State v. Houston , 2020 Ohio 5421 ( 2020 )

[Cite as State v. Houston, 2020-Ohio-5421.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-190598
TRIAL NO. B-1700535
Plaintiff-Appellee, :
O P I N I O N.
vs. :
SHAWNDRE HOUSTON, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: November 25, 2020
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Judith Anton
Lapp, Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Timothy J. McKenna for Defendant-Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS
M OCK , Presiding Judge.
{¶1} Following a jury trial, defendant-appellant Shawndre Houston was
convicted of aggravated murder under former R.C. 2903.01(A), with an
accompanying firearm specification. We find no merit in his seven assignments of
error, and we affirm the trial court’s judgment.
Facts and Procedure
{¶2} The record shows that Heywood Thompson owned the Indulge VSP
Lounge (“the lounge”) in Springdale, Ohio. Various promoters rented the facility to
host events, and the lounge would provide food, drink, and security. Thompson
hired private security guards for the events. He generally stationed two security
guards inside the facility and one in the parking lot. Thompson prohibited weapons
in the club and used a “double pat-down” system where patrons were patted down
both at the entrance to the building and again inside the bar. Security cameras were
placed in numerous locations.
{¶3} On January 26, 2017, the club was rented for an event involving exotic
dancers. Thompson had three security guards in the club that night, and one in the
parking lot. The guard in the parking lot was Bobbie Long, a retired police officer.
The promoter also brought two of her own security guards.
{¶4} A fight started on the dance floor and security was able to get it under
control. The fight resumed a short time later near the men’s restroom. David Salter
and his friends attacked Houston and his friends. Thompson saw Salter “sucker-
punch” a guard in the back of the head while that guard was restraining another
patron. Thompson then ordered a “code black,” and all patrons were asked to pay
their tabs and leave. All doors were then locked.
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{¶5} Footage from the security cameras showed security guards trying to
restrain Salter while he kept trying to attack Houston. It also showed Houston with
facial bruises and a black eye. The security guards separated the men and forced
them out a side door into an alley that divided the lounge’s parking lot from the lot of
an adjacent Super 8 Motel. Long had come in from the parking lot and was waiting
in the alley.
{¶6} Thompson and the security guards formed a wall to separate Salter
and Houston, who continued to yell at each other. Long pushed Salter and his
friends behind him to prevent Houston and his friends from reaching them. He said
that Salter was trying to de-escalate the situation, telling his friends that it was “not
that big of deal” and to calm down.
{¶7} Long ordered the men to leave, and Houston walked to a gray Hyundai
Sonata. Thompson said that Houston opened the car door and appeared to be
searching for something on the driver’s side, which was illuminated by a dome light.
Houston then got in his car.
{¶8} LaRay Bush, one of Houston’s friends, threatened Salter and the
security guards, stating “I carry heat, I’ll get you,” although no one saw him with a
weapon. Bush refused orders to leave, so Long tased him. But Bush wore a “bubble
coat” that prevented the barbs of the Taser from touching his skin. He pulled the
barbs out of his coat. Bush was still being loud and aggressive, but he retreated to
Houston’s car and got into the back seat on the driver’s side.
{¶9} Houston drove his car around the parking lot, but he did not leave the
area. Thompson said that “we felt that there was probably about to be something
going on that we needed to be concerned about.” Houston drove his car through the
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Super 8 parking lot and back through the lounge’s parking lot at least two times,
possibly three. Long described the car as doing “a loop-around thing.”
{¶10} In the meantime, Salter had been trying to get back in the building.
Thompson and the security guards were trying to get Salter to leave. They chased
him, but he ran a few feet ahead of them. Thompson was about two feet away from
Salter when he saw a “muzzle flash” and heard five gunshots.
{¶11} Salter was near the club’s entrance when Houston’s car drove by him.
The driver’s side of the car faced Salter, and the driver’s side window was halfway
down. Long was about ten feet away from Salter when he heard a scream and four to
five gunshots. Afterward, Salter was on the ground, and Houston’s car drove away.
Five shell casings from a .40-caliber Smith and Wesson were later found in the
parking lot.
{¶12} The Springdale Police Department put out a broadcast asking other
police departments to be on the lookout for a gray late-model Hyundai Sonata
involved in a shooting. Green Hills Police Officer Zachary Clark heard the broadcast
about 1:30 a.m. Within five minutes, he saw the Hyundai driving south on Winton
Road. He called for backup, and when other police officers arrived, he pulled over
the car. Houston was driving, and Bush and Keonta Hardy were in the back seat. All
three were placed in handcuffs and detained for Springdale police.
