[Cite as State v. Houston,

.] IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

STATE OF OHIO, : APPEAL NO. C-190598 TRIAL NO. B-1700535 Plaintiff-Appellee, : O P I N I O N. vs. :

SHAWNDRE HOUSTON, :

Defendant-Appellant. :

Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: November 25, 2020

Joseph T. Deters, Hamilton County Prosecuting Attorney, and Judith Anton Lapp, Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Timothy J. McKenna for Defendant-Appellant. OHIO FIRST DISTRICT COURT OF APPEALS

M OCK , Presiding Judge.

{¶1} Following a jury trial, defendant-appellant Shawndre Houston was

convicted of aggravated murder under former R.C. 2903.01(A), with an

accompanying firearm specification. We find no merit in his seven assignments of

error, and we affirm the trial court’s judgment.

Facts and Procedure

{¶2} The record shows that Heywood Thompson owned the Indulge VSP

Lounge (“the lounge”) in Springdale, Ohio. Various promoters rented the facility to

host events, and the lounge would provide food, drink, and security. Thompson

hired private security guards for the events. He generally stationed two security

guards inside the facility and one in the parking lot. Thompson prohibited weapons

in the club and used a “double pat-down” system where patrons were patted down

both at the entrance to the building and again inside the bar. Security cameras were

placed in numerous locations.

{¶3} On January 26, 2017, the club was rented for an event involving exotic

dancers. Thompson had three security guards in the club that night, and one in the

parking lot. The guard in the parking lot was Bobbie Long, a retired police officer.

The promoter also brought two of her own security guards.

{¶4} A fight started on the dance floor and security was able to get it under

control. The fight resumed a short time later near the men’s restroom. David Salter

and his friends attacked Houston and his friends. Thompson saw Salter “sucker-

punch” a guard in the back of the head while that guard was restraining another

patron. Thompson then ordered a “code black,” and all patrons were asked to pay

their tabs and leave. All doors were then locked.

2 OHIO FIRST DISTRICT COURT OF APPEALS

{¶5} Footage from the security cameras showed security guards trying to

restrain Salter while he kept trying to attack Houston. It also showed Houston with

facial bruises and a black eye. The security guards separated the men and forced

them out a side door into an alley that divided the lounge’s parking lot from the lot of

an adjacent Super 8 Motel. Long had come in from the parking lot and was waiting

in the alley.

{¶6} Thompson and the security guards formed a wall to separate Salter

and Houston, who continued to yell at each other. Long pushed Salter and his

friends behind him to prevent Houston and his friends from reaching them. He said

that Salter was trying to de-escalate the situation, telling his friends that it was “not

that big of deal” and to calm down.

{¶7} Long ordered the men to leave, and Houston walked to a gray Hyundai

Sonata. Thompson said that Houston opened the car door and appeared to be

searching for something on the driver’s side, which was illuminated by a dome light.

Houston then got in his car.

{¶8} LaRay Bush, one of Houston’s friends, threatened Salter and the

security guards, stating “I carry heat, I’ll get you,” although no one saw him with a

weapon. Bush refused orders to leave, so Long tased him. But Bush wore a “bubble

coat” that prevented the barbs of the Taser from touching his skin. He pulled the

barbs out of his coat. Bush was still being loud and aggressive, but he retreated to

Houston’s car and got into the back seat on the driver’s side.

{¶9} Houston drove his car around the parking lot, but he did not leave the

area. Thompson said that “we felt that there was probably about to be something

going on that we needed to be concerned about.” Houston drove his car through the

3 OHIO FIRST DISTRICT COURT OF APPEALS

Super 8 parking lot and back through the lounge’s parking lot at least two times,

possibly three. Long described the car as doing “a loop-around thing.”

{¶10} In the meantime, Salter had been trying to get back in the building.

Thompson and the security guards were trying to get Salter to leave. They chased

him, but he ran a few feet ahead of them. Thompson was about two feet away from

Salter when he saw a “muzzle flash” and heard five gunshots.

