[Cite as State v. Bertuzzi,

.]

IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT MARION COUNTY

STATE OF OHIO,

PLAINTIFF-APPELLEE, CASE NO. 9-13-12

v.

RAYMOND BERTUZZI, OPINION

DEFENDANT-APPELLANT.

Appeal from Marion County Common Pleas Court Trial Court No. 12-CR-067

Judgment Affirmed

Date of Decision: November 17, 2014

APPEARANCES:

Kevin P. Collins for Appellant

Gregory A. Perry for Appellee Case No. 9-13-12

WILLIAMOWSKI, P.J.

{¶1} Defendant-appellant Raymond Bertuzzi (“Bertuzzi”) brings this

appeal from the judgment of the Court of Common Pleas of Marion County

finding him guilty of aggravated murder with a firearm specification, aggravated

burglary with a firearm specification and guilty of having weapons while under a

disability. For the reasons set forth below, the judgment is affirmed.

Procedural History

{¶2} On March 1, 2012, the Marion County Grand Jury indicted Bertuzzi

on the following nine counts1: 1) Aggravated Murder in violation of R.C.

2903.01(A); 2) Aggravated Murder in violation of R.C. 2903.01(B); 3) Murder in

violation of R.C. 2903.02(A); 4) Aggravated Burglary in violation of R.C.

2911.11(A)(1), a felony of the first degree; 5) Aggravated Burglary in violation of

R.C. 2911.11(A)(2), a felony of the first degree; 6) Having Weapons While Under

Disability in violation of R.C. 2923.13(A)(3), a felony of the third degree; 7)

Having Weapons While Under Disability in violation of R.C. 2923.13(A)(2), a

felony of the third degree; 8) Receiving Stolen Property in violation of R.C.

2913.51(A), a felony of the fourth degree; and 9) Felonious Assault in violation of

R.C. 2903.11(A)(2), a felony of the second degree. Doc. 1. Counts one through

five and count nine also included three year firearm specifications.

Counts

1 The indictment was a joint one with Bo Cook and contained a total of twenty-three counts, but only nine were listed as having been committed by Bertuzzi.

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one through five also contained repeat violent offender specifications.

Bertuzzi was arraigned on March 5, 2012 and entered a plea of not guilty to all

offenses. Doc. 3. Bertuzzi was also appointed counsel.

and Doc. 6.

{¶3} On March 5, 2012, Bertuzzi filed a demand for discovery and request

for a bill of particulars. Doc. 4. The State responded on April 26, 2012, to the

discovery request, requested its own discovery, and gave notice of the intent to

impeach Bertuzzi with crimes older than ten years. Doc. 13. On September 14,

2012, the State requested that the criminal trials of Bertuzzi and his co-defendant,

Bo Cook (“Cook”) be severed. Doc. 26. The trial court granted the motion on

September 18, 2012, and rescheduled Cook’s trial. Doc. 27.

{¶4} On September 27, 2012, the State filed a supplemental indictment

adding four additional counts against Bertuzzi: 24) Tampering with Evidence in

violation of R.C. 2921.12(A)(1), a felony of the third degree; 25) Tampering with

Evidence in violation of R.C. 2921.12(A)(1), a felony of the third degree; 26)

Possession of Heroin in violation of R.C. 2925.11(A)(C)(6), a felony of the fifth

degree; and 27) Aggravated Possession of Drugs in violation of R.C.

2925.11(A)(C)(1), a felony of the fifth degree. Doc.51. Bertuzzi was arraigned on

these additional charges on October 4, 2012, and entered pleas of not guilty to all

counts. Doc. 57.

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{¶5} On October 29, 2012, the State filed a motion in limine for the

admission of Cook’s statements to Bertuzzi in order to show that they had worked

together to kill the victim, Cook’s ex-girlfriend Amy Aldrich (“Aldrich”).2 Doc.

85. The State argued that these statements were non-testimonial and thus not

hearsay.

Also on October 29, 2012, the State filed the bill of particulars

requested on March 5, 2012. Doc. 86. Additionally, the state filed a motion to

have Cook and Tasha Gorrell (“Gorrell”) classified as court witnesses so that the

State could impeach their testimony. Doc. 87. On October 30, 2012, the State

filed a motion for numerous jury views. On November 5, 2012, the day the trial

was to start, the State filed a motion for a continuance. Doc. 94. The trial court

granted the continuance until January 14, 2013. Doc. 95.

{¶6} The jury trial began on January 14, 2013. Doc. 242. On January 15,

2013, the trial court granted the oral motion of the State to join the two

indictments into one trial, except counts 26 and 27 were severed for a separate

trial. Doc. 240. The State also requested that Count 6 of the indictment be

dismissed and the request was granted. Doc. 241. Bertuzzi made a Motion for

Acquittal pursuant to Criminal Rule 29 at the end of the State’s case-in-chief. On

January 22, 2013, the trial court granted the motion for acquittal as to Count 8 –

Receiving Stolen Property, Count 9 - Felonious Assault, Count 24 – Tampering

2 This motion does not appear to have been ruled upon by the trial court prior to trial and was not ruled upon during the trial. It appears to have been granted as the evidence was admitted.

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with Evidence, and Count 25 – Tampering with Evidence. Doc. 288. On January

23, 2013, the jury returned verdicts of guilty on Count 1 – Aggravated Murder,

Count 2 – Aggravated Murder, Count 3 – Murder, Count 4 – Aggravated Burglary,

Count 5 – Aggravated Burglary, and Count 7 – Having Weapons While Under

Disability. Doc. 249-254. The jury also found Bertuzzi guilty of the firearm

specification as to counts one through five.

On January 29, 2013, a sentencing

hearing was held. The trial court held as follows.

Pursuant to R.C. 2941.25, the Court finds that the offenses in Count 1 (Aggravated Murder), Count 2 (Aggravated Murder), and Count 3 (Murder) are all allied offenses of similar import. The Court finds that the offenses in Count 4 (Aggravated Burglary) and Count 5 (Aggravated Burglary) are also allied offenses of similar import. The State elected to proceed to conviction and sentencing on Counts 1 (aggravated Murder) and Counts 5 (Aggravated Burglary). No conviction or sentence shall be imposed for Counts 2, 3, and 4.

Thereafter on January 29, 2013, upon the evidence presented to the Court, the Court finds the Defendant guilty of the repeat violent offender specifications [R.C. 2941.149] to Counts 1 and 5.

Doc. 288, 1. The trial court sentenced Bertuzzi to a prison term of life without

parole on count one with an additional three years for the firearm specification; to

a prison term of eleven years on count five with an additional three years for the

firearm specification; and to a prison term of 36 months on count seven.3 Id. at 2.

The trial court also terminated Bertuzzi’s prior post-release control from an earlier

3 No sentence was imposed for the repeat violent offender specification.

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case and imposed a sentence of 1,206 days in prison for violation of post-release

control. Id. The trial court then ordered that all prison terms be served

consecutively, including the two firearm specifications. Id. at 3. Bertuzzi filed his

notice of appeal from this judgment on March 4, 2013.

Trial Testimony

{¶7} At trial, the State presented 40 witnesses before resting. Bertuzzi did

not present any evidence. The relevant testimony is discussed below. The first

witness for the State was DeMerrill Knaul (“Knaul”). Knaul testified that she is a

dispatcher for the Marion City Police Department. Tr. 233. On February 8, 2012,

Knaul received calls about someone being dead at 617 Bartram Avenue. Tr. 234.

The call was placed by Tiffany Wertz (“Wertz”), who was not at the scene. Tr.

235. This call was received at 5:22 p.m., officers were dispatched to the scene at

5:23 p.m., and the first officer arrived on scene at 5:26 p.m. Tr. 238.

{¶8} The second witness for the State was Wertz. Wertz testified that she

lived at 380 Thomspon with her mother, her brother, her children, and her uncle.

Tr. 240. Her sister is Sarah Smith (“Smith”), who lived at the house on Bartram,

and Aldrich was Wertz’s cousin. Tr. 240. Aldrich was in town because she had a

court hearing regarding child support on February 8. Tr. 242. In the evening of

February 8, her nephew, Zachary Gullett (“Gullett”), came in her house and just

stood there not saying anything. Tr. 243. Due to it being a bad day, Wertz yelled

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at Gullett asking him why he was just standing there and not saying anything. Tr.

243-44. After being questioned by Wertz multiple times, Gullett told her that

Aldrich was dead. Tr. 245. Wertz thought Gullett was joking, but eventually

realized he was not because of how he was reacting. Tr. 246-47. Gullett

eventually told her that Aldrich had been shot. Tr. 248. Gullett told her that

Smith was at the store, but Aldrich was at the house and was alone. Tr. 249.

Wertz then called 9-1-1 and spoke with the dispatcher. Tr. 249.

{¶9} On cross-examination, Wertz testified that Aldrich had obtained a

protection order against Cook. Tr. 259. Aldrich had been worried about Cook’s

behavior in the past. Tr. 259. Wertz also testified that she mentioned the names

Joey Miller (“Joey”) and Lisa Miller (“Lisa”) to the dispatcher because Lisa was

Cook’s sister and Joey was her husband and they lived next door to Smith, where

Aldrich was killed. Tr. 260.

{¶10} The third witness for the State was Gullett. Gullett testified that he

lived at 617 Bartram in Marion, Ohio with his mother, his two brothers, and his

sister. Tr. 286. On February 7, 2012, his mother’s cousin, Aldrich, came to spend

the night. Tr. 287. On February 8, 2012, Gullett returned home from school at

around 3:25 p.m. Tr. 288. When Gullett arrived home, he started talking to

Aldrich and his mother. Tr. 289. That same day, he observed Cook in front of

Joey and Lisa’s home, which was next door to his home. Tr. 290. Gullett

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overheard Aldrich telling his mother that Cook was texting her and telling his

mother what the texts said. Tr. 291. At one point in time, Aldrich sent Gullett to a

nearby convenience store to purchase some beverages. Tr. 292-93. Gullett

arrived at the store and made his purchase at 4:41 p.m. according to the store

receipt. Tr. 299. When Gullett returned from the store, the only person in the

home was Aldrich. Tr. 299. Gullett then sat down and started watching a movie

with Aldrich. Tr. 300.

{¶11} Eventually, Gullett went into the kitchen to get a drink. Tr. 300.

While he was in the kitchen, Gullett heard the front door slam open and someone

enter the house. Tr. 301. Gullett then heard “loud noises that sounded like loud

firecrackers.” Tr. 301. Gullett was unable to recall how many noises he heard.

Tr. 301. Gullett saw the person, but not the person’s face because they had a hood

up. Tr. 301. Gullett was unable to say if the person was wearing a jacket with a

hood or a hoodie, but described it as black. Tr. 302. The assailant was a white

male. Tr. 302. The assailant was wearing dark blue jeans with white Jordan

tennis shoes. Tr. 303. The assailant had a black pistol, similar to “the ones cops

usually carry around.” Tr. 305.

{¶12} Gullett also described the layout of the home. When a person walks

into the home, they enter into the living room, but there is a large opening into the

kitchen. Tr. 308. At the time the shooter entered the house, Aldrich was in a chair

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against the wall. Tr. 310. The shooter was only in the home for a short time and

did not say anything. Tr. 311 As the shooter left the house by the front door, he

was still shooting into the house. Tr. 312. Gullett then looked out the front door,

saw the car door shut, and saw the shooter leave “pretty fast”. Tr. 312, 314. The

car was parked in front of a neighbor’s house. Tr. 314. Gullett was able to

identify the vehicle as being silver and being similar to one he had seen in front of

Joey and Lisa’s house on a previous occasion. Tr. 315.