{¶13} Springdale Police Detective Eric Langevin and his officers took
Houston and his passengers to the Springdale Police Department. The police officers
immediately took Houston’s jacket for lab analysis. Houston was sweating profusely
and was short of breath, so the police called paramedics. The paramedics attempted
to cool him off by taking off his shirt and wiping down his upper body.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶14} Officer Clark had followed Houston for about a mile before pulling him
over. Video footage from the cruiser showed that a gun was thrown from the car
near Cherry Blossom and Winton Roads. It landed in a grassy area next to a
driveway. About 2:40 p.m. the same day, a citizen called the police to report that a
firearm was in his front yard. The police collected it and determined that it was the
weapon used in the shooting.
{¶15} Houston’s DNA was found on the magazine of the gun. All three
occupants of the car were tested for the presence of gunshot residue. There was no
gunshot residue on Houston’s hands, but some was found on his jacket. Gunshot
residue was found on both Bush’s and Hardy’s hands.
{¶16} Houston was charged with aggravated murder, murder and felonious
assault, with accompanying firearm specifications. A jury trial resulted in a hung
jury and a mistrial. After a second trial, a jury found Houston guilty as charged,
except for one of the firearm specifications. The other charges were merged with the
aggravated-murder charge. Houston was properly sentenced, and this appeal
followed.
Weight and Sufficiency
{¶17} In his first assignment of error, Houston contends that the evidence
was insufficient to support his conviction. First, he argues that the state failed to
present sufficient evidence to prove prior calculation and design.
{¶18} Houston was convicted of aggravated murder under former R.C.
2903.01(A). It provided that “[n]o person shall purposely, and with prior calculation
and design, cause the death of another * * *.” To show prior calculation and design,
the state must show a “scheme designed to implement the calculated decision to kill.”
State v. Coley, 93 Ohio St.3d 253, 263, 754 N.E.2d 1129 (2001). Evidence of purpose
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does not automatically mean that the element of prior calculation and design also
exists. State v. Walker, 150 Ohio St.3d 409, 2016-Ohio-8295, 82 N.E.3d 1124, ¶ 17.
“All prior calculation and design offenses will necessarily include purposeful
homicides; not all purposeful homicides have an element of prior calculation and
design.” State v Jones, 2020-Ohio-281, 151 N.E.3d 1059, ¶ 11 (1st Dist.), quoting
Walker at ¶ 18. The phrase “prior calculation and design” suggests advance
reasoning to formulate the purpose to kill. Evidence of an act committed on the spur
of the moment or after momentary consideration is insufficient. Walker at ¶ 18.
{¶19} The Ohio Supreme Court has repeatedly held that there is no “bright-
line test that emphatically distinguishes between the presence or absence” of prior
calculation and design. Instead, each case turns on its own facts. Walker at ¶ 19;
State v. Taylor, 78 Ohio St.3d 15, 20, 676 N.E.2d 82 (1997); Jones at ¶ 13. In
determining whether a defendant acted with prior calculation and design, courts
should consider three factors: (1) Did the accused and the victim know each other,
and if so, was that relationship strained? (2) Did the accused give thought or
preparation to choosing the murder weapon or murder site? and (3) Was the act
drawn out or “an almost instantaneous eruption of events?” Walker at ¶ 20; Taylor
at 19; Jones at ¶ 13.
{¶20} Nothing in the record shows that Houston and Salter knew each other
prior to the fight. During the fight, Salter punched Houston several times, and
Houston had a black eye and other injuries. Security had broken up the fight and
forced the participants out a side door. Outside, security guards formed “a wall”
between Salter and some of the other participants, including Bush. According to
Long, Salter was trying to de-escalate the situation, telling his friends to calm down.
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{¶21} When told to leave, Houston walked to his car, turned on the dome
light, and appeared to be searching for something on or around the driver’s seat. He
drove his car through the lounge parking lot and the parking lot of the motel next
door. He circled around the lot and passed the lounge entrance at least two, possibly
three times. As soon as Salter started running away from the building, Houston
drove by him with the driver’s side of the car facing Salter. Salter was about two feet
away from Thompson when Thompson saw a muzzle flash from the driver’s side of
the car and heard four or five gunshots. Salter fell to the ground bleeding and
Houston drove away at a high rate of speed.
