[Cite as State v. Turner,

.]

COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT

JUDGES: STATE OF OHIO : Hon. W. Scott Gwin, P.J. : Hon. John W. Wise, J. Plaintiff-Appellee : Hon. Craig R. Baldwin, J. : -vs- : : Case No. 2014CA00058 MICHAEL DEAN TURNER : : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Criminal appeal from the Stark County Court of Common Pleas, Case No. 2013CR1788

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: October 20, 2014

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

JOHN FERRERO DEREK LOWRY Stark County Prosecutor Crawford, Lowry & Associates BY: KATHLEEN TATARSKY 116 Cleveland Avenue N.W., Ste. 800 110 Central Plaza South, Ste. 510 Canton, Oh 44702 Canton, OH 44702 [Cite as State v. Turner,

.]

Gwin, P.J.

{¶1} Appellant Michael Turner [“Turner”] appeals his convictions and sentences

on one count of felonious assault and one count of tampering with evidence after a jury

trial in the Stark County Court of Common Pleas.

Facts and Procedural History

The 9-1-1 call.

{¶2} On Thursday, November 14, 2013 around 9:00 pm, Doris Henderhan

placed a call to 9-1-1 from her apartment on Dueber Avenue in Canton, Ohio. She told

dispatch that she heard a lot of fighting at her neighbor's apartment - apartment number

three - between the tenant and her boyfriend. She told dispatch that "Vetta" was hurt

lying on the floor with blood on her shirt. She identified the boyfriend as a Mike Turner.

Henderhan told dispatch the boyfriend would not let her in and tried to shut the door on

her, telling her he was going to take "Vetta" to the hospital. Henderhan decided to call 9-

1-1 for an ambulance.

{¶3} Canton Police Officers Anthony Jackson and Scott Jones were dispatched

for the trouble call. As they got to the entrance door, they saw a male walking down the

stairs. He was carrying a bag of dog food, a dog bowl, a dog leash and a little black

puppy. The male told the officers his name was Michael Taylor. That raised a suspicion,

but the officers could not remember the exact name dispatch entered as the potential

assailant, so Officer Jackson called dispatch. Meanwhile, the officers allowed the male

to leave to take the puppy out. Being suspicious, however, the officers followed the

male and saw him take something out and throw it with his right hand. Officer Jones

testified, Stark County, Case No. 2014CA00058 3

He [Turner] reaches into his coat, pulls out something, throws it, it

appears to be a T-shirt, and then I see the knife come free from the T-

shirt, hit the top of the shed belonging to the witness's house, rolls down

the shed and into a trash can, at which point I realized it was evidence,

and we ran up to him and apprehended him.

1T. at 222. Dispatch came back with the suspect's name and Turner was placed in

handcuffs and arrested. Seeing blood on the T-shirt, Officer Jackson immediately

returned to the apartment and saw the victim - Lavetta Moore - lying on the floor by the

front door. She had no top on and Officer Jackson observed blood from multiple

puncture marks in and around her upper chest and shoulder area. Moore was

incoherent and fading in and out of consciousness. An ambulance arrived and took

Moore to Aultman Hospital.

The investigation.

{¶4} After Turner was secured, Officer Jones walked around the scene with his

flashlight. He observed the white T-shirt covered in blood in the back yard of a neighbor.

He observed the knife thrown by Turner in the garbage can in the same back yard. The

T-shirt and knife were photographed and collected by Police Officer Jeffrey Weller.

{¶5} Also photographed and collected was a knife found on the couch in the

victim's residence. The knife found in the garbage can - a paring knife with a three-inch

blade - and the bloodied t-shirt were tested for fingerprints and DNA by the State BCI

crime laboratory in Richfield, Ohio.

{¶6} Detective Robert Redleski was assigned to investigate the case. He went

to the hospital to talk with Moore and took a taped statement from her. Moore told Stark County, Case No. 2014CA00058 4

Detective Redleski that Turner started getting mean, poked her in the head, hit her in

the eye, went to get a knife, pushed her down and stabbed her. Redleski also talked

with Doris Henderhan and Paul Grant, the neighbor in whose backyard the bloodied T-

shirt and paring knife were found. Grant told the officers the items were not his.

Redleski also obtained DNA samples from Moore and Turner.

{¶7} The DNA samples were sent to the State BCI crime laboratory, together

with the shirt and sweatpants worn by Turner on the night he was arrested. Turner's

shirt and sweatpants contained the blood of the victim.

The trial.

{¶8} Turner was indicted by a Stark County Grand Jury on one count of

felonious assault a violation of R. C. 2903.11(A)(2), a felony of the second degree and

one count of tampering with evidence a violation of R. C. 2921.12(A)(1), a felony of the

third degree. The charges stemmed from the stabbing of Lavetta Moore on November

14, 2013 with a paring knife, removing her bloodied shirt and disposing of the shirt and

knife in the backyard of a neighboring home, Bill of Particulars, Jan. 3, 2014.

{¶9} On March 17, 2014, Turner's jury trial began. The trial court, during voir

dire, asked the potential jurors whether they or any member of their families or close

friends were ever involved with the criminal justice system. Juror No. 29 indicated he

was charged and found guilty of possession of cocaine in 2010 in the Stark County

Common Pleas Court. He was found guilty, sentenced to three years intensive

supervision and did eight months. When asked if he thought he was treated fairly, Juror

No. 29 responded, "I guess so." When asked if he thought the City of Canton police

officers treated him fairly, the juror responded, "It was okay. But overall — overall, I give Stark County, Case No. 2014CA00058 5

like 99.9 percent satisfaction overall rate on everything." The juror then stated that he

could be fair and impartial. The state exercised a peremptory challenge as to Juror No.