{¶13} Once the vehicle was gone, Gullett went to check on Aldrich. Tr.

315. Aldrich was still in the chair, but she had a “knot-type thing with a bunch of

blood and tissue looking stuff coming out of it” on her forehead. Tr. 316. Gullett

tried to grab Aldrich’s phone, but it was bloody, so he grabbed his bike, left the

house, and rode to his grandmother’s house. Tr. 317-20. When Gullett got to his

grandmother’s home, he saw Wertz and his little cousin in the house, and he then

knocked on the door. Tr. 322. Eventually he was able to tell Wertz that Aldrich

was dead and had been shot in the head. Tr. 323. Wertz then called 9-1-1 and

eventually handed the phone to him so he could speak with the dispatcher. Tr.

324.

{¶14} The police arrived at his grandmother’s home and took him to the

station for more questioning. Tr. 324-25. The officers showed him photos of

vehicles, but he was not able to identify one. Tr. 325-26. Then Smith drove

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Gullett around and he was able to pick out a similar looking vehicle. Tr. 326.

Gullett admitted that he ran into his uncle on the way to his grandmother’s home

and spoke with him, but did not tell him what had happened. Tr. 321. However,

he testified that he did not tell his uncle because the uncle has mental health issues.

Tr. 329. Gullett also testified that although he did not remember being shot at, he

was hit by a fragment of something. Tr. 329-30. After the shooting there was a

hole in the refrigerator that had not previously been there. Tr. 330.

{¶15} On cross-examination, Gullett testified that he had told the police on

the day of the shooting that the shooter had been wearing a black hoodie, and had

been holding the black gun in his left hand. Tr. 332. Gullett also admitted that he

told the officer that he did not know what kind of shoes the assailant was wearing.

Tr. 338. When questioned about the gun being a nine millimeter, Gullett admitted

that the only guns he knows are nine millimeters and revolvers. Tr. 339. Gullett

admitted that he did not know what type of car the “get-away” car was. Tr. 341.

Gullett did recall having seen some woman previously driving the “get-away” car

with Lisa in it and Lisa was getting heroin from her. Tr. 342.

{¶16} Lieutenant Chris Adkins (“Adkins”) of the Marion City Police was

the fourth witness for the State. Tr. 344. At the time of the shooting, Adkins was

on patrol. Tr. 345. On February 8, 2012, Adkins was dispatched at around 5:24

p.m. to 617 Bartram in Marion, Ohio. Tr. 346-47. When he arrived on the scene,

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he saw several people on the neighboring porches and a woman on the front porch

of 617 Bartram screaming into the phone. Tr. 347. That woman was later

identified as Smith. Tr. 348. Smith told him that her cousin had been shot, and

helped him to get in the house, because the door was stuck. Tr. 349. The victim

was sitting in a chair approximately six to seven feet inside the house. Tr. 349.

The victim was identified as Aldrich. Tr. 350. According to Adkins, she was

obviously deceased, but he called a squad to confirm that observation. Tr. 351.

Officer Matt Creps (“Creps”) then arrived and they cleared the house to ensure

there were no other victims. Tr. 351.

{¶17} Adkins testified that after clearing the home, they observed Aldrich.

Tr. 351-52. Aldrich was sitting in the chair with her head “hunched over”, her

legs straight, and her hands on her lap. Tr. 352. In her hand was her cell phone

and the television was operating. Tr. 352. As they investigated the scene, they

observed that the refrigerator and freezer doors were open. Tr. 353. After the

house was preliminarily examined, Adkins ordered the officers to tape off the area

and he stood by the door until the paramedics arrived. Tr. 353-54. The

paramedics eventually arrived and detected no signs of life. Tr. 355.

{¶18} Once they began investigating the scene in depth, Adkins was

primarily just supervising. Tr. 356. He did search for bullet holes and found one

in the side of the refrigerator. Tr. 356-57. No casings were found at the scene.

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Tr. 357. The only other action Adkins took was to drive timed routes at the

request of the detectives. Tr. 371. The first route was from Speedway on

Bellefontaine Avenue to Bartram Ave. Tr. 371. The time for the first route was

five minutes and seven seconds, driving the speed limit. Tr. 373. The second

route he drove was from Bartram Avenue to McDonald’s on North Main Street,

which took approximately two minutes. Tr. 374. Later, Adkins was asked to

drive a third route from McDonald’s on North Main Street to the Speedway on

Bellefontaine Avenue. Tr. 375. The time for that route was six minutes and 22

seconds. Tr. 375. A fourth route was from Bartram Avenue to an alley between

Lead and Fahey Street. Tr. 375-76. That route took one minute and 45 seconds.

Tr. 376. Then from that location, he timed a route to Southland Parkway, which

took seven minutes and 37 seconds. Tr. 376-77. Finally, Adkins timed a route

from the alley near the 300 block of Fahey Street, down Fahey Street, to Silver to

South Prospect Street, all the way to Barks Road and then over into Southland

Parkway, which took approximately seven minutes and six seconds. Re. 379.

{¶19} On cross-examination, Adkins testified that when he tried to open the

door with the knob, it did not turn. Tr. 384. Smith then hit the door a couple of

feet above the knob, and the door opened. Tr. 384. Adkins testified that he did

not recall seeing any damage to the door frame. Tr. 384. Adkins also testified that

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depending on whether a train was stopped, the times of his routes would need to

be adjusted. Tr. 388-89.

{¶20} The next witness for the State was Jason Lore (“Lore”). Lore

testified that he was the owner of a 2005 silver Chevrolet Equinox. Tr. 392. The

vehicle was stolen in January of 2012, while he was on a customer’s porch,

delivering a pizza. Tr. 393. In February of 2012, the vehicle was recovered and

returned to him. Tr. 393. The vehicle had been damaged and was covered in mud.

Tr. 396. The day the insurance adjuster was to come, Lore received a call from a

detective with the Marion Police Department telling him they needed to look at the

vehicle again because it may have been involved in a crime. Tr. 396. On cross-

examination, Lore testified that he did not see who took his car. Tr. 399.

{¶21} For its sixth witness, the State presented the testimony of Patrolman

Shane Gabriel (“Gabriel”) of the Marion City Police Department. Tr. 400.

Gabriel testified that he and Adkins were the first two officers to respond to the

shooting call. Tr. 401. He recognized Smith and Sue Mount (“Mount”) when he

arrived. Tr. 401. Smith and Mount were “frantically screaming for us to help”.

Tr. 401. Once he and Adkins stepped into the home and saw the body, he went

back outside to speak with Smith and Mount. Tr. 401-402. After the crime scene

had been established, Cook appeared drinking a McDonalds’ milkshake and asked

what was happening. Tr. 404. Cook arrived on the scene approximately 20

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minutes after Gabriel. Tr. 404. Eventually Gabriel was ordered to place Cook in

his cruiser. Tr. 405. Gabriel was later instructed to take Cook into custody, so he

placed Cook in handcuffs and searched him. Tr. 405. Cook was carrying a

Samsung phone, some money, cigarettes, and a chapstick. Tr. 405. Gabriel

testified that he had informed Cook that Aldrich had been shot in the head and that

she was deceased. Tr. 409. Cook expressed a “mild amount of emotion” at the

news. Tr. 409.

{¶22} Lieutenant Jon Shaffer (“Shaffer”) of the Marion City Police

Department testified next for the State. Shaffer testified that he was third officer

on the scene of the shooting. Tr. 411. After taping off the scene, Shaffer kept a

log of people entering and exiting the home where the victim was shot. Tr. 411-

12. When Shaffer left the scene, he went to the McDonalds where Cook had

purchased his milkshake and to the Speedway where Cook had purchased his

cigarettes to retrieve video evidence. Tr. 412-13. The McDonalds had no video,

but Shaffer was able to ascertain that the register time was within one minute of

his cell phone time. Tr. 414. The Speedway did have a video and he was able to

view Cook entering the front door of the gas station at 5:12 p.m. on their video.

Tr. 415-16. The video showed Cook leaving at 5:14 and texting on his cell phone.

Tr. 416-17. Shaffer then drove the route from Speedway to the home on Bartram

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to McDonalds and learned that the route, with light to no traffic, took 8 minutes

and 29 seconds. Tr. 419-20.

{¶23} On cross-examination, Shaffer testified that during his timing of the

route, he was stopped at every light. Tr. 422. He admitted that it would be

possible to not get stopped at the lights. Tr. 422. If one did not get stopped by the

lights, the trip could be two to four minutes shorter. Tr. 422.

{¶24} The eighth witness for the State was Detective Brian Liston

(“Liston”) of the Marion Police Department. Tr. 425-26. Liston testified that he

arrived at the scene around 6:08 p.m. on the day of the shooting. Tr. 426. His task

at the scene was to make all the measurements at the scene. Tr. 427. The chair

where Aldrich was sitting was located seven feet and six inches from the front

door. Tr. 431. The refrigerator was located approximately five to six feet from

the rear of the chair. Tr. 432. Liston testified that there were three rounds fired,

with two of them striking Aldrich and one entering the refrigerator. Tr. 436.

{¶25} Liston also testified that he attended the autopsy on Aldrich. Tr. 439.

As a result of the autopsy, Liston recovered photographs and bullet fragments

from inside Aldrich’s skull. Tr. 441. At the autopsy, Liston took photographs and

identified three of them during trial. Tr. 445. Exhibit 9B4 was identified as the

assistant coroner showing the path one of the bullets took that grazed Aldrich’s

neck and caused a hole in her ear. Tr. 446. Exhibit 9B5 was identified as a

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photograph of the x-ray of Aldrich’s skull prior to the autopsy. Tr. 447. Liston

identified 9B6 was also a picture of the x-ray showing the bullet that entered the

skull. Tr. 447-48.

{¶26} Officer Norm Ratterman (“Ratterman”) of the Marion City Police

Department testified for the State as well. Tr. 459-60. Ratterman testified that he

responded to the call about a vehicle parked illegally on Leader Street. Tr. 460.

The vehicle was a silver Chevy Equinox. Tr. 461-62. Ratterman then ran a check

on the license plate and learned that it had been stolen. Tr. 462. The car was then

towed from the scene. Tr. 466. After being towed, it was taken to the police

department and processed. Tr. 467.

{¶27} The eleventh witness for the State was Special Agent Richard

Warner (“Warner”) of the Ohio Bureau of Criminal Identification and

Investigation (“BCII”). Tr. 469. Warner testified that his duties at BCII “are to

investigate computer facilitated crimes or anything involving electronic media,

whether it’s digital video recording systems, cellular phones, computers, digital

camera.” Tr. 470. The Marion Police Department asked BCII to assist in the

analysis of a cell phone. Tr. 472. The phone he received to analyze was a

Samsung phone, which was identified as belonging to Cook. Tr. 472, 479.

Warner identified State’s Exhibit 5 as the report he generated after examining the

phone. Tr. 476. When Warner first examined the phone, he could not access the

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information because it had a pattern lock. Tr. 477. Once they obtained a

password to bypass the lock, Warner was able to access the contents of the phone.