{¶22} The evidence showed that Houston gave thought and consideration to
choosing the murder site and that the act was drawn out, rather than an
instantaneous eruption of events after the fight. Compare Walker, 150 Ohio St.3d
409, 2016-Ohio-8295, 82 N.E.3d 1124, at ¶ 23-26 (No prior calculation and design
when the evidence showed a “free-for-all” and a shot was fired in the midst of the
fight). Even though only a short period of time had passed, the facts were sufficient
to show that Houston had “adopted a plan to kill.” See State v. Washington, 1st Dist.
Hamilton No. C-090561, 2010-Ohio-3175, ¶ 17. Thus, the state presented evidence
from which a jury could reasonably have concluded that Houston acted with prior
calculation and design.
{¶23} Houston next argues that there was no evidence showing that he was
the assailant, and that, in fact, the evidence showed that Bush was the shooter. The
eyewitnesses stated that Houston was driving the car and that Bush was seated in the
back seat on the driver’s side. Thompson saw Houston looking around the car for
something before he got inside. Video footage showed that the driver’s-side window
was down right before the shooting and the back-seat window was closed. The flash
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OHIO FIRST DISTRICT COURT OF APPEALS
came from the driver’s seat. When the car was pulled over after the shooting, the
back window on the driver’s side was intact, indicating that a bullet had not been
shot through the window.
{¶24} After Houston walked to his car, Bush continued to act aggressively.
Thompson said that when he put his hands on Bush, he felt what may have been a
weapon under his coat. Bush continued to try to attack Salter, but was prevented
from doing so by the security guards. Bush threatened Salter and the security
guards, stating that “I carry heat.” When Bush continued to be aggressive and
refused to leave, Long tased him, although the Taser had little effect because of
Bush’s coat. But even after Long attempted to tase him, Bush did not show a weapon
of any kind. Instead, he got into Houston’s car.
{¶25} Gunshot residue was found on Hardy’s and Bush’s hands, but not
Houston’s. But, Houston was not tested for gunshot residue immediately. Because
he was sweating profusely and appeared to be ill, the Springdale police called for
EMTs, who tried to cool him down by wiping down his body with paper towels.
Detective Langevin acknowledged that failing to test Houston’s hands for gunshot
residue before that time was a mistake.
{¶26} Nevertheless, gunshot residue was found on the cuff of Houston’s
jacket, and a forensic scientist who specialized in gunshot residue said the residue
would float like a cloud all around the area where the gun was fired. Further,
Houston’s DNA was found on the magazine of the gun, but Bush’s DNA was
excluded. Thus, there was evidence was from which a jury could reasonably have
found that Houston, not Bush, was the shooter.
{¶27} Houston points out that the jury did not find him guilty of a
specification that he “had a firearm on or about his person or under his control while
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OHIO FIRST DISTRICT COURT OF APPEALS
committing the offense of aggravated murder and displayed the firearm, brandished
the firearm, indicated that he possessed the firearm, or used it to facilitate the
offense * * *.” Thus, Houston argues, the jury must have concluded that he was not
the shooter. But the jury did find him guilty of a specification that he had a firearm
on or about his person or under his control while committing aggravated murder.
Thus, the acquittal on the one specification did not show that the jury believed Bush
was the shooter.
{¶28} Further, inconsistent responses within the same count of an
indictment, such as a conviction on a principal charge and a concurrent acquittal on
a specification for identical behavior, do not mandate a reversal where the principal
charge is not dependent on a finding of the specification. Similarly, acquittal on one
specification and a guilty finding on another do not justify a reversal. State v. Glenn,
1st Dist. Hamilton No. C-090205, 2011-Ohio-829, ¶ 69.
{¶29} Our review of the record shows that a rational trier of fact, after
viewing the evidence in a light most favorable to the prosecution, could have found
that the state proved beyond a reasonable doubt all of the elements of aggravated
murder and the accompanying specification. See State v. Jenks, 61 Ohio St.3d 259,
574 N.E.2d 492 (1991), paragraph two of the syllabus; State v. Hackney, 1st Dist.
Hamilton No. C-150375, 2016-Ohio-4609, ¶ 29. Therefore, the evidence was
sufficient to support the conviction, and we overrule Houston’s first assignment of
error.
