State v. Williams , 2018 Ohio 1647 ( 2018 )

[Cite as State v. Williams, 2018-Ohio-1647.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 27663
:
v. : Trial Court Case No. 16-CR-4051
:
BRYSON WILLIAMS : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
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OPINION
Rendered on the day of 27th day of April, 2018.
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MATHIAS H. HECK, JR., by MICHAEL J. SCARPELLI, Atty. Reg. No. 0093662,
Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts
Building, 301 West Third Street, 5th Floor, Dayton, Ohio 45402
Attorney for Plaintiff-Appellee
TRAVIS KANE, Atty. Reg. No. 0088191, 1015 E. Centerville Station Road, Centerville,
Ohio 45459
Attorney for Defendant-Appellant
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HALL, J.
{¶ 1} Bryson Williams appeals from his conviction and sentence on one count of
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murder (proximate result of felonious assault) with a firearm specification and one count
of discharging a firearm on or near prohibited premises.1
{¶ 2} Williams advances three assignments of error. First, he challenges the
weight of the evidence to sustain his convictions. Second, he alleges ineffective
assistance of trial counsel. Third, he claims the trial court erred in failing to merge the
murder and discharging-a-firearm offenses as allied offenses of similar import.
{¶ 3} The charges against Williams stemmed from the shooting death Terion Dixon
on the afternoon of November 11, 2016. At trial, the State presented evidence that
Williams had fired shots across a road toward a store where numerous people were
standing outside. One of the shots struck and killed Dixon. The State’s evidence included
eyewitness testimony, statements Williams made in telephone calls after the shooting,
and other corroborating information obtained during a police investigation. In his defense,
Williams called a witness who had been outside the store during the shooting and who
had identified someone else as the shooter when reviewing a photospread. Williams also
called a witness who had been in the vicinity of the shooting but had not seen who fired
the shots. Based on the evidence presented, a jury found Williams guilty of the charges
against him. After merging several counts as allied offenses, the trial court imposed prison
terms of fifteen years to life for murder, three years for the firearm specification, and eight
years for discharging a firearm on or near prohibited premises. The trial court ordered
these sentences to be served consecutively, resulting in an aggregate prison sentence of
twenty-six years to life.
1Williams also was found guilty of several other offenses that merged into those set forth
above for purposes of sentencing.
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{¶ 4} In his first assignment of error, Williams contends his convictions are against
the manifest weight of the evidence. In support, he challenges eyewitness Samuel
Barker’s identification of him as the shooter. He notes Barker’s admission to drinking
alcohol, smoking marijuana, and not eating prior to the incident. Under these
circumstances, Williams claims Barker’s identification was not reliable. He also notes that
eyewitness Colleen Fallas identified someone other than him as the shooter when viewing
a photospread. Given that Barker was under the influence and that Fallas picked
someone else out of a photospread, Williams asserts that the evidence does not support
his convictions.
{¶ 5} When a conviction is challenged on appeal as being against the weight of the
evidence, an appellate court must review the entire record, weigh the evidence and all
reasonable inferences, consider witness credibility, and determine whether, in resolving
conflicts in the evidence, the trier of fact “clearly lost its way and created such a manifest
miscarriage of justice that the conviction must be reversed and a new trial ordered.” State
v. Thompkins, 78 Ohio St. 3d 380, 387, 678 N.E.2d 541 (1997). A judgment should be
reversed as being against the manifest weight of the evidence “only in the exceptional
case in which the evidence weighs heavily against the conviction.” State v. Martin, 20
Ohio App. 3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).
{¶ 6} With the foregoing standards in mind, we conclude that Williams’ convictions
are not against the weight of the evidence. Although Barker had consumed alcohol,
smoked marijuana, and not eaten in the hours before the shooting, the jury reasonably
could have found his eyewitness identification of Williams to be reliable. Barker testified
that Williams was a friend of his whom he had known for about ten years. (Tr. at 146-
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147). On the day in question, Barker was walking to meet his girlfriend when he
encountered Williams. (Id. at 152-155). Barker approached Williams, and the two men
engaged in face-to-face conversation. (Id. at 156-158). Barker and Williams shook hands
as the conversation ended. Barker turned to leave, took two or three steps away, and
heard gunshots. (Id. at 158-160). He then saw Williams firing a black-handled handgun
toward a store across the street. (Id. at 161-162). There were “a lot of people” outside the
store, and Williams was the only person firing a gun. (Id. at 162-163). Barker had “[n]o
doubt” that Williams was the shooter. (Id. at 166, 202).