Tr. 478-79. Warner testified that he was able to retrieve the contacts, the call

history, and the text messages from the phone. Tr. 481. This information was

recorded onto a CD, which was identified as State’s Exhibit 5B3. Tr. 481.

{¶28} The State’s twelfth witness was Smith. Smith testified that she and

her children lived at the home where the shooting occurred. Tr. 488. Smith

testified that Aldrich was her cousin and the mother of Kyra, who was fathered by

Cook. Tr. 489. Aldrich came to Smith’s home on February 7, 2012, for a cousin’s

birthday and because Aldrich had a child support court hearing scheduled for

10:00 a.m. on February 8, 2012. Tr. 490. Smith testified that Aldrich went to the

hearing and returned to the home at around 11:00 a.m. Tr. 491. After Aldrich

arrived, she began texting with Cook and was reading the texts to Smith as they

arrived on her phone. Tr. 492. Smith testified that at some point during the

texting, Cook was at his sister’s house next door. Tr. 497. The context of the

texting was that they were arguing about the child support hearing. Tr. 497.

Aldrich told Smith that she had asked Cook to give her a ride home and Aldrich

gathered her things, placed them in a bag, and put the bag beside the chair where

she was sitting. Tr. 498. Eventually, Gullett left to go to the convenience store for

Aldrich and Smith left to go to the store with her mother, and her other children.

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Tr. 500. Smith testified that she left the house around 5:00 p.m., but Aldrich

stayed at the house. Tr. 501.

{¶29} When Smith returned to the house, she went in with the bags and

followed her children into the home. Tr. 503. She turned towards the kitchen to

put things away and heard her children talking to Aldrich. Tr. 504. The children

thought Aldrich was playing a trick and told Smith that Aldrich “had Tabasco

sauce sticking out of her head with tissue. Tr. 504. Smith then went into the room

and saw blood everywhere. Tr. 504-505. At that time Smith started screaming

and ran outside calling to her mother. Tr. 505. Smith’s mother then came into the

house and came out telling Smith to call the police. Tr. 505. Smith then called

the police and told them that Aldrich was dead and there was blood everywhere.

Tr. 506. The recording of the call indicated that Smith believed that Cook was

responsible for Aldrich’s death. Tr. 507.

{¶30} After Gullett was interviewed by the police, Smith drove him around

to see if he could identify a vehicle that matched the one he saw. Tr. 508. When

Gullett saw a similar vehicle, Smith stopped her car, took pictures of the other

vehicle, and texted them to the police. Tr. 509. The vehicle was a Chevrolet

Equinox. Tr. 509. When Smith returned from the police station to her home, she

observed a hole in her refrigerator. Tr. 510. When she left to go to the store, the

refrigerator did not have a hole in it. Tr. 510.

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{¶31} Smith testified that the day before the shooting, Aldrich was texting

her about coming to Smith’s home. Tr. 512. One of the texts stated that Aldrich

could not come until after dark because Cook was “talking shit.” Tr. 513. The

next text from Aldrich stated that Cook was trying to determine if Aldrich was

bringing their daughter and that Aldrich believed Cook was “plotting something.”

Tr. 513. Aldrich also texted that she did not know what to expect from Cook. Tr.

514.

{¶32} On cross-examination Smith testified that she had known Cook for

years. Tr. 514-15. Smith testified that prior to the shooting, she had always gotten

along with Joey and Lisa. Tr. 515. Smith admitted that she had not expected that

Cook would do anything as drastic as killing Aldrich. Tr. 517. Aldrich had told

her that Cook was going to take her home and Smith was concerned it was not a

good idea because they had been arguing earlier in the day. Tr. 518. The plan was

for Cook to take Aldrich to dinner, to take her home, and then he would bring their

daughter back with him for a couple of weeks. Tr. 519. When Smith arrived

home and saw Aldrich she suspected Cook because he was expected at the house.

Tr. 521.

{¶33} For its thirteenth witness, the State presented the testimony of Angela

Kloha (“Kloha”). At the time of the shooting, Kloha was an assistant prosecutor

working in the area of child support enforcement. Tr. 522. Kloha testified that

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she set the child support for Aldrich and Cook approximately one year prior to the

shooting. Tr. 523. Aldrich was the obligee and Cook was the obligor. Tr. 523.

When child support was established, Cook was very angry that he was being

ordered to pay child support. Tr. 524-25. From the time support was established

in November of 2010, until the time of the shooting, Cook had not made a single

payment. Tr. 525. The hearing was to determine if Cook was in contempt of

court. Tr. 525. In order to get out of the hearing, Cook made a payment of $100

to get the hearing continued. Tr. 525-26. Cook’s payment did result in the

hearing getting postponed, but Kloha was unable to reach Aldrich because they

did not have a valid phone number for her. Tr. 527. On the morning of February

8, 2012, Aldrich appeared for the hearing, but Cook did not. Tr. 528. Aldrich was

upset that the hearing was continued and indicated that Cook was making the

payment merely to avoid having to pay any additional money. Tr. 528-29. Kloha

then testified that she told Aldrich that Kloha would dismiss the contempt motion

and would file a criminal nonsupport complaint so that Aldrich would not have to

come to additional hearings. Tr. 529.

{¶34} Later that same day, Kloha received a phone call from Aldrich, who

indicated that Cook was in contact with her and was sitting outside of the house

where she was staying. Tr. 531. Kloha testified that Aldrich just wanted to

confirm that she would not need to come back for further hearings if Cook did not

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pay his child support. Tr. 531. On cross-examination, Kloha testified that in her

opinion, Cook had been “working the system” in order to get out of paying his

support, which was why she decided to follow up any further nonpayment of

support with a criminal complaint instead of a motion for contempt. Tr. 533-34.

{¶35} Officer Andrew Burdick (“Burdick”) from the Marion City Police

Department was the fourteenth witness to testify for the State. Tr. 536. When

Burdick arrived at the scene, he began canvassing the neighbors for potential

witnesses. Tr. 538. The next day, he processed a recovered stolen vehicle that

had been towed to the police station. Tr. 538. Burdick testified that he was

“responsible for processing the vehicle for any type of physical evidence such as

DNA or fingerprints.” Tr. 538. Burdick obtained one fingerprint from the rear

view mirror and a cigarette butt from the floor of the passenger seat. Tr. 539.

These items were submitted to BCII for analysis. Tr. 541.

{¶36} Dr. Kenneth Gerston (“Gerston”) testified that he is a deputy coroner

at the Franklin County Coroner’s Office. Tr. 570. Gerston testified that he was

the doctor who performed the autopsy on Aldrich. Tr. 573. The autopsy report

was identified as Exhibit 9A. Tr. 574. Gerston’s autopsy revealed that Aldrich

suffered two gunshot wounds. Tr. 574. The first was to the left ear and the second

was to the forehead on the right side of her head. Tr. 574. Given the stippling of

the gunpowder and how it was spread out over a wide area, the muzzle was within

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a few feet of the victim when the gun was shot. Tr. 578. The injuries indicated

that the bullet traveled relatively level front to back into Aldrich’s skull. Tr. 580.

The cause of death was a gunshot wound to the head. Tr. 586.

{¶37} The sixteenth witness for the State was Tom Eisenloffel

(“Eisenloffel”), who is a principal assistant performance engineer with Verizon

Wireless. Tr. 589. Eisenloffel testified that the phone number ending in 0777 was

activated as a prepaid phone. Tr. 597. The same number was registered as

belonging to Bertuzzi. Tr. 597. At 5:21 p.m., on February 8, 2012, Bertuzzi

received a text message indicating that he had eight voice mails. Tr. 631. On

cross-examination, Eisenloffel testified that it is not possible to determine the

exact position of a cell phone from call records. Tr. 632.

{¶38} The next witness for the State was Detective Ben Graff (“Graff”) of

the Marion City Police Department. Tr. 638-39. Graff testified that he arrived on

the scene of the shooting between 5:30 p.m. and 6:00 p.m. Tr. 639. Graff’s

assignment at the scene was to collect evidence. Tr. 639. The detectives took

between three and four hours to process the scene. Tr. 640. When Graff arrived,

Aldrich’s body was still present, and he found a cell phone on her lap. Tr. 640.

The phone was still turned on. Tr. 640. Graff obtained Cook’s phone as well, but

had to send it to BCII for review as it was password protected. Tr. 642. Cook’s

phone listed Aldrich’s contact numbers as 7XX-XXX-1556 and 5XX-XXX-0170.

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Tr. 645. Bertuzzi’s number was identified as 7XX-XXX-0777. Tr. 645. Jerry

“JJ” Miller (“Miller”), Cook’s nephew, was linked to phone number 7XX-XXX-

7091. Tr. 645. Phone number 7XX-XXX-4595 was identified as belonging to

“my wifey”, who was later identified as Cook’s then girlfriend, Whitney Williams

(“Williams”). Tr. 645-46. Graff had submitted a search warrant for the cell phone

records for the numbers belonging to Williams, Bertuzzi, Michelle Hall (“Hall”),

and Amanda Wooten (“Wooten”). Tr. 651. Exhibit 18J1 was identified as the text

conversations between Miller’s phone and Bertuzzi. Tr. 660.

{¶39} The State then interrupted Graff’s testimony to present the testimony

of Williams. Tr. 686. Williams testified that she had dated Cook for ten months

and that he was the father of her child. Tr. 687. On the date of the shooting,

Williams was living with Cook at his residence on Plymouth Street. Tr. 687.

Williams testified that she knew of Aldrich, but had not personally met her. Tr.

688. According to Williams, the relationship between Aldrich and Cook was not

good. Tr. 689. A week or two before the shooting, Bertuzzi had come to the

house to speak with Cook. Tr. 689-90. Williams identified her cell phone as

having the phone number 7XX-XXX-4595. Tr. 690. Williams testified that she

had never called Bertuzzi or sent him any text messages from her phone. Tr. 691.

On February 8, 2012, her phone was in the house and Cook had access to it. Tr.

691. Cook frequently used her phone rather than his own because she had a better

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signal. Tr. 691. Williams testified that she did not send a text message to anyone

at 7:47 a.m. on February 8, 2012. Tr. 693. Williams also testified that she did not

receive the messages on that day that were sent to her phone in response to the

message sent. Tr. 694-95. According to Williams, Cook is the only person who

would have had access to her phone at the time the text conversation was

occurring. Tr. 695-96. Later that day, she learned Aldrich had been killed and she

had to pick Cook up from jail. Tr. 697-98.

{¶40} On cross-examination, Williams testified that Cook was left-handed.

Tr. 707. Williams also testified that Cook owned a black gun. Tr. 707. Williams

admitted that Cook was conducting drug transactions using her phone on a

frequent basis. Tr. 708.

{¶41} Miller was the next witness for the State. Tr. 709. On February 8,

2012, Miller lived with his parents and his sister at 623 Bartram in Marion Ohio.