29.

{¶10} Moore testified that Turner did not stab her; rather she stabbed herself.

She disavowed her previous statements to investigating officers, claimed she did not

remember them because she was under the influence of drugs, alcohol, morphine and

mental illness. Indeed, she wrote two affidavits that were presented to the jury again

stating she stabbed herself and put her bloody shirt outside where the police officers

found it.

{¶11} Because of the inconsistent statements made by Moore, the trial court

declared her a hostile witness and allowed the state to cross-examine her. The court

also appointed an attorney to assist the witness during her testimony. As a result, at

times Moore pleaded the Fifth Amendment in answer to questions.

{¶12} The jury was excused and the trial court reminded Moore of her

responsibility - to testify truthfully. If she thought she might be criminally incriminating

herself, she may ask the trial judge if she could consult with her counsel.

{¶13} Turner called no witnesses and did not testify. The parties stipulated to the

laboratory report outlining the DNA evidence.

{¶14} After hearing the evidence and receiving instructions from the trial court,

the jury returned with a verdict of guilty to the charges of felonious assault and

tampering with evidence.

Assignments of Error

{¶15} Turner raises four assignments of error, Stark County, Case No. 2014CA00058 6

{¶16} “I. THE TRIAL COURT ERRED IN PERMITTING THE STATE TO USE A

PEREMPTORY CHALLENGE IN A RACIALLY DISCRIMINATORY FASHION.

{¶17} “II. THE TRIAL COURT DENIED THE APPELLANT HIS RIGHT TO A

FAIR TRIAL AND DUE PROCESS WHEN IT PREVENTED A WITNESS FROM

INVOKING HER FIFTH AMENDMENT RIGHT NOT TO TESTIFY.

{¶18} “III. THE APPELLANT WAS DENIED HIS RIGHT TO A FAIR TRIAL

WHEN THE JURY WAS INFORMED THAT THE APPELLANT WAS IN CUSTODY.

{¶19} “IV. THE TRIAL COURT'S FINDING OF GUILTY WAS AGAINST THE

MANIFEST WEIGHT OF THE EVIDENCE AND WAS NOT SUPPORTED BY

SUFFICIENT EVIDENCE.”

I.

{¶20} A defendant is denied equal protection of the law guaranteed to him by the

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

Ohio Constitution when the state places the defendant on trial before a jury from which

members of the defendant's race have been purposely excluded. Strauder v. W.

Virginia,

,

(1880); State v. Hernandez,

,

(1992); State v. Bryant,

,

(6th Dist. 1995). The “equal protection clause forbids a prosecutor from challenging

potential jurors solely on account of their race or on the assumption that jurors of the

same race as the defendant will be unable to impartially consider the state's case

against the defendant.” State v. Bryant,

; Batson v. Kentucky,

,

,

(1986). Stark County, Case No. 2014CA00058 7

{¶21} In his first assignment of error, Turner maintains that the trial court failed

to conduct a proper constitutional analysis as outlined in Batson v. Kentucky, in

determining that the state was not racially motivated in excluding the only African-

American from the jury through the use of a peremptory challenge. See, Hicks v.

Westinghouse Materials Co.,

,

(1997); State v.

Toland, 5th Dist. Stark No. 2006-CA-0162,

.

{¶22} Whenever a party opposes a peremptory challenge by claiming racial

discrimination “[a] judge should make clear, on the record, that he or she understands

and has applied the precise Batson test * * *.” Hicks v. Westinghouse Materials Co.,

,

.

In Hicks, the Ohio Supreme Court set forth the Batson test as follows:

The United States Supreme Court set forth in Batson the test to be

used in determining whether a peremptory strike is racially motivated.

First, a party opposing a peremptory challenge must demonstrate a prima-

facie case of racial discrimination in the use of the strike.

,

,

. To establish a prima-facie case, a litigant

must show he or she is a member of a cognizable racial group and that

the peremptory challenge will remove a member of the litigant's race from

the venire. The peremptory-challenge opponent is entitled to rely on the

fact that the strike is an inherently ‘discriminating’ device, permitting ‘those

to discriminate who are of a mind to discriminate’. State v. Hernandez

(1992),

,

, certiorari denied

(1992),

,

,

. The litigant must Stark County, Case No. 2014CA00058 8

then show an inference of racial discrimination by the striking party. The

trial court should consider all relevant circumstances in determining

whether a prima-facie case exists, including all statements by counsel

exercising the peremptory challenge, counsel's questions during voir dire,

and whether a pattern of strikes against minority venire members is

present. See,

,

,

.

Assuming a prima-facie case exists, the striking party must then articulate

a race-neutral explanation ‘related to the particular case to be tried.’

,

,

. A simple affirmation of general

good faith will not suffice. However, the explanation ‘need not rise to the

level justifying exercise of a challenge for cause.’

,

,

. The critical issue is whether a discriminatory intent

is inherent in counsel's explanation for use of the strike; intent is present if

the explanation is merely pretext for exclusion based on race. Hernandez

v. New York,

,

,

(1991).

Hick,

,

. Although the prosecutor must present a

comprehensible reason, “[t]he second step of this process does not demand an

explanation that is persuasive or even plausible”; so long as the reason is not inherently

discriminatory, it suffices. Purkett v. Elem,

,

,

(1995) (per curiam); Rice v. Collins,

,

,

(2006). Stark County, Case No. 2014CA00058 9

{¶23} Last, the trial court must determine whether the party opposing the

peremptory strike has proved purposeful discrimination. Purkett v. Elem,

,

,

. It is at this stage that the persuasiveness,

and credibility, of the justification offered by the striking party becomes relevant.