{¶ 7} For her part, Fallas testified that she was outside the store when the shooting
occurred. (Tr. at 402). She “hit the ground” and saw two people across the street, one of
whom was doing the shooting. (Id. at 402-405, 408). Fallas described the shooter as
being “slender” whereas the person with him was “heavyset.” (Id. at 403-404, 408). The
record reflects that Williams weighed about 150 pounds, whereas Barker weighed around
315 pounds. (Id. at 163, 372). Approximately one month after the shooting, Fallas
reviewed a photospread and identified someone other than Williams as the person she
had seen shooting. (Id. at 414-415). The record reflects, however, that Williams and the
person Fallas identified in the photospread were nearly the same weight and height. (Id.
at 416-417). Fallas acknowledged that the two men looked so much alike that they could
be brothers. (Id. at 416). Even when seeing Williams in person at trial, she had trouble
determining which picture in the photospread was his. (Id. at 415-416). In addition, Fallas
was approximately eighty-eight feet away from the shooter, and she was wearing her
reading glasses at the time of the incident, not her “regular glasses.” (Id. at 375, 417).
Fallas conceded at trial that she may have been mistaken in her photo identification. (Id.
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at 417). A police investigation found no evidence that the person Fallas identified in the
photospread had been involved in the shooting. (Id. at 373).
{¶ 8} The record also contains evidence that Williams made telephone calls after
the shooting in which he essentially admitted his guilt. Marcquietta Hunter testified that
she was the girlfriend of Terion Dixon, the victim. (Id. at 204). Hunter knew Williams, had
gone to school with him, and was able to recognize his voice. (Id. at 207-208). The day
after the shooting, she was with a friend of hers, Isaiah Tucker, when Tucker received a
telephone call from Williams. Tucker put the call on speakerphone, and Hunter overheard
the conversation. Specifically, she heard Williams apologize and say that “[i]t wasn’t
meant for Terion,” but was “meant for Dae-Dae.” (Id. at 208). The next day, Williams
called Hunter’s phone. After identifying himself, he again apologized and said “[t]hat it
wasn’t meant for Terion,” but was “meant for Dae-Dae.” (Id.). Tucker also testified about
the telephone call he received from Williams. According to Tucker, Williams said that he
was sorry, that he had hesitated “to squeeze,” and that he had seen Terion Dixon but that
did not stop him from “shooting at Dae-Dae.” (Id. at 248, 253). During their investigation,
police obtained Williams’ cell phone and confirmed the existence of outgoing calls from
his phone to Tucker’s phone at the time claimed. (Id. at 338-344). Police also investigated
Williams’ claim that he was out of the area at a particular residence in Trotwood at the
time of the shooting. (Id. at 357-358). A detective spoke with the individuals Williams
claimed to have been with and refuted his claim. (Id. at 360). Finally, police discovered
during a post-arrest interview of Williams that Davion Clark, who went by the nickname
“Dae-Dae,” had beaten and robbed Williams several weeks before the shooting. (Id. at
360-363).
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{¶ 9} Having reviewed the record, we do not find that the jury clearly lost its way
and created a manifest miscarriage of justice when it convicted Williams of murder and
discharging a firearm on or near prohibited premises. This is not an exceptional case in
which the evidence weighs heavily against his convictions. To the contrary, the evidence
strongly points to his guilt. Accordingly, the first assignment of error is overruled.
{¶ 10} In his second assignment of error, Williams asserts that he received
ineffective assistance of counsel at trial. Specifically, he contends his attorney provided
ineffective assistance by failing to object when the State asked the trial court to certify two
witnesses as experts in the presence of the jury. Williams does not suggest the
witnesses—forensic pathologist Susan Allen and forensic firearm examiner Christopher
Monturo—are not experts. We note that the record unquestionably supports that they are
both eminently qualified in their respective fields. Rather, he contends they should not
have been certified as experts in front of the jury because doing so enhanced their stature
and gave the appearance of judicial approval of their testimony.
{¶ 11} Upon review, we find Williams’ argument to be unpersuasive. A defendant
is deprived of effective assistance of counsel when counsel’s performance is deficient
and the deficiency prejudices the defendant. Strickland v. Washington, 466 U.S. 668, 104
S. Ct. 2052, 80 L. Ed. 2d 674 (1984). The prejudice prong of ineffective assistance of
counsel has been equated by the Ohio Supreme Court to the same deferential standard
that is required for finding plain error wherein the proponent must demonstrate “that the
trial court's error must have affected the outcome of the trial.” State v. Rogers, 143 Ohio
St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, ¶ 22, quoting State v. Barnes, 94 Ohio St. 3d
21, 27, 759 N.E.2d 1240 (2002).