{¶30} In his second assignment of error, Houston contends that his
conviction was against the manifest weight of the evidence. After reviewing the
record, we cannot say that the trier of fact lost its way and created such a manifest
miscarriage of justice that we must reverse his convictions and order a new trial.
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Therefore, the conviction was not against the manifest weight of the evidence. See
State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997); State v. Cedeno,
192 Ohio App.3d 738, 2011-Ohio-674, 950 N.E.2d 582, ¶ 25 (1st Dist.).
{¶31} Houston contends that “[n]ot one credible witness can say who the
shooter was.” But matters as to the credibility of evidence were for the trier of fact to
decide. State v. Bryan, 101 Ohio St.3d 272, 2004-Ohio-971, 804 N.E.2d 433, ¶ 116;
State v. Walker, 1st Dist. Hamilton No. C-190193, 2020-Ohio-1581, ¶ 62. Therefore,
we overrule Houston’s second assignment of error.
Proposed Jury Instructions
{¶32} In his third assignment of error, Houston contends that the trial court
erred when it denied his requested jury instructions. He argues that because his jury
instructions accurately stated the law and provided needed clarification, the trial
court abused its discretion in failing to give those instructions. This assignment of
error is not well taken.
{¶33} 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 factfinder. State v. Comen, 50 Ohio St.3d 206, 553 N.E.2d 640 (1990),
paragraph two of the syllabus; State v. Robinson, 1st Dist. Hamilton No. C-060434,
2007-Ohio-2388, ¶ 18. An appellate court will not reverse a conviction due to
improper jury instructions unless the defendant was prejudiced. Robinson at ¶ 18.
Further, a single instruction cannot be judged in isolation, but must be viewed in the
context of the overall charge. State v. Price, 60 Ohio St.2d 136, 398 N.E.2d 772(1979), paragraph four of the syllabus; Robinson at ¶ 18.
{¶34} A trial court must give the defendant’s requested instructions to the
jury if they are correct, pertinent statements of law and are appropriate under the
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OHIO FIRST DISTRICT COURT OF APPEALS
facts of the case. State v. Lessin, 67 Ohio St.3d 487, 493, 620 N.E.2d 72 (1993); State
v. Bush, 1st Dist. Hamilton No. C-090291, 2010-Ohio-2874, ¶ 13. But the court need
not give the requested instructions verbatim. It may use its own language to
communicate the same legal principles. Lessin at 493; State v. Brewster, 1st Dist.
Hamilton Nos. C-030024 and C-030025, 2004-Ohio-2993, ¶ 58. We review a trial
court’s decision granting or denying a defendant’s proposed jury instruction under
an abuse-of-discretion standard. Bush at ¶ 13.
{¶35} The first instruction that Houston requested was “[t]he actions of an
accused as an accessory after the fact are not prohibited under Ohio law,” which was
based on State v. Starr, 24 Ohio App.2d 56, 263 N.E.2d 572 (1st Dist.1970). That
case is very different factually than the present case.
{¶36} In Starr, Donald Lewis Grimes stole a purse from a woman standing
on the sidewalk. A bystander saw the defendant driving a car that stopped and
picked up Grimes. Grimes was in the defendant’s car when he was arrested and
objects belonging to the woman whose purse was stolen were found in the glove
compartment of the car. The defendant was prosecuted for aiding and abetting
Grimes in the robbery.
{¶37} This court held that there was no evidence to show that the defendant
did anything to aid, abet or conspire with Grimes prior to the robbery. We stated,
“The only reasonable inference that can be drawn from the evidence in the instant
case is that [the defendant] may have been guilty of being an accessory after the fact,
which is not a crime recognized in Ohio.” Id. at 58. A number of cases have
distinguished Starr on the basis that the accused was associated with and in the
presence of the principal offender before the crime was committed, and therefore,
the accused could be convicted of aiding and abetting the principal offender. See
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State v. Tribble, 9th Dist. Summit No. 10685, 1982 WL 2795, *2 (Oct. 13, 1982);
State v. Monroe, 8th Dist. Cuyahoga No. 36166, 1977 WL 201419, *2 (June 30, 1977);
State v. Goudlock, 8th Dist. Cuyahoga No. 35172, 1976 WL 191107, *4 (Oct. 14, 1976).
