[Cite as State v. Tyus,

.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )

STATE OF OHIO C.A. No. 29505

Appellee

v. APPEAL FROM JUDGMENT ENTERED IN THE DONYEA TYUS COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO Appellant CASE No. CR-2018-09-3067-B

DECISION AND JOURNAL ENTRY

Dated: September 16, 2020

CARR, Judge.

{¶1} Defendant-Appellant Donyea Tyus appeals from the judgment of the Summit

County Court of Common Pleas. This Court affirms.

I.

{¶2} Following multiple shootings in the Akron area during the early morning hours of

July 7, 2018, an indictment was filed charging Donyea Tyus with two counts of aggravated murder,

two counts of murder, two counts of felonious assault, and one count of having weapons while

under disability. Firearm specifications accompanied the aggravated murder and murder counts.

Donyea Tyus’ half-brother, Orlando Tyus, was also charged in relation to the crimes.

{¶3} The matter proceeded to a jury trial at which both Donyea and Orlando Tyus were

tried. The jury found Donyea Tyus guilty of the charges. Thereafter, the trial court proceeded to

sentencing.

{¶4} Donyea Tyus has appealed, raising four assignments of error for our review. 2

II.

ASSIGNMENT OF ERROR I

THE VERDICT OF THE TRIAL COURT WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE[.]

{¶5} Donyea Tyus argues in his first assignment of error that the verdicts were against

the manifest weight of the evidence. Donyea Tyus points out that the testimony of Cheyenne

James, who witnessed and participated in the crimes, was crucial to the State’s case. He argues

that the jury misjudged James’ credibility and should not have relied upon her testimony.

{¶6} In determining whether a criminal conviction is against the manifest weight of the

evidence,

an appellate court must review the entire record, weigh the evidence and all reasonable inferences, consider the credibility of witnesses and determine whether, in resolving conflicts in the evidence, the trier of fact clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.

State v. Otten,

(9th Dist. 1986).

{¶7} “When a court of appeals reverses a judgment of a trial court on the basis that the

verdict is against the weight of the evidence, the appellate court sits as a ‘thirteenth juror’ and

disagrees with the fact[-]finder’s resolution of the conflicting testimony.” State v. Thompkins,

, 387 (1997), quoting Tibbs v. Florida,

(1982). An appellate court

should exercise the power to reverse a judgment as against the manifest weight of the evidence

only in exceptional cases.

. “[I]n resolving a manifest weight challenge, ‘[t]his Court

has consistently held that the trier of fact is in the best position to evaluate the credibility of

witnesses and resolve factual disputes.’” State v. Moore, 9th Dist. Summit No. 29418, 2020-Ohio-

3708, ¶ 30, quoting State v. Boatright, 9th Dist. Summit No. 28101,

, quoting

State v. Bardos, 9th Dist. Medina No. 15CA0082-M,

. 3

{¶8} The matter before us involves events that took place over the span of a few hours

in the early morning of July 7, 2018 at three separate crime scenes in Akron. The first took place

on Schiller Avenue, the second in a parking lot on South Arlington, and the last in an alleyway

near 6th Avenue and Minordy Place.

Schiller Avenue

{¶9} B.R. and his brother were visiting family on Schiller Avenue in Akron on the

evening of July 6, 2018 for a blessing ceremony to offer support for an ill family member. The

gathering went into the early hours of the morning. The gathering included socializing, eating,

and drinking alcohol. Around 3:30 a.m. on July 7, 2018, B.R. and his brother walked to B.R.’s

car which was parked along the street. B.R. approached the driver side and B.R.’s brother went

towards the passenger side. Two men approached B.R. and his brother and said, “[G]ive me your

money.” B.R.’s brother turned around and saw an African American man in an army-type hat near

him. The other man near B.R. shot B.R. B.R.’s brother then took off running towards the house.

The evidence supports that the man near B.R.’s brother tried to shoot B.R.’s brother but the weapon

misfired. B.R.’s brother was not able to provide a full description of the two men but noted one

of them was wearing a “Boonie cap” or army style hat. B.R. was shot multiple times and died

from his injuries.

{¶10} B.R.’s brother told police that the men fled on foot towards Tallmadge Avenue.

Near the scene, police encountered two men, one wearing a cap similar to the one that B.R.’s

brother described. Once the male in the cap observed police, he and the other man took off running.

The two men and an Asian male, who was found with the two men when they were detained, were

taken into police custody. Drugs or drug paraphernalia were found on the two men who fled police

and all three had outstanding warrants. The Asian man, identified as B., had been observed earlier 4

at the crime scene near B.R.’s body, possibly providing assistance. When he was stopped with the

two other men, he had blood on him. The individual in the cap, who was identified as J.B., was

taken to the location where B.R.’s brother was and B.R.’s brother indicated that the hat looked like

the one worn by one of the shooters. J.B. denied being near the crime but admitted that he used to

use crack cocaine with B.R.’s brother. The other man was discovered to be A.D. The three men

were in custody at the time of the subsequent crimes and, thus, could not have been involved in

them.

