[Cite as State v. Dunn,

.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 101648

STATE OF OHIO PLAINTIFF-APPELLEE

vs.

DAMON DUNN DEFENDANT-APPELLANT

JUDGMENT: AFFIRMED

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-12-568849-A

BEFORE: Keough, J., Jones, P.J., and Blackmon, J.

RELEASED AND JOURNALIZED: August 6, 2015 ATTORNEY FOR APPELLANT

Russell S. Bensing 1350 Standard Building 1370 Ontario Street Cleveland, Ohio 44113

ATTORNEYS FOR APPELLEE

Mike DeWine Attorney General By: Micah Ault Brian S. Deckert Assistant Attorneys General 615 W. Superior Street, 11th Floor Cleveland, Ohio 44113 KATHLEEN ANN KEOUGH, J.:

{¶1} Defendant-appellant, Damon Dunn, appeals his convictions. For the reasons

that follow, we affirm.

{¶2} In November 2012, Dunn was indicted for the murder of Kenneth Adams.

He was charged with one count of aggravated murder, in violation of R.C. 2903.01(A),

one count of murder, in violation of R.C. 2903.02(B), two counts of felonious assault in

violation of R.C. 2903.11(A)(1) and (2), and one count of kidnapping, in violation of R.C.

2905.01(A)(2). Each of these counts contained both one- and three-year firearm

specifications. He was also charged with one count of having weapons while under

disability in violation of R.C. 2923.13(A)(3).

Dunn elected to bifurcate the weapons under disability count, trying that charge to the

bench. The remaining counts were tried to the jury where the following relevant

evidence was presented.

{¶3} In the early evening of May 18, 2012, Officer John Marincek responded to a

call of shots fired at the Red Zone car wash on East 140th Street. When he arrived on

scene, he found a male, later identified as Adams, lying on the floor with multiple

gunshot wounds to the thorax and abdomen area. According to Dr. Joseph Felo, the

medical examiner, Adams sustained nine gunshot wounds, clustered around his right

shoulder and upper arm. The medical examiner also testified that the bullet holes in

Adams’s clothing were consistent with someone shooting the victim while standing over him. Toxicology reports revealed that Adams had a significant amount of PCP in his

system.

{¶4} Working at the car wash on the day of the murder was Shannon Buffington,

who knew Adams and Dunn. According to Buffington, Adams was standing outside of

the wash-bay area looking at his cell phone. He testified that he was washing a car, but

when he heard gun shots, he ducked down in front of the car.

{¶5} Dwight Robinson was also working at the car wash and testified that he knew

both Dunn and Adams, but saw neither of them that day. Furthermore, he was unable to

recognize the person shown on the video running from the car wash.

{¶6} Geraldine Lowery testified that she was working at the car wash and knew

both Adams and Dunn. She stated that she knew Dunn as “Rambo,” from his days when

he worked at the car wash. She testified that when she heard shots fired, she locked the

door to the office. Lowery and James Flood both called police. In the recorded 911 call

made by Flood, it can be heard in the background someone saying the name “Rambo.”

{¶7} Kendrall Brown, the manager of Red Zone, testified that he was washing a

truck when he heard “some guys talking,” then heard a “popping noise,” which sounded

like “firecrackers.” He testified that he could not recognize anyone in the surveillance

video.

{¶8} Antoinette Whitted, a customer at the car wash, reluctantly testified about the

shooting. Although she admitted she made a statement to police about the shooting,

including a description of the shooter, she was unable to recall any details even with the assistance of her written statement. Furthermore, even though she saw the shooter, when

she was presented with a photo array of suspects, which included Dunn, she picked

someone other than Dunn with 50% certainty.

{¶9} The only person who could identify Dunn as the shooter was Reginald

Longstreet. He testified that on May 18, 2012, he met up with Adams and smoked PCP.

He testified that he came back to the car wash around 4:00 p.m. and spoke with Brown,

who was washing a car. At this time, Dunn walked up the street and into the car wash,

and had a brief conversation with some of the workers. According to Longstreet, he

heard Adams walk inside of the car wash dragging his feet saying, “let me holler at you

about that bull--,” however, before he could finish his sentence, Longstreet heard

gunshots. He looked inside the business and saw Dunn standing over Adams shooting

him multiple times. According to Longstreet, Dunn held two guns, but one appeared to

jam. After taking items from the victim’s pockets, Dunn looked up at Longstreet, and

ran across the street through a field.