,

,

. The critical question, which the trial judge

must resolve, is whether counsel's race-neutral explanation should be believed.

Hernandez v. New York,

,

,

; State v.

Nash, 5th Dist. Stark No. 1995 CA 00024,

(August 14, 1995). This final

step involves evaluating “the persuasiveness of the justification” proffered by the

prosecutor, but “the ultimate burden of persuasion regarding racial motivation rests with,

and never shifts from, the opponent of the strike.” Purkett,

,

,

; Rice v. Collins,

,

,

.

{¶24} It is irrelevant how many minority jurors remain on the panel if even one is

excluded because of race. State v. Bryant,

,

(6th

Dist. 1995); State v. Tuck

,

(10th Dist. 1992)

(Batson, applicable even if there is only one African-American juror on the panel); Jones

v. Ryan,

( 3rd Cir. 1993); United States v. David,

(11th

Dist. 1986).

{¶25} In the case at bar, the prosecutor voluntarily explained her reasons for the

peremptory strikes. Hicks v. Westinghouse,

,

;

State v. Hernandez,

,

; Hernandez v. New

State v. Nash, supra. The state claimed its race neutral basis for striking Juror Stark County, Case No. 2014CA00058 10

No. 29 was because the juror indicated that he had been convicted of possession of

cocaine - a felony - in the very same Common Pleas Court in 2010. Moreover, he

expressed some reservation with the way his counsel handled the plea. Turner’s

attorney responded that the juror was African-American; his client was African-

American; and that the juror indicated he could be fair and impartial. Trial counsel did

not offer any further explanation to make his prima facie case as required in the first

step of the Batson test. He did not refer to any statements made by the prosecutor that

would indicate that the challenge was discriminatory, did not point to a pattern of

discrimination and did not point to specific questions in voir dire that would indicate a

discriminatory motive. Moreover, even if Turner had met his prima facie burden to go

forward on the challenge, the prosecutor gave a race neutral reason for using a

peremptory challenge against Juror No. 29.

{¶26} Turner points to Juror No. 13, presumably white, who the prosecutor did

not seek to remove based on a work investigation of sexual abuse, which led to no

criminal charges. Yet, Juror No. 13 did not have a felony conviction and was removed

for cause by agreement of both Turner and the state because of his opinion that he

does not have to follow the judge's instructions. (1T. at 77).

{¶27} We do not find that the dismissal of Juror No. 29 was in error and we find

that the prosecutor's reason for using a peremptory challenge on Juror No. 29 was

racially neutral.

{¶28} Turner’s first assignment of error is overruled. Stark County, Case No. 2014CA00058 11

II.

{¶29} The Fifth Amendment privilege against self-incrimination provides that no

person shall be compelled to be a witness against himself in a criminal case and

permits a person to refuse to answer official questions in another proceeding, civil or

criminal, formal or informal, where the answers might incriminate him in future criminal

proceedings. Minnesota v. Murphy,

,

,

(1984), citing Lefkowitz v. Turley,

,

,

(1973).

{¶30} In his second assignment of error, Turner argues that the trial court failed

to follow the procedure set forth in State v. Reiner,

, 2000-Ohio-

190,

, reversed on other grounds

,

when

Moore invoked the Fifth Amendment and deprived him of a fair trial.

{¶31} The Ohio Supreme Court has held that when a witness asserts a privilege

against self-incrimination, a court may not rely upon the witness's claim alone, but has a

duty to determine whether the witness's refusal to answer is justified. State v. Jackson,

,

(2001); State v. Landrum,

,

(1990). The trial judge must determine if a proposed witness’s

testimony would be self-incriminating. See Hoffman v. United States,

,

,

(1951); State v. Landrum,

;

McGorray v. Sutter,

,

(1909), paragraph two of the syllabus. A

1 The United States Supreme Court reversed Reiner “[b]ecause the Supreme Court of Ohio mistakenly held that the witness’ assertion of innocence deprived her of her Fifth Amendment privilege against self-incrimination.” Ohio v. Reiner,

,

,

(2001); accord State v. Reiner,

,

(2001) (“Pursuant to Ohio v. Reiner, we reverse Reiner I to the extent that it held that Batt lacked a valid Fifth Amendment privilege against self-incrimination.”). See, State v. Linkous, 4th Dist. Scioto No. 12CA3517,

. Stark County, Case No. 2014CA00058 12

valid assertion exists where a witness has reasonable cause to apprehend a real

danger of incrimination. United States v. Apfelbaum,

,

,

(1980); In re Morganroth

(C.A.6, 1983); State v.

Linkous, 4th Dist. Scioto No. 12CA3517,

. “To sustain the

privilege, it need only be evident from the implications of the question, in the setting in

which it is asked, that a responsive answer * * * might be dangerous because injurious

disclosure could result. * * *” Hoffman v. United States,

,

,

(1951). The privilege extends to answers which would furnish a link

in the chain of evidence, exposing the witness to criminal liability.

; Blau v.

United States,

,

,

(1950); State v. Landrum,

,

(1990).

{¶32} If a court determines that a witness is mistaken about the danger of

incrimination, the court must then require the witness to answer the question. Hoffman,

.

{¶33} The Ohio Supreme Court has noted the extent and type of inquiry that the

trial court must conduct,

Certainly, the modes of inquiry to which the trial judge may resort to

ascertain that the claim of the witness is not well founded must not invade

his immunity. He must not extort from the witness a statement which

would be a plenary confession of guilt, or the statement of a circumstance

which in connection with other circumstances would establish his guilt. But

if, in any mode consistent with the immunity, he may acquire the basis of a Stark County, Case No. 2014CA00058 13

clear conviction that the claim of the witness is ill founded, he may require

him to answer.

