury case.” Dr. Germaniuk also testified that Hickman
was just coming out of rigor mortis which indicated that the time of death was sometime
between 24-72 hours. An autopsy was performed the next day.
{¶59} The autopsy revealed that Hickman suffered 11 stab wounds and 4
incisions from his attacker. The state used 12 exhibits (i.e. photographs) to show the
nature of the stab wounds and incisions. Although Dr. Germaniuk went into extensive
detail describing the nature of Hickman’s stab wounds and incisions, for our purposes,
it is sufficient to say the injuries are gory. Furthermore, Dr. Germaniuk testified that the
presence of skin slippage confirmed that Hickman was dead for longer than 24 hours.
Dr. Germaniuk also testified that his tests suggested that the blade of the knife or
weapon that killed Hickman was at least 4 and 3/4 inches long, and that the knife found
at the crime scene could have been the weapon used to injure Hickman. Dr.
Germaniuk also testified that because Hickman’s wounds were all on the left-hand side
of his body, this suggested that the attacker was right-handed. He further testified that
finding blood on the sleeve of the attacker’s shirt and pants would be consistent with
these injuries. Dr. Germaniuk also testified that THC and an antidepressant were
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found in Hickman’s toxicology report. Finally, Dr. Germaniuk testified that he ruled the
cause of death to be multiple stab wounds and the manner of death to be a homicide.
{¶60} On cross-examination, Dr. Germaniuk testified that the presence of an
antidepressant in Hickman suggested that death occurred 24-48 hours before he was
discovered. He also testified that blood would not necessarily squirt out from a lethal
blow, and that the mild decomposition suggested the body had recently died. Finally,
Dr. Germaniuk testified that he did not know if the red stains on the tan sweater were
blood and if the red stains were blood, how that blood got on the sweater.
{¶61} On re-cross, Dr. Germaniuk testified that he did not find a cell phone, keys
or wallet on the victim, and that he was not present for prior testimony about whether
the sweater stains were blood. Finally, Dr. Germaniuk said it was very unlikely that
Hickman died at the outer edges of his 24-72 hour window for time of death.
{¶62} As his first assignment of error, Clark alleges:
{¶63} “The trial court erred and abused its discretion, to the prejudice of the
appellant, by admitting State’s exhibits 36 through 47 over the objections of the
appellant.”
{¶64} Within this assignment, Clark argues that the photographs of the stab
wounds and incisions were unfairly prejudicial because of the gory nature of the
photographs. He also alleges that the photographs are overly cumulative; however, he
provides no other support for his argument. The state responds that the photographs
are not unduly prejudicial because the nature of the attack was brutal and that
depicting such brutality to the jury was necessary to establish its burden to show that
Clark purposefully killed Hickman. The state also alleges that the state narrowed down
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the number of photographs to the bare minimum necessary to sustain their burden of
proof. In the alternative, the state argues that admission of the photographs was
harmless error.
{¶65} An appellate court reviews the trial court's decision to admit or exclude
evidence under an abuse of discretion standard. Davis v. Killing, 171 Ohio App. 3d
400, 2007-Ohio-2303, at ¶11 (11th Dist.), citing Calderon v. Sharkey, 70 Ohio St. 2d
218 (1982). An “abuse of discretion” is a term of art, connoting judgment exercised by
a court, which does not comport with reason or the record. State v. Underwood, 11th
Dist. Lake No. 2008-L-113, 2009-Ohio-2089, ¶30, citing State v. Ferranto, 112 Ohio St.
667, 676-678, 3 Ohio Law. Abs. 187, 3 Ohio Law. Abs. 332, 148 N.E. 362 (1925). The
Second Appellate District also recently adopted a similar definition of the abuse-of-
discretion standard: an abuse of discretion is the trial court's “‘failure to exercise sound,
reasonable, and legal decision-making.’” State v. Beechler, 2d Dist. Clark No. 09-CA-
54, 2010-Ohio-1900, ¶62, quoting Black's Law Dictionary (8 Ed.Rev.2004). When an
appellate court is reviewing a pure issue of law, “the mere fact that the reviewing court
would decide the issue differently is enough to find error[.] * * * By contrast, where the
issue on review has been confined to the discretion of the trial court, the mere fact that
the reviewing court would have reached a different result is not enough, without more,
to find error.” Id., ¶67.