{¶10} Longstreet admitted that he was currently serving a federal prison sentence.

He further admitted that he did not give a statement to police about Adams’s murder and

Dunn’s involvement until November 2012 because he fled the state of Ohio to avoid

federal charges. Longstreet’s initial description of the shooter as being dressed in “all

black” was contrary to the video showing the shooter wearing a white shirt.

{¶11} During the investigation of the shooting, police recovered two different

types of shell casings from the scene. Detectives were also able to obtain a surveillance video that depicted the events outside of the car wash during the time of the murder,

including a person wearing a white shirt running from the car wash. However, the video

was not of sufficient quality to allow a determination of the identity of the person.

{¶12} Detective Griffin testified that he took a statement from Dunn

approximately six months after the murder. During that recorded interview, Dunn stated

that he was with Marquita Lewis and Sarah Mossor on the day of the murder. However,

Lewis later told police and testified that she was not with Dunn and Mossor at Edgewater

Beach that day. But Mossor told police and testified that she was with both Lewis and

Dunn at the beach.

{¶13} Also during this interview, Dunn provided police with both his and

Mossor’s cell phone information. The jury heard factual testimony from a Verizon

Wireless representative about calls and text messages placed and received by these two

cell phone numbers on the day of the murder. The jury also heard factual testimony

about which cellular phone tower was utilized and recorded in the phone records and

viewed a corresponding map plotting the location of those towers.

{¶14} Following the State’s case, the kidnapping charge and one count of

felonious assault were dismissed. The jury returned guilty verdicts on the remaining

counts and specifications and the court found Dunn guilty of having weapons while under

a disability. Dunn was sentenced to 25 years to life for aggravated murder consecutive to

the three-year firearm specification.

{¶15} Dunn now appeals, raising three assignments of error. I. Dismissal of Indictment

{¶16} Trial was scheduled in this matter for April 22, 2013. Ten days prior to

trial, Dunn filed a notice of alibi, stating that at the time of the murder he was at

Edgewater Beach with Mossor and Lewis. At that time, Dunn had not waived his right

to a speedy trial.

{¶17} One week prior to trial, Aaron Brockler, the assistant county prosecutor

assigned to prosecute the murder charges against Dunn, showed Dunn’s counsel a

printout from Facebook, an online social media website. The printouts were

conversations dated December 14, 2012, purportedly between “Taisha Little,” the mother

of Dunn’s child, and Dunn’s alibi witnesses, Mossor and Lewis. These conversations

were initiated by Little. According to Brockler, Little was trying to establish that both

Mossor and Lewis were going to lie for Dunn at trial. Based on the new evidence, which

Brockler characterized as “blow[ing] up [Dunn’s] alibi,” Dunn temporarily waived his

speedy trial rights until July 15, 2013, to investigate Little’s involvement.

{¶18} In an attempt to locate Little, a subpoena was issued for her Facebook

records. The subpoena and subsequent investigation revealed that Little’s Facebook

profile was created on a Cuyahoga County government computer. On May 7, 2013,

Brockler admitted that he created the fictitious profile of Little, and pretended to be her in

the communications with both Mossor and Lewis. According to Brockler, his purpose

was to make Mossor mad with the hope that she would not testify in accordance with the

alibi. {¶19} As a result, an internal investigation was conducted, Brockler was

terminated by the county prosecutor’s office, a special prosecutor was assigned, and Dunn

moved to dismiss the indictment pursuant to Crim.R. 48(B) contending that the state’s

conduct was egregious. On November 5, 2013, the trial court conducted an evidentiary

hearing on Dunn’s motion, which included testimony from Dunn’s attorney, Mossor, the

detectives that investigated the Facebook account, and another assistant county

prosecutor. Brockler was also called as a witness, but he invoked his Fifth Amendment

right during examination.