{¶11} One live round and three spent shell casings were found at the crime scene. Officer

testimony indicated that the live round was likely present due to misfire or manual ejectment to

clear a jam of the firearm. Examination of the live round by a firearms expert revealed multiple

light firing pin strikes, which could be caused by several things, including a malfunction of the

weapon. Due to an error, only two casings were sent for further analysis. The two casings were

determined to be Remington 380 auto fired cartridge cases and the live round was found to be a

9x18 mm Makarov cartridge. The two casings were fired from the same weapon. The bullet

recovered from B.R. was determined to be a fired 380 auto jacketed hollow point bullet. Assuming

the two casings and the recovered bullet were fired from the same weapon, the firearms expert

indicated that the only weapon that he knew would fire all three was a Hi-Point.

{¶12} Gunshot residue testing was performed on J.B. and A.D. at approximately 6:00 a.m.

that morning. Both tested negative. Additionally, DNA testing was conducted on certain items

related to the crime scene, including a tank top located near the crime scene. A blood stain on the

shirt was tested for DNA and a mixture of profiles was found; however, the blood was not that of

B.R., J.B. or A.D. The DNA that was interpretable was consistent with an unknown male. The

back interior near the label of the shirt was also tested and a mixture of DNA profiles was found. 5

Two major profiles were discovered, one consistent with J.B. and one consistent with the same

unknown male profile present in the blood stain. There was additional data present, but it was

insufficient for comparison. A.D. and B.R. were excluded as possible contributors to the DNA

found on the interior of the shirt. The profiles were also entered into the CODIS DNA database

for comparison, but no matches were found. That database includes profiles from other forensic

samples, profiles from convicted offenders, and certain arrestees.

{¶13} An autopsy was performed on B.R. B.R. had four gunshot wounds, one to the back

of the head, one to the face, one to the neck, and one to the left upper arm. The gunshot wound to

the back of the head was fatal.

South Arlington Parking Lot

{¶14} Around 6 a.m. on July 7, 2018, Akron police received a 911 call reporting that an

African American man had been found dead in a parking lot near 5th Avenue and South Arlington.

He had been shot in the head. The victim was later identified as R.M. The individual who called

911 told police that she had seen R.M. alive earlier that morning. She did not know why R.M. was

shot and did not see the shooting. She told police that R.M. was a drug user and that he squatted

in abandoned houses. She speculated that perhaps he owed someone money. Other information

police discovered supported that R.M. was homeless and had a drug problem. In addition, police

learned that R.M. was a small-time thief and had spent time in prison. No shell casings were found

at the crime scene. It was estimated that the crime took place between 4:30 and 5:30 a.m.

{¶15} An autopsy was also performed on R.M. R.M. had one gunshot wound to the head.

The bullet entered near his right eye, perforated his paranasal sinuses, and lodged in the left

temporal bone of the skull, but, due to the path of the bullet, it did not directly penetrate the brain.

Instead, his brain was injured due to the concussive forces generated by the gunshot. Due to the 6

stippling on R.M.’s face, the medical examiner indicated that the muzzle of the gun was held within

inches of his face. Cocaine metabolites were found in R.M.’s toxicology screen.

{¶16} The bullet recovered from R.M. was sent for further analysis. It was determined to

be a 380 auto jacketed hollow point bullet. When the bullet was compared to the bullet recovered

from B.R. it was discovered that the bullets were fired from two different weapons.

6th Avenue and Minordy Place

{¶17} C.H. was a long-time drug addict who supported her habit through prostitution.

Sometime between 3:00 and 5:00 a.m. on July 7, 2018, she was in the area of 6th Avenue and

Minordy Place. She first saw an African American male. He told her to come here and called her

“Auntie.” The man held up a baggie that she thought had drugs in it and told her that he had

something for her to try. She went over to where he was and he grabbed a hold of her arm and

pulled her into the alley. C.H. then saw another African American man and a Caucasian blond

woman. They appeared to be embracing. When C.H. turned around she saw the woman pull a

gun out of her waistband and the woman pointed it at C.H. She did not get a good look at the men

but got a good look at the woman. C.H. thought the woman appeared to be participating of her

own free will and told police at one point the woman was smiling. One of the men took the gun

from the woman and said, “I have to do this one.” One of the men then held a gun against her

head. C.H. said, “Please don’t do this. I have kids.” One of the men said, “So what, B*tch. I have

kids, too.” He then said, “Are you ready to die?” He tried to shoot her a couple of times, but the

bullets fell to the ground. He reloaded the gun and tried to shoot her again and the bullets fell out

again. As he was trying to pick up the bullets, C.H. took off running, however, one of the men

tripped her. Then, the woman jumped on her. C.H. used her foot to wedge the woman off of C.H.

and she ran. 7

{¶18} While police were at the South Arlington scene, they received information that

there was another possible victim in the area, C.H. C.H. took officers to the alleyway near 6th

Avenue and Minordy Place where she was attacked. Two live rounds were found in the alleyway.

