[Cite as State v. Wynn,

.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY

STATE OF OHIO

Plaintiff-Appellee

v.

ANTONIO L. WYNN

Defendant-Appellant

Appellate Case No. 25097

Trial Court Case No. 2010-CR-3822/1

(Criminal Appeal from (Common Pleas Court) ...........

OPINION

Rendered on the 7th day of February, 2014.

...........

MATHIAS H. HECK, JR., by CARLEY J. INGRAM, Atty. Reg. No. 0020084, Assistant Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, P.O. Box 972, 301 West Third Street, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee

ENRIQUE G. RIVERA-CEREZO, Atty. Reg. No. 0085053, 765 Troy Street, Dayton, Ohio 45404 Attorney for Defendant-Appellant

............. 2

WELBAUM, J.

{¶ 1} Defendant-Appellant, Antonio L. Wynn, appeals from his conviction on a

charge of complicity to commit felony murder in violation of R.C. 2923.03(A)(2) and R.C.

2903.02(B), with a firearm specification. Wynn contends that he was denied due process and

his right of confrontation when the trial court refused to permit him to cross-examine and

impeach his co-defendant. Wynn also maintains that the trial court erred in admitting a letter

that he purportedly wrote to his co-defendant.

{¶ 2} In addition, Wynn contends that his trial attorney rendered ineffective assistance

of counsel, and that the trial court abused its discretion when it allowed a juror to serve after the

juror had inappropriate contact with a police detective. Finally, Wynn argues that the trial court

erred in refusing to instruct the jury on a lesser-included offense of involuntary manslaughter.

{¶ 3} We conclude that Wynn was not denied due process or a right of confrontation

either by the trial court’s application of Evid.R. 607(A), or by the court’s failure to call Wynn’s

co-defendant as a court’s witness pursuant to Evid.R. 614(A). However, the trial court did

incorrectly conclude that evidence pertaining to the lack of a plan to harm the victim was

irrelevant. Wynn was not prejudiced by the error, because the court did, in fact, allow Wynn to

present evidence of the absence of a plan.

{¶ 4} Additionally, we conclude that the trial court did not err in its rulings about the

letter that Wynn allegedly wrote. The letter was properly authenticated by its content and the

circumstances under which it was delivered, which demonstrated a sufficient foundation for

attributing authorship to Wynn. The State also did not fail to appropriately disclose the letter to

Wynn. 3

{¶ 5} We further conclude that trial counsel did not render ineffective assistance of

counsel by allegedly failing to discuss the letter with Wynn or in failing to request a continuance.

Wynn has not demonstrated that the result of the trial would have been any different had his

counsel discussed the letter with him, and nothing in the record indicates that Wynn had

information about the letter that would have changed counsel’s defense strategy. Moreover,

discussing the letter with Wynn would not have changed the fact that a substantial amount of

evidence, both video and testimonial, supported the conviction. Furthermore, requesting

continuances is a matter of trial tactics and strategy, and we will not second-guess trial counsel’s

decision in this regard.

{¶ 6} We also conclude that the trial court did not err in allowing a juror to serve at

trial after the juror had contact with a police detective. The trial court questioned the juror in

chambers with counsel present, and both the State and defense indicated that they were satisfied

with the juror’s explanation that the contact had nothing to do with the case. The trial court did

not abuse its discretion in choosing not to investigate the matter further.

{¶ 7} Finally, the trial court did not err in refusing to instruct the jury on the

lesser-included offense of involuntary manslaughter. The evidence would not permit the jury to

reasonably reject the greater offense of complicity to commit felony murder. Furthermore,

Wynn’s actions in assaulting the victim had no connection with the felonious assault with the

gun, and did not proximately result in the victim’s death. A jury instruction on involuntary

manslaughter would not be an appropriate instruction, because the victim died as a proximate

result of being shot, rather than from Wynn’s assault.

{¶ 8} Accordingly, the judgment of the trial court will be affirmed. 4

I. Facts and Course of Proceedings

{¶ 9} The murder charge in this case arose from Wynn’s involvement in the

December 3, 2010 death of Deonta Beans. Beans was shot and killed by Wynn’s friend, George

Turner, while Beans was standing inside a convenience store located in Dayton, Ohio. Wynn

was with Turner during the shooting, and punched the victim twice before Turner fired his gun.

After Wynn pled not guilty to the complicity charge, his case was tried before a jury.

{¶ 10} At trial, the State called two eyewitnesses to testify regarding the shooting – the

store cashier and Beans’ 12-year-old cousin, D.T. The State also presented video footage and

stills of the shooting that were captured by the convenience store’s security cameras. The

testimony and video evidence established that Beans and D.T. were standing near the entrance of

the convenience store when Turner and Wynn walked in together. As the two men walked in,

Wynn punched Beans with his right hand, which was covered by a black glove; his left hand was

gloveless. Turner then pulled out a gun and aimed it at Beans’ head. When Beans backed up

and tried to get the gun from Turner’s left hand, Turner used his right hand to hold Beans’ arm

back. As Turner struggled with Beans, Wynn jumped in and punched Beans a second time.

Immediately after the second punch, Turner fired a shot at Beans. Turner and Wynn then both

ran from the store.

{¶ 11} Shortly after the shooting, the police were able to identify Turner and Wynn as

suspects. On the evening of the shooting, the police found Wynn at his home, which was

located just a few blocks from the store. Wynn was taken into custody for questioning and was

later arrested. He gave the police an address where Turner could be found, but Turner was not 5

at that location. Turner was not apprehended until January 21, 2011.

{¶ 12} On the day Turner was apprehended, he was interviewed by the police, and gave

a statement. Turner stated that Beans and a few other men had robbed him at gunpoint a week

before the shooting, and that he was angry and frustrated by what people were saying about the

robbery. He also claimed that he was concerned that Beans might try to rob him again. As a

result of the robbery, Turner began to carry a gun in his vehicle at all times. Turner further

stated that when he saw Beans in the convenience store on December, 3, 2010, he did not intend

to shoot Beans, but merely went in the store to talk to Beans and get him to stop saying what he

was saying on the streets.1 This version of events supported Wynn’s defense theory, which was

that Wynn had no knowledge of Turner’s gun, and that Turner shot Beans on a whim, which

Wynn could not have either anticipated or controlled.

{¶ 13} Turner was interviewed by the police and prosecutors again on October 28,

2011, November 9, 2011, and February 7, 2012. Turner’s statements during these interviews

were much less favorable to Wynn. Turner claimed that he had confided in Wynn after Beans

had robbed him, and that they had talked about seeking revenge. In fact, when Turner told

Wynn that he had been robbed, Wynn said, “it's on when I see [Beans].” Transcript of

Proceedings, Vol. IV, p. 696, ln. 4-7.

{¶ 14} In this version of the story, Turner said that he and Wynn drove by the

convenience store and saw Beans standing inside. Turner then turned the car around and drove

to Wynn’s house to get the gun. When they arrived at Wynn’s house, Wynn went into the house

1 According to the video interview, which we have reviewed, Beans was bragging to others about the robbery and was telling people that he was going to do other “stuff” to Turner. 6

and Turner stayed in the car. When Wynn came back out, he had a .40 caliber Glock

semi-automatic gun. Wynn got back in the car, and put the gun in Turner’s lap. Thereafter,

they returned to the convenience store, intending to harm Beans.

