[Cite as State v. South, 2017-Ohio-5636.]


                                    IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                      GEAUGA COUNTY, OHIO


STATE OF OHIO,                                  :       OPINION

                 Plaintiff-Appellee,            :
                                                        CASE NO. 2016-G-0083
        - vs -                                  :

CHAD SOUTH,                                     :

                 Defendant-Appellant.           :


Criminal Appeal from the Geauga County Court of Common Pleas, Case No. 15 C
000116 A.

Judgment: Affirmed.


James R. Flaiz, Geauga County Prosecutor, and Christopher J. Joyce, Assistant
Prosecutor, Courthouse Annex, 231 Main Street, Suite 3A, Chardon, OH 44024, and
Paul L. Scarsella, Special Assistant Prosecutor, Ohio Attorney General’s Office, 150 E.
Gay Street, 16th Floor, Columbus, OH 43215 (For Plaintiff-Appellee).

Timothy Young, Ohio Public Defender, and Francisco E. Luttecke, Assistant Public
Defender 250 East Broad Street, Suite 1400, Columbus, OH 43215-9308 (For
Defendant-Appellant).



THOMAS R. WRIGHT, J.


        {¶1}     Following a bench trial, appellant, Chad South, was found guilty of two

counts of murder, two counts of kidnapping, and four accompanying firearm

specifications. Appellant appeals his convictions, contending that the trial court erred in

basing its verdict in part upon the testimony of a prison informant. We affirm.

        {¶2}     This case involves a murder for hire. The intended victim was Daniel C.
Ott. The murder victim was Daniel E. Ott. Accordingly, Daniel C. Ott will be referred to

as “C” and Daniel E. Ott will be referred to as “E.”

       {¶3}   Before 2004, Joseph Rosebrook ran a lucrative chop shop for stolen

motor vehicles in Bellefountaine, Ohio. C stole cars, especially Corvettes, for

Rosebrook. Curtis Frazier worked as a mechanic in Rosebrook’s garage.

       {¶4}   The chop shop was the subject of an extensive investigation by the Logan

County Sheriff’s Department. Ultimately, Frazier agreed to work as an informant for the

state and provide evidence against Rosebrook. Upon learning of this, Rosebrook hired

C to murder Frazier. Instead of following through with the plan, however, C flipped on

Rosebrook who was ultimately convicted of attempted murder. While serving his ten-

year prison term, Rosebrook contrived to murder C.

       {¶5}   As of May 26, 2006, E, no relation to C, was living with his girlfriend,

Maryann Ricker, in a home on State Route 700, Burton, Geauga County, Ohio. As E

had recently accepted a job in another state, the two were in the process of moving.

Their belongings were cleared from the second floor bedrooms, and they were,

therefore, sleeping on an air mattress in the first floor living room.

       {¶6}   At approximately 6:30 that morning, Ricker heard their dog moving in the

adjacent kitchen.     After momentarily falling back to sleep, she woke up hearing

footsteps on the second floor. As she was waking E, Ricker turned toward the doorway

to the living room and saw appellant at the foot of the stairs holding a shotgun.

       {¶7}   Initially, he ordered E and Ricker to lay on their stomachs.          He also

ordered E to get off the air mattress and lay directly on the floor. Appellant asked E to

identify himself. Ricker pulled a blanket over her head, frightened that she was about to

die. She then heard the sound of duct tape that appellant used to confine E’s hands.


                                              2
      {¶8}    After a few moments, appellant walked from the living room toward the

back door of the residence. E freed his hands, got up, and chased appellant into the

dining room. Ultimately, appellant shot E in the chest. Appellant fled the scene and

drove away.       Unhurt, Ricker immediately contacted the authorities for help.

Notwithstanding, E died of the gunshot wound.

      {¶9}    Detective Juanita Vetter of the Geauga County Sheriff’s Department

spearheaded the investigation. Detective Vetter and her colleagues followed up on a

number of dead-end leads during the two months after the murder. In August 2006,

another detective with the department was running a search on E when he noticed that

an officer with the Ohio State Highway Patrol had conducted a search on “Daniel Ott.”

Upon calling the officer, the detective asked why he was looking for information

regarding the victim. The officer replied he was not looking for E but instead was

inquiring as to C, the known auto thief from Logan County, Ohio.