Tr. 710. Smith lived next door. Tr. 711. Miller testified that he knew Aldrich

through her relationship with Cook, who is his uncle. Tr. 711. Earlier on the day

of the shooting, Cook was at his house. Tr. 712. Miller testified that Cook had

asked to use his cell phone. Tr. 712. Cook then used the phone to text somebody,

but deleted the message from the phone after it was sent. Tr. 713. Miller

identified his phone number as 7XX-XXX-7091. Tr. 714. Miller testified that he

knew who Bertuzzi was, but had not sent a text message to Bertuzzi on February

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8, 2012. Tr. 714. Around 4:00 or 5:00, Lisa, who is Miller’s mother, sent him to

his room. Tr. 715-16. At some point in time he heard gunshots. Tr. 716. Miller

then ran into his sister’s bedroom and looked out the window. Tr. 716. Miller

then saw somebody in a gray truck leaving the scene. Tr. 717. Miller testified

that he had seen the vehicle at his house before when “[s]ome Mexican brought it

over trying to sell it.” Tr. 717. Miller’s father, Joey, bought the vehicle. Tr. 718.

After the shooting, Miller saw a person wearing a black hoody get into the vehicle

and leave. Tr. 719-20.

{¶42} On cross-examination, Miller testified that he had no idea why his

mother sent him to his room. Tr. 722. Soon after being sent to his room, Miller

heard the gunshots. Tr. 722. Cook was not at the house when Miller was sent to

his room. Tr. 722. Miller admitted that Cook wears a black hoody. Tr. 723.

Miller also testified that Lisa had driven the vehicle at one point in time. Tr. 723.

After seeing the vehicle out of his sister’s window, Miller went into the living

room where he saw Joey and Lisa. Tr. 726.

{¶43} After Miller finished testifying, Graff returned to the stand. Tr. 729.

Graff then presented the content of text messages between Cook and Aldrich,

which were found on Cook’s phone. Tr. 731. On December 30, 2011, Aldrich

texted Cook that she would need a child support payment or there would be no

visitation. Tr. 731. Cook responded that he was not going to pay and told Aldrich

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to sell some of the items she had taken from him. Tr. 732. Over the next month,

the two continued to argue about Cook’s failure to provide child support and

Aldrich’s failure to provide visitation to Cook. Tr. 733-38.

{¶44} On the morning of February 8, 2012, Aldrich and Cook continued to

argue via text message. Cook was angry that Aldrich had not brought his daughter

for him to see and Aldrich was angry that Cook was not paying the child support.

738-740. Aldrich informed Cook that an arrest warrant had been issued for him.

Tr. 738. Graff testified that Cook had called the Sheriff’s department to check on

the warrant issue. Tr. 739-40. At 3:52 p.m. Aldrich texted Cook that she had won

because he would be making the payments weekly. Tr. 740. Aldrich then texted

Cook that they needed to talk. Tr. 740-41. Cook responded that he would take

Aldrich home, they would have dinner, and he would pick up their daughter for a

visit. Tr. 741. At 5:14 p.m., Aldrich texted Cook asking him when they would be

leaving. Tr. 741. Cook responded that he would be there soon. Tr. 741. At 5:38

p.m., Cook texted Aldrich that he was on his way. Tr. 741. In addition to the text

messages, Graff testified that the phone records revealed there had been phone

calls in addition to the text messages. Tr. 741-42.

{¶45} Graff also testified to the content of the text messages from

Williams’ phone to Bertuzzi’s phone on February 8, 2012, at 7:46 a.m. The

message stated that the court hearing had been rescheduled. Tr. 742-43. The

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reply came approximately 20 seconds later and asked when the new hearing would

be. Tr. 744. An answer was sent at 7:48 a.m. and stated that the date and time

were unknown. Tr. 744.

{¶46} At 3:48 p.m., a message was sent from Miller’s phone to Bertuzzi’s

phone. Tr. 745. The message sent was “Hey, bro, it’s B. Can you go to my mom

now.” Tr. 745. The reply was “yeah.” Tr. 745. Then a second reply came in

asking who had sent the first message. Tr. 745. The answer from Miller’s phone

was “Bo”. Tr. 745.

{¶47} On cross-examination, Graff testified that drug dealers use coded text

messages, so the text messages may not mean what they appear to say. Tr. 747-

48. Graff admitted that saying “meet me at my mom’s” was not inconsistent with

drug trafficking. Tr. 749. Graff also testified that when he executed the search

warrant on Cook’s home, he found three black hoodies. Tr. 750. Graff also

recalled that Cook may have been wearing a black hoody when he was arrested on

February 15, 2012. Tr. 751.

{¶48} The twentieth witness for the State was Gary Slater (“Slater”). Slater

testified that he maintains the computerized security system at the Graphic

Packaging plant. Tr. 755-56. Slater testified that one of the cameras looks out

onto Plymouth Street. Tr. 756. Slater testified that he downloaded video images

for the police for the time between January 28 and February 8, 2012. Tr. 759.

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{¶49} Jeff Fitzpatrick (“Fitzpatrick”) testified next. Fitzpatrick testified

that he had dated Cook’s mother and that he was Aldrich’s uncle. Tr. 764-65. At

approximately 11:00 a.m., Fitzpatrick saw Cook when he went to wake Cook for

the court hearing. Tr. 766. The next time Fitzpatrick saw Cook was at about 4:00

p.m. when Cook came to the house where Fitzpatrick was living. Tr. 767. Cook

told Fitzpatrick that Cook would be taking Aldrich home and bringing their

daughter back for a visit. Tr. 769. After approximately fifteen minutes, Cook left,

but returned five to ten minutes afterward. Tr. 770-71. At that time, Fitzpatrick

observed Cook speaking on the phone while Bertuzzi was sitting on the couch. Tr.

772. Bertuzzi was wiping off a small black revolver. Tr. 772. Fitzpatrick later

heard someone leave and then Cook came back to ask if Fitzpatrick was ready to

go to dinner. Tr. 773-74. When they left, Fitzpatrick saw a small SUV in the

alley with Bertuzzi sitting inside of it. Tr. 777. Fitzpatrick testified that he had

seen the vehicle previously when Lisa was driving it. Tr. 778. After that instance,

Fitzpatrick had seen the vehicle in Cook’s driveway a few days before the

shooting. Tr. 779. Fitzpatrick observed the SUV turn down the intersecting road

and turn behind the drive-thru. Tr. 783. That was the last time Fitzpatrick saw the

vehicle because Cook went a different way. Tr. 784. Cook then took Fitzpatrick

to Speedway and then on to McDonalds. Tr. 785. Fitzpatrick testified that Cook

was driving excessively fast, but was unconcerned about getting a ticket. Tr. 785-

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86. According to Fitzpatrick, Cook had previously threatened to kill Aldrich. Tr.

788.

{¶50} Lisa was the next witness for the State. Tr. 812. Lisa testified that

Cook and Aldrich had a rocky relationship and were in the midst of a custody

battle and a battle over child support as of February 8, 2012. Tr. 814. On multiple

occasions, Lisa had heard Cook threaten to kill Aldrich. Tr. 814. The day before

the shooting Cook told Lisa that Aldrich was enlisting in the army and was taking

their child out of state. Tr. 815. Cook stated that he was not going to let that

happen and that Bertuzzi was a good and loyal friend. Tr. 815. On February 8,

2012, Cook came to her house in the afternoon. Tr. 816. Before Lisa left to run

errands, Cook told her to make sure she had an alibi and to be seen “on camera

wherever you go.” Tr. 816. After returning from errands, Lisa’s daughter went

out to play and ran into Aldrich. Tr. 820. Her daughter told her that Aldrich said

Cook would be bringing their daughter home and the two girls would get to play.

Tr. 821. Lisa then called Cook to ask him about it. Tr. 821. Lisa testified that she

told Cook that Aldrich was next door and what she had said. Tr. 821-22. Cook’s

response was “get her out, get her out now, and hung up the phone.” Tr. 822.

Lisa then went and brought her daughter into the house. Tr. 822.

{¶51} Soon afterward, Lisa saw the silver SUV pull up in front of Smith’s

home. Tr. 822. Lisa testified that the SUV pulled up, sat there for a few minutes

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and then a man wearing a black hoody covering his head and face got out. Tr.

823. Lisa testified the person was wearing white tennis shoes and jeans as well.

Tr. 823. When she observed him going towards Smith’s house, she told her kids

to go to their rooms. Tr. 823. She then heard three shots. Tr. 824. Based upon

the way the person walked, his height, and his build, she recognized the person as

Bertuzzi. Tr. 326. A few days later, Cook and Bertuzzi came to Lisa’s home. Tr.

832. Cook stated that the SUV had been left on Silver Street and that Bertuzzi

would do anything for him. Tr. 833. Cook also stated that if Aldrich’s mother

tried to keep his daughter away from him, “something like that might happen to

her too.” Tr. 833. Lisa also testified that she did not tell the police what she knew

because she was concerned for the safety of her family. Tr. 834.

{¶52} Lisa testified that a person had brought the SUV to her house trying

to sell it approximately a week before the shooting. Tr. 836. Joey bought the

vehicle using heroin to pay for it. Tr. 836. Lisa testified that she drove it three

times and then they sold it to Cook. Tr. 837.

{¶53} On cross-examination, Lisa testified that she could not identify the

shoes the shooter had been wearing. Tr. 849. She also testified that Cook wore

hoodies all the time. Tr. 850. Lisa testified that she did not want to help the

police because she was afraid of what Cook would do if he found out. Tr. 851.

Lisa admitted that Cook would be willing to kill his own sister to avoid prison. Tr.

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851. She also admitted that Bertuzzi was of average height and weight, so the

description could match many people. Tr. 851-52.

{¶54} Joey testified that Cook had come to his home on February 8, 2012,

and that he and Lisa had eventually left to run errands. Tr. 857-58. Before they

left the home, Cook told them to make sure they were caught on camera. Tr. 858.

They later returned home and Cook had left. Tr. 859. Joey testified that Lisa had

spoken with Cook and later he heard a car pull up near the house. Tr. 860. Within

a couple of minutes, the driver of the vehicle got out and approached Smith’s

house. Tr. 861. A few seconds later, Joey heard two quick gunshots followed by

a third gunshot. Tr. 861. Joey testified that he then saw a person run to the SUV,

get in, and take off at a high rate of speed. Tr. 862. Joey described the person as

being similar in build to Joey, wearing a pair of “white Jordans with a black

tongue and black shoe strings with a red stripe.” Tr. 862. When the shooter left,

Joey took his children to his mother’s home, and then returned to his home. Tr.

863.

{¶55} A couple days after the shooting, Cook and Bertuzzi came to Joey’s

home. Tr. 865-66. Bertuzzi said that “he walked up to the house, kicked open the

door, and she was sitting in a chair and stood up and he shot her”. Tr. 866. Cook

stated that they had abandoned the car by Fagan Commercial. Tr. 867. Joey

understood that the murder was committed over the child support and custody

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battle. Tr. 867. Joey testified that he initially lied to the police because he was

scared that Cook and Bertuzzi would kill him or his children. Tr. 868-69. Joey

admitted that he had initially bought the SUV in exchange for two bags of heroin.

Tr. 870. Joey then tried to return it because there was no title, but Cook offered to

buy it for a half a gram of heroin. Tr. 870-71. For safety purposes, Cook offered

to give Joey a gun, but when Joey asked for a .38 revolver, Cook told him it was

no longer around. Tr. 871.

{¶56} On cross-examination, Joey testified that Cook’s build is very similar

to his own. Tr. 883. Joey also admitted that he had not volunteered to help the

police. Tr. 877. Although Joey knew someone had been injured or killed, he did

not call the police. Tr. 885.