{¶ 15} Turner also claimed that before they went into the store, Wynn grabbed two

gloves from the back seat of the car and gave Turner the left glove. Turner was left-handed, and

wore the glove to prevent gun residue from getting on his hand. According to Turner, Wynn

put on the right glove because he was right-handed.

{¶ 16} After giving the police this information, Turner entered into a plea agreement

with the State. Approximately one week before Wynn’s trial, Turner pled guilty to tampering

with evidence, felony murder with the underlying offense of felonious assault, and a firearm

specification. As part of the plea agreement, Turner agreed to testify truthfully in Wynn’s trial.

In exchange, the State agreed to recommend that the potential sentence for tampering with

evidence would run concurrently with the other charges. This would result in an 18-year-to-life

prison term rather than a longer potential term of up to 21 years to life.

{¶ 17} At Wynn’s trial, the State did not call George Turner as a witness during its case

in chief. If Turner were called, the defense expected Turner to testify in line with his later

statements, which indicated that Wynn had played a greater role in the shooting. Accordingly,

Wynn wanted to impeach Turner’s testimony with his first statement. Because the State did not

call Turner to testify, Wynn’s counsel asked the court to call Turner as a witness under Evid.R.

614(A), so that the defense could question him on cross-examination and eliminate the issue of

the defense’s inability to impeach Turner under Evid.R. 607(A). The trial court overruled the

request, stating that it had limited knowledge of the evidence at that point, and lack of time to 7

digest our prior decision in State v. Arnold,

,

,

(2d Dist.), which had just been given to the court. However, the court also indicated that its

opinion could change during Turner’s testimony.

{¶ 18} In response, Wynn’s counsel then asked the court to let the defense question

Turner as if on cross-examination under Evid.R. 611(C), on grounds that Turner had entered into

an agreement with the State to testify against Wynn, and was a witness identified with an adverse

party. The trial court deferred ruling on the request, stating that it was not ripe because Turner

had not yet testified. The court indicated that it would amend its ruling if Turner’s testimony

warranted it.

{¶ 19} Ultimately, the defense called Turner as a witness, and as expected, he testified

in line with his later statements. During direct examination, Turner testified that he intended to

harm Beans. Turner also said that he did not recall telling the police that he did not intend to

shoot Beans. At that point, the trial court allowed the defense to refresh Turner’s recollection

with his first statement. After viewing his January 21, 2011 video interview with the police,

Turner admitted telling the police that it was not his intention to shoot Beans. He admitted that

he told the police, instead, that his intention was to go in and talk to Beans and get him to stop

the comments he was making on the streets.

{¶ 20} During direct examination, Turner also denied keeping a gun in his car after

being robbed by Beans, and said he did not recall telling the police otherwise. Once again, the

trial court permitted the defense to refresh Turner’s recollection with the video interview. After

his recollection was refreshed, Turner admitted telling the police that he started carrying his gun

in his vehicle at all times after being robbed by Beans. The trial court did allow the defense to 8

ask some leading questions and to refresh Turner’s recollection, but it did not amend its prior

rulings. Therefore, Turner was never called as the court’s own witness, nor was he

cross-examined as a witness identified with an adverse party.

{¶ 21} During the State’s cross-examination, Turner continued to testify in line with

his later statements. Turner testified that he and Wynn had discussed seeking revenge on Beans,

and described how he and Wynn had obtained the gun from Wynn’s house on the day of the

shooting. He also mentioned the left glove that Wynn gave him to wear before going into the

store, and indicated that Wynn wore the right glove. Turner further testified that Wynn was

close enough to hear Turner rack the gun and chamber a bullet before they went inside the store.

{¶ 22} In addition, Turner testified that he had received a letter from Wynn while they

were both being held in the Montgomery County Jail. The letter is unsigned, but Turner stated

that he could tell the letter was from Wynn based on the contents. The letter contained the

greeting, “What’s up brother,” which is how Turner claimed that he and Wynn had addressed

each other since they were eight years old. Transcript of Proceedings. Vol. IV, p. 729, ln. 3-11;

733, ln. 4-12. The letter also referred to “Nicky,” which was the name of one of Wynn’s

girlfriends. Id. at 729, ln. 14-20.

{¶ 23} The letter also contained information about the events surrounding the criminal

case. Specifically, the author claimed that he purposely led the police to a wrong address when

they were looking for Turner. In addition, there was an issue in the letter about Turner not

“snitching” on Wynn regarding the charges in the case. The author offered Turner money in

exchange for not providing any information or for not telling the authorities what happened in the

case. According to Turner, the letter was hand-delivered to him by Wynn’s cell mate. Turner 9

gave the letter to his attorney, and his attorney then provided it to the State.

{¶ 24} Wynn objected to admission of the letter into evidence on grounds that it was

not properly authenticated and was not timely disclosed. The State received the letter on

February 2, 2012, and disclosed it to Wynn’s counsel the same day. The disclosure was made

three days before trial and six days before the letter was offered as evidence. The trial court held

that the letter was properly authenticated, but still decided to exclude it as a physical exhibit. As

a result, the jury only heard Turner’s testimony about the letter.

{¶ 25} Finally, at the end of the trial, Wynn asked the court to instruct the jury on the

lesser-included offense of involuntary manslaughter, based on the predicate of a misdemeanor

assault. The trial court overruled the request on grounds that Wynn had been charged as an aider

and abettor, not as a principal offender in a felonious assault.

{¶ 26} The jury found Wynn guilty as charged, and the trial court sentenced him to 18

years to life in prison. Wynn appeals from his conviction and sentence.

II. First Assignment of Error

{¶ 27} Wynn’s First Assignment of Error is as follows:

The Trial Court Erred to the Prejudice of the Appellant When it Did Not

Allow Defendant’s Attorney to Cross Examine and Impeach Mr. Turner in

Violation of the Defendant’s Sixth Amendment Right of Confrontation of

Witnesses under the Federal Constitution and Article I, Section 10 of the Ohio

Constitution and the Defendant’s Due Process Rights Guaranteed under the Fifth

and Fourteenth Amendment of the United States Constitution and Article I, 10

Section 16 of the Ohio Constitution.

{¶ 28} Under this assignment of error, Wynn argues that the trial court erred in: (1)

preventing him from cross-examining and impeaching George Turner; and (2) excluding relevant

evidence regarding Wynn's mental state. Wynn claims that the trial court's errors prevented him

from presenting a complete defense, and thus denied him his constitutional rights to due process

and confrontation.

A. Did the Trial Court Err in Preventing Appellant From

Cross-examining and Impeaching George Turner?

{¶ 29} Wynn contends that the trial court’s application of Evid.R. 607(A) violated his

rights to due process and confrontation, because he was prevented from cross-examining and

impeaching George Turner’s damaging testimony. Wynn also contends that the trial court

abused its discretion by failing to call Turner as the court’s own witness under Evid.R. 614(A).

{¶ 30} As a preliminary matter, we note that the right to cross-examine an adverse

witness, which includes the right to impeach, is essential to a fair trial and due process.

Chambers v. Mississippi,

,

,

(1973); State v. Green,

,

(1993). The right of cross-examination is also

“implicit in the constitutional right of confrontation, and helps assure the ‘accuracy of the

truth-determining process.’ ” Chambers at 294, quoting Dutton v. Evans,

,

,

(1970). (Other citation omitted.) Nonetheless, “the right to confront

and to cross-examine is not absolute and may, in appropriate cases, bow to accommodate other

legitimate interests in the criminal trial process.” (Citation omitted.) Id. at 295. “But its 11

denial or significant diminution calls into question the ultimate ‘integrity of the fact-finding

process’ and requires that the competing interest be closely examined.” Id., quoting Berger v.