{¶38} This case is distinguishable as well, and therefore, the proposed
instruction was not appropriate under the facts of the case. Even if Bush was the
shooter, Houston did not merely drive the car away after the fact. He was involved in
the fight with Salter. After the fight, he went to car, appeared to search for
something in his car, and circled the lot several times. Bush got in Houston’s car and
then Houston drove his car with the driver’s side very close to Salter. After the
shooting, Houston sped out of the parking lot. After the police began following his
vehicle, he or one his passengers threw the gun, which bore his DNA, out of the car.
{¶39} In instructing the jury, the trial court followed the language of State v.
Johnson, 93 Ohio St.3d 240, 754 N.E.2d 796 (2001), syllabus, in which the Ohio
Supreme Court stated,
To support a conviction for complicity by aiding and abetting * * *, the
evidence must show that the defendant supported, assisted,
encouraged, cooperated with, advised, or incited the principal in the
commission of the crime, and that the defendant shared in the
criminal intent of the principal. Such intent may be inferred from the
circumstances surrounding the crime.
Accord State v. Johnson, 1st Dist. Hamilton No. C-170371, 2018-Ohio-4131, ¶ 45-46;
Brewster, 1st Dist. Hamilton Nos. C-030024 and C-030025, 2004-Ohio-2993, at ¶
53-54. The proposed instruction contradicts the holding of Johnson. It also might
have confused the jury and stopped them from considering Houston’s actions after
the crime, which were relevant.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶40} Houston’s other proposed jury instruction stated, “In order to be guilty
of complicity, one must take an affirmative act toward the commission of the crime,
rather than simply sitting silently or failing to object or stop the putative other
actor.” The court’s instructions included this proposed instruction in substance. It
used its own language to communicate the same principles. This is particularly true
given that it stated that mere presence at the scene was insufficient to prove that
Houston was an aider and abettor.
{¶41} The trial court fully and completely gave the jury all instructions that
were relevant and necessary for the jury to decide the case. We cannot hold that
Houston was prejudiced by its decision denying his request for proposed jury
instructions. The court’s decision was not so arbitrary, unreasonable or
unconscionable as to connote an abuse of discretion. See State v. Clark, 71 Ohio
St.3d 466, 470, 644 N.E.2d 331 (1994); State v. Brown, 1st Dist. Hamilton No. C-
120327, 2013-Ohio-2720, ¶ 34. Therefore, we overrule Houston’s third assignment
of error.
Gruesome Photographs
{¶42} In his fourth assignment of error, Houston contends that the trial
court erred in admitting unfairly prejudicial photographs into evidence. He argues
that the photographs were not relevant as he did not dispute the cause of death, and
they were unduly gruesome and served only to inflame the jury. This assignment of
error is not well taken.
{¶43} Under Evid.R. 403, the decision whether to admit photographs into
evidence lies within the trial court’s discretion. Gruesome photographs are
admissible at trial as long as their probative value is not substantially outweighed by
the danger that the accused will be unfairly prejudiced. State v. Maurer, 15 Ohio
13OHIO FIRST DISTRICT COURT OF APPEALS
St.3d 239, 264-265, 473 N.E.2d 768 (1984); State v. Cephas, 1st Dist. Hamilton No.
C-180105, 2019-Ohio-52, ¶ 27. Even if a photograph satisfies this balancing test, it is
inadmissible if it is repetitive or cumulative. State v. Ford, 158 Ohio St.3d 139, 2019-
Ohio-4539, 140 N.E.3d 616, ¶ 237.
{¶44} To prove aggravated murder, “the state must prove, and the jury must
find, that the killing was purposely done. The number of shots fired, the places where
the bullets entered the body, and the resulting wounds are all probative evidence of a
purpose to cause death.” Maurer at 265, quoting State v. Strodes, 48 Ohio St.2d 113,
116, 357 N.E.2d 375 (1976). The fact that Houston stipulated the cause of death does
not automatically render the photographs inadmissible. Evid.R. 403 requires a
balancing analysis, and the trial court could properly find that the photographs had
probative value above and beyond the stipulation. Maurer at 265.
{¶45} The court admitted ten photographs into evidence. The coroner
actually took 75 photographs. The ten photographs show the entrance and exit
wounds of the bullets through the body, and they were used to illustrate the coroner’s
testimony about the trajectory of the bullets. See Ford at ¶ 245-255. None of them
were particularly gruesome, except one. That photograph was used to show one of
the bullet’s path through Salter’s liver and other internal organs and to demonstrate
the cause of death.