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{¶ 12} Williams primarily relies on United States v. Johnson, 488 F.3d 690 (6th
Cir.2007) and cases cited therein for the argument that it was error for the trial court to
recognize Dr. Allen and Chris Montouro to be experts in front of the jury. Therefore, he
contends, the failure to object constitutes ineffective assistance of counsel. In Johnson,
based on his training and experience Cincinnati police officer Richard Dews was
permitted to testify as an expert that activity that he had observed constituted drug
trafficking. The following transpired:
[Prosecutor] [AUSA]: And, Your Honor, we would ask that the
witness be identified as an expert in the identification and behavior of street-
level narcotics trafficking.
THE COURT: [Defense counsel]?
[Defense counsel]: No objection, Your Honor.
THE COURT: All right. Officer Dews will be accepted as an expert in
the area of street-level narcotics transactions and behaviors that
accompany that activity
Id., at 694.
{¶ 13} The custom of tendering a witness as an expert, which by some has been
taught as accepted practice, is not without reason. Since 2001 the Ohio Supreme Court
has no less than eight times held that the proponent of an expert does not have to formally
tender an otherwise-qualified expert witness. But those rulings exist for the very reason
that appellants have raised the specter of error precisely because the prosecution did not
formally tender a witness as an expert. We also recently considered an argument that ten
expert witnesses were not qualified as experts, in part, because they were not formally
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tendered as experts. State v. Hayes, 2d Dist. Montgomery No. 26379, 2016-Ohio-7241,
¶¶ 113-124. In addition, once prospective qualifications to render opinions are presented,
it makes sense to signal that the qualification portion of the testimony is complete to give
the opponent the opportunity to request voir dire of the witness on those qualifications
before proceeding with their opinions,2 and to allow the trial court, and the witnesses’
proponent, to determine whether the witnesses’ opinions will be admissible. The issue,
as we perceive it, is more directly related to how a trial court responds to a tender of a
witness as an expert.
{¶ 14} Indeed, the Johnson decision expressed a preference that the trial court
should not designate or certify an expert in the jury’s presence. The Johnson rationale is
that “when a court certifies that a witness is an expert, it lends a note of approval to the
witness that inordinately enhances the witness’s stature and detracts from the court’s
neutrality and detachment.” Johnson at 697. The preferred Johnson approach would be
“the proponent of the witness should pose qualifying and foundational questions and
proceed to elicit opinion testimony. If the opponent objects, the court should rule on the
objection, allowing the objector to pose voir dire questions to the witness’s qualifications
if necessary and requested.” Id. at 698. However, this portion of the Johnson decision
begins: “We pause here to comment on the procedure used by the trial judge in declaring
before the jury that Officer Dews was to be considered an expert.” Id. at 697. As such,
the preferred-procedure discussion in Johnson is dicta. The actual holding of Johnson is
2 When challenging the qualifications of a witness during trial “the preferred procedure is
for a trial court to permit a party challenging an expert witness’s qualifications to conduct
a voir dire solely on that witness’s training and experience.” State v. Hall, 6th Dist. Erie
No. E-98-088, 2000 WL 1061875, *3 (Aug. 4, 2000).
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that “[d]espite the procedure used in this case—to which no objection was made—we do
not find that plain error occurred.”