{¶57} The twenty-fourth witness for the State was Hall, who was dating

Bertuzzi at the time of the shooting. Tr. 886-888. On February 8, 2012, Bertuzzi

was driving Hall’s vehicle. Tr. 893-94. Bertuzzi drove Hall to work around 2:00

and picked her up at 10:00 p.m. that same day. Tr. 894. At 4:55 p.m. on February

8, Bertuzzi texted Hall and told her he was turning off his phone and would call in

about 30 minutes. Tr. 896-97. Hall testified that she was at work that entire

afternoon and evening and did not drive her car to Plymouth Street. Tr. 898.

Finally, Hall testified that Bertuzzi was not employed, but made money by dealing

heroin. Tr. 899.

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{¶58} On cross-examination, Hall testified that Bertuzzi picked her up after

work and they went back to her apartment. Tr. 900. At the apartment, Bertuzzi

was acting normal. Tr. 900. Hall denied knowing that Bertuzzi dealt drugs when

she started dating him and testified that she saw him every day while they were

dating. Tr. 901. Hall also testified that Bertuzzi was right handed. Tr. 901. On

re-direct, Hall testified that the night that Bertuzzi was arrested, February 15,

2012, he was acting “really antsy.” Tr. 902.

{¶59} The next witness for the State was Patrolman Andrew Isom (“Isom”)

of the Marion City Police Department. Tr. 904-905. Isom testified that he went to

Graphic Packaging to obtain some surveillance video the company had. Tr. 906.

In the video he reviewed, Isom saw the stolen, silver Chevy Equinox on Plymouth

Street several times. Tr. 908. The first time it was spotted was February 5, 2012.

Tr. 910. The next day, there is video footage of the Chevy Equinox and Cook’s

vehicle pulling into the drive at Cook’s home. Tr. 912-14. On February 7, 2012,

the video footage showed the stolen vehicle parked on the street with someone

wearing a gray hooded sweatshirt exiting the vehicle. Tr. 914.

{¶60} Isom testified that he had also seen Hall’s car on the video footage

outside of Cook’s home as well. Tr. 915. The video footage showed that Hall’s

car was on Plymouth Street on February 8, 2012, at approximately 10:26 a.m. Tr.

916. Hall’s car pulled into the drive at Cook’s home. Tr. 917. Later that same

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day, the car was back at approximately 3:55 p.m. Tr. 917. Both Hall’s car and

Cook’s car were taped leaving at around 4:23 p.m. on February 8, 2012. Tr. 921.

The Chevy Equinox was viewed leaving Plymouth Street at approximately 4:40

p.m. Tr. 921. Cook’s vehicle then returned and left again around 5:09 p.m. Tr.

922-24. The vehicle returns to the home again around 5:38 p.m. Tr. 924.

{¶61} On cross-examination, Isom testified that it was not uncommon for

drug dealers to use stolen vehicles or vehicles belonging to a third party to

complete drug deals. Tr. 932. Isom also testified that an unknown person wearing

a dark hoody was seen walking towards Plymouth Street, although the stolen

Chevy Equinox had already left the scene. Tr. 932. Isom testified that a person

could change from a gray hoody to the black hoody in a very short time. Tr. 933.

On redirect, Isom testified that he did not know where the Equinox went, only that

it was out of view of the camera. Tr. 933.

{¶62} Gina Rawlins (“Rawlins”) was the next witness for the State. Tr.

935. Rawlins testified that she was a drug addict and was on probation for

possession of heroin. Tr. 936-37. Rawlins testified that she knew Bertuzzi

because he was her dealer. Tr. 937. Rawlins admitted to using heroin once or

twice a day. Tr. 940. As of February 8, 2012, Rawlins owed Bertuzzi $900 for

heroin. Tr. 942. She contacted him at 4:50 and asked to meet Bertuzzi to give

him some money and to get more heroin. Tr. 942-944. Bertuzzi texted Rawlins

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that he would meet her in about a half hour. Tr. 943-44. Rawlins testified that she

eventually met Bertuzzi outside of Hall’s apartment at approximately 5:25 p.m.

Tr. 945. According to Rawlins, it was unusual for Bertuzzi to make her wait when

she was offering to pay him what she owed. Tr. 947. On cross-examination,

Rawlins testified that the transaction was normal and that she did not recall having

to wait for Bertuzzi once she arrived at the apartment. Tr. 949-50.

{¶63} Detective David Troutman (“Troutman”) testified that on February 8,

2012, he was a detective for the Marion City Police Department. Tr. 959. On the

day of the shooting, Troutman responded to the scene and took pictures of the

crime scene. Tr. 959-60. Troutman testified that he also collected a bullet from

inside a refrigerator at the scene. Tr. 960-61. The bullet had gone from the rear

side panel of the refrigerator towards the front and appeared to be on a level

trajectory. Tr. 963. It lodged in the middle divider of the side-by-side refrigerator.

Tr. 964. The bullet would have traveled in the general direction of anyone

standing in front of it. Tr. 965.

{¶64} On February 9, 2012, Troutman went to Speedway and to

McDonald’s to obtain video from the stores. Tr. 970. From the Speedway video,

Troutman was able to see Cook drive his vehicle to the Speedway, enter the store,

and then leave the parking lot later. Tr. 971. Cook first arrived in his vehicle at

5:13 p.m. Tr. 975. The video showed Cook exiting the vehicle and entering the

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store at 5:13.48. Tr. 977. Cook is then seen making a purchase in the store. Tr.

978. On that video, Cook is seen wearing a gray hoody sweatshirt. Tr. 978.

Cook then left the store at around 5:15 p.m. His vehicle leaves the parking lot at

around 5:16 p.m. Tr. 979.

{¶65} The video from McDonald’s confirmed for Troutman that Cook and

Fitzpatrick had come into the restaurant and later left it. Tr. 971. The video

showed that Cook and Fitzpatrick arrived at the restaurant at 5:21 p.m. Tr. 988.

Cook reappears on the video at 5:22 p.m. holding a cup. Tr. 988-89.

{¶66} On February 10, 2012, Troutman interviewed Joey. Tr. 992. During

that interview, Joey stated that he was at his mother’s home when the shooting

occurred. Tr. 993. Troutman interviewed Joey a second time on February 15,

2012. Tr. 994. Before the second interview, Troutman had received some

information linking Joey to the stolen Chevy Equinox. Tr. 994. Joey was initially

reluctant to talk, but eventually asked for protection before he would talk. Tr. 995.

The police offered to put Joey someplace safe and he agreed to give them more

information. Tr. 995-96. The interview with Joey lasted for an hour and a half to

two hours. Tr. 996.

{¶67} After the interview with Joey, the police were looking to arrest Cook

and Bertuzzi. Tr. 997. Troutman eventually found Bertuzzi and attempted to

arrest him. Tr. 1001. When the police tried to stop Bertuzzi’s vehicle, he and

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another person got out of the vehicle and started running. Tr. 1001. Bertuzzi was

apprehended by the canine dog half a block away. Tr. 1002. Bertuzzi

immediately stated that he did not wish to speak with them, so he was placed in

the patrol car. Tr. 1003. Troutman testified that he confiscated the shoes of

Bertuzzi when he was arrested. Tr. 1036. The shoes matched the description of

the shoes described by Joey as being worn by the shooter. Tr. 1036-37.

{¶68} On cross-examination, Troutman testified that Joey had originally

told the police that he was not home when the shooting occurred. Tr. 1043. Lisa

had originally told the police that she had been in her bedroom and only came out

when she heard the sirens. Tr. 1043. A couple of days later, they were both

interviewed again and repeated the statement that they did not know anything

more. Tr. 1044. Troutman also testified that it is not uncommon for people with

police records to run when the police are trying to arrest them. Tr. 1050.

{¶69} The next witness for the State was Patrolman Jamie Ralston

(“Ralston”) of the Marion City Police Department. Tr. 1060. Ralston testified

that on February 15, 2012, he was dispatched to the scene of a suspicious vehicle.

Tr. 1061. After a while, two individuals approached the truck, entered it, and

started to leave. Tr. 1063. Ralston testified that he began to institute a traffic stop

when the truck made an abrupt stop. Tr. 1064. At that time, both the driver and

the passenger exited the truck and began to flee on foot. Tr. 1064. The truck had

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been placed in reverse and rolled into Ralston’s cruiser. Tr. 1064. Creps, who

was also on the scene, released his canine to catch the driver. Tr. 1065. The dog

caught the driver, who was later identified as Bertuzzi. Tr. 1065.

{¶70} Lieutenant B.J. Gruber (“Gruber”) of the Marion City Police

Department was the twenty-ninth witness for the State. Tr. 1068. On February

15, 2012, he was called in as part of the special response team to serve arrest

warrants for Cook and Bertuzzi and to help search Cook’s home and Cook’s

mother’s home. Tr. 1070. When they arrived at Cook’s mother’s home, they

knocked and announced their presence. Tr. 1072. Gruber testified that he heard

movement in the home, so the decision was made to breach the door. Tr. 1072.

The door had been barricaded, but they were able to see Cook inside the home.

Tr. 1072. Before they were able to enter the home, Cook came out another door

with his hands raised and was taken into custody without further incident. Tr.

1072-73. Gruber then assisted with the search of the home. Tr. 1073. Inside they

found three firearms: 1) a police style revolver; 2) a semi-automatic pistol; and 3)

an assault rifle. Tr. 1073-74.

{¶71} Detective Dan Ice (“Ice”) of the Marion Police Department testified

next for the State. Tr. 1076. Ice testified that on the day of the shooting, he

interviewed Smith at the scene. Tr. 1076. Smith pointed out that Cook was at the

scene and that his vehicle was parked around the corner. Tr. 1077. Ice then took

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Smith and Gullett to the station to interview them further. Tr. 1078. Gullett told

Ice that he was in the home when the shooting occurred and that there was one

assailant. Tr. 1078. Gullett identified the clothing of the shooter as a dark hooded

sweatshirt with the hood pulled up and light blue jeans.4 Tr. 1080. Gullett

identified the weapon as a black 9-millimeter like the police officers carry. Tr.

1080. Gullett also identified the vehicle the shooter drove away as a silver vehicle

that looked like a minivan, but had four car doors. Tr. 1080. Gullett told Ice that

when he realized Aldrich had been shot, he rode his bicycle to his grandmother’s

home. Tr. 1081. Before Gullett left, Ice asked them to contact him if Gullett saw

a vehicle that matched the one he had seen. Tr. 1084. Smith later texted him two

photos of a vehicle that Gullett identified as being the same make and model as

what he saw, just a different color. Tr. 1087. The vehicle was identified as a

Chevy Equinox. Tr. 1087.

{¶72} Ice also testified that he searched Cook’s car looking for a

McDonald’s receipt. Tr. 1082. Ice found the receipt in the cup holder of the

vehicle. Tr. 1082. The receipt showed a date of February 8, 2012 with a time of

5:21 p.m. Tr. 1082.

{¶73} On February 10, 2012, Ice interviewed Lisa. Tr. 1084-85. Lisa told

Ice that the only thing she heard the day of the shooting was a loud vehicle and

4 This is contrary to Gullett’s testimony that the shooter was wearing dark blue jeans.

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soon afterward, she heard Smith screaming. Tr. 1086. Lisa told Ice that Cook had

been at her home earlier in the day. Tr. 1087.

{¶74} Ice interviewed Lisa a second time on February 15, 2012. Tr. 1088.