      {¶10} In light of this, the Geauga County detectives contacted a number of

people, including C about a possible connection. C suggested that the detectives speak

to the Logan County Sheriff’s Department so that they could learn the details of the prior

investigation into the Rosebrook chop shop. In turn, a member of the Logan County

department, Detective Keith Levan, placed the detectives in contact with persons who

had been associated with Rosebrook, including Frazier. However, no legitimate leads

were generated.

      {¶11} Approximately three years later, in September 2010, Logan County

Detective Levan contacted Detective Vetter with information on the murder. According

to Levan, he recently spoke to an informant, Terry Current, an inmate at a local state

prison.   Current informed Levan that a second inmate at the state prison, Richard


                                            3
Carter, had developed a relationship with a third inmate, appellant, who had divulged

facts regarding the murder. As a result, Detective Levan interviewed Carter at the

prison, and gave Detective Vetter a summary of the interview.

      {¶12} Based on the summary, Detective Vetter asked Detective Levan to further

interview Richard Carter.      From September 2010 until February 2011, Levan

interviewed Carter six times. Carter told Levan that he worked in the prison law library,

and that appellant approached him for assistance on a separate domestic violence

matter.   Carter further stated that, as he and appellant became better acquainted

through the weeks, appellant began to tell him about the murder.

      {¶13} According to Carter, appellant told him: (1) after being released from

prison in March 2006, he was hired to find and murder C; (2) on May 25, 2006, he drove

to Geauga County in a vehicle owned by a female friend, later identified as Mindie Mock

Stanifer, who accompanied him on the trip; (3) on the night before the murder, someone

showed him where C supposedly lived; (4) the next morning, he drove back to the

house with Stanifer, went into the house through the back door, and found two people

inside; (5) upon taping E’s wrist, he realized that E was too young to be C, the person

he was hired to murder; (6) thus, he tried to leave without further incident, but E caught

up to him before he get out; (7) when he turned around, E was threatening him and the

shotgun went off; and (8) he then got back into the car and drove away while Stanifer

vomited in the car.

      {¶14} Carter remained in prison until September 2011. On his release date,

Detective Vetter interviewed Carter for the first time. Carter confirmed the majority of

the statements provided Detective Levan regarding conversations he had with

appellant. No immediate arrests were made.


                                            4
       {¶15} Based upon separate information, the Geauga County detectives believed

that, in addition to Stanifer, someone else was in the vehicle at the murder scene.

When the detectives subsequently found Stanifer in Florida, she was initially unwilling to

cooperate. However, when she had legal problems in May 2015, she spoke to the

detectives about the murder and identified Alva Jacobs as the other person at the scene

of the murder.

       {¶16} Thereafter, appellant was arrested for E’s murder. In June 2015, he was

indicted on one count of conspiracy to commit aggravated murder, two counts of

aggravated murder, and two counts of kidnapping. The first aggravated murder charge

alleges that appellant committed the murder with prior calculation and design. The

second aggravated murder charge alleges the murder occurred while appellant was

committing the underlying offense of aggravated burglary. All counts carried firearm

specifications.

       {¶17} Following arrest, appellant was confined in two county jails for the entire

nine months before his April 2016 trial, some of the time in the Lake County jail and

some of the time in the Geauga County jail. During this time, two inmates contacted the

prosecutor’s office and provided information regarding E’s murder.           Each inmate

asserted that he talked to appellant while inside the jail, and that appellant admitted his

role in the murder. Both subsequently testified at trial.

       {¶18} During the same time frame, Detective Vetter followed up on information

that after driving two to three miles from the murder scene, appellant pulled into a side

road accessing an oil well, exited the car, and took off his outer layer of clothes because

they were blood stained; a local homeowner observed this and asked appellant if he

needed help.      After conducting a door-to-door search of the area, Detective Vetter


                                             5
ultimately found Eli Yoder, who recalled the event and testified at trial.

       {¶19} Shortly before trial, appellant gave notice of alibi and identified Jason

Harvey as a potential witness.      Appellant worked for Harvey after his release from

prison in March 2006. Detective Vetter contacted Harvey on multiple occasions, and

informed him of the seriousness of committing perjury and attempted to verify that

Harvey had signed an affidavit concerning his knowledge of where appellant was on the

date of the murder. In light of the detective’s actions, appellant moved the trial court to

dismiss the entire indictment on the grounds of government misconduct. After holding a

separate hearing, the trial court denied the motion.

       {¶20} At trial, the state relied heavily upon prison informant Carter’s testimony.