Officer testimony indicated that finding live rounds at a crime scene could indicate that the weapon

malfunctioned. This area was approximately one hundred yards from where R.M.’s body was

discovered. The live rounds were sent for DNA testing, but insufficient DNA was recovered for

comparison purposes. A firearms expert also examined the rounds and determined that they were

380 auto cartridges with one demonstrating a light firing pin strike. The firearms expert indicated

that a light firing pin strike could be caused by several things, including a malfunction of the

firearm. A cigarette butt was also found at the scene. The DNA profile recovered from the

cigarette butt was consistent with the profile of C.H.

The Investigation and Trial

{¶19} Lieutenant Scott Lietke, with the Akron Police Department, was a sergeant in the

major crimes unit at the time of the investigation and was the lead investigator. After police

interviewed the three men detained near the B.R. crime scene and interviewed B.R.’s brother,

Lieutenant Lietke was less confident in the men’s involvement. Police remained without further

leads until B.H. came to their attention.

{¶20} On August 9, 2018, B.H. was stopped by a state trooper and a gun and drugs were

found in the car. B.H. agreed to meet with the drug task force to fill out paperwork to be a

confidential informant. The questionnaire included questions about whether the person

completing the form had information on unsolved murders, rapes, or assaults. B.H. circled yes

and showed the police a newspaper article about the murders. Shortly after signing the confidential

informant agreement, B.H. was stopped again by police and more drugs were found on her. As 8

the agreement only covered actions prior to signing the agreement, B.H. ultimately was charged

and sentenced to prison related to the drugs found after the agreement was signed. B.H. then talked

to Akron homicide detectives. She gave police Donyea and Orlando Tyus’ names, whom she

knew as Bishop and Orka, as well as James’ name and discussed what B.H. had heard about the

crimes.

{¶21} The record disclosed that B.H. knew both Donyea and Orlando Tyus through her

connection to drugs. B.H. both used and sold drugs. B.H. also knew James, who was a fellow

addict. B.H. indicated that James paid for her habit through prostitution. B.H. had both James’

and Donyea Tyus’ contact information in her cell phone. B.H. had three numbers that she knew

were associated with Donyea Tyus, one ended in 1395, one ended in 4809, and the last ended in

5550. She indicated that she always spoke to Donyea Tyus and not Orlando Tyus. She also had

a number for James. While that number was listed in her phone as belonging to someone else,

B.H. knew James to use it. That number ended in 9685.

{¶22} At some point after July 7, 2018, James became afraid of Donyea and Orlando

Tyus. B.H. let James stay at B.H.’s house to try to keep her safe. James and B.H. had multiple

conversations where James implicated herself, and Donyea and Orlando Tyus in the murders.

B.H. also heard about the murders from a couple other drug addicts that she knew. She indicated

that James told those people about the murders as well. B.H. stated that James told her the crimes

were part of a gang initiation and that each person had to kill someone to be a part of the gang.

B.H. believed that the killings were random.

{¶23} In early August 2018, James was arrested on unrelated drug charges. In the next

couple days, B.H. had a conversation with both Donyea and Orlando Tyus at B.H.’s house. The

three were sitting on the couch, with Donyea Tyus on one end, Orlando Tyus on the other, and 9

B.H. in the middle. B.H. felt intimidated. B.H. testified that every time Donyea and Orlando Tyus

came to her house they had guns with them. Donyea and Orlando Tyus were aware that James

was in jail. During the conversation, B.H. was asked if James was going to keep quiet about what

Donyea and Orlando Tyus had done. Based on the conversation with them and the other

information B.H. had at the time, B.H. believed that Donyea and Orlando Tyus had murdered

people. However, they did not use those words during the discussion. Donyea Tyus was the one

that did the talking and Orlando Tyus would just nod and say yes. Initially, B.H. believed that

James was being held by Donyea and Orlando Tyus against her will during the crime spree. Later,

B.H. came to understand that James was a willing participant.

{¶24} Following B.H.’s interview with police, on August 13, 2018, James was transported

from jail to speak with police about the events of July 7, 2018. James told police that she did not

recognize photos of the victims but admitted to knowing Donyea and Orlando Tyus, whom she

knew as Bishop and Orka. James expressed concern for her safety. While she said initially that

she was not afraid of Donyea and Orlando Tyus, she did say that they were intimidating. James

then proceeded to tell police about the crimes.