{¶46} Our review of the record does not show that the photographs were
unnecessarily gruesome or cumulative. Their probative value was not outweighed by
the danger of unfair prejudice to Houston. We cannot hold that the trial court’s
decision to admit the photos into evidence was so arbitrary, unreasonable or
unconscionable as to connote an abuse of discretion. See State v. Smith, 80 Ohio
14OHIO FIRST DISTRICT COURT OF APPEALS
St.3d 89, 108-109, 684 N.E.2d 668 (1997); Cephas, 1st Dist. Hamilton No. C-180105,
2019-Ohio-52, at ¶ 30. We overrule Houston’s fourth assignment of error.
Jury Verdict/Ineffective Assistance of Counsel
{¶47} Houston’s fifth and sixth assignments of error are related and argued
together. In his sixth assignment of error, he contends that because a juror stated
after trial that the guilty verdict was not her true verdict, there was not a unanimous
jury verdict, and he was denied due process. In his fifth assignment of error, he
contends that he was denied the effective assistance of counsel because his trial
counsel did not challenge the verdict or move for a mistrial. These assignments of
error are not well taken.
{¶48} A court will presume that a properly licensed attorney is competent,
and the defendant bears the burden to show ineffective assistance of counsel. State
v. Hamblin, 37 Ohio St.3d 153, 155-156, 524 N.E.2d 476 (1988); Hackney, 1st Dist.
Hamilton No. C-150375, 2016-Ohio-4609, at ¶ 36. To sustain a claim for ineffective
assistance of counsel, the defendant must demonstrate that counsel's performance
was deficient and that the deficient performance prejudiced the defense. Strickland
v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Hackney
at ¶ 36.
{¶49} The record shows that at sentencing, Houston’s attorney told the court
that as he and another defense attorney were leaving the courtroom after trial, juror
number four had approached them, sobbing uncontrollably. He stated that the juror
had “indicated that probably wasn’t her true verdict. She felt pressured into
rendering the verdict that she did.” Houston’s attorney said this in arguing for
mitigation at sentencing, but did not ask for a mistrial or other affirmative relief.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶50} The Ohio Supreme Court has stated that a jury verdict becomes final
once the jury has been polled and each juror has assented to the verdict in open
court. State v. Williams, 99 Ohio St.3d 493, 2003-Ohio-4396, 794 N.E.2d 27, ¶ 34.
The function of the poll is “to enable the court and the parties to ascertain with
certainty that a unanimous verdict has in fact been reached and that no juror has
been coerced or induced to agree to a verdict to which he has not fully assented.” Id.
at ¶ 37, quoting Miranda v. United States, 255 F.2d 9, 17 (1st Cir.1958). Once that
function has been accomplished, there is no compelling reason to let individual
jurors change their mind. Williams at ¶ 37.
{¶51} “A verdict becomes immutable by the jury once announced in open
court or when it has been confirmed by a poll * * *.” Williams at ¶ 35, quoting
United States v. Dakins, 872 F.2d 1061, 1065 (D.C.Cir.1989). Thus, once a poll of the
jurors has been completed and all have assented to the verdict, a juror may not
rescind or modify his or her vote. Williams at syllabus. When the jury was polled,
juror number four confirmed her verdict in open court. After that, she could not
rescind or modify her vote.
{¶52} Further, under the aliunde rule, a jury’s verdict may not be impeached
by evidence from a member of the jury unless a foundation is laid by evidence
aliunde. Evidence aliunde is extraneous, independent evidence of alleged
misconduct based on the firsthand knowledge of someone who is not a juror. Evid.R.
606(B); State v. Schiebel, 55 Ohio St.3d 71, 75, 564 N.E.2d 54 (1990); Fehrenbach v.
O’Malley, 1st Dist. Hamilton No. C-100730, 2011-Ohio-5481, ¶ 41. The purpose of
the rule is to protect the finality of verdicts and to ensure that jurors are insulated
from harassment by defeated parties. Schiebel at 75.