{¶11} Salter was near the club’s entrance when Houston’s car drove by him.

The driver’s side of the car faced Salter, and the driver’s side window was halfway

down. Long was about ten feet away from Salter when he heard a scream and four to

five gunshots. Afterward, Salter was on the ground, and Houston’s car drove away.

Five shell casings from a .40-caliber Smith and Wesson were later found in the

parking lot.

{¶12} The Springdale Police Department put out a broadcast asking other

police departments to be on the lookout for a gray late-model Hyundai Sonata

involved in a shooting. Green Hills Police Officer Zachary Clark heard the broadcast

about 1:30 a.m. Within five minutes, he saw the Hyundai driving south on Winton

Road. He called for backup, and when other police officers arrived, he pulled over

the car. Houston was driving, and Bush and Keonta Hardy were in the back seat. All

three were placed in handcuffs and detained for Springdale police.

{¶13} Springdale Police Detective Eric Langevin and his officers took

Houston and his passengers to the Springdale Police Department. The police officers

immediately took Houston’s jacket for lab analysis. Houston was sweating profusely

and was short of breath, so the police called paramedics. The paramedics attempted

to cool him off by taking off his shirt and wiping down his upper body.

4 OHIO FIRST DISTRICT COURT OF APPEALS

{¶14} Officer Clark had followed Houston for about a mile before pulling him

over. Video footage from the cruiser showed that a gun was thrown from the car

near Cherry Blossom and Winton Roads. It landed in a grassy area next to a

driveway. About 2:40 p.m. the same day, a citizen called the police to report that a

firearm was in his front yard. The police collected it and determined that it was the

weapon used in the shooting.

{¶15} Houston’s DNA was found on the magazine of the gun. All three

occupants of the car were tested for the presence of gunshot residue. There was no

gunshot residue on Houston’s hands, but some was found on his jacket. Gunshot

residue was found on both Bush’s and Hardy’s hands.

{¶16} Houston was charged with aggravated murder, murder and felonious

assault, with accompanying firearm specifications. A jury trial resulted in a hung

jury and a mistrial. After a second trial, a jury found Houston guilty as charged,

except for one of the firearm specifications. The other charges were merged with the

aggravated-murder charge. Houston was properly sentenced, and this appeal

followed.

Weight and Sufficiency

{¶17} In his first assignment of error, Houston contends that the evidence

was insufficient to support his conviction. First, he argues that the state failed to

present sufficient evidence to prove prior calculation and design.

{¶18} Houston was convicted of aggravated murder under former R.C.

2903.01(A). It provided that “[n]o person shall purposely, and with prior calculation

and design, cause the death of another * * *.” To show prior calculation and design,

the state must show a “scheme designed to implement the calculated decision to kill.”

State v. Coley,

,

(2001). Evidence of purpose

5 OHIO FIRST DISTRICT COURT OF APPEALS

does not automatically mean that the element of prior calculation and design also

exists. State v. Walker,

,

,

, ¶ 17.

“All prior calculation and design offenses will necessarily include purposeful

homicides; not all purposeful homicides have an element of prior calculation and

design.” State v Jones,

,

(1st Dist.), quoting

Walker at ¶ 18. The phrase “prior calculation and design” suggests advance

reasoning to formulate the purpose to kill. Evidence of an act committed on the spur

of the moment or after momentary consideration is insufficient. Walker at ¶ 18.

{¶19} The Ohio Supreme Court has repeatedly held that there is no “bright-

line test that emphatically distinguishes between the presence or absence” of prior

calculation and design. Instead, each case turns on its own facts. Walker at ¶ 19;

State v. Taylor,

,

(1997);

. In

determining whether a defendant acted with prior calculation and design, courts

should consider three factors: (1) Did the accused and the victim know each other,

and if so, was that relationship strained? (2) Did the accused give thought or

preparation to choosing the murder weapon or murder site? and (3) Was the act

drawn out or “an almost instantaneous eruption of events?” Walker at ¶ 20;

;

.