At the beginning of the interview, Lisa repeated what she had earlier stated. Tr.

1089. Lisa was then taken to a monitor so that she could hear what Joey was

saying. Tr. 1089-90. After that, Lisa began telling a different story. Tr. 1090.

Lisa told him what happened before, during, and after the shooting. Tr. 1090.

Lisa was very upset and crying while giving Ice the new information. Tr. 1091.

Lisa and Joey feared for their safety, so Ice took them to a hotel outside of Marion.

Tr. 1092. After that, Ice assisted in the search for Bertuzzi. Tr. 1092-93.

{¶75} On cross-examination, Ice testified that he had shown Gullett several

photographs of vehicles which may or may not have contained a Chevy Equinox,

but Gullett did not identify the vehicle as the one he saw. Tr. 1097. Ice’s report

indicated that Gullett was shown a picture of a Chevy Equinox, but stated that was

not the vehicle when he was interviewed at the station. Tr. 1097-98. Gullett also

told Ice that the shooter had not used a revolver. Tr. 1099-1100.

{¶76} Creps testified that he had been assigned to a canine unit for four

years. Tr. 1102. Creps indicated that he arrived at the scene of the shooting at

5:22 p.m. Tr. 1104. He initially helped secure the scene, but later spoke to

Gullett. Tr. 1105. Gullett was very shaken at the time, had tears in his eyes, and

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his hands were trembling. Tr. 1105. Creps tried to calm him down so that Gullett

could answer questions. Tr. 1105. Gullett eventually was able to tell him that the

shooter was around five foot seven with a medium built and was wearing a dark

colored hoody jacket with the hood pulled up over his head. Tr. 1106.

{¶77} On February 15, 2012, Creps assisted with the apprehension of

Bertuzzi. Tr. 1106. Ralston’s cruiser was behind the truck and Creps’ cruiser was

behind Ralston’s. Tr. 1107. When Ralston activated the lights, the driver of the

truck slowed down, then put the truck in reverse, hit Ralston’s cruiser, and fled on

foot. Tr. 1107-1108. Creps then yelled for him to stop or he would release the

canine. Tr. 1108. The driver continued to run, so Creps sent the dog after him.

Tr. 1108. The dog had grabbed ahold of the black hoody worn by the driver, who

was identified as Bertuzzi. Tr. 1109. Bertuzzi was then placed under arrest. Tr.

1109.

{¶78} On cross-examination Creps testified that the week before the

shooting, he had been dispatched to 623 Bartram and there was a large, silver SUV

parked in the drive. Tr. 1112. The tag on the vehicle was registered to Cook. In

the initial interview with Gullett, he identified the escape vehicle as a large silver

SUV. Tr. 1114. Gullett also stated that he did not know what kind of shoes the

shooter was wearing. Tr. 1116.

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{¶79} The thirty-second witness for the State was Wooten. Wooten

testified that she was a heroin addict when she met Bertuzzi and often purchased

heroin from him. Tr. 1119. Bertuzzi sometimes spoke about Cook and Wooten

believed that they were “really close friends” based upon the way Bertuzzi spoke

about Cook. Tr. 1120. The night Bertuzzi was arrested, Bertuzzi notified her that

he needed his truck, which he had leant to Wooten, back. Tr. 1120-21. Bertuzzi

then came to her house, left her Hall’s car, and drove away in the truck. Tr. 1121.

While at Wooten’s home, Bertuzzi mentioned that he had to leave town. Tr. 1121.

{¶80} On cross-examination Wooten testified that Bertuzzi did not say how

long he would be out of town. Tr. 1124. From her experience, the dealers of

heroin received the drug from sources in bigger cities. Tr. 1125. The day Bertuzzi

traded cars with her, his demeanor was normal in that he was not acting nervous or

frightened. Tr. 1126. In the daily contact she had with Bertuzzi for the week prior

to Bertuzzi’s arrest, Wooten never noticed unusual behavior from Bertuzzi. Tr.

1127.

{¶81} Adam Gary (“Gary”) testified for the State that he had known

Bertuzzi for many years. Tr. 1148. He did not know Cook, but understood that

Cook was Bertuzzi’s best friend. Tr. 1149. On the morning of February 8, 2012,

Gary saw Bertuzzi when he borrowed $20 from him. Tr. 1149. Later that day the

emergency vehicles went past his house to the scene of the shooting. Tr. 1150.

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Approximately an hour or so after Gary learned of the shooting, Bertuzzi came to

his home. Tr. 1151. Bertuzzi appeared to be a little nervous, but Gary testified

that Bertuzzi has a “nervous problem anyway.” Tr. 1151. Bertuzzi asked Gary if

he had heard about Cook being arrested. Tr. 1151. Bertuzzi asked Gary to look it

up on the computer. Tr. 1152. Bertuzzi then went into the bathroom and it

sounded to Gary like Bertuzzi was either vomiting or coughing. Tr. 1152.

Bertuzzi stated that he wanted to tell Gary something, but could not. Tr. 1153.

Eventually, they learned that Cook had been arrested. Tr. 1154. Bertuzzi stayed

at Gary’s house until Hall picked him up. Tr. 1154. On February 15, 2012,

Bertuzzi came to his house and told him that Cook had been arrested for the

murder. Tr. 1155. Bertuzzi appeared nervous to Gary because he was stuttering

some, which he does when he is nervous. Tr. 1155.

{¶82} Todd Wharton (“Wharton”) testified that he was a forensic scientist

in the firearms and tool marks section at BCII. Tr. 1165. One of his main tasks is

called gun prediction, which is when a bullet is found at a scene and he tries to

determine the type of weapon that fired it. Tr. 1166. Wharton testified that he

examined the bullets and fragments found at the scene in this case. Tr. 1167-68.

The bullet removed from the refrigerator showed some damage from hitting the

refrigerator. Tr. 1170-71. The bullet was identified of being in the .38 caliber

class of bullets, which includes those fired from a 9-millimeter Luger. Tr. 1171.

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The jacket from one of the other bullets was also from the same class of bullets.

Tr. 1176. After examining the full bullet and the jacket from another, Wharton

determined that they were fired from the same weapon. Tr. 1178. The two bullets

had eight land and eight grooves with a right hand twist. Tr. 1179. These are

fairly common characteristics and fit many different models of guns. Tr. 1182.

Three guns were submitted for analysis, but all three were excluded as the weapon

that fired the bullets. Tr. 1183-87. Wharton was questioned about a fourth gun

that belonged to Cook, but excluded it because the manufacturer of that weapon

did not use the rifling found on the bullets for its .38 class weapons. Tr. 1188-89.

{¶83} The thirty-eighth witness for the State was Linda Evelyth (“Evelyth”)

who worked in the DNA biology division of BCII. Tr. 1195. Evelyth testified

that in this case she tested a cigarette butt for DNA. Tr. 1196-97. She compared

the DNA to samples from Cook, Bertuzzi, Aldrich, Carlos Villeda (“Villeda”)5,

and Lore. The cigarette butt was found to contain DNA from Villeda and at least

two other unknown people. Tr. 1198. Evelyth also tested a rag, which contained

DNA from Villeda, Lore, and at least one unknown person. Tr. 199. Other

samples were submitted from the steering wheel and the gearshift of the Chevy

Equinox, however, there was insufficient data for a comparison. Tr. 1200. None

of the samples matched either Cook or Bertuzzi.

5 Villeda’s involvement in this case is not explained during the testimony.

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{¶84} The next witness for the State was Martin Lewis (“Lewis”) who was

a forensic scientist in the trace evidence unit at BCII. Tr. 1205. Lewis testified

that gunshot residue will remain on a person or an item for four to six hours with

regular activity, but this time can be shortened with washing or being more active.

Tr. 1207. The timeframe can be lengthened with less activity. Tr. 1207. Any

item near a weapon when it is discharged may have residue on it, including

clothing. Tr. 1208. One can also get residue on them by picking up a gun that has

been recently fired or touching an item with residue on it. Tr. 1208.

{¶85} On February 10, 2012, gunshot residue kits were submitted taken

from the steering wheel of a 2004 Yukon, the hands of Cook, and the hands of

Gullett. Tr. 1209. Particles “highly indicative of gunshot primer residue were

identified on one of the samples from the steering wheel.” Tr. 1210. There were

no indications of gunshot residue on the swabs of the hands of either Cook or

Gullett. Tr. 1210.

{¶86} Later, Lewis tested swabs from various articles of clothing. Tr.

1211. Clothing that was submitted from Cook included a gray sweatshirt, a gray

pair of denim pants, a long sleeved black shirt and a white tank top. Tr. 1212.

The items submitted from Bertuzzi included a pair of tennis shoes, a pair of jeans,

and a zip-up sweatshirt. Tr. 1212. The testing on Cook’s sweatshirt cuff found

“particles highly indicative of gunshot primer” on the left cuff. Tr. 1214.

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Likewise, Cook’s jeans tested positive for gunshot residue. Tr. 1215. No tests

were run on Cook’s shirt or tank top. Tr. 1215-16. Lewis also tested Bertuzzi’s

black sweatshirt contained no particles indicative of gunshot residue on it. Tr.

1216. However, Bertuzzi’s jeans tested positive for gunshot residue. Tr. 1217.

Gunshot residue was also found on Bertuzzi’s right tennis shoe. Tr. 1218.

{¶87} On cross-examination, Lewis testified that there was no way to

determine how long gunshot residue had been on clothing as there are too many

variables. Tr. 1224. Lewis also testified that gunshot residue would not stay on

leather sneakers for long if they were worn as it would be more likely to be wiped

off by activity. Tr. 1224. The amount of gunshot residue found on the shoes was

one particle, which is “a microscopic spec.” Tr. 1225-26. Lewis identified

Cook’s jeans as having six total particles of residue found in the test, and one

particle of residue found on Bertuzzi’s jeans. Tr. 1228.

{¶88} The State then proceeded to read letters written from Cook to

Bertuzzi. The first letter indicated that Cook had pled guilty to manslaughter,

weapons under disability, tampering with evidence and a gun specification with a

total sentence of 20 years. Tr. 1261. Cook indicated in the letter that he would not

be turning on Bertuzzi. Tr. 1261. In the second letter Cook said that he was

“going to put it on the one who really done the s**t.” Tr. 1261. Cook identified

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that person as Joey. Tr. 1261. Cook indicated that he would do his best to help

Bertuzzi. Tr. 1262.

{¶89} The final witness for the State was Major Bill Collins (“Collins”) of

the Marion Police Department. Tr. 1280. Collins testified that he supervised the

investigation into the shooting of Aldrich. Tr. 1281. He arrived on the scene

shortly after 5:30 p.m. Tr. 1282. When Collins arrived, Cook was not at the

scene. Tr. 1282. Later, he saw Cook in front of the house and Cook’s vehicle was

parked around the corner. Tr. 1282-83. At around 6:00 p.m., Collins ordered

another officer to take Cook into custody. Tr. 1285. Cook was wearing a gray

hoodie sweatshirt, gray jeans, and white tennis shoes. Tr. 1285. Cook willingly

spoke with Collins at the station. Tr. 1286. Cook told Collins to check the

cameras at Speedway and McDonald’s and they would see that he could not have

shot Aldrich. Tr. 1288. Cook suggested during his interview that the person who

was hired to do this may have meant to shoot Smith and mistaken Aldrich for

Smith. Tr. 1289. Based upon his interview of Cook, Collins believed that Cook

was trying to establish an alibi. Tr. 1290. Cook was then arrested at that time on

a drug charge. Tr. 1291.