{¶25} The following day, police presented C.H. with three photo arrays. One included

James, one included Donyea Tyus, and one included Orlando Tyus. C.H. identified James in the

photo array and indicated she was 80 to 90 percent certain that James was involved. At trial, C.H.

indicated that she did not get as good of a look at the men and did not feel confident in identifying

them. C.H. did not pick out either Donyea or Orlando Tyus’ photos and instead selected photos

of other people as being possibly or likely involved. That same day, Orlando Tyus was arrested.

Three phones were found on his person. The number associated with one of the phones ended in

4809, the same number B.H. had associated with Donyea Tyus. 10

{¶26} On September 7, 2018, Donyea Tyus was arrested during a traffic stop. Three

people were in the vehicle including Donyea Tyus’ girlfriend. Donyea Tyus gave police a false

name during the stop. However, his true identify was soon discovered. A cell phone was recovered

near Donyea Tyus’ girlfriend. That phone appeared to be used by both Donyea Tyus and his

girlfriend based upon information extracted from the phone. Photos of Donyea Tyus were also

found on the phone. The phone number associated with that phone ended in 1812. The contacts

included “Cheyenne[,]” which listed the phone number associated with James. The 1812 number

also had communications with the 1395 phone number previously noted above to be associated

with Donyea Tyus. In at least one of those communications, it appears Donyea Tyus’ girlfriend

may have been using the 1812 phone to communicate with Donyea Tyus via the 1395 number. A

phone with the 1395 number was never recovered.

{¶27} When Donyea Tyus was interviewed by police, he denied any knowledge of the

murders and said he was with his girlfriend all weekend on Susan Court on the west side of Akron.

{¶28} James also testified at trial. At the time of the events, she was 20 years old and had

known Orlando Tyus for a few years and Donyea Tyus for a few months. James was using both

methamphetamine and fentanyl at the time and had been addicted to heroin since she was 14 years

old. On July 7, 2018, Orlando and Donyea Tyus came over to the house James was staying at,

which was located at Hammel and Crosier Streets in Akron. Both men were wearing hats. Donyea

Tyus was wearing a “drill sergeant hat” and Orlando Tyus had on a fisherman’s hat. James used

some fentanyl before leaving. They all left in a silver car. Orlando Tyus drove, Donyea Tyus was

in the front passenger seat, and James was in the back. Both Donyea and Orlando Tyus had

handguns with them and they all had phones with them. 11

{¶29} They went to North Akron and pulled up behind a car and waited for five to ten

minutes. They then saw two Asian men were walking towards the parked car in front of them.

Orlando and Donyea Tyus got out and told James to stay in the car. Orlando Tyus approached the

driver’s side and Donyea Tyus approached the passenger. James heard Donyea Tyus tell the

passenger to give Donyea Tyus money. Orlando Tyus fired three or four shots at the driver.

Donyea Tyus pointed his gun at the passenger but it did not go off. They came back to the car.

Donyea Tyus asked for Orlando Tyus’ gun so he “[could] go try to finish him[,]” but Orlando Tyus

refused and indicated that they had to leave. They drove towards the east side of Akron to 5th and

Arlington. They all got out of the car and started walking towards Arlington. Orlando and Donyea

Tyus were talking about “body for body[.]” Donyea Tyus was saying how he was mad because

he did not get his body. Donyea Tyus indicated that he “was going to get [the next person they

saw.]” They saw a man walking towards some apartments. Donyea Tyus went over, shook the

man’s hand, put the gun up to the man’s head and pulled the trigger. Donyea Tyus ran back to

them and said that he knew the man he shot from prison. Orlando and Donyea Tyus told James

that, because she just saw them kill two people, she had to kill someone or they would kill her.

They told her that they were initiating her into their gang.

{¶30} The three crossed Arlington and walked to a side street. Donyea and Orlando Tyus

saw a woman and they tried to lure her over indicating that they had what she needed. They told

her to come over and called her “auntie.” Orlando Tyus had baggies of drugs out. The woman

came over. While her back was to Donyea Tyus and James, Donyea Tyus handed James the gun.

James put the gun to the woman’s head and pulled the trigger but the gun did not go off. The

woman turned around and begged for her life. She said, “[P]lease don’t. I have kids.” James

handed the gun back to Donyea Tyus. Donyea Tyus said, “B*tch I have kids, too.” Then he tried 12

to shoot the woman but the gun still did not fire. The woman tried to run but Orlando Tyus tripped

her. They told James to go get her so James grabbed the woman but the woman kicked James and

got away. As the three were fleeing, Orlando Tyus realized he dropped a baggie and so told James

to go get it. She went back and used her flashlight on her phone to find it. She picked it up and

started walking back and walked past them. They followed her and told her not to try to leave.