{¶20} Nothing in the record shows that Houston and Salter knew each other

prior to the fight. During the fight, Salter punched Houston several times, and

Houston had a black eye and other injuries. Security had broken up the fight and

forced the participants out a side door. Outside, security guards formed “a wall”

between Salter and some of the other participants, including Bush. According to

Long, Salter was trying to de-escalate the situation, telling his friends to calm down.

6 OHIO FIRST DISTRICT COURT OF APPEALS

{¶21} When told to leave, Houston walked to his car, turned on the dome

light, and appeared to be searching for something on or around the driver’s seat. He

drove his car through the lounge parking lot and the parking lot of the motel next

door. He circled around the lot and passed the lounge entrance at least two, possibly

three times. As soon as Salter started running away from the building, Houston

drove by him with the driver’s side of the car facing Salter. Salter was about two feet

away from Thompson when Thompson saw a muzzle flash from the driver’s side of

the car and heard four or five gunshots. Salter fell to the ground bleeding and

Houston drove away at a high rate of speed.

{¶22} The evidence showed that Houston gave thought and consideration to

choosing the murder site and that the act was drawn out, rather than an

instantaneous eruption of events after the fight. Compare Walker,

,

,

, at ¶ 23-26 (No prior calculation and design

when the evidence showed a “free-for-all” and a shot was fired in the midst of the

fight). Even though only a short period of time had passed, the facts were sufficient

to show that Houston had “adopted a plan to kill.” See State v. Washington, 1st Dist.

Hamilton No. C-090561,

, ¶ 17. Thus, the state presented evidence

from which a jury could reasonably have concluded that Houston acted with prior

calculation and design.

{¶23} Houston next argues that there was no evidence showing that he was

the assailant, and that, in fact, the evidence showed that Bush was the shooter. The

eyewitnesses stated that Houston was driving the car and that Bush was seated in the

back seat on the driver’s side. Thompson saw Houston looking around the car for

something before he got inside. Video footage showed that the driver’s-side window

was down right before the shooting and the back-seat window was closed. The flash

7 OHIO FIRST DISTRICT COURT OF APPEALS

came from the driver’s seat. When the car was pulled over after the shooting, the

back window on the driver’s side was intact, indicating that a bullet had not been

shot through the window.

{¶24} After Houston walked to his car, Bush continued to act aggressively.

Thompson said that when he put his hands on Bush, he felt what may have been a

weapon under his coat. Bush continued to try to attack Salter, but was prevented

from doing so by the security guards. Bush threatened Salter and the security

guards, stating that “I carry heat.” When Bush continued to be aggressive and

refused to leave, Long tased him, although the Taser had little effect because of

Bush’s coat. But even after Long attempted to tase him, Bush did not show a weapon

of any kind. Instead, he got into Houston’s car.

{¶25} Gunshot residue was found on Hardy’s and Bush’s hands, but not

Houston’s. But, Houston was not tested for gunshot residue immediately. Because

he was sweating profusely and appeared to be ill, the Springdale police called for

EMTs, who tried to cool him down by wiping down his body with paper towels.

Detective Langevin acknowledged that failing to test Houston’s hands for gunshot

residue before that time was a mistake.

{¶26} Nevertheless, gunshot residue was found on the cuff of Houston’s

jacket, and a forensic scientist who specialized in gunshot residue said the residue

would float like a cloud all around the area where the gun was fired. Further,

Houston’s DNA was found on the magazine of the gun, but Bush’s DNA was

excluded. Thus, there was evidence was from which a jury could reasonably have

found that Houston, not Bush, was the shooter.

{¶27} Houston points out that the jury did not find him guilty of a

specification that he “had a firearm on or about his person or under his control while

8 OHIO FIRST DISTRICT COURT OF APPEALS

committing the offense of aggravated murder and displayed the firearm, brandished

the firearm, indicated that he possessed the firearm, or used it to facilitate the

offense * * *.” Thus, Houston argues, the jury must have concluded that he was not

the shooter. But the jury did find him guilty of a specification that he had a firearm

on or about his person or under his control while committing aggravated murder.