{¶66} Evid.R. 403(A) states: “Although relevant, evidence is not admissible if its
probative value is substantially outweighed by the danger of unfair prejudice, of
confusion of the issues, or of misleading the jury.”
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{¶67} Evid.R. 403(B) states: “Although relevant, evidence may be excluded if its
probative value is substantially outweighed by considerations of undue delay, or
needless presentation of cumulative evidence.”
{¶68} R.C. 2903.01(B) in pertinent part states: “No person shall purposely cause
the death of another * * * while committing or attempting to commit, or while fleeing
immediately after committing or attempting to commit, * * * aggravated robbery * * *.”
Therefore, the state is correct that it is required to prove that Clark purposefully killed
Hickman, and the photographs are relevant to demonstrating such mens rea existed.
{¶69} The photographs are not overly cumulative with other evidence; rather, the
photographs are the only available evidence that show the full extent of Hickman’s
injuries. Although Dr. Germaniuk described the shapes and depths of the stab wounds
and incisions, enabling the jury to see the stab wounds provided crucial corroboration
for Dr. Germaniuk’s testimony and further helped the jury understand his testimony.
Furthermore, there is no merit to the suggestion that too many photographs of the
injuries were admitted. Dr. Germaniuk identified 15 injuries that came from a sharp
object and the state used 12 images to capture all injuries.
{¶70} Finally, this court has previously recognized that the gory nature of images
in non-capital murder cases does not always result in the exclusion of the photographs.
State v. Handwork, 11th Dist. Portage No. 2002-P-0134, 2004-Ohio-6181, ¶21-22.
Here, the photographs merely depict the gruesome nature of the injuries, which is
relevant to show that Clark purposefully killed Hickman. Evidence that is probative of
guilt does not indicate the admission of the photographs was unfairly prejudicial to
Clark. As the Supreme Court of Ohio explained: “Exclusion on the basis of unfair
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prejudice involves more than a balance of mere prejudice. If unfair prejudice simply
meant prejudice, anything adverse to a litigant's case would be excludable under Rule
403. Emphasis must be placed on the word ‘unfair.’ Unfair prejudice is that quality of
evidence [that] might result in an improper basis for a jury decision.” (Internal
quotations and citation omitted.) Oberlin v. Akron Gen. Med. Ctr., 91 Ohio St. 3d 169,
172 (2001). There is nothing that indicates the photographs were admitted to inflame
the passions of the jury. Therefore, we cannot conclude that the trial court abused its
discretion in admitting the photographs.
{¶71} Consequently, the first assignment of error is without merit.
{¶72} As his second assignment of error, Clark asserts:
{¶73} “The appellant’s convictions are against the manifest weight of the
evidence.”
{¶74} First, Clark asserts that the state failed to prove that the murder and theft
occurred on March 21, 2013, the date specified in the indictment on when the
aggravated robbery and aggravated murder occurred.3
{¶75} In regard to the aggravated robbery, Clark asserts that the state’s
evidence fails to show that Hickman and Clark did not have some sort of arrangement
where Hickman sold or otherwise consensually gave his car and guns to Clark.
{¶76} In regard to the aggravated murder, Clark claims that the absence of
Clark’s DNA on the murder weapon indicates Clark is innocent. Clark also asserts that
his jeans could have possessed Hickman’s DNA by virtue of the two living together for
some period of time.
3. To be clear, the indictment states that the alleged crimes occurred “on or about” March 21, 2013.
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{¶77} In determining whether evidence is sufficient to sustain a conviction, the
reviewing court asks whether reasonable minds could differ as to whether each
material element of a crime has been proven beyond a reasonable doubt. State v.
Bridgeman, 55 Ohio St. 2d 261, 381 N.E.2d 184 (1978). If reasonable minds could
differ as to whether each material element has been proven, a Crim.R. 29 motion for
acquittal must be overruled. Id. at 263-64. The evidence adduced at trial and all
reasonable inferences must be viewed in the light most favorable to the state. State v.