McGorray v. Sutter,

, 411,

.

{¶34} However, when the court is satisfied that the witness’s refusal to answer is

justified, a court may either excuse the witness from testifying or, upon the written

request of the prosecuting attorney, may compel the witness to answer by granting that

person immunity from prosecution for any criminal act about which the person may

testify.

State v. Reiner,

,

; accord State v. Kirk,

,

(1995), paragraph one of the syllabus.

{¶35} In the case at bar, the trial court never engaged in an analysis to

determine whether Moore’s refusal to answer was justified. However, the Fifth

Amendment protects individuals against compelled self-incrimination. It is a personal

right that protects only the party subpoenaed to give testimonial evidence. United States

v. Nobles,

,

,

(1975); Couch

v. United States,

,

,

(1973). The

right against self-incrimination is applicable when testimony is compelled from the

person claiming to be incriminated by disclosure. Fisher v. United States,

,

,

(1976).

{¶36} It is universally accepted that a defendant in a criminal trial has no

standing to claim the privilege of a witness nor take advantage of an error of the court

in overruling it, Stark County, Case No. 2014CA00058 14

The legal privilege accorded a witness to refuse to testify to facts

that would tend to incriminate the witness is personal to the witness, and,

if not personally claimed, is waived. The witness is the only one that can

claim the privilege of refusing to answer.

‘The right to refuse to answer incriminating questions is personal to

the witness. To preserve his right he must himself object. If he wishes to

answer, he may do so and neither the prosecution nor the accused has a

right to object.’ Underhill on Criminal Evidence (3d Ed.) p. 563, § 389.

The defendant cannot object to a question asked a witness on the

ground that the answer would tend to incriminate the witness. Neither has

he the right to require the court to instruct the witness that he or she is

privileged to refuse to answer such a question. State v. George,

,

-1118; Castleberry v. State, 10 Okl. Cr. 504,

.

Not only has the defendant no right to require the court to instruct

the witness regarding his legal rights, but, if the witness claims the

privilege of refusing to answer a question on the ground that his answer

would tend to incriminate him, and the court disregards the request, and

requires the witness to answer, the defendant has no right to object, and it

is not reversible error in the reviewing court, even if the trial Court erred in

requiring the witness to answer, and the error tends to prove the

defendant guilty of the crime charged.

*** Stark County, Case No. 2014CA00058 15

See, also, State v. Cobley,

,

; Ingersol v.

McWille,

,

; State v. Van Winkle,

,

; Samuel v. People,

,

; Beauvoir Club v.

State,

,

,

; Robinson v.

McAbee,

,

; State v. Crisinger,

,

; State v. Rowley,

,

, 39,

. (Emphasis added).

Orum v. State,

,

(7th Dist. 1930). In Bowman v.

United States, the Court observed,

It makes no difference, we think, that the two witnesses did attempt

to assert the privilege and that the court erroneously overruled their claim

of privilege. Where the witness is not the party, the party may not claim

the privilege nor take advantage of an error of the court in overruling it. On

this point the authorities are practically unanimous. 2 (4 Jones on

Evidence, 5th Ed., 1958, § 864, p. 1625; McCormick on Evidence, 195 4,

§ 73, p. 153, § 133, p. 281; 8 Wigmore on Evidence, McNaughton Rev.,

1961, § 2196, pp. 111-12, § 2270, at pp. 414-16; 3 Wharton’s Criminal

Evidence, 12 Ed., 1955, § 729, pp. 36-37; Morgan v. Halberstadt, 2 Cir.,

1894,

;. Taylor v United States, 2 Cir., 1907,

; Hudson v.

United States, 5 Cir., 1952,

; Poole v. United States, 9 Cir.,

1964,

; compare Hyster Co. v. United States, 9 Cir., 1964,

; Goldstein v. United States, 1942,

,

,

.) Stark County, Case No. 2014CA00058 16

(9th Cir 1965).

{¶37} In the case at bar, Moore was a competent witness to testify against

Turner regarding the action that took place in the home on November 14, 2013.

Whether the court violated her constitutional rights in requiring her, over her assertion of

her Fifth Amendment privilege, to testify to these events was no concern to Turner. Her

testimony was competent as far as Turner’s legal rights were involved. His constitutional

rights were not violated by the introduction of Moore’s testimony.

{¶38} We conclude that Turner does not have standing to claim Moore’s right

against self-incrimination was violated.

{¶39} Turner’s second assignment of error is overruled.

III.

{¶40} In his third assignment of error, Turner argues that he was denied a right

to a fair trial when Detective Redleski, during his trial testimony, mentioned not once but

twice that he went to the Stark County Jail in reference to the collection of DNA.

{¶41} Specifically, Detective Redleski testified,

[Prosecutor] ...After collecting her DNA, then what did you do?

[Redleski] At that point, a search warrant was signed by Judge

Forchione, and I went to the Stark County Jail and collected...

[Defense Counsel] Objection, Your Honor

[Court] Sustained. Disregard that.

[Redleski] Okay. A search warrant was issued, and I went to the

Stark County Jail.

[Defense Counsel] Objection. Stark County, Case No. 2014CA00058 17

1T. at 269-270. Turner then moved for a mistrial. The trial court overruled the

motion but gave the jury another limiting instruction,

[COURT] Ladies and gentlemen, in our system, as was discussed

during the voir dire process this morning, we take seriously that concept

that I went over with you and counsel went over with you, and that is the

presumption of innocence. And part of that presumption is that the

defendant in any case not be prejudiced by his status. And by that I

mean, this witness, on a couple of occasions, has indicated that he went

to the jail to get information. That isn't relevant, you have to disregard

that. We try to keep that out of a case. Whether or not the Defendant is in

jail, not in jail, has nothing to do with this, and you shouldn't draw any

negative inferences that that reference was made.