Thus, the acquittal on the one specification did not show that the jury believed Bush

was the shooter.

{¶28} Further, inconsistent responses within the same count of an

indictment, such as a conviction on a principal charge and a concurrent acquittal on

a specification for identical behavior, do not mandate a reversal where the principal

charge is not dependent on a finding of the specification. Similarly, acquittal on one

specification and a guilty finding on another do not justify a reversal. State v. Glenn,

1st Dist. Hamilton No. C-090205,

, ¶ 69.

{¶29} Our review of the record shows that a rational trier of fact, after

viewing the evidence in a light most favorable to the prosecution, could have found

that the state proved beyond a reasonable doubt all of the elements of aggravated

murder and the accompanying specification. See State v. Jenks,

,

(1991), paragraph two of the syllabus; State v. Hackney, 1st Dist.

Hamilton No. C-150375,

. Therefore, the evidence was

sufficient to support the conviction, and we overrule Houston’s first assignment of

error.

{¶30} In his second assignment of error, Houston contends that his

conviction was against the manifest weight of the evidence. After reviewing the

record, we cannot say that the trier of fact lost its way and created such a manifest

miscarriage of justice that we must reverse his convictions and order a new trial.

9 OHIO FIRST DISTRICT COURT OF APPEALS

Therefore, the conviction was not against the manifest weight of the evidence. See

State v. Thompkins,

,

(1997); State v. Cedeno,

,

,

(1st Dist.).

{¶31} Houston contends that “[n]ot one credible witness can say who the

shooter was.” But matters as to the credibility of evidence were for the trier of fact to

decide. State v. Bryan,

,

,

, ¶ 116;

State v. Walker, 1st Dist. Hamilton No. C-190193,

. Therefore,

we overrule Houston’s second assignment of error.

Proposed Jury Instructions

{¶32} In his third assignment of error, Houston contends that the trial court

erred when it denied his requested jury instructions. He argues that because his jury

instructions accurately stated the law and provided needed clarification, the trial

court abused its discretion in failing to give those instructions. This assignment of

error is not well taken.

{¶33} A trial court must fully and completely give the jury all instructions

that are relevant and necessary for the jury to weigh the evidence and to discharge its

duty as the factfinder. State v. Comen,

,

(1990),

paragraph two of the syllabus; State v. Robinson, 1st Dist. Hamilton No. C-060434,

. An appellate court will not reverse a conviction due to

improper jury instructions unless the defendant was prejudiced. Robinson at ¶ 18.

Further, a single instruction cannot be judged in isolation, but must be viewed in the

context of the overall charge. State v. Price,

,

(1979), paragraph four of the syllabus; Robinson at ¶ 18.

{¶34} A trial court must give the defendant’s requested instructions to the

jury if they are correct, pertinent statements of law and are appropriate under the

10 OHIO FIRST DISTRICT COURT OF APPEALS

facts of the case. State v. Lessin,

,

(1993); State

v. Bush, 1st Dist. Hamilton No. C-090291,

, ¶ 13. But the court need

not give the requested instructions verbatim. It may use its own language to

communicate the same legal principles.

; State v. Brewster, 1st Dist.

Hamilton Nos. C-030024 and C-030025,

. We review a trial

court’s decision granting or denying a defendant’s proposed jury instruction under

an abuse-of-discretion standard. Bush at ¶ 13.

{¶35} The first instruction that Houston requested was “[t]he actions of an

accused as an accessory after the fact are not prohibited under Ohio law,” which was

based on State v. Starr,

,

(1st Dist. 1970). That

case is very different factually than the present case.

{¶36} In Starr, Donald Lewis Grimes stole a purse from a woman standing

on the sidewalk. A bystander saw the defendant driving a car that stopped and

picked up Grimes. Grimes was in the defendant’s car when he was arrested and

objects belonging to the woman whose purse was stolen were found in the glove

compartment of the car. The defendant was prosecuted for aiding and abetting

Grimes in the robbery.