{¶20} After considering the testimony, evidence, including internally sealed

documents and records, the trial court denied Dunn’s motion to dismiss. In so ruling, the

trial court concluded that the conduct and actions by Brockler were not sanctioned by the

county prosecutor’s office and dismissing the case would only serve to punish the entire

prosecutor’s office. According to the trial court, the need to punish the entire office had

“not been established by this record.”

{¶21} In his first assignment of error, Dunn contends that the trial court erred and

abused its discretion in denying his motion to dismiss the indictment because of

governmental misconduct.

{¶22} Dunn moved to dismiss the indictment pursuant to Crim.R. 48(B).

Crim.R. 48(B) provides, “Dismissal by the Court. If the court over objection of the state

dismisses an indictment, information, or complaint, it shall state on the record its findings

of fact and reasons for the dismissal.” A trial court has the authority to dismiss a case pursuant to Crim.R. 48(B) on account of misconduct of a prosecutor, however, this

authority is not without limitation. Maple Hts. v. Redi Car Wash,

,

(8th Dist. 1988), paragraph three of the syllabus. A trial court may not

dismiss a case with prejudice unless a defendant has been denied a constitutional or

statutory right that would itself bar prosecution. State v. Sutton,

,

(9th Dist. 1979).

{¶23} Trial courts possess the inherent power to dismiss the cases on their dockets.

State v. Rivers, 8th Dist. Cuyahoga No. 83321,

. Thus, the decision

whether to dismiss a criminal case lies in the sound discretion of the trial court and that

decision will not be overturned absent an abuse of discretion, which is more than an error

of law or judgment; rather, it implies that a court’s attitude is unreasonable, arbitrary, or

unconscionable. State v. Herring,

,

,

; State v. Clark,

,

(1994).

{¶24} According to Dunn, Brockler’s actions were egregious and thus warranted

the most extreme sanction of dismissal of the indictment. Whether the former assistant

prosecutor violated any professional standards of conduct is not for this court to decide.

The issue before this court is whether the trial court abused its discretion in denying

Dunn’s Crim.R. 48(B) motion to dismiss. Based on the record, we find that the trial

court did not.

{¶25} After it was discovered that Brockler interjected himself as a witness in the

case, the prosecutor’s office immediately removed him from the case. Additionally, an independent investigation was conducted regarding whether Brockler’s conduct

compromised the case and if it was authorized by his supervisors.

{¶26} The trial court conducted a hearing on Dunn’s motion to dismiss, reviewed

the independent investigation in camera, and determined that the conduct taken by the

assistant prosecutor was done at his own direction. The court further found that

Brockler’s involvement did not influence the alibi witnesses testimony — Mossor

testified at the hearing that she was with Dunn at Edgewater Beach at the time of the

murder. Lewis did not testify at the hearing, but her statement she gave to police, albeit

after the Facebook conversation, denied being with Dunn and Mossor. At no time during

the Facebook conversations did Lewis commit to her whereabouts or who she was with

on the day of the murder. While it is true that it is unknown what Lewis’s testimony

would have been at trial but for Brockler’s involvement, speculation alone is insufficient

grounds to impose the most severe sanction against the State for the actions of one rogue

assistant prosecutor. Based on Mossor’s testimony at the dismissal hearing, Dunn’s alibi

was still a viable defense, with the jury being the judge of credibility at trial if Lewis

testified contrary to Mossor. The trial court’s decision to not punish the entire

prosecutor’s office based on Brockler’s conduct is supported by the case law in Ohio.

{¶27} In Redi Car Wash,

,

, this court examined

a situation where the trial court discovered that the prosecutor had filed a libel suit against

the defendants that were charged with crimes in his jurisdiction. The defendants had

filed grievances against the prosecutor with the local bar association. Further, the prosecutor had threatened more charges unless the other matters were resolved. The trial

court dismissed the criminal charges because of the prosecutor’s “personal vendetta.”

. This court reversed the trial court and found no basis that would have warranted

dismissal.

. This court found that the “integrity of the proceedings” were

protected by the appointment of another prosecutor on the case.

, citing

Royal Indem. Co. v. J.C. Penney Co.,

,

(1986).

{¶28} In this case, the Cuyahoga County prosecutor’s office requested that a

special prosecutor be appointed to further handle the case, which the trial court granted.

The office also conducted an independent investigation of Brockler’s conduct. These

actions preserved the integrity of the proceedings.