It's very important, I'm very disappointed that that was even —

came out, but I'm instructing you that you should not consider that to show

that this Defendant is a bad character, that he acted in conformity with that

character, he must be in jail for some reason. Forget it, it's not a part of

this case and it shouldn't be a part of this case. You're instructed to

disregard it. I can't make it any stronger than that, unless I zap all of you or

something like that.

So with that, let's proceed.

1T. at 274-275.

{¶42} Pursuant to Crim.R. 52(A), “any error, defect, irregularity, or variance

which does not affect substantial rights shall be disregarded.” See also State v. Stark County, Case No. 2014CA00058 18

McKnight,

, 2005–Ohio–6046,

. To find an error

harmless, an appellate court must be able to declare a belief that the error was

harmless beyond a reasonable doubt. State v. Lytle,

,

(1976).

{¶43} In determining whether an error in the admission of evidence is

“harmless”, we agree with the Supreme Court of Montana that at least three different

approaches appear in United States Supreme Court cases: (1) Focusing on the

erroneously admitted evidence or other constitutional error to determine whether it

might have contributed to the conviction e. g., Fahy v. Connecticut

,

,

(1963); (2) excluding the constitutional infirmity where

overwhelming evidence supports the conviction e. g., Milton v. Wainwright,

,

,

(1972); (3) determining whether the tainted evidence is

merely cumulative or duplicates properly admitted evidence e. g., Harrington v.

California,

,

,

(1969). See, State v. McKenzie,

,

(1980). These three differing approaches have been

noted in Ohio. See, State v. Rahman,

, 151,

(1986)(“Upon a thorough review of the record, we simply cannot state in good

conscience that the error in the admission of this privileged testimony was either

harmless beyond a reasonable doubt, did not have an impact on the jury, or did not

contribute to appellant’s conviction in any meaningful degree.” (Footnote omitted)).

{¶44} In Fahy v. Connecticut, the United States Supreme Court held that the

erroneous admission of unconstitutionally obtained evidence required reversal, noting

that the Supreme Court was “not concerned ... with whether there was sufficient Stark County, Case No. 2014CA00058 19

evidence on which the [defendant] could have been convicted” absent the erroneously

admitted evidence, but rather whether there was a “reasonable possibility that the

evidence complained of might have contributed to the conviction.”

, 86–87,

,

(1963).

{¶45} In Chapman v. California,

,

,

(1967), the Court rejected the view that all federal constitutional errors in the course of a

criminal trial require reversal. The Court held that the Fifth Amendment violation of

prosecutorial comment upon the defendant’s failure to testify would not require reversal

of the conviction if the State could show “beyond a reasonable doubt that the error

complained of did not contribute to the verdict obtained.”

,

.

{¶46} In Sullivan v. Louisiana,

,

,

(1993), the Court further explained the harmless error analysis as set forth in Chapman,

Consistent with the jury-trial guarantee, the question it instructs the

reviewing court to consider is not what effect the constitutional error might

generally be expected to have upon a reasonable jury, but rather what

effect it had upon the guilty verdict in the case at hand. See

,

(analyzing effect of error on “verdict

obtained”). Harmless-error review looks, we have said, to the basis on

which “the jury actually rested its verdict.” Yates v. Evatt,

,

,

(1991) (emphasis added).

The inquiry, in other words, is not whether, in a trial that occurred without

the error, a guilty verdict would surely have been rendered, but whether

the guilty verdict actually rendered in this trial was surely unattributable to Stark County, Case No. 2014CA00058 20

the error. That must be so, because to hypothesize a guilty verdict that

was never in fact rendered—no matter how inescapable the findings to

support that verdict might be—would violate the jury-trial guarantee.

,

. As one Court has explained,

Thus we, as a reviewing court, do not pretend that the constitutional

error did not occur and then evaluate how overwhelming the evidence

would have been to a hypothetical jury, or even to the jury charged with

fairly deciding this case. We do not hypothetically extract the error from

the trial which the jury heard; we must, however, consider and weigh the

effect of the error on the actual jury.

After evaluating the effect of the error in this case, if we find

“[u]nder these circumstances” that it is completely impossible for us to say

the prosecution has demonstrated, beyond a reasonable doubt, that the

trial prosecutor’s questioning and comments, and the trial judge’s error,

did not contribute to Mr. Marshall’s conviction, then we cannot find the

error harmless. See Chapman v. California, supra at 26,

. And

if the error is not harmless, then Mr. Marshall is entitled “to a trial free from

the pressure of unconstitutional inferences.”

But if we can find beyond

a reasonable doubt that this jury’s verdict is surely unattributable to the

constitutional error, then the error is harmless and the trial was fair.

(Citations omitted).

State v. Marshall, 2012-0650,

(La.App. 4 Cir. 7/31/13). In State v.

Rahman, the Ohio Supreme Court recognized this principal, Stark County, Case No. 2014CA00058 21

We are also mindful that our role upon review of this case is not to

sit as the supreme trier of fact, but rather to assess the impact of this

erroneously admitted testimony on the jury. In writing about the court’s

function on federal appellate review, Justice John Paul Stevens’

observation is particularly appropriate:

“‘[I]t is not the appellate court’s function to determine guilt or

innocence * * *. Nor is it to speculate upon probable reconviction and

decide according to how the speculation comes out * * *. [T]he question is,

not were [the jury] right in their judgment, regardless of the error or its

effect upon the verdict. It is rather what effect the error had or reasonably

may be taken to have had upon the jury’s decision. The crucial thing is the

impact of the thing done wrong on the minds of other men, not on one’s

own, in the total setting.’ ” United States v. Hasting (1983),

,

,

, Stevens, J. concurring (quoting

Kotteakos v. United States [1946],

,

,

).