{¶37} This court held that there was no evidence to show that the defendant

did anything to aid, abet or conspire with Grimes prior to the robbery. We stated,

“The only reasonable inference that can be drawn from the evidence in the instant

case is that [the defendant] may have been guilty of being an accessory after the fact,

which is not a crime recognized in Ohio.”

. A number of cases have

distinguished Starr on the basis that the accused was associated with and in the

presence of the principal offender before the crime was committed, and therefore,

the accused could be convicted of aiding and abetting the principal offender. See

11 OHIO FIRST DISTRICT COURT OF APPEALS

State v. Tribble, 9th Dist. Summit No. 10685,

, *2 (Oct. 13, 1982);

State v. Monroe, 8th Dist. Cuyahoga No. 36166,

, *2 (June 30, 1977);

State v. Goudlock, 8th Dist. Cuyahoga No. 35172,

, *4 (Oct. 14, 1976).

{¶38} This case is distinguishable as well, and therefore, the proposed

instruction was not appropriate under the facts of the case. Even if Bush was the

shooter, Houston did not merely drive the car away after the fact. He was involved in

the fight with Salter. After the fight, he went to car, appeared to search for

something in his car, and circled the lot several times. Bush got in Houston’s car and

then Houston drove his car with the driver’s side very close to Salter. After the

shooting, Houston sped out of the parking lot. After the police began following his

vehicle, he or one his passengers threw the gun, which bore his DNA, out of the car.

{¶39} In instructing the jury, the trial court followed the language of State v.

Johnson,

,

(2001), syllabus, in which the Ohio

Supreme Court stated,

To support a conviction for complicity by aiding and abetting * * *, the

evidence must show that the defendant supported, assisted,

encouraged, cooperated with, advised, or incited the principal in the

commission of the crime, and that the defendant shared in the

criminal intent of the principal. Such intent may be inferred from the

circumstances surrounding the crime.

Accord State v. Johnson, 1st Dist. Hamilton No. C-170371,

;

Brewster, 1st Dist. Hamilton Nos. C-030024 and C-030025,

. The proposed instruction contradicts the holding of Johnson. It also might

have confused the jury and stopped them from considering Houston’s actions after

the crime, which were relevant.

12 OHIO FIRST DISTRICT COURT OF APPEALS

{¶40} Houston’s other proposed jury instruction stated, “In order to be guilty

of complicity, one must take an affirmative act toward the commission of the crime,

rather than simply sitting silently or failing to object or stop the putative other

actor.” The court’s instructions included this proposed instruction in substance. It

used its own language to communicate the same principles. This is particularly true

given that it stated that mere presence at the scene was insufficient to prove that

Houston was an aider and abettor.

{¶41} The trial court fully and completely gave the jury all instructions that

were relevant and necessary for the jury to decide the case. We cannot hold that

Houston was prejudiced by its decision denying his request for proposed jury

instructions. The court’s decision was not so arbitrary, unreasonable or

unconscionable as to connote an abuse of discretion. See State v. Clark,

,

(1994); State v. Brown, 1st Dist. Hamilton No. C-

120327,

. Therefore, we overrule Houston’s third assignment

of error.

Gruesome Photographs

{¶42} In his fourth assignment of error, Houston contends that the trial

court erred in admitting unfairly prejudicial photographs into evidence. He argues

that the photographs were not relevant as he did not dispute the cause of death, and

they were unduly gruesome and served only to inflame the jury. This assignment of

error is not well taken.

{¶43} Under Evid.R. 403, the decision whether to admit photographs into

evidence lies within the trial court’s discretion. Gruesome photographs are

admissible at trial as long as their probative value is not substantially outweighed by

the danger that the accused will be unfairly prejudiced. State v. Maurer,

OHIO FIRST DISTRICT COURT OF APPEALS

St.3d 239, 264-265,

(1984); State v. Cephas, 1st Dist. Hamilton No.

C-180105,

. Even if a photograph satisfies this balancing test, it is

inadmissible if it is repetitive or cumulative. State v. Ford,

, 2019-

Ohio-4539,

, ¶ 237.