California,

,

, L.Ed.2d 508 (1969).

1. Evid.R. 607(A)

{¶ 31} Evid.R. 607(A) prevents a party from impeaching its own witness unless the

party is surprised by the testimony and the testimony is damaging. In this regard, the rule states

that:

The credibility of a witness may be attacked by any party except that the

credibility of a witness may be attacked by the party calling the witness by means

of a prior inconsistent statement only upon a showing of surprise and affirmative

damage. This exception does not apply to statements admitted pursuant to Evid.

R. 801(D)(1)(a), 801(D)(2), or 803. Evid.R. 607(A).

{¶ 32} In the case before us, Wynn wanted to cross-examine Turner so that he could

impeach Turner with the first statement that he gave the police. Evid.R. 607(A) precluded this

tactic, because Wynn called Turner as a witness, and Turner’s testimony was not a surprise.

Wynn claims that despite the application of Evid.R. 607(A), the trial court should have allowed

him to cross-examine and impeach Turner, based on the United State Supreme Court’s decision

in Chambers.

{¶ 33} As an initial matter, we note that:

“Chambers was an exercise in highly case-specific error correction.”

Montana v. Egelhoff (1996),

,

,

12

(plurality opinion). The case “establish[ed] no new principles of constitutional

law” but “h[e]ld quite simply that under the facts and circumstances of this case

the rulings of the trial court deprived Chambers of a fair trial.” (Emphasis

added.) Egelhoff, quoting Chambers, 410 U.S. at 302–303,

,

. State v. Yarbrough,

,

,

.

{¶ 34} According to Wynn, the facts and circumstances in the present case are

analogous to Chambers. The facts of Chambers are as follows.

{¶ 35} In 1970, the defendant, Leon Chambers, was tried and convicted of murdering a

police officer in Mississippi. Chambers at 285. At trial, Chambers wanted to cross-examine an

individual named Gable McDonald, who had previously confessed to murdering the same officer,

but had repudiated his confession. Id. at 287-289. Because the State did not call McDonald as

a witness, Mississippi’s “voucher rule,” a rule which prevents a party from impeaching its own

witness, prevented Chambers from cross-examining McDonald. Id. at 290-291, 295. The trial

court also prevented Chambers from introducing the testimony of three witnesses who claimed

that McDonald had told them he was the one who killed the officer. Id. at 292-293. This

testimony was excluded on hearsay grounds. Id. Accordingly, Chambers was prevented from

presenting a large portion of his defense due to the application of Mississippi’s rules of evidence.

{¶ 36} The United States Supreme Court noted that Mississippi’s voucher rule had

been condemned as “archaic, irrational, and potentially destructive of the truth-gathering

process,” and had also been “rejected altogether by the newly proposed Federal Rules of 13

Evidence, Rule 607 * * *.” Id. at 297, fn. 8 and fn. 9. Therefore, after determining that

McDonald’s testimony was adverse and damaging to Chambers, the Court concluded that the

voucher rule, “plainly interfered with Chambers’ right to defend against the State’s charges.” Id.

at 298. However, the Court did not determine whether this error alone warranted reversal. This

is because Chambers had based his due process argument on the impact of the error in

conjunction with the exclusion of the testimony regarding McDonald’s incriminating statements.

Id. at 298. As a result, the Court continued its analysis in order to determine whether the

exclusion of the testimony as hearsay violated the defendant’s due process rights.

{¶ 37} In its analysis, the Court considered that the witnesses’ hearsay statements

regarding McDonald’s confessions “were originally made and subsequently offered at trial under

circumstances that provided considerable assurance of their reliability.” Chambers,

,

,

. Specifically, the court pointed out that: (1) each confession

was spontaneously made to a close acquaintance shortly after the murder was committed; (2)

each confession was corroborated by some other evidence in the case; (3) each confession was

self-incriminatory and was against McDonald's interest; and (4) the declarant (McDonald) was

available for cross-examination.

. As a result, the Court determined that:

The testimony rejected by the trial court * * * bore persuasive assurances

of trustworthiness and thus was well within the basic rationale of the exception

for declarations against interest. That testimony also was critical to Chambers’

defense. In these circumstances, where constitutional rights directly affecting the

ascertainment of guilt are implicated, the hearsay rule may not be applied

mechanistically to defeat the ends of justice.

. 14

{¶ 38} The Court ultimately concluded “that the exclusion of this critical evidence,

coupled with the State’s refusal to permit Chambers to cross-examine McDonald, denied him a

trial in accord with traditional and fundamental standards of due process.”

.

{¶ 39} The present case is distinguishable from Chambers for various reasons. First,

Evid.R. 607(A) is different from the voucher rule in Chambers, which had been rejected by the

Federal Rules of Evidence and was condemned as archaic and irrational. Unlike the voucher

rule, Ohio’s Evid.R. 607(A) lets parties impeach their own witnesses by means of a prior

inconsistent statement, upon a showing of surprise and affirmative damage. Furthermore, the

Supreme Court of Ohio “has not detected a constitutional infirmity in Evid.R. 607, as more than

thirty years have passed since its enactment, and the court has not, to date, directly addressed the

issue.” State v. Arnold, 2d Dist. Montgomery No. 24687,

. We also

observed in Arnold that the approach used in Ohio’s Evid.R. 607 is consistent with subsequent

authority of the United States Supreme Court, which stresses that:

“A defendant’s right to present relevant evidence is not unlimited, but

rather is subject to reasonable restrictions. A defendant’s interest in presenting

such evidence may thus ‘ “bow to accommodate other legitimate interests in the

criminal trial process.” ’ Rock [v. Arkansas,

,

, 97

L.Ed.3d 37(1987) ], * * * (quoting Chambers, [

,

,

] ). As a result, state and federal rulemakers have broad latitude

under the Constitution to establish rules excluding evidence from criminal trials.

Such rules do not abridge an accused’s right to present a defense so long as they

are not ‘arbitrary’ or ‘disproportionate to the purposes that they are designed to 15

serve.’

,

---- *. Moreover, we have found

the exclusion of evidence to be unconstitutionally arbitrary or disproportionate

only where it has infringed upon a weighty interest of the accused.” (Citations

and footnote omitted.) U.S. v. Scheffer,

,

,

(1998). Arnold at ¶ 123.

{¶ 40} In the case before us, the trial court’s application of Evid.R. 607(A) prevented

Wynn from cross-examining Turner, who ultimately provided damaging testimony. However,

the record demonstrates that Wynn was not completely foreclosed from confronting Turner.

Unlike the defendant in Chambers, the trial court permitted Wynn to refresh Turner's recollection

during direct examination, through the video interview that the police recorded. After having

his recollection refreshed, Turner testified about key portions of the statement, including: (1) that

it was not his intention to shoot; instead, his intention was to go into the store, talk to Beans, and

get Beans to stop saying things in the streets; (2) that he started carrying his gun in his vehicle at

all times after he was robbed by Beans; (3) that he did not mean to shoot Beans; and (4) that he

did not go into the store with the intent to shoot Beans; he was just going to “smack” Beans.