State v. Rahman,

,

. The Ohio Supreme Court

has applied this standard of review,

Thus, under Section 2945.83 of the Revised Code it would seem

that since there is substantial evidence to support the guilty verdict even

after the tainted evidence is cast aside, we should affirm. However, under

Fahy v. State of Connecticut,

,

,

(1963), and Chapman v. State of California,

,

, 17 Stark County, Case No. 2014CA00058

(decided February 20, 1967), we are refused that course of

action. In Fahy, the court said that when constitutionally inadmissible

evidence has been admitted, a reversal is required where ‘there is a

reasonable possibility that the evidence complained of might have

contributed to the conviction.’ (Emphasis added.) In Chapman, the court

made it clear that the Fahy rule applied to federal constitutional errors in

spite of a state harmless-error statute to the contrary.

State v. Cowans,

,104-105,

(1967).

{¶47} In the case at bar, we find beyond a reasonable doubt, that the evidence

that Turner was in jail did not contribute to his conviction. In this case, the reference to

Turner’s incarceration was fleeting and was promptly followed by a curative instruction.

State v. Trimble,

,

,

; State v.

Garner,

, 59,

,

.

{¶48} In Bruton v. United States,

,

,

(1968), the United States Supreme Court noted:

* * * Not every admission of inadmissible hearsay or other evidence can

be considered to be reversible error unavoidable through limiting

instructions; instances occur in almost every trial where inadmissible

evidence creeps in, usually inadvertently. “A defendant is entitled to a fair

trial but not a perfect one.” * * * It is not unreasonable to conclude that in

many such cases the jury can and will follow the trial judge’s instructions

to disregard such information. Stark County, Case No. 2014CA00058 23

{¶49} Further, “juries are presumed to follow their instructions.” Zafiro v. United

States

,

,

(1993). “A presumption

always exists that the jury has followed the instructions given to it by the trial court.”

Pang v. Minch,

,

(1990), at paragraph four of

the syllabus, rehearing denied,

,

;

{¶50} Turner has not cited any evidence in the record that the jury failed to

follow the trial court’s instruction not to consider the evidence concerning his

incarceration.

{¶51} Turner’s third assignment of error is overruled.

IV.

{¶52} Turner’s fourth assignment of error challenges the sufficiency of the

evidence. Subsumed within his argument, Turner contends his convictions are against

the manifest weight of the evidence produced by the state at trial.

{¶53} Our review of the constitutional sufficiency of evidence to support a

criminal conviction is governed by Jackson v. Virginia,

,

,

(1979), which requires a court of appeals to determine whether

“after viewing the evidence in the light most favorable to the prosecution, any rational

trier of fact could have found the essential elements of the crime beyond a reasonable

doubt.” Id.; see also McDaniel v. Brown,

,

,

(2010) (reaffirming this standard); State v. Fry,

,

, 2010–Ohio–1017, ¶146; State v. Clay,

,

,

2010–Ohio–2720, ¶68. Stark County, Case No. 2014CA00058 24

{¶54} Weight of the evidence addresses the evidence's effect of inducing belief.

State v. Thompkins,

,

(1997), superseded

by constitutional amendment on other grounds as stated by State v. Smith,

,

, 1997-Ohio–355. Weight of the evidence concerns “the

inclination of the greater amount of credible evidence, offered in a trial, to support one

side of the issue rather than the other. It indicates clearly to the jury that the party

having the burden of proof will be entitled to their verdict, if, on weighing the evidence in

their minds, they shall find the greater amount of credible evidence sustains the issue,

which is to be established before them. Weight is not a question of mathematics, but

depends on its effect in inducing belief.” (Emphasis sic.) Id. at 387,

,

quoting Black's Law Dictionary (6th Ed. 1990) at 1594.

{¶55} When a court of appeals reverses a judgment of a trial court on the basis

that the verdict is against the weight of the evidence, the appellate court sits as a

“’thirteenth juror’” and disagrees with the fact finder’s resolution of the conflicting

testimony.

,

, quoting Tibbs v. Florida,

,

,

(1982). However, an appellate court may not merely

substitute its view for that of the jury, but must find that “‘the jury clearly lost its way and

created such a manifest miscarriage of justice that the conviction must be reversed and

a new trial ordered.’” State v. Thompkins, supra,

, quoting State v.

Martin,

,

, 720–721(1st Dist. 1983).

Accordingly, reversal on manifest weight grounds is reserved for “‘the exceptional case

in which the evidence weighs heavily against the conviction.’”

Stark County, Case No. 2014CA00058 25

“[I]n determining whether the judgment below is manifestly against

the weight of the evidence, every reasonable intendment and every

reasonable presumption must be made in favor of the judgment and the

finding of facts.

***

“If the evidence is susceptible of more than one construction, the

reviewing court is bound to give it that interpretation which is consistent

with the verdict and judgment, most favorable to sustaining the verdict and

judgment.”

Seasons Coal Co., Inc. v. Cleveland,

,

(1984), fn.

3, quoting 5 Ohio Jurisprudence 3d, Appellate Review, Section 60, at 191–192 (1978).