After the close of evidence, the trial court issued a written decision setting forth its

findings. In regard to Carter, the trial court noted that, although his testimony had

inconsistencies, Carter explained that he was merely restating what appellant had told

him. The court further found that Carter’s testimony concerning the events inside E’s

residence was consistent. In addition, the trial court found that there was no reason to

believe that Carter was biased against appellant and was simply trying to “set him up”

for the murder.

       {¶21} The trial court found appellant not guilty on the conspiracy and aggravated

murder counts, but guilty of two lesser included murder offenses, both kidnapping

counts, and all four firearm specifications.

       {¶22} The trial court merged the murder counts and sentenced appellant to

fifteen years to life. The court merged the four gun specifications and imposed one

consecutive three-year term. The trial court imposed concurrent ten-year terms on the

kidnapping counts, but consecutive to murder count. Appellant’s aggregate prison term


                                               6
is twenty-eight years to life.

       {¶23} Appellant raises four assignments of error:

       {¶24} “[1.] The trial court violated Mr. South’s rights to due process and a fair

trial when it entered judgments of conviction for murder, kidnapping, and related

specifications against the manifest weight of the evidence.          Fifth and Fourteenth

Amendments to the United States Constitution, and Article I, Section 16, of the Ohio

Constitution.

       {¶25} “[2.] The trial court erred in overruling Mr. South’s Motion to Dismiss for

Government Misconduct. Fifth, Sixth, and Fourteenth Amendments to the United States

Constitution, and Article I, Sections 10 and 16, of the Ohio Constitution.

       {¶26} “[3.]   The trial court violated Mr. South’s right to confront and cross-

examine witnesses when it curtailed cross-examination.              Sixth and Fourteenth

Amendments to the United States Constitution, and Article I, Section 16, of the Ohio

Constitution.

       {¶27} “[4.] The trial court violated Chad South’s right to due process and a fair

trial through cumulative error.     Fifth and Fourteenth Amendments, United States

Constitution; Article I, Sections 10 and 16, Ohio Constitution.”

       {¶28} Under his first assignment, appellant maintains that the trial court erred in

finding Carter’s testimony credible. He argues that his pretrial statements to Detective

Levan had too many inconsistencies for his subsequent trial testimony to be credible.

       {¶29} “‘[A] “manifest weight” challenge requires the reviewing court to play the

role of a “thirteenth juror.” State v. Thompkins (1997), 78 Ohio St.3d 380, 387, 1997-

Ohio-52, 678 N.E.2d 541. * * * For an appellate court to overturn a conviction as

against the manifest weight of the evidence, it must be found that “the jury clearly lost its


                                             7
way and created such a manifest miscarriage of justice that the conviction must be

reversed and a new trial ordered. The discretionary power to grant a new trial should

be exercised only in the exceptional case in which the evidence weighs heavily against

the conviction.” Thompkins, 78 Ohio St.3d at 387, quoting State v. Martin (1983), 20

Ohio App.3d 172, 175, * * *, 485 N.E.2d 717.’ State v. Kovacic, 11th Dist. Lake No.

2010-L-065, 2012-Ohio-219, ¶37.” State v. Grega, 11th Dist. Ashtabula No. 2012-A-

0036, 2013-Ohio-4094, ¶70.

       {¶30} Although an appellate court is obligated to review the credibility of the

witnesses in a manifest weight analysis, the determination of credibility still primarily lies

within the sound discretion of the trier of fact because the trier of fact is in the best

position to make that determination. State v. Clark, 11th Dist. Ashtabula No. 2002-A-

0056, 2003-Ohio-6689, ¶19-20.

       {¶31} In challenging Carter’s credibility, appellant focuses on the series of

interviews Carter had with Detective Levan in 2010. He emphasizes relevant facts of

the murder varied from interview to interview. For example, during one interview, Carter

quoted appellant as stating that he shot the victim in the head rather than the chest.

Appellant further notes that Carter changed the name of Stanifer who waited in the car

and the manner in which the car was later disposed.

       {¶32} As part of his process of informing Detective Levan, Carter would have

conversations with appellant and then convey the contents of the conversations to the

detective.   Carter testified that he tried to write notes after each conversation with

appellant, but there were sometimes long delays between the conversations and when

he could write the notes. Thus, there was some need for recollection which explains

some of the inconsistencies. In addition, Carter merely reported to the detective what


                                              8
appellant said to him. If appellant changed the facts or names, Carter relayed the

changes.

       {¶33} In regard to Carter’s interviews with Detective Levan, appellant points out

that two were held after appellant had already been released from the prison, and that

Carter provided additional information at that time, proving that Carter was getting his

“information” from other people in the prison, not appellant. However, Carter explained

that he would provide additional information not originally conveyed to Levan as he

would later remember.