{¶ 41} Turner also admitted that he had previously told the police a story that differed

from his testimony, and was consistent with Wynn’s defense. As a result, Wynn was essentially

given an opportunity to impeach Turner by using Turner’s prior inconsistent statement.

{¶ 42} Furthermore, even if we concluded that the application of Evid.R. 607(A)

infringed Wynn’s right to cross-examine an adversarial witness, Chambers does not hold that this

alone would require reversal. Instead, Chambers based its reversal on the fact that exculpatory

evidence was also excluded on hearsay grounds, when the evidence had “persuasive assurances 16

of trustworthiness.” Chambers,

,

,

.

{¶ 43} Chambers and Evid.R. 804(B)(3), which provides a hearsay exception for

statements against interest, “have the same indicia of trustworthiness.” Arnold, 2d Dist.

Montgomery No. 24687,

, citing State v. Swann,

,

,

. In fact, “ ‘[t]he against-interest exception was drafted

with Chambers in mind and requires “corroborating circumstances” for statements offered to

exonerate defendants, the justification being that they can be fabricated by friendly defense

witnesses (and attributed to unavailable speakers) and are hard to rebut even if false.’ ” Swann

at ¶ 28, quoting Mueller & Kirkpatrick, Evidence, Section 8.82, at 1118 (1995).

{¶ 44} In this regard, Evid.R. 804(B)(3) allows admission of statements against

interest, and indicates that if a declarant is “unavailable” as a witness, the following is not

excluded by the hearsay rule:

A statement that was at the time of its making so far contrary to the

declarant's pecuniary or proprietary interest, or so far tended to subject the

declarant to civil or criminal liability, or to render invalid a claim by the declarant

against another, that a reasonable person in the declarant's position would not

have made the statement unless the declarant believed it to be true. A statement

tending to expose the declarant to criminal liability, whether offered to exculpate

or inculpate the accused, is not admissible unless corroborating circumstances

clearly indicate the truthworthiness of the statement. (Footnote omitted.)

{¶ 45} Evid.R. 804(A) defines “unavailability” to include various situations, such as

ones in which a declarant “testifies to a lack of memory of the subject matter of the declarant's 17

statement.” Evid.R. 804(A)(3). Since Turner indicated at numerous points during his

testimony that he could not recall having made certain statements to the police, the evidence

could have arguably have been admitted as an exception to the hearsay rule, if certain indicia of

reliability were present.

{¶ 46} Unlike the testimony in Chambers, however, Turner’s video interview does not

possess persuasive assurances of trustworthiness. As an initial matter, we note that while certain

parts of Turner’s video interview, such as his admission of having shot Beans, were against

Turner’s penal interest, the interview viewed as a whole indicates that Turner was attempting to

establish a case of self-defense. Such a motive would render the statement less trustworthy.

{¶ 47} In this regard, Turner told the police that he took a weapon into the store

because he knew that Beans carried a weapon, and Beans had previously robbed him by using a

gun. Turner also told the police that he had no intention of harming Beans, but just wanted to

talk to him. In addition, Turner stated that he and Wynn did not plan the murder, and that he did

not know why Wynn hit Beans. In fact, Turner suggested that the situation probably would not

have “gone down” that way if Wynn had not hit Beans. Turner further stated that when he came

into the store, Beans said something, and he got scared. According to Turner, he thought Beans

had a weapon, and fired. Turner classified the whole situation as a “mistake.”

{¶ 48} Moreover, although Turner was technically available for cross-examination, his

statement was not spontaneously made to a close acquaintance shortly after the shooting. The

statement was made to the police, again, in an apparent effort to establish self-defense, and it was

made about six weeks after the shooting.

{¶ 49} Turner’s statement was also not corroborated by other evidence, including the 18

video footage and stills. The video depicts Wynn wearing one glove on his right hand, which

corroborates Turner’s claim that Wynn had grabbed a glove for each of them to put on before

they went into the convenience store. Further, the video does not show any hesitation or

surprise from Wynn when Turner pulled out his gun. Instead, Wynn continued to act in concert

with Turner, which corroborates Turner’s claim that Wynn was aware of the gun before going

into the store. Most importantly, however, the video shows that Wynn threw his second punch

at Beans when Turner began to struggle to keep Beans away from the gun. The fact that Wynn

jumped in and punched Beans at that moment corroborates Turner’s testimony that Wynn was

there to help him harm and seek revenge against Beans.

{¶ 50} For the foregoing reasons, the facts in this case are not analogous to Chambers.

Accordingly, Wynn was not denied either due process or a right of confrontation by the trial

court’s application of Evid.R. 607(A).

2. Evid.R. 614(A)

{¶ 51} Wynn also contends that the trial court abused its discretion by refusing to call

Turner as the court’s witness under Evid.R. 614(A). In this regard, the rule states that: “The

court may, on its own motion or at the suggestion of a party, call witnesses, and all parties are

entitled to cross-examine witnesses thus called.” Evid.R. 614(A). In Arnold,

,

,

(2d Dist.), we made the following observations

regarding a court’s ability to call witnesses under Evid.R. 614(A):

“A trial court possesses the authority in the exercise of sound discretion to

call individuals as witnesses of the court.” State v. Adams (1980), 62 Ohio St.2d 19

151,

,

, paragraph four of the syllabus. “It is

well-established that a trial court does not abuse its discretion in calling a witness

as a court's witness when the witness's testimony would be beneficial to

ascertaining the truth of the matter and there is some indication that the witness's

trial testimony will contradict a prior statement made to police.” State v. Schultz,

Lake App. No. 2003–L–156,

,

, ¶ 29; State v.

Lather,

,

,

. When the

court calls a witness on its own motion, a party need not satisfy the surprise and

affirmative-damage requirements of Evid.R. 607(A) in order to impeach the

witness. State v. Apanovitch (1987),

,

.

By authorizing the court to call a witness who may then be

cross-examined by any party, Evid.R. 614 creates an exception to the limitation

imposed by Evid.R. 607(A), barring a party's impeachment of its own witness

with evidence of a prior inconsistent statement. However, “where impeachment

is a mere subterfuge to get evidence before the jury which is not otherwise

admissible, impeachment of a party's own witness has been held improper.” 53

A.L.R.Fed. at 500–501. The fact that evidence offered for impeachment would

otherwise be inadmissible does not necessarily portray a subterfuge, however.

When the reason a party relies on for requesting the court to call a witness as a

court's witness, rather than calling him as a witness itself, is to avoid being unable

to test the credibility of the testimony the witness is expected to give by use of his

prior out-of-court statements, the request is not improper. State v. Adams, 62 20

Ohio St.2d 151,

,

; State v. Dacons (1982),

, 5 OBR 227,

.

Courts have held that a court witness's prior inconsistent statements may

be used only to diminish the credibility of the witness and otherwise impeach his

testimony and may not be used as substantive evidence. McCloud v. State

(Fla.App. 1978),

; People v. Bailey (1975),

,

. Further, the witness may be impeached by prior inconsistent

statements only if his testimony was damaging to the examiner's case. People v.

Triplett (1980),

,

,

.

These limitations on the application of a rule like Evid.R. 614 reflect a

concern that its cross-examination provision not swallow up the fundamental

requirement imposed by Evid.R. 402 that in order to be admissible, evidence of a

court's witness must be relevant; that is, the evidence must have “any tendency to

make the existence of any fact that is of consequence to the determination of the

action more probable or less probable than it would be without the evidence.”

Evid.R. 401. Arnold,

,

,

.