Felonious Assault

{¶56} Turner was convicted of felonious assault under R. C. 2903.11(A)(2). The

statute, as applicable here, defines that offense as "(A) No person shall knowingly do

either of the following: (2) cause or attempt to cause physical harm to another by means

of a deadly weapon or dangerous ordnance."

{¶57} Turner does not dispute that a knife is a deadly weapon or that Moore was

hospitalized as a result of knife puncture wounds she sustained while he was present in

her apartment on November 14, 2013. Rather, Turner contends the evidence is

insufficient to establish him as the assailant.

{¶58} At trial, Moore admitted that she had told Detective Redleski that Turner

hit her. (1T. at 144-145). She further admitted that she kicked Turner. (1T. at 148). She

admitted that she was wearing a white T-shirt at the time. (1T. at 149). Moore further Stark County, Case No. 2014CA00058 26

admitted that she and Turner conversed after the incident. (1T. at 151). Moore admitted

during one conversation about DNA that Turner was concerned with the T-shirt. (1T. at

151). Moore responded, “Well, you took it off me.” (Id.)

{¶59} The state presented at trial the prior statements of Moore that it was

Turner who stabbed her. The jury also heard the evidence from the responding police

officers that Moore, shirtless, was found on the floor of her apartment in a confused,

incoherent state with puncture wounds on the upper part of her body. (1T. at 205-206).

Turner did not take Moore to the emergency room, leaving her on the floor while he

exited the apartment carrying a dog and giving the officers a false name, Michael

Taylor. (1T. at 201-202).

{¶60} In addition, the state presented the testimony of the officers that they saw

Turner throw Moore’s bloodied t-shirt and a paring knife into the neighbor's yard when

he exited the apartment. (1T. at 203-204; 222-226).

{¶61} Finally, the state presented the laboratory reports showing that Moore's

DNA were on the pants and shirt worn by Turner when he was arrested. (State’s Exhibit

19; State’s Exhibit 20).

{¶62} We believe that the state presented sufficient evidence from which a jury

could conclude beyond a reasonable doubt that Turner committed the offense of

felonious assault, and, accordingly, there was sufficient evidence to submit the charge

to the jury and to support Turner’s conviction.

Tampering with Evidence

{¶63} Turner was also charged with tampering with evidence, a violation of R. C.

2921.12(A)(1) which provides: Stark County, Case No. 2014CA00058 27

No person, knowing that an official proceeding or investigation is in

progress, or is about to be or likely to be instituted, shall do any of the

following:

(1) Alter, destroy, conceal, or remove any record, documents, or

thing, with purpose to impair its value or availability as evidence in such

proceeding or investigation.

{¶64} Turner argues that he had no reason to believe an investigation was

ongoing or likely to be instituted and no evidence he even knew why the officers were at

the apartment building. Therefore, his disposing of the bloody T-shirt and paring knife

observed by the officers did not meet the elements necessary for a conviction for

tampering with evidence.

{¶65} There are three elements of this offense: (1) the knowledge of an official

proceeding or investigation in progress or likely to be instituted, (2) the alteration,

destruction, concealment, or removal of the potential evidence, (3) the purpose of

impairing the potential evidence’s availability or value in such proceeding or

investigation. State v. Straley,

,

,

,

¶ 11. In Straley, the court concluded,

Because the statute requires that the evidence be related to an

ongoing or likely investigation, we hold that a conviction for tampering with

evidence pursuant to R.C. 2921.12(A)(1) requires proof that the defendant

intended to impair the value or availability of evidence that related to an

existing or likely official investigation or proceeding. Likelihood is

measured at the time of the act of alleged tampering. Stark County, Case No. 2014CA00058 28

Straley, ¶ 19. In Straley, the defendant was stopped for erratic driving. The officers

decided not to pursue any charges, but would not let the defendant drive herself home.

While awaiting permission to drive the defendant home, she excused herself to urinate

20 to 30 feet away to the corner near a building. When one of the officers walked back

to the area, he noticed a clear cellophane baggie covered with urine. Inside the baggie

there appeared to be crack cocaine. Straley was placed under arrest, and the evidence

was collected.

{¶66} The Ohio Supreme Court concluded,

There is nothing in the record to suggest that the officers were

conducting or likely to conduct an investigation into trafficking or

possession of cocaine when Straley discarded the baggie. The baggie of

cocaine did not relate to either an ongoing investigation of driving while

under the influence of alcohol or driving without a license and had no

evidentiary value to a likely investigation of public urination, and thus the

record does not support a conviction for tampering with evidence.

Straley, 139 Ohio St.3d at ¶ 19.

{¶67} In the case at bar, Officers observed Turner disposing of the bloody T-shirt

and the paring knife. Turner provides no explanation of his purpose in disposing of

these items. Clearly, the items related to the felonious assault of Moore. Equally clear is

that Turner intended to impair the value or availability of the evidence that related to the

felonious assault of Moore by disposing of them in an adjacent yard. The record is clear

that the officers were likely, and in fact did, conduct an investigation into the felonious Stark County, Case No. 2014CA00058 29

assault of Moore upon discovering Moore shirtless on the floor of her apartment in a

confused, incoherent state with puncture wounds on the upper part of her body.

{¶68} We believe that the state presented sufficient evidence from which a jury

could conclude, beyond a reasonable doubt, that Turner committed the offense of

tampering with evidence, and, accordingly, there was sufficient evidence to submit the

charge to the jury and to support Turner’s conviction.

Manifest weight

{¶69} If the state relies on circumstantial evidence to prove an essential element

of an offense, it is not necessary for “such evidence to be irreconcilable with any

reasonable theory of innocence in order to support a conviction.” State v. Jenks,

,

(1991), paragraph one of the syllabus,

superseded by State constitutional amendment on other grounds as stated in State v.