{¶29} In Sutton,

,

, the Ninth District reviewed

a case where the prosecutor sought to dismiss criminal charges against the defendant in

order to file the charges in another county that would be more favorable to his motion for

a voice exemplar, which had already been denied by the trial court. Once the court

learned of this, the court dismissed the case with prejudice. The Ninth District reversed,

stating, “[w]e do not commend the prosecutor’s actions, but we do not believe those

actions merited dismissal of the entire proceedings with prejudice. Such a severe action

is unsatisfactory because it means that a defendant who may be guilty of a serious crime

will go free without having been tried.”

.

{¶30} In this case, we agree with the Ninth District’s reasoning and do not

condone Brockler’s conduct. However, Dunn has failed to show how his statutory or constitutional rights were violated by Brockler’s conduct. This is not a case where a

discovery violation has occurred such that Brady v. Maryland,

,

,

(1963), would be implicated and the defendant would not receive a

fair trial. Dunn was provided full access to all evidence and discoverable material

relative to the actions of Brockler in this case.

{¶31} Furthermore, Brockler’s actions were discovered prior to trial, not during

trial and after jeopardy attached. The investigation into Brockler’s actions were resolved

fairly quickly and from the evidentiary hearing on his motion to dismiss, Dunn’s alibi

arguably remained intact.

{¶32} Accordingly, we cannot say that the trial court’s decision denying Dunn’s

motion to dismiss was unreasonable, arbitrary, or unconscionable. This decision,

however, is by no means an endorsement of Brockler’s conduct. The first assignment of

error is overruled.

II. Admission of Evidence

{¶33} As part of its case, the state sought to introduce cell phone records to prove

that Dunn was in the vicinity of the Red Zone car wash on the day of the murder and not

at Edgewater Beach as he and Mossor told police. Specifically, the state wanted to show

which cell phone towers Dunn’s phone “pinged off” of to prove his location.

{¶34} The defense filed a motion in limine, arguing that expert testimony is

required regarding this scientific and technical information and the state failed to follow

Crim.R. 16(K) notifying the defense of an expert and providing an expert report. {¶35} The trial court held a hearing and issued a journal entry concluding that the

state’s witness from Verizon would be “prohibited from offering technical or scientific

testimony concerning the functions of cellular phone communications, but may testify as

a custodian of records and describe the relevant information and notations contained

therein.”

{¶36} During trial and over a continuing objection, Verizon representative, Jim

Svoboda, testified about cellular phone records belonging to two different cellular phone

numbers. His testimony established that he did not know who were the subscribers of

these numbers, who the numbers actually belonged to, or who was using the telephone

numbers. His testimony equated to reading the information on the records aloud to the

jury and explaining what each column on the records depicted. Pertaining to which cell

tower captured the beginning and end of the call, Svoboda identified the tower by

identification number and from which side of the tower the call “pinged.” No testimony

was given explaining the concept of “pinging” or how cellular phones work.

{¶37} Earlier in the trial, criminal intelligence analyst, Lori Braunschweiger,

testified over a continuing objection about a map she created based on information she

received from a secondary source. She testified that she plotted out cellular towers by

using a red pin onto a map. Additionally, she plotted those towers in conjunction with

two fixed locations — Edgewater Beach and the Red Zone Car Wash. Braunschweiger

stated that she made green circles around the cell towers that were “hit” on the day of the murder by the target telephone number. She also testified that she indicated on the map

the cell tower identification numbers.

{¶38} During the state’s closing argument, the state emphasized that Dunn’s

whereabouts on the day of the murder placed him near the car wash rather than Edgewater

based on the location of the cell towers where his phone pinged from. As the defense

pointed out in its closing, the jury heard no evidence on who was using Dunn’s cell phone

that day or that any of the cellular records they heard testimony about belonged to Dunn.

The defense further emphasized that there was no testimony or evidence regarding what it

means when a cell tower handles a call. Additionally, the defense stated to the jury that

no evidence was presented to prove that a cell tower that is two miles away from the

crime scene that handles a cellular call also proves that the phone that made the call is

also two miles away from that tower.

{¶39} In his second assignment of error, Dunn contends that the trial court erred

and abused its discretion in admitting testimony regarding cellular phone towers.