Donyea Tyus then pushed her. She grabbed the baggie out of her bra and told them that she was

not trying to leave. They did not go back to the car and headed back to James’ house. Donyea

Tyus stayed the night but Orlando Tyus got an Uber and left. After Donyea Tyus left, she left the

house because Donyea Tyus said he would be coming back. She was afraid for her safety and

went to stay with B.H. She told B.H. what happened. Orlando and Donyea Tyus started harassing

B.H. so James left B.H.’s house.

{¶31} James was ultimately transferred to Geauga county jail after her interview with

police and charged with felonious assault. She testified at the grand jury at a time when there was

no written agreement in place; however, she only testified about the first two shootings. She was

warned at the grand jury proceedings that she could be incriminating herself. In February 2019,

James entered into an agreement concerning the felonious assault charge. She was required to

testify truthfully and, if she did so, she would not be charged with crimes related to B.R. and R.M.

She also pleaded guilty with respect to the drug charges and her sentencing was postponed until

after she testified at Donyea and Orlando Tyus’ trial. She admitted that she originally told police

during her interview that she was trying to shoot past C.H. and that was a lie. James identified

both Donyea and Orlando Tyus in court.

{¶32} In addition to James’ testimony, and the evidence discussed above, the State

presented other evidence, which tended to support James’ testimony. For example, surveillance 13

video of the area near the Schiller Avenue crime scene was offered into evidence. While that video

did not record the crime, it captured the intersection of Schiller and Tallmadge Avenue. On the

video, approximately ten minutes prior to the 911 call, a vehicle is seen pulling up and parking on

Schiller Avenue. Around the time of the 911 call, movement is visible near the car, the brake

lights come on, and the car leaves. The car appears to back up and head northbound on Schiller.

{¶33} There was also evidence presented that R.M. did spend time with Donyea Tyus in

prison. In fact, the records reflect that they were in three separate facilities together for a total of

713 days. For 41 of those days, their bunks were nearby.

{¶34} Moreover, Jacob Kunkle, a Special Agent with the FBI, who is part of Cellular

Analysis Survey Team (“CAST”), testified concerning the activity and location of cell phones

associated with Donyea and Orlando Tyus during the crimes. CAST is a group of agents and task

force officers who have been trained to analyze cell phone records and determine general

whereabouts of phones. Special Agent Kunkle’s analysis focused on two numbers: one ending in

4809, the number of the phone found on Orlando Tyus at the time of his arrest, and one ending in

1395, which is a phone number that had been associated with Donyea Tyus. Special Agent Kunkle

could not pinpoint the location of the phones at any time; in fact, where the phone was at a given

time could have been any point within several miles. In addition, he could not tell from his analysis

who was using the phone. Nonetheless, from his analysis, Special Agent Kunkle determined that

between 3:00 a.m. and 3:30 a.m. on July 7, 2018, those numbers utilized cell sites in the general

area of south Akron. This area includes the location of James’ house. Between 3:30 and 4:00 am

those numbers utilized cell sites indicating that the phones were moved to the general area of the

B.R. homicide. Between 4:00 a.m. and 7:00 a.m., the 4809 number utilized cell sites indicating it 14

was in the general area of the R.M. homicide and C.H. assault. Thus, between 3:00 a.m. and 7:00

a.m. both numbers used cell sites that were in and around Akron.

Discussion

{¶35} It is undeniable that James’ testimony was vital to the State’s case. It is also true

that James received a plea deal in exchange for her truthful testimony. However, the jury was

made aware of that and was even instructed as to the credibility issues posed by the testimony of

accomplices. Nonetheless, James’ testimony cannot be viewed in a vacuum. Numerous parts of

her testimony were corroborated by other testimony or evidence. While some of that testimony

came from other individuals with criminal records, the jury was in the best position to determine

all of the witnesses’ credibility. See Moore,

. Notably, when James

relayed the events of July 7, 2018, she used some of the same phrases that the victims used in

recounting the events. James also indicated that Donyea Tyus knew R.M. from prison and the

record demonstrates that Donyea Tyus and R.M. spent a fair amount of time in the same prison

and some of that time in nearby quarters. Moreover, the timing of the events at the Schiller crime

scene as discussed by James at trial is supported by the surveillance video recorded near the crime

scene. James also was correct at approximating the number of shots fired at the Schiller crime

scene and in knowing that that shooting involved two shooters and two weapons.

{¶36} Overall, when the record and testimony is reviewed in its entirety, we cannot say

that the jury was unreasonable in failing to discount James’ testimony. While James was shown

to have lied about certain things and to have not told police all the details she revealed at trial, her

overall testimony was consistent with other significant portions of the evidence. Donyea Tyus has

not demonstrated on appeal that the jury’s verdicts were against the manifest weight of the

evidence. 15

{¶37} Donyea Tyus’ first assignment of error is overruled.