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{¶53} The failure to file or prosecute a motion is prejudicial only if the
defendant has a reasonable probability of success on that motion. State v. Brown,
115 Ohio St.3d 55, 2007-Ohio-4837, 873 N.E.2d 858, ¶ 65; State v. Thomas, 1st Dist.
Hamilton No. C-120561, 2013-Ohio-5386, ¶ 53. Juror number four’s verdict was
final and could not be impeached in the absence of outside evidence, which the
record does not show that defense counsel possessed.
{¶54} Under the circumstances, no motion for a mistrial or other relief based
on juror number four’s statement to counsel would have had a reasonable probability
of success. Therefore, counsel’s failure to file such a motion was not prejudicial and
did not constitute ineffective assistance of counsel. We overrule Houston’s fifth and
sixth assignments of error.
Search and Seizure
{¶55} In his seventh assignment of error, Houston contends that the trial
court erred in denying his motion to suppress evidence recovered from a warrantless
search of his vehicle. He argues that there was no proper basis for the stop of his
vehicle and that, even if the stop was proper, the degree of intrusion was not
reasonably related to the reason for the stop. This assignment of error is not well
taken.
{¶56} Appellate review of a motion to suppress presents a mixed question of
law and fact. We must accept the trial court's findings of fact as true if competent,
credible evidence supports them. But we must independently determine whether the
facts satisfy the applicable legal standard. State v. Burnside, 100 Ohio St.3d 152,
2003-Ohio-5372, 797 N.E.2d 71, ¶ 8; State v. Ojile, 1st Dist. Hamilton Nos. C-110677
and C-110678, 2012-Ohio-6015, ¶ 61.
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{¶57} An investigative stop is a seizure within the meaning of the Fourth
Amendment that must be supported by objective justification. State v. Andrews, 57
Ohio St.3d 86, 87, 565 N.E.2d 1271 (1991); State v. Lopez, 166 Ohio App.3d 337,
2006-Ohio-2091, 850 N.E.2d 781, ¶ 13 (1st Dist.). The standard is not probable
cause but reasonable suspicion, which is less demanding. State v. Erkins, 1st Dist.
Hamilton No. C-110675, 2012-Ohio-5372, ¶ 32; Lopez at ¶ 13. The police officers
must point to specific and articulable facts that, taken together with rational
inferences from those facts, reasonably warrant that intrusion. Andrews at 87,
quoting Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The
standard is objective: would the facts available to the officers at the moment of the
seizure have warranted an individual of reasonable caution in the belief that the
action taken was appropriate? Andrews at 87; Lopez at ¶ 13.
{¶58} Specifically, in relation to automobiles, if there is a reasonable and
articulable suspicion that an automobile or its occupants are subject to seizure for a
violation of the law, stopping that automobile and detaining its occupants are
reasonable under the Fourth Amendment. Delaware v. Prouse, 440 U.S. 648, 663,
99 S.Ct. 1391, 59 L.Ed.2d 660 (1979); Erkins at ¶ 32. A court determines the validity
of an investigative stop by looking at the totality of the circumstances. State v.
Freeman, 64 Ohio St.2d 291, 414 N.E.2d 1044 (1980), paragraph one of the syllabus;
Lopez at ¶ 14.
{¶59} At the hearing on the motion to suppress, Detective Langevin testified
that after the shooting, his department sent out a broadcast asking other police
departments to be on the lookout for a gray Hyundai Sonata. The broadcast stated
that three or four black males were in the car, who had been involved in a fight, and
that one of them had major facial injuries because of the fight. The car was last seen
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OHIO FIRST DISTRICT COURT OF APPEALS
heading south on Route 4. About ten minutes later, Langevin received a notification
that a car matching that description had been stopped about five miles from the
lounge.
{¶60} Officer Clark testified that at about 1:30 a.m., he was driving a marked
vehicle heading north on Winton Road when he received the radio broadcast. He
saw a car heading south on Winton Road matching the description of the car in the
broadcast. Clark did a U-turn, got behind the car, and started following it. He
notified the Springdale Police Department and called for backup because he
considered it a high-risk stop. He followed the car for roughly a mile. Once backup
arrived, Clark initiated the traffic stop. He ordered Houston, the driver, out of the
car. Once they took Houston into custody, Clark noticed that he had bruising and
swelling on his face. The other two occupants of the car were ordered out of the car,
and all three were put in separate vehicles.
{¶61} Langevin responded to the scene of the traffic stop. He had two
pictures on his phone of Houston and another individual involved in the fight taken
from the video surveillance cameras at the lounge. He identified Houston and
specifically noted that he had facial injuries consistent with having been in a fight.