{¶ 15} Appellant also cites six cases from other Ohio districts and suggests that
“[n]umerous Ohio courts have adopted this [the Johnson] rule.” We disagree. In Parma
Heights v. Owca, 2017-Ohio-179, 77 N.E.3d 505 (8th Dist.), the court recognized the
preference expressed in Johnson but did not adopt it and, like Johnson, found no plain
error. In State v. Gaona, 5th Dist. Licking No. 11-CA-61, 2012-Ohio- 3622, the issue was
whether a jury instruction on expert testimony should be given when no specific witness
was designated as an expert. The court referred to Johnson, but it was not directly
applicable to the instruction issue and the decision’s preference was not adopted. In State
v. Horton, 9th Dist. Summit No. 26030, 2012-Ohio-3340, the appellant argued that expert
testimony against him should have been excluded because the witness was not declared
an expert by the trial court. The court cited Johnson only to indicate that if the court had
declared the witness an expert, it likely would have bolstered the witness’ credibility and
the failure to so designate did not prejudice the appellant. That court did not adopt the
preference of Johnson. In State v. Bolton, 8th Dist. Cuyahoga No. 96385, 2012-Ohio-169,
a forensic scientist was declared to be an expert in the presence of the jury, and the
appellant raised this as part of an assignment of cumulative error. The decision does not
indicate what the court said to “declare” the witness an expert. The appellate court agreed
that the witness should have been qualified3 outside the presence of the jury, but the
3 We believe the court meant that the witness should have been declared or determined
or approved by the trial court to be an expert witness outside the presence of the jury. An
expert’s raw “qualifications”, as opposed to a declaration, determination or approval,
should obviously be presented before the jury because that is how the jury evaluates the
worth or credibility of the witness’ opinions. For example, the opinion of a witness who
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case holding was that error was harmless because the court was correct in finding the
witness qualified to testify. State v. Monroe, 8th Dist. Cuyahoga No. 94768, 2011-Ohio-
3045 preceded, and was quoted in, Parma Heights, to which it is nearly identical. The
defense had not objected to the expert’s qualifications, the expert was qualified and the
appellate court found no plain error. Although reference was made to the Johnson
preference, the Johnson dicta was not adopted. Finally, in State v. Foster, 8th Dist.
Cuyahoga No. 90870, 2008-Ohio-31, the appellant claimed the trial court erred by
declaring a witness an expert in the jury’s presence. But when the witness was offered as
an expert the trial court only said “yes” and overruled the defense objection. The Foster
appellate decision reads: “The court did not expressly declare Britton to be an expert,
thereby creating the appearance that the court approved the witness. Cf. United States
v. Johnson (6th Cir.2007), 488 F.3d 690, 697–98.” Id. at ¶ 34-35. The “Cf.” signal was
only to compare the Foster result with Johnson. It was not an adoption of the case. Of all
the cited cases, only Bolton arguably could be said to have adopted the preference
suggested in Johnson, and even then the decision rested on harmless error, not the
Johnson preference.
{¶ 16} In the present case, with respect to the two experts, the following occurred:
[Prosecutor]: Judge, at this point, I would tender Dr. Allen as an expert in
the field of forensic pathology.
[Defense counsel]: No objection.
THE COURT: So noted.
has a degree, licensure and has been working in their profession for 20 years would likely
have more value than that of one who has only 20 weeks experience in the profession to
offer.
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(Trial Transcript at 124).
[Prosecutor]: Judge, at this time we’d tender Mr. Monturo as an expert in
the field of firearms examination and tool marks.
[Defense counsel]: No objection.
THE COURT: He'll be so designated.
(Trial Transcript at 290).
Only in regard to the second witness could it be said that the trial court “designated” the
witness as an expert contrary to the preferred method in the Johnson dicta. The court’s
response for the first witness was similar to that in Foster, where the court concluded:
“The court did not expressly declare [the witness] to be an expert.” Foster at ¶ 34. That
being so, it could not be ineffective assistance of counsel to fail to object to the
qualification procedure for that witness.
{¶ 17} With regard to the above second witness, we reach the same conclusion as
the holding in Johnson. There is no plain error because no difference in result, or
prejudice, is demonstrated. Because we find an absence of prejudice, the failure to object
to the designation procedure is not ineffective assistance of counsel under Strickland.
{¶ 18} The purpose of Allen’s testimony was to establish Dixon’s cause of death,
a gunshot to the chest, which was undisputed. The only real issue at trial was the identity
of the shooter, and Allen did not opine about that. As for Monturo, he testified about his
examination of shell casings found at the scene. Once again, this testimony had nothing
to do with the identity of the shooter. Given that the expert testimony at issue was largely
perfunctory and uncontroversial, we fail to see how Williams was prejudiced even if
qualifying of either expert in front of the jury did enhance their stature and credibility. The
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second assignment of error is overruled.
{¶ 19} In his third assignment of error, Williams contends the trial court erred in
failing to merge his convictions for murder and discharging a firearm on or near prohibited
premises as allied offenses of similar import.
{¶ 20} In support of his argument, Williams reasons:
Appellant’s conviction for Discharge of Firearm On or Near
Prohibited Premises was based upon the shooting that is the basis for the
Murder conviction. Appellant discharged the firearm on prohibited premises
that caused murder. The two crimes committed caused the same,
identifiable harm: the taking of the life of the victim. They were committed
at the same time and place and constituted one action. The two crimes also
were committed with the same animus due to the fact they were committed
together and there was only one person who was shot.