ASSIGNMENT OF ERROR II

THE TRIAL COURT ERRED IN ADMITTING INTO EVIDENCE GRUESOME PHOTOGRAPHS OF THE VICTIM IN VIOLATION OF APPELLANT’S RIGHT TO A FAIR TRIAL AS PROTECTED BY THE 5TH, 6TH, AND 14TH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE 1, SECTION 10 OF THE OHIO CONSTITUTION[.]

{¶38} Donyea Tyus argues in his second assignment of error that the trial court erred in

admitting certain gruesome photographs. Specifically, Donyea Tyus challenges the admission of

Exhibits 48B and 48C which are autopsy photographs of R.M. He argues that the photos were

highly prejudicial, and that their probative value was minimal.

{¶39} Evid.R. 403(A) provides that, “[a]lthough relevant, evidence is not admissible if its

probative value is substantially outweighed by the danger of unfair prejudice, of confusion of the

issues, or of misleading the jury.” Whereas Evid.R. 403(B) states that, “[a]lthough relevant,

evidence may be excluded if its probative value is substantially outweighed by considerations of

undue delay, or needless presentation of cumulative evidence.”

{¶40} “Autopsy photographs are generally admissible to help the jury appreciate the

nature of the crimes, to illustrate the coroner’s or other witnesses’ testimony by portraying the

wounds, to help prove the defendant’s intent, and to show the lack of accident or mistake.”

(Internal quotations omitted.) State v. Baskerville, 9th Dist. Summit No. 28148,

, quoting State v. Buck, 9th Dist. Summit No. 27597,

. “The term

‘gruesome’ in the context of photographic evidence should, in most cases, be limited to depictions

of actual bodies or body parts.” (Internal quotations and citations omitted.) Baskerville at ¶ 34.

“[T]he mere fact that a photograph is gruesome or horrendous is not sufficient to render it per se

inadmissible.” (Internal quotations and citations omitted.) Id. at ¶ 33. For example, “a trial court 16

may admit gruesome photographs if they give the jury an appreciation of the nature and

circumstances of the crimes.” (Internal quotations and citations omitted.) Id.

{¶41} Exhibit 48B depicts the interior of R.M.’s skull with the brain removed. Exhibit

48C depicts the same area except that a portion of the base of the skull bone was removed to locate

where the bullet lodged. In addition, Exhibit 48C includes a metal rod to demonstrate the path of

the bullet. As discussed above, the bullet that killed R.M. did not directly penetrate his brain and

instead entered his body near his right eye, passed through his sinuses, and lodged in the base of

his skull. Understandably, how this could occur could have been confusing to the jury. The images

presented by the medical examiner, including Exhibits 48B and 48C, would have helped illustrate

the medical examiner’s testimony and eliminate any confusion as to how R.M.’s fatal injury

occurred. Given the foregoing, we cannot say that the trial court abused its discretion in admitting

these two photographs. The trial court could have reasonably concluded that the probative value

of the photographs was relatively high as compared to the possible prejudicial effect.

{¶42} Donyea Tyus’ second assignment of error is overruled.

ASSIGNMENT OF ERROR III

THE TRIAL COURT ERRORED BY ADMITTING PHOTOGRAPHS OF APPELLANT HOLDING A FIREARM THAT WERE IRRELEVANT, UNFAIRLY PREJUDICIAL, AND CONFUSED OR MISLED THE JURY IN VIOLATION OF EVID.R. 401, 402, AND 403[.] (Sic.)

{¶43} Donyea Tyus argues in his third assignment of error that the trial court erred by

admitting two photographs, Exhibits 8K and 8L, which depict Donyea Tyus pointing a gun at the

viewer/camera. These photos were found on the phone near Donyea Tyus’ girlfriend when Donyea

Tyus was arrested. Donyea Tyus cites to Evid.R. 403(A) in support of his contention that the

photographs should have been excluded. 17

{¶44} “The admission of evidence lies within the broad discretion of a trial court, and a

reviewing court should not disturb evidentiary decisions in the absence of an abuse of discretion

that has created material prejudice.” State v. Jackson, 9th Dist. Summit No. 27739, 2017-Ohio-

278, ¶ 28, quoting State v. Noling,

,

. “All relevant evidence

is admissible, except as otherwise provided by the Constitution of the United States, by the

Constitution of the State of Ohio, by statute enacted by the General Assembly not in conflict with

a rule of the Supreme Court of Ohio, by these rules [of evidence], or by other rules prescribed by

the Supreme Court of Ohio. Evidence which is not relevant is not admissible.” Evid.R. 402.