{¶44} To prove aggravated murder, “the state must prove, and the jury must

find, that the killing was purposely done. The number of shots fired, the places where

the bullets entered the body, and the resulting wounds are all probative evidence of a

purpose to cause death.” Maurer at 265, quoting State v. Strodes,

,

(1976). The fact that Houston stipulated the cause of death does

not automatically render the photographs inadmissible. Evid.R. 403 requires a

balancing analysis, and the trial court could properly find that the photographs had

probative value above and beyond the stipulation. Maurer at 265.

{¶45} The court admitted ten photographs into evidence. The coroner

actually took 75 photographs. The ten photographs show the entrance and exit

wounds of the bullets through the body, and they were used to illustrate the coroner’s

testimony about the trajectory of the bullets. See

. None of them

were particularly gruesome, except one. That photograph was used to show one of

the bullet’s path through Salter’s liver and other internal organs and to demonstrate

the cause of death.

{¶46} Our review of the record does not show that the photographs were

unnecessarily gruesome or cumulative. Their probative value was not outweighed by

the danger of unfair prejudice to Houston. We cannot hold that the trial court’s

decision to admit the photos into evidence was so arbitrary, unreasonable or

unconscionable as to connote an abuse of discretion. See State v. Smith,

OHIO FIRST DISTRICT COURT OF APPEALS

St.3d 89, 108-109,

(1997); Cephas, 1st Dist. Hamilton No. C-180105,

. We overrule Houston’s fourth assignment of error.

Jury Verdict/Ineffective Assistance of Counsel

{¶47} Houston’s fifth and sixth assignments of error are related and argued

together. In his sixth assignment of error, he contends that because a juror stated

after trial that the guilty verdict was not her true verdict, there was not a unanimous

jury verdict, and he was denied due process. In his fifth assignment of error, he

contends that he was denied the effective assistance of counsel because his trial

counsel did not challenge the verdict or move for a mistrial. These assignments of

error are not well taken.

{¶48} A court will presume that a properly licensed attorney is competent,

and the defendant bears the burden to show ineffective assistance of counsel. State

v. Hamblin,

,

(1988); Hackney, 1st Dist.

Hamilton No. C-150375,

. To sustain a claim for ineffective

assistance of counsel, the defendant must demonstrate that counsel's performance

was deficient and that the deficient performance prejudiced the defense. Strickland

v. Washington,

,

,

(1984); Hackney

at ¶ 36.

{¶49} The record shows that at sentencing, Houston’s attorney told the court

that as he and another defense attorney were leaving the courtroom after trial, juror

number four had approached them, sobbing uncontrollably. He stated that the juror

had “indicated that probably wasn’t her true verdict. She felt pressured into

rendering the verdict that she did.” Houston’s attorney said this in arguing for

mitigation at sentencing, but did not ask for a mistrial or other affirmative relief.

15 OHIO FIRST DISTRICT COURT OF APPEALS

{¶50} The Ohio Supreme Court has stated that a jury verdict becomes final

once the jury has been polled and each juror has assented to the verdict in open

court. State v. Williams,

,

,

.

The function of the poll is “to enable the court and the parties to ascertain with

certainty that a unanimous verdict has in fact been reached and that no juror has

been coerced or induced to agree to a verdict to which he has not fully assented.” Id.

at ¶ 37, quoting Miranda v. United States,

(1st Cir. 1958). Once that

function has been accomplished, there is no compelling reason to let individual

jurors change their mind. Williams at ¶ 37.

{¶51} “A verdict becomes immutable by the jury once announced in open

court or when it has been confirmed by a poll * * *.” Williams at ¶ 35, quoting

United States v. Dakins,

(D.C.Cir. 1989). Thus, once a poll of the

jurors has been completed and all have assented to the verdict, a juror may not

rescind or modify his or her vote. Williams at syllabus. When the jury was polled,

juror number four confirmed her verdict in open court. After that, she could not

rescind or modify her vote.