As such, Count 5 should have merged with Count 1 and the
additional 8 year sentence should be voided.
(Appellant’s brief at 8-9).
{¶ 21} Upon review, we note that Williams did not raise an allied-offense argument
below. “An accused’s failure to raise the issue of allied offenses of similar import in the
trial court forfeits all but plain error, and a forfeited error is not reversible error unless it
affected the outcome of the proceeding and reversal is necessary to correct a manifest
miscarriage of justice.” State v. Rogers, 143 Ohio St. 3d 385, 2015-Ohio-2459, 38 N.E.3d
860, ¶ 3. “Accordingly, an accused has the burden to demonstrate a reasonable
probability that the convictions are for allied offenses of similar import committed with the
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same conduct and without a separate animus; absent that showing, the accused cannot
demonstrate that the trial court’s failure to inquire whether the convictions merge for
purposes of sentencing was plain error.” Id.
{¶ 22} “ ‘As a practical matter, when determining whether offenses are allied
offenses of similar import within the meaning of R.C. 2941.25, courts must ask three
questions when defendant’s conduct supports multiple offenses: (1) Were the offenses
dissimilar in import or significance? (2) Were they committed separately? and (3) Were
they committed with separate animus or motivation? An affirmative answer to any of the
above will permit separate convictions. The conduct, the animus, and the import must all
be considered.’ ”State v. Earley, 145 Ohio St. 3d 281, 2015-Ohio-4615, 49 N.E.3d 266, ¶
12, quoting State v. Ruff, 143 Ohio St. 3d 114, 2015-Ohio-995, 34 N.E.3d 892, ¶ 31.
{¶ 23} Williams has failed to demonstrate a reasonable probability that merger is
required here. We agree that he committed the offenses of murder and discharging a
firearm on or near prohibited premises with the same conduct and the same animus. The
record reflects that he fired multiple shots in rapid succession with the singular motivation
of killing Davion Clark, who had beaten and robbed him previously. We see no plain error
in failing to merge the two offenses, however, because we find no reasonable probability
that they were of similar import or significance. The Ohio Supreme Court has recognized
that merger is not required if offenses “are not alike in their significance and their resulting
harm.” Ruff at ¶ 21. In addition, where a defendant’s conduct places more than one
person at risk, that conduct can support multiple convictions because the offenses are of
dissimilar import. Id. at ¶ 23
{¶ 24} Williams was convicted and sentenced on one count of murder for causing
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Terion Dixon’s death as a proximate result of committing felonious assault. He also was
convicted and sentenced on one count of discharging a firearm on or near prohibited
premises in violation of R.C. 2923.162(A)(3), which provides: “No person shall do any of
the following: * * * Discharge a firearm upon or over a public road or highway.” Notably,
“[t]he victim of the offense of discharging a firearm upon or over a public road or highway
is the public. This is because it is the act itself that is prohibited. The offense can be
completed with no one remotely near the location where the firearm is discharged upon
or over the public road or highway. R.C. 2923.162(A)(3) is a statute intended to benefit
the public good[.]” State v. James, 2015-Ohio-4987, 53 N.E.3d 770 (8th Dist.), ¶ 33; see
also State v. Carzelle, 8th Dist. Cuyahoga No. 105425, 2018-Ohio-92 (applying James).
Although Williams actually shot and killed Dixon, his act of firing a handgun across the
roadway itself violated the statute, placed numerous people at risk, and harmed the public
at large. 4 Conversely, his murder conviction required harm to a particular victim and
differed in the significance and the nature of the harm it addressed. At a minimum, we
believe the offenses at issue are dissimilar enough to preclude a finding of plain error.
Accordingly, the third assignment of error is overruled.
{¶ 25} The judgment of the Montgomery County Common Pleas Court is affirmed.
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WELBAUM, P.J. and DONOVAN, J., concur.
4 Williams’ act of shooting Dixon elevated the degree of the offense of discharging a
firearm on or near prohibited premises to a first-degree felony. See R.C. 2923.162(C)(4).
The fact remains, however, that the act of discharging a firearm over a public road or
highway itself constituted a violation of the statute. See R.C. 2923.162(A)(3).
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Copies mailed to:
Mathias H. Heck
Michael J. Scarpelli
Travis Kane
Hon. Richard Skelton