{¶90} Collins interviewed Gullett on February 9, 2012. Tr. 1296. Collins

testified that he only printed off two images to show Gullett and both were of a

2005 silver Chevy Equinox. Tr. 1294. During that interview, Gullett stated that

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he remembered the shooter wearing white tennis shoes that had a little red on

them. Tr. 1296-97.

{¶91} As of February 14, 2012, Bertuzzi was not a suspect in the

investigation. Tr. 1298. The first time Bertuzzi’s name was raised was during the

interviews of Joey and Lisa. Tr. 1298. Later, while interviewing Williams, her

phone kept ringing. Tr. 1303-1304. The phone number calling was identified as

belonging to Bertuzzi. Tr. 1305. Williams denied knowing to whom the number

belonged. Tr. 1304.

{¶92} On cross-examination, Collins testified that when Cook was arrested,

his clothes were confiscated and those clothes were sent for testing for gunshot

residue. Tr. 1321. There was gunshot residue on the left cuff of the hoody, but

not on the right. Tr. 1321. Cook told Collins that he eats and writes with his left

hand, but throws a ball and shoots with his right hand. Tr. 1322. During the

interview Collins told Cook that the description of the shooter was very similar to

Cook and what he was wearing. Tr. 1324. Collins also admitted that although he

had Gullett shown pictures of a 2005 silver Equinox, Gullett said that was not the

car. Tr. 1324. Collins also admitted that the gunshot residue had to be on Cook at

the time of his arrest on February 8. Tr. 1327. Collins also admitted that the

timed route of Speedway, the scene of the shooting, and McDonald’s would be

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faster if Cook was driving significantly faster than the speed limit. Tr. 1331.

Once the testimony of Collins was complete, the State rested its case.

{¶93} On appeal, Bertuzzi raises the following assignments of error.

First Assignment of Error

[Bertuzzi’s] conviction for aggravated murder is against the manifest weight of the evidence in violation of the constitutions of Ohio and the United States.

Second Assignment of Error

[Bertuzzi’s] conviction for aggravated burglary is against the manifest weight of the evidence in violation of the constitutions of Ohio and the United States.

Third Assignment of Error

[Bertuzzi’s] conviction for weapon under disability is against the manifest weight of the evidence in violation of the constitutions of Ohio and the United States.

Fourth Assignment of Error

Prosecutorial misconduct rendered [Bertuzzi’s] trial fundamentally unfair in violation of the constitutions of Ohio and the United States.

Fifth Assignment of Error

The trial court committed plain error by allowing highly prejudicial hearsay testimony in violation of the constitutions of Ohio and the United States.

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Sixth Assignment of Error

[Bertuzzi] received prejudicially ineffective assistance of counsel in violation of his Sixth and Fourteenth Amendment rights as well as his rights under Section 10, Article I, Ohio Constitution.

Seventh Assignment of Error

The combination of the aforementioned errors are sufficient to call into question the validity of the verdict preventing [Bertuzzi] from obtaining the fair trial guaranteed by the Fifth and Sixth Amendments to the U.S. Constitution as made applicable to the states by the Fourteenth Amendment, and Article One, Sections Ten and Sixteen of the Ohio Constitution.

In the interest of clarity, the assignments of error will be addressed out of order.

{¶94} The fourth and fifth assignments of error are related and will thus be

discussed together. In the fifth assignment of error, Bertuzzi claims that the trial

court erred by allowing the admission of hearsay evidence. Bertuzzi alleges in the

fourth assignment of error that the prosecutor committed prosecutorial misconduct

by eliciting hearsay statements from witnesses. A trial court has broad discretion

over the admission of evidence and its judgment shall not be reversed on appeal

absent an abuse of that discretion. State v. Hancock,

, 2006-

Ohio-160,

. “For an abuse of discretion to have occurred, the

trial court must have taken action that is unreasonable, arbitrary, or

unconscionable.” Estate of Johnson v. Randall Smith, Inc.,

,

,

. “‘Hearsay’ is a statement, other than one

made by the declarant while testifying at the trial or hearing, offered in evidence to

-50- Case No. 9-13-12

prove the truth of the matter asserted.” Evid.R. 801(C). Generally, hearsay

statements are inadmissible unless they meet one of the listed exceptions. Evid.R.

802. By definition, the following are not hearsay statements.

(2) Admission by party-opponent. The statement is offered against a party and is (1) the party’s own statement, in either an individual or a representative capacity, or (b) a statement of which the party has manifested an adoption or belief in its truth * * *.

Evid.R. 801(D)(2).

The foregoing rule provides that an out-of-court statement is not hearsay if it is offered against a party at trial and is “a statement of which the party has manifested an adoption or belief in its truth[.]” A defendant may demonstrate his adoption of a non- party's out-of-court statement through his demeanor, conduct, words, or even silence. State v. Clark (Sept. 8, 1993), Hamilton App. No. C–920603. “In order for an adoptive admission to be applicable, the declarant must have made the statement in the presence of the party against whom the statement is offered at trial. In addition, the party must have heard and understood the statement, must have been free to disavow it, and must have either expressly acknowledged the truth of the statement or remained silent when a reasonable person would have denied its truthfulness.” State v. Comstock (Aug. 29, 1997), Ashtabula App. No. 96–A–0058.

Staff notes following Evid.R. 801(D)(2)(b) similarly explain the rule as follows: “An adoptive admission, or an admission by acquiescence, consists of a statement by a non-party which may be deemed to be that of a party by virtue of the failure of the party to deny the statement. There are obvious risks in attributing a statement of a third person to be that of a party and, in applying the rule, courts have been careful to consider the circumstances under which the utterance is made to insure that the party understood the utterance, that he was free to make a response, and that a reasonable person would have

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denied the statement. Absent these determinations, a statement of a third person cannot be an admission by acquiescence of a party opponent.”

State v. Gibson, 2d Dist. Greene No. 09-CA-05,

, ¶ 15-16. See

also, State v. Hatter, 6th Dist. Sandusky No. S-92-6,

.

{¶95} Bertuzzi argues in the fifth assignment of error that the statements by

Lisa and Joey that Cook said Bertuzzi killed Aldrich for Cook were hearsay

statements which should not have been admitted because they were statements of

co-conspirators admitted prior to the determination that a conspiracy existed.

Specifically, Lisa testified as follows.

Q. [W]ho all was in the room?

A. Myself, my husband [Joey], [Cook], and [Bertuzzi].

***

Q. Was there any talk about the homicide?

A. I just got questions from [Cook] as to how many shots did you hear.

Q. What did you tell him?

A. I said three, two real quick and one right after. And he would nod, look at [Bertuzzi]. [Bertuzzi] never spoke, but he just shook his head.

Q. Would he nod his head?

A. Yeah.

***

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Q. Did he ever give a reason why this happened?

A. He just said that [his daughter] wasn’t being taken away from him.

Q. Did he mention anything about [Bertuzzi] doing anything for him?

A. He said, I told you [Bertuzzi] would do anything for me.

Q. When he said that, did [Bertuzzi] say anything, Hey, that’s – I didn’t do that?

A. No.

Tr. 832-33. In this case, Bertuzzi was sitting in the room listening to the

discussion concerning the shooting and nodding his head to Cook’s statements.

He did not deny that he was involved in the shooting when Cook implied that

Bertuzzi did it for him. The record indicates that Bertuzzi could have denied his

involvement and any reasonable person in that same circumstance would have

denied his involvement in the crime. Since Bertuzzi did not deny them, the

statements are adopted admissions and are thus, by definition, not hearsay

statements.

{¶96} In addition, to these statements, Lisa and Joey testified that [Cook]

told them that [Bertuzzi] had killed Aldrich out of loyalty to him. The record does

not reveal that Bertuzzi was present for these statements, thus they are not adopted

admissions. The State argues that they are statements made by a co-conspirator,

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which would be admissible pursuant to Evid.R. 801(D)(2)(e). “An out-of-court

declaration of a co-conspirator is admissible and not hearsay when five elements

are established: (1) the existence of a conspiracy; (2) the defendant’s participation

in the conspiracy; (3) the declarant’s participation in the conspiracy; (4) that the

statement was made during the course of the conspiracy; and (5) that the statement

was made in furtherance of the conspiracy.” State v. Daniels,

,

(1st Dist. 1993). See also State v. Pate, 3d Dist.

Hancock No. 5-96-14,

(Sept. 26, 1996). Statements made after

the crime may be in furtherance of the conspiracy if they are made to conceal the

crime. State v. Weimer, 11th Dist. Lake No. 2013-L-005,

.

See also State v. Braun, 8th Dist. Cuyahoga No. 91131,

(holding

that statements made after the crime bragging about it were not made in

furtherance of the conspiracy). A review of the record does not indicate that the

challenged statements that Bertuzzi killed Aldrich out of loyalty to Cook, which

were made to Lisa and Joey at some time after the crime, were made in

furtherance of the conspiracy.6 Thus, they were not admissible as statements made

by a co-conspirator.

{¶97} However, the admission of the statements was harmless error. The

statements by Cook made in Bertuzzi’s presence and adopted by Bertuzzi through

6 No context was given for the statements and no explanation as to why the statements were made was provided. The State merely asked the witnesses if [Cook] had told them why [Bertuzzi] killed Aldrich. Without some sort of context, there was no furtherance of the conspiracy.

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his silence, as discussed above, indicated that Bertuzzi was involved in the crime

and that he did it for Cook. In addition, Joey testified that Bertuzzi himself made

the following admission.

A. [Bertuzzi] walked up to the house, kicked open the door, and she was sitting in a chair and stood up and he shot her.

Q. How many times?

A. Twice.

Tr. 866. Lisa had also testified that the person she saw leaving the shooting

looked like Bertuzzi in the way he walked and in his build. Given this evidence,

there is other evidence that would convince the jury that Bertuzzi was the shooter

beyond a reasonable doubt. Thus, the admission of the statements was harmless.

The fifth assignment of error is overruled.

{¶98} Bertuzzi argues in the fourth assignment of error that the prosecutor

engaged in misconduct by eliciting hearsay testimony and also by making

improper statements during closing argument. As discussed above, the statements

elicited by the prosecutor were hearsay statements. However, they were not

prejudicial. Absent a showing of prejudice, there was no prosecutorial misconduct

in that instance.

{¶99} Bertuzzi’s next claim of prosecutorial misconduct involved the

prosecutor asking Collins, who had been present for the entire trial, if he was

persuaded by the defense’s theory that Cook could have killed Aldrich rather than

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Bertuzzi. Collins responded in the negative. The jury is the sole decider of the

facts, so it may have been improper for the prosecutor to ask Collins to state his

opinion on guilt, however any error would be harmless. The jury was properly

instructed by the trial court that it was the sole determiner of the facts.

The Court and the jury have separate functions. You decide the disputed facts and I provide you with the instructions of law.

***

To weigh the evidence you must consider the credibility of each witness who testified. You will apply the tests of truthfulness which you apply in your daily lives. These tests include the appearance of each witness upon the stand, their manner of testifying, the reasonableness of the testimony, the opportunity the witness had to see, hear, and know the things concerning which they testified, their accuracy of memory, frankness or lack of it, intelligence, interest and bias, if any, together with all the facts and circumstances surrounding their testimony.