{¶52} Further, under the aliunde rule, a jury’s verdict may not be impeached

by evidence from a member of the jury unless a foundation is laid by evidence

aliunde. Evidence aliunde is extraneous, independent evidence of alleged

misconduct based on the firsthand knowledge of someone who is not a juror. Evid.R.

606(B); State v. Schiebel,

,

(1990); Fehrenbach v.

O’Malley, 1st Dist. Hamilton No. C-100730,

. The purpose of

the rule is to protect the finality of verdicts and to ensure that jurors are insulated

from harassment by defeated parties.

.

16 OHIO FIRST DISTRICT COURT OF APPEALS

{¶53} The failure to file or prosecute a motion is prejudicial only if the

defendant has a reasonable probability of success on that motion. State v. Brown,

,

,

; State v. Thomas, 1st Dist.

Hamilton No. C-120561,

. Juror number four’s verdict was

final and could not be impeached in the absence of outside evidence, which the

record does not show that defense counsel possessed.

{¶54} Under the circumstances, no motion for a mistrial or other relief based

on juror number four’s statement to counsel would have had a reasonable probability

of success. Therefore, counsel’s failure to file such a motion was not prejudicial and

did not constitute ineffective assistance of counsel. We overrule Houston’s fifth and

sixth assignments of error.

Search and Seizure

{¶55} In his seventh assignment of error, Houston contends that the trial

court erred in denying his motion to suppress evidence recovered from a warrantless

search of his vehicle. He argues that there was no proper basis for the stop of his

vehicle and that, even if the stop was proper, the degree of intrusion was not

reasonably related to the reason for the stop. This assignment of error is not well

taken.

{¶56} Appellate review of a motion to suppress presents a mixed question of

law and fact. We must accept the trial court's findings of fact as true if competent,

credible evidence supports them. But we must independently determine whether the

facts satisfy the applicable legal standard. State v. Burnside,

,

,

; State v. Ojile, 1st Dist. Hamilton Nos. C-110677

and C-110678,

.

17 OHIO FIRST DISTRICT COURT OF APPEALS

{¶57} An investigative stop is a seizure within the meaning of the Fourth

Amendment that must be supported by objective justification. State v. Andrews,

,

(1991); State v. Lopez,

,

,

(1st Dist.). The standard is not probable

cause but reasonable suspicion, which is less demanding. State v. Erkins, 1st Dist.

Hamilton No. C-110675,

;

. The police officers

must point to specific and articulable facts that, taken together with rational

inferences from those facts, reasonably warrant that intrusion.

,

quoting Terry v. Ohio,

,

,

(1968). The

standard is objective: would the facts available to the officers at the moment of the

seizure have warranted an individual of reasonable caution in the belief that the

action taken was appropriate?

;

.

{¶58} Specifically, in relation to automobiles, if there is a reasonable and

articulable suspicion that an automobile or its occupants are subject to seizure for a

violation of the law, stopping that automobile and detaining its occupants are

reasonable under the Fourth Amendment. Delaware v. Prouse,

,

,

(1979); Erkins at ¶ 32. A court determines the validity

of an investigative stop by looking at the totality of the circumstances. State v.

Freeman,

,

(1980), paragraph one of the syllabus;

.

{¶59} At the hearing on the motion to suppress, Detective Langevin testified

that after the shooting, his department sent out a broadcast asking other police

departments to be on the lookout for a gray Hyundai Sonata. The broadcast stated

that three or four black males were in the car, who had been involved in a fight, and

that one of them had major facial injuries because of the fight. The car was last seen

18 OHIO FIRST DISTRICT COURT OF APPEALS

heading south on Route 4. About ten minutes later, Langevin received a notification

that a car matching that description had been stopped about five miles from the

lounge.