Specifically, Dunn challenges that the state was required to present expert testimony to

explain the function of cell phone towers, tracking, and location techniques.

{¶40} The admission or exclusion of evidence is a matter left to the trial court’s

sound discretion; therefore, it will not be disturbed absent an abuse of discretion. State v.

Frazier, 8th Dist. Cuyahoga No. 97178,

. An abuse of discretion is

a decision that is unreasonable, arbitrary, or unconscionable, rather than a mere error in

judgment. Blakemore v. Blakemore,

,

(1983). {¶41} In State v. Perry, 11th Dist. Lake No. 2011-L-125,

, the

court reviewed the trial court’s decision allowing the state’s cellular provider witness to

testify despite not complying with Crim.R. 16(K) and providing an expert report. The

trial court concluded that the witness was an expert because he possessed knowledge

outside the realm of a normal juror. Id. at ¶ 63. However, the court allowed the witness

to testify despite no Crim.R. 16(K) expert report being filed because the witness was

merely testifying as to factual matters rather than opinions. Id. In upholding the trial

court’s decision, the Perry court concluded that, because the witness did not make any

independent findings or form any conclusions or opinions on cell phone triangulation or

tracking, an expert report was not required. Id. at ¶ 63-65.

{¶42} The distinguishing factor in Perry from the case before this court is that the

Perry witness testified about how a cell phone works, how the device utilizes nearby

towers for connectivity, and how the service provider records this information.

According to the Perry court, this information was general background information

allowing the witness to interpret the cell phone records. From there, the witness

explained the records and compared the locations on the phone records to the

corresponding locations on the tower site maps. The Perry court found this tactic simple

enough that a “layperson” could make this determination. Id. at ¶ 65. The court further

noted that the defendant did not challenge the testimony by a Verizon Wireless

representative who merely testified about the content of the defendant’s cellular phone

records that she brought with her at trial. Id. at ¶ 67. {¶43} In support of his argument on appeal, Dunn cites to case law from other

states — Maryland, Missouri, Texas, and California, for the proposition that expert

testimony is required regarding cell phone towers linking and mapping. While this may

be true in those jurisdictions, Svoboda was prohibited from and did not testify about cell

phone tower linking and mapping. He merely read specific portions of the cellular

records to the jury, including which cellular tower the call originated from and ended

from. He did not testify about how a cell phone works, how a cell tower would trace a

signal, or location techniques. Rather, he factually explained the contents of the complex

and detailed phone records. Svoboda’s testimony was much like the testimony in Perry

by the Verizon customer service representative who only testified about the defendant’s

records, which was not challenged. See Perry at ¶ 67.

{¶44} Moreover, Agent Braunschweiger testified about the map she created

plotting information she received about the cell tower information appearing on the

subpoenaed phone records. Braunschweiger’s testimony was much like the witness in

Perry — a layperson could compare the locations depicted on the records to the

corresponding location on the site map. Perry at ¶ 65.

{¶45} A review of the record demonstrates that no witness testified about Dunn’s

location at the time of the murder by means of cell phone tower location and mapping.

Any inferences or speculation about Dunn’s location by use of this cell phone evidence

was established by the state during its closing argument. Whether the state commented

on evidence outside the record during closing or was merely “connecting the dots” is not an argument or assignment of error raised before this court. Therefore, we will not

address it.

{¶46} Accordingly, based on the assignment of error raised and the arguments

contained therein, we cannot say that the trial court abused its discretion in allowing

Svoboda and Braunschweiger to testify concerning cell phone records and corresponding

cellular tower placement. Dunn’s second assignment of error is overruled.

III. Flight Jury Instruction

{¶47} In his third assignment of error, Dunn contends that the trial court erred in

giving the jury a flight instruction.

{¶48} The giving of jury instructions is within the sound discretion of the trial

court, and we review it for an abuse of discretion. State v. Howard, 8th Dist. Cuyahoga

No. 100094,

, citing State v. Martens,

,

(3d Dist. 1993).

{¶49} In this case, the trial court gave the following instruction to the jury on

flight:

There may be evidence in this case to indicate that the defendant fled from the scene of the crime. Flight does not in and of itself raise the presumption of guilt, but it may show consciousness of guilt or a guilty connection with the crime.