Applying these tests you will assign the testimony of each witness such weight as you deem proper. You are not required to believe the testimony of any witness simply because he or she was under oath. You may believe or disbelieve all or any part of the testimony of any witness.

It is within your province to determine what testimony is worthy of belief and what testimony is not worthy of belief. The interest and bias of a witness, if any, may be considered by you in applying these tests the Court has just outlined. If you determine bias or interest exists on the part of a witness, you then should examine their testimony in light of that bias or interest. You may believe or disbelieve the testimony in whole or in part even though you may find that the witness had some interest or bias in the outcome of the case.

-56- Case No. 9-13-12

Tr. 1582, 1585-87. Since the jury was properly instructed on the law, any error

would be harmless.

{¶100} Bertuzzi also claims misconduct because of statements made by the

prosecutor during closing arguments. “The test regarding prosecutorial

misconduct in closing arguments is whether the remarks were improper and, if so,

whether they prejudicially affected substantial rights of the defendant.” State v.

Smith,

,

(1984). “[T]he prosecution must

avoid insinuations and assertions which are calculated to mislead the jury.”

In cases of clear misconduct, a mere instruction that closing arguments are not

evidence is insufficient to remedy the error.

. Additionally, “[w]e will not

deem a trial unfair if, in the context of the entire trial, it appears clear beyond a

reasonable doubt that the jury would have found the defendant guilty even without

the improper comments.” State v. LaMar,

,

,

. Improper closing arguments must be viewed in the context

of the entire trial. Id. at ¶168.

{¶101} Here, Bertuzzi argues that the prosecutor committed misconduct.

Specifically, Bertuzzi takes issue with two different statements during argument.

Those are the facts. Not speculation, facts. And Detective Troutman, I’ve gone through a little bit about the police aren’t going to lie for Bo Cook and say there was a delay if there wasn’t. What’s Detective Troutman’s motive? Is he just a liar? Because again, to find the Defendant not guilty, you’re going to

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have to find that our witnesses are liars and none of our evidence means anything.

Tr. 1560.

They talked about they didn’t test for GSR. They talked about Troutman’s the only one telling you there was a two-minute delay. Remember in voir dire when I asked everybody, do you understand who’s on trial here? The defendant’s on trial. The police aren’t on trial and the witnesses aren’t on trial. And you all said yes, you understood that. Now you see why we say that because who are they trying to put on trial? The police and the witnesses. The defendant’s on trial.

Tr. 1572-73. Bertuzzi argues that these statements were improper because they

insinuated that it was improper for the jury to determine the validity of the

testimony. As discussed above, the jury was properly instructed that it was the

finder of facts and that it could believe all, some, or none of a witness’ testimony.

The trial court also instructed the jury that closing arguments are not evidence.

“The evidence comes from the witness stand, but the closing arguments of counsel

are designed to assist the jury and gives the counsel an opportunity to review some

of that evidence and argue what they believe to be reasonable inferences that you

should find from that evidence.” Tr. 1435. Placing the above statements in

context of the entire trial and considering the jury instructions about weighing the

evidence, this court does not find the statements to be improper or to have

prejudiced the fairness of the trial. For all of the above reasons, the fourth

assignment of error is overruled.

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{¶102} The first three assignments of error all allege that the verdicts of the

jury was against the manifest weight of the evidence. The question of manifest

weight of the evidence does not view the evidence in a light most favorable to the

prosecution.

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.”

State v. Thompkins,

,

(1997) (citing

Black’s Law Dictionary (6 Ed. 1990) 1594). A new trial should be granted only in

the exceptional case in which the evidence weighs heavily against conviction.

Although the appellate court acts as a thirteenth juror, it still must give due

deference to the findings made by the jury.

The fact-finder, being the jury, occupies a superior position in determining credibility. The fact-finder can hear and see as well as observe the body language, evaluate voice inflections, observe hand gestures, perceive the interplay between the witness and the examiner, and watch the witness’ reaction to exhibits and the like. Determining credibility from a sterile transcript is a Herculean endeavor. A reviewing court must, therefore, accord due deference to the credibility determinations made by the fact- finder.

State v. Thompson,

,

(8th Dist. 1998).

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{¶103} In the first assignment of error, Bertuzzi argues that his conviction

for aggravated murder is against the manifest weight of the evidence. To obtain a

conviction for aggravated murder in violation of R.C. 2903.01, the State must

prove that the defendant purposely and with prior calculation caused the death of

another. The State presented evidence that Cook had a motive to kill Aldrich and

had told Lisa that Bertuzzi would do anything for him. There were multiple text

messages between Cook and Bertuzzi the day of the shooting. Video shows that

Bertuzzi and Cook met at Cook’s house the day of the shooting. Fitzpatrick

testified that he saw Bertuzzi with Cook soon before the shooting holding a gun

and later saw Bertuzzi driving the “get-away” car. Lisa testified that the person

she saw leaving the scene of the shooting immediately after the shots was Bertuzzi

based upon his build and the manner in which he carried himself. Joey testified

that Bertuzzi stated that he had shot Aldrich. The letters from Cook imply that

Bertuzzi was involved in the shooting. The shoes Bertuzzi was wearing when

arrested were similar to those identified as being worn by the shooter. Bertuzzi

was also wearing a black hooded jacket and jeans, which is similar to the attire

worn by the shooter. Given all of this evidence, this court cannot conclude that

the evidence weighs heavily against conviction. Thus, the conviction for

aggravated murder is not against the manifest weight of the evidence and the first

assignment of error is overruled.

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{¶104} Bertuzzi claims in the second assignment of error that his

conviction for aggravated burglary is also against the manifest weight of the

evidence. Aggravated burglary in violation of R.C. 2911.11(A)(2) requires that

the State prove that the defendant by force trespassed in an occupied structure with

the purpose to commit a criminal offense and that the offender had a deadly

weapon with them. R.C. 2911.11(A)(2). An “occupied structure” is defined as

any house that is maintained as permanent dwelling. R.C. 2909.01(C),

2911.11(C)(1). A “deadly weapon” is any instrument capable of inflicting death

or one that is specifically adapted for use as a weapon. R.C. 2923.11(A),

2911.11(C)(2).

{¶105} To convict of this offense, the jury would have to first find that

Bertuzzi was the person who killed Aldrich. As discussed above, there was

evidence from which the jury could conclude that Bertuzzi was the person who

shot and killed Aldrich. Gullett and Smith both testified that the scene of the

shooting was their home. This establishes that the location of the shooting was an

“occupied structure”. Gullett testified that the shooter opened the front door

loudly and it hit the table. Tr. 301. This testimony indicates that the shooter used

some force to open the door. Gullett saw the shooter in the living room, which

implies they trespassed into the occupied structure. Gullett also testified that the

shooter opened the door and he then heard “loud noises that sounded like loud

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firecrackers.” Tr. 301. After the shooter quit shooting, he immediately left the

house, got into his vehicle and quickly left the scene. This indicates that the intent

of the shooter was to shoot Aldrich. Thus, the element of having a criminal intent

is also met. Finally, Gullett saw the gun and heard the shots. Gullett then saw that

Aldrich had been shot in the forehead. This satisfies the element that the

defendant had a deadly weapon on their person. Since the jury determined that

Bertuzzi was the shooter, they can also determine that Bertuzzi was the person

who committed the aggravated burglary. The evidence does not weigh heavily

against conviction. Therefore, the second assignment of error is overruled.

{¶106} Bertuzzi argues in the third assignment of error that his conviction

for possessing a weapon under a disability was against the manifest weight of the

evidence. Bertuzzi was charged and convicted of having a weapon while under a

disability in violation of R.C. 2923.13(A)(2). The State was required to prove that

Bertuzzi knowingly acquired, possessed, carried, or used a firearm and had

previously been convicted of a felony offense of violence. R.C. 2923.13(A)(2).

The parties stipulated that Bertuzzi had previously been convicted of a felony

offense of violence, so that element is not debated. Fitzpatrick testified that he

saw Bertuzzi holding a gun. Additionally, once the jury determined that Bertuzzi

was the person who shot Aldrich, it could reasonably conclude that Bertuzzi used

a firearm to complete that act. Thus, the evidence indicates that Bertuzzi did

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possess and use a firearm. The evidence does not weigh heavily against

conviction for this offense. The third assignment of error is overruled.

{¶107} In the sixth assignment of error, Bertuzzi alleges that he was denied

effective assistance of counsel.

In evaluating whether a petitioner has been denied effective assistance of counsel, this court has held that the test is “whether the accused, under all the circumstances, * * * had a fair trial and substantial justice was done.” State v. Hester (1976),

,

,

, paragraph four of the syllabus. When making that determination, a two-step process is usually employed. “First, there must be a determination as to whether there has been a substantial violation of any of defense counsel’s essential duties to his client. Next, and analytically separate from the question of whether the defendant’s Sixth Amendment rights were violated, there must be a determination as to whether the defense was prejudiced by counsel’s ineffectiveness.” State v. Lytle (1976),

, 396–397,

,

, vacated on other grounds (1978),

,

,

.

On the issue of counsel’s ineffectiveness, the petitioner has the burden of proof, since in Ohio a properly licensed attorney is presumably competent. See Vaughn v. Maxwell (1965),

,

,

; * *915 State v. Jackson, 64 Ohio St.2d at 110–111, 18 O.O.3d at 351, 413 N.E.2d at 822.

State v. Calhoun,

, 1999–Ohio–102, 714 N .E.2d 905.

{¶108} Bertuzzi claims that counsel was ineffective for the reasons set forth

in the above assignments of error. This court has reviewed those alleged errors

and found no prejudicial error. Since any error could not have affected the

-63- Case No. 9-13-12

outcome of the trial, trial counsel was not ineffective. The sixth assignment of

error is overruled.

{¶109} In the final assignment of error, Bertuzzi claims that the cumulative

effect of the combined errors prevented him from obtaining a fair trial. Under the

doctrine of cumulative error, “a conviction will be reversed when the cumulative

effect of errors in a trial deprives a defendant of a fair trial even though each of the

numerous instances of trial court error does not individually constitute cause for

reversal.” State v. Hunter,

,

,

, ¶

132. A defendant must do more than claim cumulative error, but must offer

analysis how the errors affected the verdict. State v. Bethel,

,

,

. Additionally, when there are no errors

found, the doctrine of cumulative error does not apply. State v. Markwell, 5th

Dist. Muskingum No. CT2011-0056,

.

{¶110} Here, Bertuzzi claims that the above errors, along with the behavior

of the victim’s family in the courtroom, prevented him from having a fair trial.

This court notes that the record is silent as to the behavior of the victim’s family,

other than mere mentions that something occurred and was seen by the jury.

However, the specific conduct was not included in the record. Thus, this court has

no way of reviewing any effect that conduct might have had. This leaves only the

-64- Case No. 9-13-12

above claimed errors. Having found no prejudicial error, the doctrine of

cumulative error does not apply. The seventh assignment of error is overruled.

{¶111} Having found no prejudicial error in the particulars assigned and

argued, the judgment of the Court of Common Pleas of Marion County is

affirmed.

Judgment Affirmed

ROGERS, concurs in Judgment Only as to Assignments of Error 4 & 5.

SHAW, J.J., concurs.

/jlr

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