{¶ 52} In the case before us, Wynn wanted Turner to testify as a court's witness so that

Wynn could cross-examine Turner and admit statements in Turner's video interview through

impeachment. Having the ability to test a witness's credibility with a prior inconsistent

statement is not an improper reason to request the court to call a witness under Evid.R. 614(A).

In fact, Wynn's trial counsel stressed that it was necessary to impeach Turner in order “to get to 21

the truth in the case,” because counsel maintained that Tuner’s video interview on January 21,

2011, was “consistent with the truth.” Transcript of Trial Proceedings, Vol. IV, p. 642, ln.

16-17; p. 643, ln. 8.

{¶ 53} As was noted, the trial court indicated that it might reconsider its decision not to

call Turner as a court’s witness. Wynn’s counsel continued to maintain throughout the

examination that Turner should be called by the court.

at pp. 742 and 745. In this regard,

the following exchange occurred:

THE COURT: Well, the whole thing is, does it matter with regard to how many

stories he’s told? The question is, is whether they were under oath. I think

that’s part of the impeachment. And you know, he doesn’t have to tell the truth

any other place. They can – he can tell – where is the law that requires you to tell

the truth to the police?

***

Or to tell the truth in a story?

MR. CICERO: And that would be the jury’s function to determine when

the truth was told. Whether the truth was more recent to the event, or whether

the truth came out later. That is the jury’s function. And I’m trying to give it to

the jury. Id. at p. 745, ln. 13-24.

{¶ 54} We noted earlier that trial courts have discretion to call witnesses as court’s

witnesses under Evid.R. 614, where doing so could “be beneficial to the jury in performing its

fact-finding responsibilities.” Adams,

,

. In Adams, the

defendant argued that when a prosecution witness was called as a court’s witness, the prosecution 22

“gained two significant procedural advantages: (1) it gained the right to impeach [the witness],

and (2) it avoided the application during its examination of [the witness] of the rule prohibiting it

from asking leading questions of its own witness.” Id. at 157.

{¶ 55} After examining the record, the Supreme Court of Ohio concluded in Adams

that the trial court did not abuse its discretion by calling the state’s witness as a court’s witness.

In this regard, the court stressed that:

“(I)n modern criminal trials, defendants (as well as prosecutors) are rarely

able to select their witnesses: they must take them where they find them.”

Chambers v. Mississippi (1973),

,

,

. The court, at the time it was faced with the prosecution's request,

had in addition to the prosecutor's representation of prior conflicting statements,

information that the appellee had lived as a partner in the potential witness’

household (indicating a possible predisposition towards the appellee), but also that

the witness was a codefendant awaiting trial and willing to testify at her former

household partner's trial for the same crime of which she was accused (suggesting

a possible motivation to testify against the appellee).

.

{¶ 56} “ ‘Abuse of discretion’ has been described as including a ruling that lacks a

‘sound reasoning process.’ ” State v. Morris,

,

,

, ¶ 14, quoting AAAA Ents., Inc. v. River Place Community Urban Redevelopment Corp.,

,

(1990). “A review under the abuse-of-discretion standard

is a deferential review. It is not sufficient for an appellate court to determine that a trial court

abused its discretion simply because the appellate court might not have reached the same 23

conclusion or is, itself, less persuaded by the trial court's reasoning process than by the

countervailing arguments.”

{¶ 57} In our opinion, the issue in the case before us is a close one. We would not

necessarily have reached the same conclusion as the trial court did. In particular, we see no

harm that would have occurred if both sides were permitted to cross-examine and potentially

impeach Turner. Nonetheless, even if the trial court had abused its discretion in failing to call

Turner as a court’s witness, any error would have been harmless, because the defense was, in

fact, permitted to impeach Turner with his prior inconsistent statements, and the defense was also

able to present sufficient facts from Turner’s video interview to support its theory of the case.

{¶ 58} Accordingly, there is no basis for reversing the decision not to call Turner as a

court’s witness under Evid.R. 614(A).

B. Did the Trial Court Exclude Relevant Evidence

Regarding Wynn's Mental State?

{¶ 59} In this argument, Wynn claims that the trial court ruled on various evidentiary

issues in a manner that disregarded the mental state needed for a conviction of complicity to

commit felony murder. Specifically, Wynn claims that the trial court erred in refusing to admit

evidence of Wynn’s and Turner’s lack of a plan before they entered the convenience store.

According to Wynn, this ruling eliminated the necessary mens rea for complicity. Wynn also

argues that the trial court erred in concluding that evidence about Wynn’s lack of knowledge of

Turner's gun was irrelevant. Wynn argues that this evidence is relevant, and that its exclusion

violated his right to mount a defense against the State’s accusations. 24

{¶ 60} A defendant’s right to “ ‘a meaningful opportunity to present a complete

defense.’ ” * * * “ ‘would be an empty one if the State were permitted to exclude competent,

reliable evidence * * * when such evidence is central to the defendant's claim of innocence.’ ”

(Citations omitted.) Swann,

,

,

,

quoting Crane v. Kentucky,

,

,

(1986).

However, “this constitutional right is not absolute and does not require the admission of all

evidence favorable to the defendant.” (Emphasis sic.) (Citation omitted.) Id. at ¶ 13. “ ‘In

the exercise of this right, the accused, as is required of the State, must comply with established

rules of procedure and evidence designed to assure both fairness and reliability in the

ascertainment of guilt and innocence.’ ” Id. at ¶ 14, quoting Chambers,

,

,

.

{¶ 61} The Ohio Rules of Evidence provide that relevant evidence is admissible,

whereas irrelevant evidence is not. Evid.R. 402. Relevant evidence is “evidence having any

tendency to make the existence of any fact that is of consequence to the determination of the

action more probable or less probable than it would be without the evidence.” Evid.R. 401.

“The issue of whether testimony is relevant or irrelevant, confusing or misleading, is best decided

by the trial judge who is in a significantly better position to analyze the impact of the evidence on

the jury.” City of Columbus v. Taylor,

,

(1988).

{¶ 62} “ ‘[T]he trial court has broad discretion in the admission and exclusion of

evidence’ ” and an appellate court will not reverse the judgment of the trial court “ ‘unless it

clearly abused its discretion and the defendant has been materially prejudiced thereby * * *.’ ”

State v. Withers,

,

(1975), quoting State v. Hymore, 9 Ohio 25

St.2d 122, 128,

(1967). “There is no material prejudice if the error is harmless,

in that the remaining evidence standing alone constitutes proof beyond a reasonable doubt of

defendant's guilt.” State v. Welburn, 9th Dist. Lorain No. 93CA005551,

, *3

(Nov. 17, 1993), citing State v. Williams,

,

(1983), paragraph

six of the syllabus.

{¶ 63} In order to decide whether the trial court abused its discretion in this case, we

look to the elements of Wynn's offense. Wynn was charged with complicity to commit murder

in violation of R.C. 2903.02(B), which provides that “No person shall cause the death of another

as a proximate result of the offender's committing or attempting to commit an offense of violence

that is a felony of the first or second degree * * *.” The applicable underlying offense of

violence in this case is a felonious assault, committed in violation of R.C. 2903.11(A)(2), which

provides that:

(A) No person shall knowingly do either of the following:

***

(2) Cause or attempt to cause physical harm to another or to another's

unborn by means of a deadly weapon or dangerous ordnance.