If you find that the defendant did flee from the scene of the crime, you may

consider that circumstance in your consideration of the guilt or innocence of

the defendant.

(Tr. 1631-1632.) {¶50} Similar versions of this flight instruction have been upheld by this court in

numerous cases, including State v. Gibson, 8th Dist. Cuyahoga No. 98725,

, State v. Vanderhorst, 8th Dist. Cuyahoga

, and State v. Hamilton, 8th Dist. Cuyahoga No. 86520,

. However,

the instructions given in those cases were upheld because the evidence demonstrated that

the instruction was warranted.

{¶51} “‘[A] mere departure from the scene of the crime is not to be confused with

deliberate flight from the area in which the suspect is normally to be found.’” State v.

Santiago, 8th Dist. Cuyahoga No. 95516,

, quoting State v.

Norwood, 11th Dist. Lake Nos. 96-L-089 and 96-L-090,

(Sept. 30, 1997).

{¶52} In Norwood, the court found that the flight instruction was error, albeit

harmless error, because the defendant did not “leave the general area in which he may

have normally been found. Additionally, we do not equate appellant’s attempt to hide in

[a friend’s] kitchen with flight.” Id. at *15. The court further found that “the facts are

also insufficient to justify a flight instruction because appellant did not flee to a situs

where he could not have been easily located.” Id. at *15-16. Accordingly, it must be

clear that the defendant took affirmative steps to avoid detection and apprehension

beyond simply not remaining at the scene of the crime.

{¶53} Recently, this court held in State v. Jackson, 8th Dist. Cuyahoga No.

100125,

, ¶ 48 and State v. Johnson, 8th Dist. Cuyahoga No. 99715,

, that the defendant’s conduct of leaving the scene of the crime did

not warrant a flight instruction because there was no evidence of deliberate flight in the

sense of evading police. See also State v. Wesley, 8th Dist. Cuyahoga No. 80684,

(flight instruction not warranted based on insufficient evidence).

{¶54} Much like in Jackson and Johnson, the evidence in this case did not warrant

a flight instruction. Dunn’s leaving the scene was not deliberate flight in the sense of

evading police and detection. There was no evidence presented that Dunn fled to a

location where he could not be located or that he evaded police once detected.

Accordingly, we find the trial court abused its discretion instructing the jury on flight.

{¶55} Despite the court’s error, we cannot say, nor has Dunn demonstrated, that

the error was prejudicial. “A reviewing court may not reverse a conviction in a criminal

case due to jury instructions unless it is clear that the jury instructions constituted

prejudicial error.” State v. McKibbon, 1st Dist. Hamilton No. C-010145,

, ¶ 27, citing State v. Adams,

,

(1980). In order to determine whether an erroneous jury instruction was prejudicial, a

reviewing court must examine the jury instructions as a whole. State v. Harry, 12th Dist.

Butler No. CA2008-01-013,

, citing State v. Van Gundy,

,

(1992). “A jury instruction constitutes prejudicial

error where it results in a manifest miscarriage of justice.” State v. Hancock, 12th Dist.

Warren No. CA2007-03-042,

. Conversely, “[a]ny error, defect, irregularity, or variance which does not affect substantial rights shall be disregarded.”

Crim.R. 52(A).

{¶56} Reviewing the jury instructions as a whole, we cannot say that the trial

court’s instruction on flight was prejudicial, such that a manifest miscarriage of justice

occurred. The instruction given, although improper, allowed the jury to make its own

conclusions on flight and to consider whether Dunn left the scene and, if so, his

motivation for leaving. Thus, the instruction did not change the underlying facts of the

case; the instruction was harmless beyond a reasonable doubt.

{¶57} Accordingly, we overrule Dunn’s third assignment of error.

{¶58} Judgment affirmed.

It is ordered that appellee recover from appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution. The defendant’s convictions having

been affirmed, any bail pending appeal is terminated. Case remanded to the trial court

for execution of sentence.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.

KATHLEEN ANN KEOUGH, JUDGE

LARRY A. JONES, SR., P.J., and PATRICIA ANN BLACKMON, J., CONCUR