“‘Relevant evidence’ means evidence having any tendency to make the existence of any fact that

is of consequence to the determination of the action more probable or less probable than it would

be without the evidence.” Evid.R. 401. “Although relevant, evidence is not admissible if its

probative value is substantially outweighed by the danger of unfair prejudice, of confusion of the

issues, or of misleading the jury.” Evid.R. 403. “The touchstone of admissibility is whether the

evidence is so remote, speculative, or subject to extraneous circumstances, that, even if otherwise

relevant, its probative value is substantially outweighed by the danger of unfair prejudice,

confusion of issues, or misleading the jury; if so, the evidence will be excluded under the

parameters of Evid.R. 403(A).” Proctor v. Dennis, 5th Dist. Fairfield No. 05-CA-82, 2006-Ohio-

4442, ¶ 29.

{¶45} The State presented the testimony of Dylan Matt who is a forensic scientist with

the Ohio Bureau of Criminal Investigation. Mr. Matt was qualified as an expert in the field of

ballistics. Mr. Matt indicated that if the fired cartridge cases found at the Schiller Avenue crime

scene and the bullet removed from B.R.’s skull were fired from the same weapon, then the Hi-

Point was the only type of firearm that Mr. Matt knew of that could have fired all three. However, 18

he noted that other possibilities may exist. He testified that those findings, which were also

outlined in a report, were based upon a reasonable degree of scientific certainty.

{¶46} The State then sought to present the jury with photographs of Donyea Tyus pointing

a firearm at the viewer/camera. Those photographs, Exhibits 8K and 8L were on a phone found

near Donyea Tyus’ girlfriend at the time of Donyea Tyus’ arrest. Prior to allowing the testimony,

the trial court allowed a voir dire of Mr. Matt. The State sought to ask Mr. Matt if the weapon

Donyea Tyus was holding in the photographs could have fired any of the live rounds or spent shell

casings. Mr. Matt told the trial court that he could not say for certain the make and model of the

weapon based on the photographs, but that it appeared to be a Hi-Point firearm. Mr. Matt went on

to state that, if it was a Hi-Point firearm, then it was possible that some of the fired cartridge cases

could have been fired from the weapon. However, he could not say what caliber the weapon in

the photographs was. Mr. Matt told the trial court during the voir dire that, based upon a reasonable

degree of scientific certainty, he could not eliminate the weapon in the photographs as a possible

weapon involved in the crimes or say that it was consistent with a weapon involved in the crimes.

The trial court then allowed Mr. Matt to testify about the photographs over defense counsel

objection.

{¶47} Mr. Matt told the jury that Exhibit 8L appeared to show the muzzle end of a firearm

that had a general profile of a Hi-Point firearm; he clarified that Hi-Point was a manufacturer of

firearms. Mr. Matt indicated that he could not tell much else from the photograph as he could not

see the side where the make, model, and caliber would be indicated. Mr. Matt then agreed that

assuming the fired shell casings from the Schiller Avenue crime scene and the bullet removed from

B.R. were fired from the same gun, the only known weapon that could be responsible would be a

Hi-Point. On cross-examination, Mr. Matt acknowledged that his opinion that the weapon in the 19

photos had the characteristics of a Hi-Point firearm was not based upon a reasonable degree of

scientific certainty.

{¶48} We are troubled by the admission of this testimony. No firearms were recovered

during the police investigation. Thus, Mr. Matt did not test or examine any firearms with respect

to this investigation. Mr. Matt did not definitively conclude that a Hi-Point firearm was used in

the crimes; instead, he determined only that if the fired cartridge casings from the Schiller Avenue

scene were fired from the same weapon as the weapon that fired the bullet that killed B.R., the

only weapon that he knew of that could be responsible was a Hi-Point. The report specifically

states there could be other possibilities. As to the photographs, Mr. Matt could not say for certain

that the weapon in the photographs was a Hi-Point firearm and noted that he could not identify the

make or model or caliber because he could not see the side of the weapon. It is clear that the State

wanted the jury to believe that the weapon Donyea Tyus was holding in the photographs was the

murder weapon. Thus, this evidence was prejudicial to Donyea Tyus.

{¶49} However, even if we were to conclude that the admission of the evidence violated

Evid.R. 403, we cannot say that Donyea Tyus was materially prejudiced by the admission of the

evidence. See Jackson,

. Given the totality of the evidence presented at

trial, as previously set out, we cannot say that Donyea Tyus has demonstrated on appeal that he

suffered material prejudice as a result of the admission of the evidence. See id. at ¶ 30.

{¶50} Donyea Tyus’ third assignment of error is overruled.

ASSIGNMENT OF ERROR IV

THE TRIAL COURT ERRED AND PREJUDICED THE JURY IN ITS INSTRUCTION TO THE JURY ON HAVING WEAPONS UNDER DISABILITY[.] 20

{¶51} Donyea Tyus argues in his fourth assignment of error that the trial court erred in

its instruction to the jury on the charge of having weapons while under disability. Specifically,

Donyea Tyus asserts that, because he stipulated that he had a prior conviction that satisfied the

first element of the offense, the trial court should not have referred to that conviction as a felony

offense of violence.