{¶ 64} Thus, the culpability required for the commission of felony murder with a

predicate offense of felonious assault is “knowingly.” Wynn was not charged as the principal

offender, but was charged with having aided and abetted the principal offender. In this regard,

R.C. 2923.03(A)(2) states that “No person acting with the kind of culpability required for the

commission of an offense shall do any of the following: * * * (2) Aid or abet another in

committing the offense * * *.” 26

{¶ 65} The State, therefore, was required to prove that Wynn knowingly aided or

abetted George Turner in committing a felonious assault that proximately caused Beans’ death.

“A person acts knowingly, regardless of his purpose, when he is aware that his conduct will

probably cause a certain result or will probably be of a certain nature. A person has knowledge

of circumstances when he is aware that such circumstances probably exist.” R.C. 2901.22(B).

{¶ 66} “To support a conviction for complicity by aiding and abetting pursuant to R.C.

2923.03(A)(2), 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 the criminal intent of the principal. Such intent may be inferred from the

circumstances surrounding the crime.” State v. Johnson,

,

(2001), syllabus. “[T]he mere presence of an accused at the scene of a crime is not sufficient to

prove, in and of itself, that the accused was an aider and abettor.”

, citing State v.

Widner,

,

(1982). However, “ ‘[p]articipation in

criminal intent may be inferred from presence, companionship and conduct before and after the

offense is committed.’ ”

, quoting State v. Pruett,

,

(4th Dist. 1971).

{¶ 67} In the case before us, relevant evidence would be evidence tending to make it

more or less probable that Wynn knowingly supported, assisted, encouraged, cooperated with,

advised, or incited Turner in the commission of felony murder. The State did not have to

demonstrate that Wynn and Turner had a plan to shoot Beans in order to convict Wynn of

complicity, but evidence of the absence of a plan would tend to make it less probable that Wynn

knowingly aided and abetted Turner. Accordingly, the trial court erred in concluding that 27

evidence regarding the lack of a plan was irrelevant.

{¶ 68} However, the court did, in fact, permit evidence of the absence of a plan.

Specifically, Wynn was allowed to solicit testimony from Turner indicating that Turner did not

intend to harm or to smack Beans when he entered the store. Turner also admitted to previously

telling the police that he only intended to talk to Beans. Because these facts supported Wynn’s

defense, Wynn was not prejudiced by the trial court’s ruling.

{¶ 69} In addition, evidence purporting to show that Wynn did not know that Turner

had a gun could also be relevant to whether Wynn knowingly aided and abetted Turner.

However, our review of the video interview, which was proffered as Defense Exhibit A, indicates

that Turner never told the police that Wynn was unaware that he (Turner) had a gun. In fact,

Turner said during the video interview that he took his gun out of the car when the two men

pulled up to the store and went inside. Turner also stated that he took his gun out of the car

because he knew that Beans kept a gun. And finally, Turner indicated that he kept his gun on

the side and that it was out (meaning it would have been visible to others, including Wynn).

This testimony would not have assisted Wynn in proving his lack of knowledge that Turner had a

gun.

{¶ 70} Based on the preceding discussion, Wynn’s First Assignment of Error is without

merit and is overruled.

III. Second Assignment of Error

{¶ 71} Wynn’s Second Assignment of Error is as follows:

The Trial Court Erred to the Prejudice of the Appellant When It Permitted 28

Into Evidence Mr. Wynn’s Purported Letter in Violation of the Rules of Evidence

and in Violation of the Defendant’s Due Process Rights Guaranteed under the

Fifth and Fourteenth Amendment of the United States Constitution and Article I,

Section 16 of the Ohio Constitution.

{¶ 72} Under this assignment of error, Wynn argues that the trial court erred in

admitting a letter into evidence that was: (1) not properly authenticated; (2) untimely disclosed to

the defense; and (3) without a clear chain of custody. Wynn claims that the trial court’s error

prejudiced him and violated his constitutional right to due process. The letter was damaging to

Wynn, because it contained an offer to essentially pay Turner not to cooperate with the police.

{¶ 73} “The admission or exclusion of relevant evidence rests within the sound

discretion of the trial court * * *.” (Citation omitted). State v. Haines,

,

,

. Although the trial court concluded that Wynn’s alleged

letter was properly authenticated, the court did not admit the letter into evidence. Instead, the

court only allowed the jury to hear testimony about the letter. Since the trial court failed to

admit the letter into evidence, Wynn’s claim of error in the letter’s admission is without merit.

Furthermore, even if the trial court had admitted the letter, Wynn’s arguments fail for several

reasons.

1. The Letter Was Properly Authenticated.

{¶ 74} “A condition precedent to the admissibility of documents is that documents

must be authenticated or identified.” (Citations omitted.) In Re Adoption of H.M.F., 2d Dist.

Montgomery No. 22805,

. Authentication or identification “is satisfied by 29

evidence sufficient to support a finding that the matter in question is what its proponent claims.”

Evid.R. 901(A). “The evidence necessary to support a finding that the document is what a party

claims it to be has a very low threshold, which is less demanding than the preponderance of the

evidence.” (Citations omitted.) In Re H.M.F. at ¶ 26. Conclusive proof of authenticity is not

required. State v. Wheeler, 2d Dist. Montgomery No. 12290,

, *2 (July 16,

1993), citing State v. Easter,

,

(4th Dist. 1991). Instead,

this low threshold requires “ ‘only sufficient foundational evidence for the trier of fact to

conclude that the document * * * is what its proponent claims it to be.’ ”

{¶ 75} Evid.R. 901(B) provides several examples of authentication or identification

that conform with the rule, including “[d]istinctive characteristics and the like.” Evid.R.

901(B)(4). This subsection of the rule explains that “[a]ppearance, contents, substance, internal

patterns, or other distinctive characteristics, taken in conjunction with the circumstances”

conform with the authentication requirement.

For example, “ ‘a letter may be authenticated

by evidence of its distinctive contents such as facts contained in the missive that only the writer

may know.’ ” State v. Brown,

,

,

(7th

Dist.), quoting State v. Chamberlain, 8th Dist. Cuyahoga No. 58949,

, *4 (July

25, 1991). (Other citation omitted.)

{¶ 76} In the case before us, the letter to Turner was unsigned, but Turner claimed that

he knew the letter was from Wynn, based on its distinctive contents. Specifically, Turner

testified that the letter’s greeting, “What’s up brother,” was the way that he and Wynn had

greeted each other since they were eight years old. He also indicated that the letter referred to

“Nicky,” which was the name of Wynn’s girlfriend. In addition, the letter referred to the offense 30

involved in the case, and stated that the writer had led the police to Turner’s wrong address after

his arrest. Only Wynn would know this information.

{¶ 77} Turner also testified that the letter had been hand-delivered to him in jail by

Wynn’s cell mate. The content of the letter and the circumstances under which it was delivered,

therefore, show a sufficient foundation for attributing authorship to Wynn. Accordingly, the

letter was properly authenticated.

2. The Timing of the Letter’s Disclosure Was Not Either Willful or Prejudicial.

{¶ 78} Crim.R. 16(B)(1) requires the prosecution to disclose any written or recorded

statements by a defendant or a co-defendant that the State possesses or that are reasonably

available to the State. All parties also have a continuing duty to disclose additional materials

they may discover prior to trial. Evid.R. 16(A). “The failure to disclose [such] materials

constitutes a violation of Crim.R. 16.” State v. Dotson, 2d Dist. Clark No. 97-CA-0071,

, *6 (Nov. 21, 1997).