Maokhamphiou, 11th Dist. Portage No. 2006-P-0046, 2007-Ohio-1542, ¶20.
{¶78} In contrast, a manifest weight challenge requires the reviewing court to
play the role of a “thirteenth juror.” State v. Thompkins, 78 Ohio St. 3d 380, 387, 1997
Ohio 52, 678 N.E.2d 541 (1997). A reviewing court should be cognizant of the fact that
the jury is in the best position to assess the credibility of the witnesses. State v.
DeHass, 10 Ohio St. 2d 230, 227 N.E.2d 212, paragraph one of the syllabus (1967).
For an appellate court to overturn a conviction as being against the manifest weight of
the evidence, it must be found that “‘the jury clearly lost its way and created such a
manifest miscarriage of justice that the conviction must be reversed and a new trial
ordered. The discretionary power to grant a new trial should be exercised only in the
exceptional case in which the evidence weighs heavily against the conviction.’”
Thompkins, 78 Ohio St. 3d at 387, quoting State v. Martin, 20 Ohio App. 3d 172, 175, 20
Ohio B. Rep. 215, 485 N.E.2d 717 (1983).
{¶79} The relevant portion of R.C. 2903.01(B) previously quoted, which defined
certain circumstances where one commits aggravated murder, is applicable here.
Furthermore, aggravated robbery under R.C. 2911.01(A)(1) is defined as “[n]o person,
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in attempting or committing a theft offense, as defined in section 2913.01 of the
Revised Code, or in fleeing immediately after the attempt or offense, shall do any of the
following: Have a deadly weapon on or about the offender's person or under the
offender's control and either display the weapon, brandish it, indicate that the offender
possesses it, or use it.”
{¶80} Upon review, none of appellant’s argument have merit. First, “[i]n a
criminal charge the exact date and time are immaterial unless in the nature of the
offense exactness of time is essential. It is sufficient to prove the alleged offense at or
about the time charged.” Tesca v. State, 108 Ohio St. 287 (1923), paragraph one of
the syllabus. None of the element of aggravated robbery or aggravated murder contain
an element where the exactness of time is essential; therefore the state only had to
prove the offense took place “on or about” the time charged. Clark does not contest
that the time of death, whenever it occurred, occurred on or about the date charged in
the indictment. Therefore this argument is without merit.
{¶81} Secondly, although the evidence that Clark robbed Hickman (as opposed
to Hickman lending his personal belongings to Clark) is circumstantial, it is not against
the manifest weight of the evidence for the jury to infer guilt. Orwig testified that
Hickman did not let other people borrow his car, and Bayless testified Hickman did not
like other people using his belongings. Furthermore, common experience suggests
that most people generally do not lend out their wallets containing their personal
belongings, such as a credit card and food stamp card. Finally, there is virtually no
positive proof that Hickman consensually loaned any of his belongings to Clark. Thus,
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although the jury did not have to conclude Clark robbed Hickman, a conclusion that
Clark robbed Hickman is not against the manifest weight of the evidence.
{¶82} Finally, Clark’s protests about the DNA evidence is meritless. The
combined testimony of the expert witnesses from BCI rather conclusively established
that Hickman’s blood was present on Clark’s clothing and the murder weapon.
Although the presence of an unidentified sample of DNA on the sweater perhaps
suggests that someone else could have committed the murder, the jury could have
concluded that the unidentified DNA came from someone else who touched the
sweater, but otherwise was not present at the time of the murder.
{¶83} The second assignment of error is without merit.
{¶84} The judgment of the Portage County Court of Common Pleas is affirmed.
DIANE V. GRENDELL, J., concurs,
COLLEEN MARY O’TOOLE, J., concurs with a Concurring Opinion.
____________________
COLLEEN MARY O’TOOLE, J., concurs with a Concurring Opinion.
{¶85} Upon review of the record I find the admission of the photographs of the
victim’s stab wounds was prejudicial and cumulative. These photographs should have
been excluded under Evid.R. 403. However, as the plethora of properly admitted
evidence in this case established the guilt of the defendant beyond a reasonable doubt,
I would find the error harmless.
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