{¶60} Officer Clark testified that at about 1:30 a.m., he was driving a marked

vehicle heading north on Winton Road when he received the radio broadcast. He

saw a car heading south on Winton Road matching the description of the car in the

broadcast. Clark did a U-turn, got behind the car, and started following it. He

notified the Springdale Police Department and called for backup because he

considered it a high-risk stop. He followed the car for roughly a mile. Once backup

arrived, Clark initiated the traffic stop. He ordered Houston, the driver, out of the

car. Once they took Houston into custody, Clark noticed that he had bruising and

swelling on his face. The other two occupants of the car were ordered out of the car,

and all three were put in separate vehicles.

{¶61} Langevin responded to the scene of the traffic stop. He had two

pictures on his phone of Houston and another individual involved in the fight taken

from the video surveillance cameras at the lounge. He identified Houston and

specifically noted that he had facial injuries consistent with having been in a fight.

Houston was then arrested.

{¶62} In ruling on a motion to suppress, a court may consider the collective

knowledge of police officers involved in a common investigation. State v.

Henderson,

,

(1990); Erkins, 1st Dist. Hamilton

No. C-110675,

. Police may rely on information broadcast

over the police radio for reasonable suspicion to make an investigatory stop or for

probable cause to make an arrest. State v. Fultz,

,

(1968), paragraph two of the syllabus; State v. Bryant,

,

19 OHIO FIRST DISTRICT COURT OF APPEALS

(1st Dist. 2000). Where an officer making an investigatory stop relies

solely on a dispatch, the state must demonstrate that the facts precipitating the

dispatch justified a reasonable suspicion of criminal activity. Maumee v. Weisner,

,

(1999);

.

{¶63} The broadcast provided a reasonable and articulable suspicion that the

car and its occupants were subject to seizure for a violation of the law. A car and its

occupants matching the description were spotted ten minutes later a few miles from

the shooting. Officer Clark thought that because it involved a shooting, there might

have been a gun in the car, so he was justified in waiting for backup. The seizure of

the car and its occupants was justified under the Fourth Amendment.

{¶64} Once a vehicle has been lawfully detained, police officers may order

the driver to get out of the car without violating Fourth Amendment proscriptions

against unreasonable searches and seizures. Pennsylvania v. Mimms,

,

,

(1977); State v. Emmons, 1st Dist. Hamilton No. C-

150636,

. Further, the temporary seizure of a vehicle’s

occupants in a traffic stop ordinarily remains reasonable during the officer’s

investigation into matters related to the justification for the stop. Arizona v.

Johnson,

,

,

(2009); Emmons at ¶ 12.

{¶65} Officer Clark was justified in ordering the occupants out of the car and

separating them until Detective Langevin could identify whether they were the

individuals involved in the fight and the shooting at the lounge. See Bryant,

,

. Once Detective Langevin identified Houston

and the others, the police officers had probable cause to arrest Houston. See State v.

Heston,

,

(1972); State v. Morrison, 1st

20 OHIO FIRST DISTRICT COURT OF APPEALS

Dist. Hamilton No.

; Erkins, 1st Dist. Hamilton

No. C-110675,

.

{¶66} Further, the police were justified in searching the car under the

automobile exception to the warrant requirement because they had probable cause to

believe that they would discover evidence of a crime. See State v. Moore,

,

(2000); In re L.S., 1st Dist. Hamilton No. C-150526,

; Lopez,

,

,

. Consequently, we overrule Houston’s seventh assignment of error.

Summary

{¶67} In sum, we hold that: (1) the evidence was sufficient to support

Houston’s conviction and the accompanying specification; (2) the conviction was not

against the manifest weight of the evidence; (2) the trial court did not err in failing to

give Houston’s proposed jury instructions; (4) the trial court did not abuse its

discretion in admitting gruesome photographs; (5) the juror’s verdict could not be

challenged, and Houston was not denied due process due to the lack of a unanimous

jury verdict; (6) Houston was not denied the effective assistance of counsel; and (7)

the trial court did not err in overruling his motion to suppress evidence recovered

from the warrantless search of his vehicle. Therefore, we overrule his seven

assignments of error and affirm his conviction.

Judgment affirmed.

B ERGERON and C ROUSE , JJ., concur.

Please note: The court has recorded its own entry this date.

21