{¶ 79} “[A] trial court has discretion in determining a sanction for a discovery

violation.” (Citation omitted.) State v. Darmond,

,

,

. In exercising its discretion, the trial court should consider: “(1) whether the

failure to disclose was a willful violation of Crim.R. 16, (2) whether foreknowledge of the

undisclosed material would have benefitted the accused in the preparation of a defense, and (3)

whether the accused was prejudiced.” Id. at ¶ 35, citing State v. Parson,

,

(1983), syllabus.

{¶ 80} According to the record, the State disclosed the letter to Wynn the same day that 31

it was received by the State. The record, thus, indicates that the State did not act willfully in

failing to earlier disclose the letter. See State v. Summerall, 10th Dist. Franklin No. 03AP-1024,

(concluding that the State’s failure to timely disclose photographs was not

a willful violation of the discovery rules, because the prosecutor immediately turned them over to

the defense upon learning that they were available).

{¶ 81} The record also does not reveal that the late disclosure prejudiced Wynn.

Wynn claims that he was prejudiced because he had little or no opportunity to prepare an

adequate defense with respect to the letter. However, after the defense received the letter on

February 2, 2012, it had three full days to prepare before trial started on February 6, 2012. The

State also did not use the letter at trial until February 9, 2012. As a result, defense counsel knew

about the letter for almost a week before it became necessary to address it at trial. Even if we

were to decide that this amount of time was insufficient to prepare an adequate defense, Wynn

has not shown that the trial result would have differed if he had received earlier notice. As was

noted, the letter was properly authenticated, and Wynn was free to argue that Turner and the

letter were not believable. Therefore, Wynn’s argument that the late disclosure prejudiced him

has no merit.

3. The State Was Not Required to Establish Chain of Custody.

{¶ 82} “ ‘A chain of custody is part of the authentication and identification mandate set

forth in [Evid.R. 901], and the state has the burden of establishing the chain of custody of a

specific piece of evidence before it can be admitted at trial.’ ” State v. Ayers, 2d Dist.

Montgomery No. 25563,

, quoting State v. Rodriguez, 6th Dist. Wood No. 32

WD-05-026,

. However, this “duty is not absolute.”

citing

Rodriguez at ¶ 17. “A chain is needed only when an item is by nature fungible and

indistinguishable, having no unique characteristics, like a pill.” State v. Wiley, 2d Dist. Darke

No. 2011-CA-8,

, citing State v. Gunner, 6th Dist. Lucas No. L-06-1385,

.

{¶ 83} A chain of custody is established for such an item so that it can be shown that

the item is authentic and has not “ ‘been tampered with or altered from its original form.’ ”

Wiley at ¶ 12, citing State v. Bowling, 8th Dist. Cuyahoga No. 93052,

, ¶ 32.

“This may be accomplished through direct testimony or by inference.” Gunner at ¶ 17, citing

State v. Conely,

,

(3d Dist. 1971).

{¶ 84} The handwritten letter in this case is not by nature fungible, nor is it

indistinguishable from other similar objects. The letter has distinctive content and attributes;

therefore, it is not the kind of evidence that requires the State to establish a chain of custody.

However, Turner did testify about the letter’s chain of custody. Turner claimed that the letter

had been delivered to him in jail by Wynn’s cell mate, and that he gave the letter to his defense

attorney thereafter. The record also indicates that Turner’s attorney disclosed the letter to the

State. After reviewing the letter on the stand, Turner identified the letter as the one he had

received in jail, and there is nothing in the record about the letter’s condition to indicate that it

had been tampered with or had been altered from its original form. Accordingly, Wynn’s chain

of custody argument is without merit.

{¶ 85} Based on the preceding discussion, Wynn’s Second Assignment of Error is

overruled. 33

IV. Third Assignment of Error

{¶ 86} Wynn’s Third Assignment of Error is as follows:

Appellant Received Ineffective Assistance of Counsel From his Trial

Attorney.

{¶ 87} Under this assignment of error, Wynn argues that his trial counsel was

ineffective in failing to discuss the letter with him prior to trial. Wynn also argues that his

counsel was ineffective because he failed to request a trial continuance after receiving late notice

of the letter. Wynn contends that a continuance would have allowed counsel to better prepare a

defense against the claim that Wynn was the author of the letter.

{¶ 88} We review alleged instances of ineffective assistance of trial counsel under the

two-prong analysis set forth in Strickland v. Washington,

,

,

(1984), and adopted by the Supreme Court of Ohio in State v. Bradley,

,

(1989). Pursuant to these cases, in order to reverse a conviction

based on ineffective assistance of counsel, a defendant first “must show that counsel's

representation fell below an objective standard of reasonableness.”

. Second,

“[t]he defendant must show that there is a reasonable probability that, but for counsel's

unprofessional errors, the result of the proceeding would have been different. A reasonable

probability is a probability sufficient to undermine confidence in the outcome.”

.

Furthermore, “[b]ecause of the difficulties inherent in making the evaluation, a court must

indulge a strong presumption that counsel's conduct falls within the wide range of reasonable

professional assistance; that is, the defendant must overcome the presumption that, under the 34

circumstances, the challenged action ‘might be considered sound trial strategy.’ ”

,

quoting Michel v. Louisiana,

,

,

(1955).

{¶ 89} In order to assess this issue, we begin with Wynn’s claim that defense counsel

failed to discuss the letter with him prior to trial. Even if we were to decide that counsel’s

conduct fell below an objective standard of reasonableness, Wynn has not demonstrated that the

result of the trial would have been any different had his counsel discussed the letter with him.

Nothing in the record indicates that Wynn had information about the letter that would have

changed counsel’s defense strategy. Furthermore, discussing the letter with Wynn would not

have altered the fact that a substantial amount of evidence, both video and testimonial, supported

the conviction.

{¶ 90} The second claim of alleged ineffective performance pertains to trial counsel’s

failure to request a trial continuance. As with other trial matters, the decision whether to request

a trial continuance is debatable, and involves a strategic choice of counsel that falls “within the

realm of trial strategy and tactics that will not ordinarily be disturbed on appeal.” State v.

Warner, 8th Dist. Cuyahoga No. 95750,

, citing State v. Pasqualone,

,

,

, and State v. Frazier,

,

,

. “Debatable trial tactics generally do not constitute a

deprivation of effective counsel.” State v. Phillips,

,

(1995), citing State v. Clayton,

,

(1980).

{¶ 91} If Wynn’s counsel believed that he needed a continuance, he could have

requested one before the start of trial. We will not second-guess counsel’s trial strategy, but

conclude, instead, that counsel had reasons for not requesting a continuance. The record also 35

reveals that Wynn’s counsel appeared sufficiently prepared to proceed, as he presented multiple

arguments for the letter’s exclusion, and the letter was, in fact, excluded. Finally, Wynn does

not indicate how the trial result would differ if counsel had asked for, and had received, a

continuance.

{¶ 92} For the foregoing reasons, Wynn’s Third Assignment of Error is overruled.

V. Fourth Assignment of Error

{¶ 93} Wynn’s Fourth Assignment of Error states as follows:

The Trial Court Erred When It Allowed a Juror to Serve at the Trial When

It Had Inappropriate Contact During the Trial with a State’s Detective.

{¶ 94} Under this assignment of error, Wynn argues that the trial court should have

further investigated a situation in which a juror had an outside communication with a detective

while using a public restroom in the court building. A trial witness was also present in the

restroom with the detective.