Smith,

,

(1997). “Circumstantial evidence and direct

evidence inherently possess the same probative value [.]” Jenks, 61 Ohio St.3d at

paragraph one of the syllabus. Furthermore, “[s]ince circumstantial evidence and direct

evidence are indistinguishable so far as the jury's fact-finding function is concerned, all

that is required of the jury is that i[t] weigh all of the evidence, direct and circumstantial,

against the standard of proof beyond a reasonable doubt.“ Jenks,

,

. While inferences cannot be based on inferences, a number of

conclusions can result from the same set of facts. State v. Lott,

,

(1990), citing Hurt v. Charles J. Rogers Transp. Co,

,

331,

(1955). Moreover, a series of facts and circumstances can be Stark County, Case No. 2014CA00058 30

employed by a jury as the basis for its ultimate conclusions in a case. Lott,

,

, citing Hurt, 164 Ohio St. at 331,

.

{¶70} As an appellate court, we are not fact finders; we neither weigh the

evidence nor judge the credibility of witnesses. Our role is to determine whether there is

relevant, competent and credible evidence upon which the fact finder could base his or

her judgment. Cross Truck v. Jeffries, 5th Dist. Stark No. CA–5758,

(Feb.

10, 1982). Accordingly, judgments supported by some competent, credible evidence

going to all the essential elements of the case will not be reversed as being against the

manifest weight of the evidence. C.E. Morris Co. v. Foley Construction,

,

(1978). The Ohio Supreme Court has emphasized: “‘[I]n

determining whether the judgment below is manifestly against the weight of the

evidence, every reasonable intendment and every reasonable presumption must be

made in favor of the judgment and the finding of facts. * * *.’” Eastley v. Volkman,

,

,

, quoting Seasons Coal Co., Inc.

v. Cleveland,

,

(1984), fn. 3, quoting 5 Ohio

Jurisprudence 3d, Appellate Review, Section 603, at 191–192 (1978). Furthermore, it is

well established that the trial court is in the best position to determine the credibility of

witnesses. See, e.g., In re Brown, 9th Dist. No. 21004, 2002–Ohio–3405, ¶ 9, citing

State v. DeHass, 10 Ohio St .2d 230,

(1967).

{¶71} Ultimately, “the reviewing court must determine whether the appellant or

the appellee provided the more believable evidence, but must not completely substitute

its judgment for that of the original trier of fact ‘unless it is patently apparent that the fact

finder lost its way.’” State v. Pallai, 7th Dist. Mahoning No. 07 MA 198,

, Stark County, Case No. 2014CA00058 31

¶31, quoting State v. Woullard,

,

,

(2nd Dist. 2004), ¶ 81. In other words, “[w]hen there exist two fairly reasonable views of

the evidence or two conflicting versions of events, neither of which is unbelievable, it is

not our province to choose which one we believe.” State v. Dyke, 7th Dist. Mahoning

No. 99 CA 149,

, at ¶ 13, citing State v. Gore,

,

(7th Dist. 1999).

{¶72} The weight to be given to the evidence and the credibility of the witnesses

are issues for the trier of fact. State v. DeHass,

,

(1967), paragraph one of the syllabus; State v. Hunter,

, 2011-

Ohio-6524,

, ¶118. Accord, Glasser v. United States,

,

,

(1942); Marshall v. Lonberger,

,

,

(1983).

{¶73} The jury as the trier of fact was free to accept or reject any and all of the

evidence offered by the parties and assess the witness’s credibility. "While the jury may

take note of the inconsistencies and resolve or discount them accordingly * * * such

inconsistencies do not render defendant's conviction against the manifest weight or

sufficiency of the evidence." State v. Craig, 10th Dist. Franklin No. 99AP-739,

(Mar 23, 2000) citing State v. Nivens, 10th Dist. Franklin No. 95APA09-1236,

(May 28, 1996). Indeed, the jury need not believe all of a witness'

testimony, but may accept only portions of it as true. State v. Raver, 10th Dist. Franklin

No. 02AP-604,

, ¶21, citing State v. Antill,

, 67,

(1964); State v. Burke, 10th Dist. Franklin No. 02AP-1238,

,

citing State v. Caldwell,

,

(4th Dist. 1992). Stark County, Case No. 2014CA00058 32

Although the evidence may have been circumstantial, we note that circumstantial

evidence has the same probative value as direct evidence. State v.

{¶74} We find that this is not an “‘exceptional case in which the evidence weighs

heavily against the conviction.’” Thompkins,

,

,

quoting Martin,

,

. The jury neither lost his way

nor created a miscarriage of justice in convicting Turner of the charges.

{¶75} Based upon the foregoing and the entire record in this matter, we find

Turner’s convictions were not against the sufficiency or the manifest weight of the

evidence. To the contrary, the jury appears to have fairly and impartially decided the

matters before them. The jury as a trier of fact can reach different conclusions

concerning the credibility of the testimony of the state’s witnesses. This court will not

disturb the jury's finding so long as competent evidence was present to support it. State

v. Walker,

,

(1978). The jury heard the witnesses,

evaluated the evidence, and was convinced of Turner’s guilt.

{¶76} Finally, upon careful consideration of the record in its entirety, we find that

there is substantial evidence presented which if believed, proves all the elements of

both crimes beyond a reasonable doubt. Stark County, Case No. 2014CA00058 33

{¶77} Turner’s fourth assignment of error is overruled.

{¶78} The judgment of the Court of Common Pleas, Stark County, Ohio is

affirmed.

By Gwin, P.J.,

Wise, J., and

Baldwin, J., concur