{¶52} “[A] trial court must fully and completely give the jury all instructions which are

relevant and necessary for the jury to weigh the evidence and discharge its duty as the fact finder.”

, quoting State v. Comen,

(1990), paragraph two of the syllabus.

“Although trial courts enjoy broad discretion in fashioning jury instructions, they must ‘present a

correct, pertinent statement of the law that is appropriate to the facts.’”

, quoting

State v. White,

,

, ¶ 46.

{¶53} As to Donyea Tyus and the count of having weapons while under disability, the

trial court told the jury the following:

In Count 7, the defendant, Donyea Tyus, is charged with having a weapon under disability.

Before you can find the defendant guilty, you must find beyond a reasonable doubt that on or about the 7th day of July, in the year 2018, and in Summit County, Ohio, the defendant, Donyea Tyus, did knowingly acquire, have, carry, or use a firearm, and at the time the defendant had previously been convicted of a felony offense of violence.

Knowingly has been defined for you.

“Had” means possessed.

Possession has been defined for you.

Firearm has been defined for you.

As to the prior conviction, the defendant, Donyea Tyus, stipulates – which is a fancy legal word for agrees – stipulates that he was previously convicted of a felony offense of violence that prohibited him from acquiring, having, carrying or using a firearm. This shall be accepted by you as a proven fact. 21

The State must still prove beyond a reasonable doubt that the defendant knowingly acquired, had, carried, or used a firearm at the time of the offense alleged in this indictment.

The evidence that the defendant was previously convicted of a felony offense of violence was received because a prior conviction is an element of the offense charged in Count 7.

It was not received, and you may not consider it to prove the character of the defendant in order to show that he acted in conformity with that character.

If you find that the State proved beyond a reasonable doubt all the essential elements of the offense of having weapons under disability, your verdict must be guilty, according to your findings.

If you find that the State failed to prove beyond a reasonable doubt any one of the essential elements of this count of having weapons under disability, then your verdict must be not guilty, according to your findings.

{¶54} Donyea Tyus was indicted for violating R.C. 2923.13(A)(2). R.C. 2923.13(A)

provides:

Unless relieved from disability under operation of law or legal process, no person shall knowingly acquire, have, carry, or use any firearm or dangerous ordnance, if any of the following apply:

(1) The person is a fugitive from justice.

(2) The person is under indictment for or has been convicted of any felony offense of violence or has been adjudicated a delinquent child for the commission of an offense that, if committed by an adult, would have been a felony offense of violence.

(3) The person is under indictment for or has been convicted of any felony offense involving the illegal possession, use, sale, administration, distribution, or trafficking in any drug of abuse or has been adjudicated a delinquent child for the commission of an offense that, if committed by an adult, would have been a felony offense involving the illegal possession, use, sale, administration, distribution, or trafficking in any drug of abuse.

(4) The person is drug dependent, in danger of drug dependence, or a chronic alcoholic.

(5) The person is under adjudication of mental incompetence, has been adjudicated as a mental defective, has been committed to a mental institution, has been found by a court to be a mentally ill person subject to court order, or is an involuntary 22

patient other than one who is a patient only for purposes of observation. As used in this division, “mentally ill person subject to court order” and “patient” have the same meanings as in section 5122.01 of the Revised Code.

{¶55} Donyea Tyus argues that the trial court could have instead instructed the jury “the

defendant stipulates that he’s previously been convicted of an offense that prohibited him from

acquiring, having, carrying or using a firearm[.]” However, such an instruction would be too

broad; eliminating all language stating the offense was a felony offense of violence would leave

insufficient information to establish a violation of R.C. 2923.13(A)(2), which was the charge

before the jury. Thus, the fact that the prior conviction was an offense of violence was an essential

element of the offense. See State v. Creech,

,

; id. at ¶

33. Instructing the jury that the prior conviction was an offense of violence was not an abuse of

discretion under the circumstances.

{¶56} Therefore, Donyea Tyus has not demonstrated that the trial court abused its

discretion in instructing the jury.

{¶57} Donyea Tyus’ fourth assignment of error is overruled.

III.

{¶58} Donyea Tyus’ assignments of error are overruled. The judgment of the Summit

County Court of Common Pleas is affirmed.

Judgment affirmed.

There were reasonable grounds for this appeal. 23

We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period

for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to

mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the

docket, pursuant to App.R. 30.

Costs taxed to Appellant.

DONNA J. CARR FOR THE COURT

CALLAHAN, P. J. TEODOSIO, J. CONCUR.

APPEARANCES:

ANGELA M. KILLE, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN R. DIMARTINO, Assistant Prosecuting Attorney, for Appellee.