{¶ 95} “When a trial court learns of an improper outside communication with a juror, it

must hold a hearing to determine whether the communication biased the juror.” (Citations

omitted.) Phillips,

,

. “[T]rial courts are granted broad

discretion in dealing with the contact and determining whether to declare a mistrial or to replace

an affected juror.” (Citations omitted.)

. “A trial court is permitted to rely on a juror's

testimony in determining that juror's impartiality.” State v. McKnight,

,

,

, citing State v. Herring,

,

(2002). 36

{¶ 96} In McKnight, the trial court questioned a juror in chambers after the prosecution

reported that the juror had allegedly been engaging in improper outside communications about

the case. Id. at ¶ 189. The juror explained himself during questioning, and afterward, defense

counsel stated that he was satisfied with the juror's explanation. Defense counsel also indicated

that no further inquiry into the allegation was needed. Id. at ¶ 189-190. Under these

circumstances, the Supreme Court of Ohio held that the trial court did not abuse its discretion in

failing to take further action on the matter. Id. at ¶ 192.

{¶ 97} The present case is analogous to McKnight. Here, after learning of the outside

communication, the trial court questioned the juror in chambers with counsel present. During

questioning, the juror indicated that he had made “small talk” with the detective, but that it had

nothing to do with the case. Transcript of Proceedings, Vol. III, p. 468, ln. 7-8. The juror also

indicated that he was unaware that the other gentleman in the restroom was a witness. Id. at p.

468, ln. 2-6. Both the State and defense counsel stated that they were satisfied with the juror’s

explanation, and the trial resumed. Because the trial court questioned the juror to the

satisfaction of both counsel, the trial court did not abuse its discretion by failing to further

investigate the matter.

{¶ 98} Wynn’s Fourth Assignment of Error is overruled.

VI. Fifth Assignment of Error

{¶ 99} Wynn’s Fifth Assignment of Error is as follows:

The Trial Court Erred to the Prejudice of the Appellant When It Did Not

Add to the Jury Instruction the Charge of Involuntary Manslaughter. 37

{¶ 100} Under this assignment of error, Wynn argues that the trial court abused

its discretion in refusing to instruct the jury on involuntary manslaughter, with an underlying

offense of misdemeanor assault, as a lesser-included offense of complicity to commit felony

murder, with the underlying offense of felonious assault.

{¶ 101} “The question of whether a particular offense should be submitted to the

finder of fact as a lesser included offense involves a two-tiered analysis.” (Citation omitted.)

State v. Deanda,

,

,

. “The first tier, also

called the ‘statutory-elements step,’ is a purely legal question, wherein we determine whether one

offense is generally a lesser included offense of the charged offense.”

citing State v. Kidder,

,

(1987).

{¶ 102} “The second tier looks to the evidence in a particular case and

determines whether ‘ “ a jury could reasonably find the defendant not guilty of the charged

offense, but could convict the defendant of the lesser included offense.” ’ ”

quoting State

v. Evans,

,

,

. “[A] charge on the lesser

offense is required ‘only where the evidence presented at trial would reasonably support both an

acquittal of the crime charged and a conviction upon the lesser included offense.’ ” State v.

Trimble,

,

,

, quoting State v. Thomas,

,

(1988), paragraph two of the syllabus.

{¶ 103} “The trial court must view the evidence in the light most favorable to the

defendant when deciding whether to instruct the jury on a lesser included offense.”

, citing State v. Campbell,

,

(1994). “The

lesser-included-offense instruction is not warranted every time ‘some evidence’ is presented to 38

support the lesser offense.”

quoting State v. Shane,

,

(1992). “Rather, a court must find ‘sufficient evidence’ to ‘allow a jury to reasonably reject the

greater offense and find the defendant guilty on a lesser included (or inferior degree) offense.’

(Emphasis sic.)”

quoting Shane at 632–633.

{¶ 104} In the case before us, the State concedes that involuntary manslaughter is

a lesser-included offense of felony murder. See State’s Brief, p. 24, citing State v. Lynch,

,

,

, ¶ 79. Therefore, the first tier is satisfied,

and we need not consider it further. Accord State v. Miller, 2d Dist. Montgomery No. 25504,

.

{¶ 105} Concerning the second tier, we must decide whether the jury could

reasonably find Wynn not guilty of complicity to commit murder, but guilty of complicity to

commit involuntary manslaughter. Wynn argues that the proof in this situation would be that

Wynn aided Turner by committing assault, which is a misdemeanor. In contrast, the State

makes two arguments: (1) that the witnesses’ frame-by-frame description of Wynn’s active

participation with Turner in every aspect of the assault, other than the pulling of the trigger,

eliminates any idea that Wynn was unaware that Turner had brought a gun to what was supposed

to be a simple assault; and (2) if the defense theory were true, the misdemeanor assault that

Wynn says he committed is entirely independent of the felonious assault that Turner committed,

and did not contribute to Beans’ death.

{¶ 106} We agree with the State. R.C. 2903.04 (B), which contains the

elements of involuntary manslaughter, states that:

No person shall cause the death of another or the unlawful termination of 39

another's pregnancy as a proximate result of the offender's committing or

attempting to commit a misdemeanor of any degree, a regulatory offense, or a

minor misdemeanor other than a violation of any section contained in Title XLV

of the Revised Code that is a minor misdemeanor and other than a violation of an

ordinance of a municipal corporation that, regardless of the penalty set by

ordinance for the violation, is substantially equivalent to any section contained in

Title XLV of the Revised Code that is a minor misdemeanor.

{¶ 107} As was previously noted, no evidence was presented at trial (or was

found in Turner’s video interview), indicating that Wynn was unaware that Turner had a gun.

Moreover, the evidence that was presented would not permit a jury to reasonably reject the

greater offense of complicity to commit felony murder. Instead, the evidence demonstrates that

Wynn knowingly aided and abetted Turner in the murder. The video shows Wynn stepping in to

punch Beans after Turner already had trained his gun on Beans. Turner was also struggling to

get the gun away from Beans when Wynn punched Beans for the second time. Accordingly, the

video, combined with the testimony in this case, indicates that Wynn knowingly assisted Turner

in committing the felonious assault that proximately resulted in Beans’ death.

{¶ 108} Even if one accepts the theory that Wynn asserts, Wynn’s actions in

assaulting Turner twice had no connection with the felonious assault with the gun, and did not

proximately result in Beans’ death. There is no evidence that Wynn’s two-punch assault

proximately caused Beans’ death. If the jury believed Wynn’s defense, it would have acquitted

Wynn of complicity to murder Beans; it would not have found Wynn guilty of involuntary

manslaughter. A jury instruction on involuntary manslaughter, therefore, would not be 40

appropriate, because Beans died as a proximate result of being shot by Turner, rather than from

Wynn’s two-punch assault.

{¶ 109} Because the trial court did not err in failing to include involuntary

manslaughter as a lesser-included offense, the Fifth Assignment of Error is overruled.

VII. Conclusion

{¶ 110} All of Antonio L. Wynn’s five assignments of error having been

overruled, the judgment of the trial court is affirmed.

.............

FROELICH, P.J., and HALL, J., concur.

Copies mailed to:

Mathias H. Heck Carley J. Ingram Enrique G. Rivera-Cerezo Antonio L. Wynn Hon. Frances E. McGee