Houston was then arrested.
{¶62} In ruling on a motion to suppress, a court may consider the collective
knowledge of police officers involved in a common investigation. State v.
Henderson, 51 Ohio St.3d 54, 57, 554 N.E.2d 104 (1990); Erkins, 1st Dist. Hamilton
No. C-110675, 2012-Ohio-5372, at ¶ 33. Police may rely on information broadcast
over the police radio for reasonable suspicion to make an investigatory stop or for
probable cause to make an arrest. State v. Fultz, 13 Ohio St.2d 79, 234 N.E.2d 593(1968), paragraph two of the syllabus; State v. Bryant, 138 Ohio App.3d 343, 345,
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OHIO FIRST DISTRICT COURT OF APPEALS
741 N.E.2d 225 (1st Dist.2000). Where an officer making an investigatory stop relies
solely on a dispatch, the state must demonstrate that the facts precipitating the
dispatch justified a reasonable suspicion of criminal activity. Maumee v. Weisner,
87 Ohio St.3d 295, 297-298, 720 N.E.2d 507 (1999); Bryant at 345.
{¶63} The broadcast provided a reasonable and articulable suspicion that the
car and its occupants were subject to seizure for a violation of the law. A car and its
occupants matching the description were spotted ten minutes later a few miles from
the shooting. Officer Clark thought that because it involved a shooting, there might
have been a gun in the car, so he was justified in waiting for backup. The seizure of
the car and its occupants was justified under the Fourth Amendment.
{¶64} Once a vehicle has been lawfully detained, police officers may order
the driver to get out of the car without violating Fourth Amendment proscriptions
against unreasonable searches and seizures. Pennsylvania v. Mimms, 434 U.S. 106,
111, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977); State v. Emmons, 1st Dist. Hamilton No. C-
150636, 2016-Ohio-5384, ¶ 14. Further, the temporary seizure of a vehicle’s
occupants in a traffic stop ordinarily remains reasonable during the officer’s
investigation into matters related to the justification for the stop. Arizona v.
Johnson, 555 U.S. 323, 333, 129 S.Ct. 781, 172 L.Ed.2d 694 (2009); Emmons at ¶ 12.
{¶65} Officer Clark was justified in ordering the occupants out of the car and
separating them until Detective Langevin could identify whether they were the
individuals involved in the fight and the shooting at the lounge. See Bryant, 138
Ohio App.3d at 346, 741 N.E.2d 225. Once Detective Langevin identified Houston
and the others, the police officers had probable cause to arrest Houston. See State v.
Heston, 29 Ohio St.2d 152, 155-156, 280 N.E.2d 376 (1972); State v. Morrison, 1st
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OHIO FIRST DISTRICT COURT OF APPEALS
Dist. Hamilton No. C-120406, 2013-Ohio-928, ¶ 11-12; Erkins, 1st Dist. Hamilton
No. C-110675, 2012-Ohio-5372, at ¶ 33.
{¶66} Further, the police were justified in searching the car under the
automobile exception to the warrant requirement because they had probable cause to
believe that they would discover evidence of a crime. See State v. Moore, 90 Ohio
St.3d 47, 51, 734 N.E.2d 804 (2000); In re L.S., 1st Dist. Hamilton No. C-150526,
2016-Ohio-5582, ¶ 15-19; Lopez, 166 Ohio App.3d 337, 2006-Ohio-2091, 850 N.E.2d
781, at ¶ 22. Consequently, we overrule Houston’s seventh assignment of error.
Summary
{¶67} In sum, we hold that: (1) the evidence was sufficient to support
Houston’s conviction and the accompanying specification; (2) the conviction was not
against the manifest weight of the evidence; (2) the trial court did not err in failing to
give Houston’s proposed jury instructions; (4) the trial court did not abuse its
discretion in admitting gruesome photographs; (5) the juror’s verdict could not be
challenged, and Houston was not denied due process due to the lack of a unanimous
jury verdict; (6) Houston was not denied the effective assistance of counsel; and (7)
the trial court did not err in overruling his motion to suppress evidence recovered
from the warrantless search of his vehicle. Therefore, we overrule his seven
assignments of error and affirm his conviction.
Judgment affirmed.
B ERGERON and C ROUSE , JJ., concur.
Please note:
The court has recorded its own entry this date.
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