       {¶34} There were also inconsistencies in Carter’s trial testimony. However, the

inconsistencies are inconsequential. As the trial court noted, Carter’s testimony was

consistent on the following: “[Appellant] had been hired to kill Dan Ott. He went into a

house in the early morning hours in May, 2006, to kill Dan Ott. He discovered that the

man in the house was named Dan Ott, but that he was too young to be the man South

had been hired to kill. He was trying to leave the house when Dan Ott came at him with

something in his hand. He shot Dan Ott with the shotgun that he had brought into the

house. He was covered in blood and went out to the car he had driven to the house.

The young lady, a drug addict, who was with him vomited on the seat of the car when

she saw the blood. While leaving the scene, he struck something with the car and

dented it.”

       {¶35} As part of its “credibility” analysis, the trial court stated that Carter had no

motivation to lie because he was not compensated for telling Detective Levan about the

conversations. Appellant asserts that this is incorrect, because Carter received $115

from the detective.    Although appellant’s assertion is correct, Carter also provided

information to Detective Levan on other investigations. Moreover, Carter’s prison term


                                             9
was not reduced.

       {¶36} Carter’s testimony does not contain any integral inconsistencies rendering

his testimony unbelievable. Rather, the extent of his knowledge of the facts supports

the trial court’s conclusion that his knowledge is based on conversations with appellant.

Accordingly, the trial court did not lose its way.       Furthermore, his testimony, in

conjunction with the state’s other evidence, satisfies the elements of murder and

kidnapping.

       {¶37} Appellant also argues that the Geauga County’s Sheriff’s Department’s

investigation was flawed because it was too focused upon Richard Carter and the

“Logan County” connection. He emphasizes that, even though the department received

much of the same information Carter gave from other prison informants in 2006, the

detectives did not then pursue the information. It was only when Carter gave similar

information in 2010 that the detectives acted.

       {¶38} This observation, however, even if true, has no bearing on his convictions.

       {¶39} Last, appellant argues for reversal of his murder conviction alleging the

trial court reached a “compromised verdict.”       Specifically, he argues that Carter’s

testimony does not support the finding that he committed the murder without prior

design and calculation.

       {¶40} Carter, however, testified that when appellant realized he had the wrong

Ott, he tried to leave the home without going through with the murder. To this extent, if

believed, the prior calculation and design no longer existed.

       {¶41} The trial court did not lose its way believing Carter’s trial testimony.

Accordingly, the court’s verdict is not against the manifest weight of the evidence and

appellant’s first assignment is without merit.


                                             10
       {¶42} Under his second assignment, appellant challenges the trial court’s denial

of his pretrial motion to dismiss on the basis of governmental misconduct. He maintains

that the evidence he introduced in support of the motion shows that the detectives

associated with the Geauga County Sheriff’s Department intimidated witnesses who

otherwise would have testified favorably. In support, at the dismissal hearing, Jason

Harvey testified that a detective tried to intimidate him by emphasizing that he could be

subject to perjury charges if he chose to testify at trial.

       {¶43} Ohio law recognizes that “[a]n accused may put the conduct of the police

or their agent into issue by arguing that such conduct is so outrageous as to violate due

process. Rochin v. California (1952), 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183.” State

v. Doran, 5 Ohio St.3d 187, 192, 449 N.E.2d 1295, fn. 4. In relation to the state’s use of

coercion, the behavior must be “‘particularly egregious’” in order for it to be considered

“outrageous” for purposes of a due process violation. State v. Gaines, 193 Ohio App.3d

260, 2011-Ohio-1475, 951 N.E.2d 814, ¶44 (12th Dist.), quoting United States v.

Mosley, 965 F.2d 906, 912 (C.A.10, 1992). Stated differently, “‘revulsion to the tactics

[used by the state] must be overwhelming and universal * * *.’” Id., quoting State v.

Cunningham, 156 Ohio App.3d 714, 2004-Ohio-1935, 808 N.E.2d 488, ¶29.

       {¶44} Jason Harvey believed the detectives tried to intimidate him in three

respects. First, the detectives expressly warned Harvey not to get involved in the case

because the state’s case against appellant was strong and he might be subject to

perjury charges if he testified. Second, when Harvey executed an affidavit regarding his

proposed testimony, Detective Vetter texted him on multiple occasions, seeking to verify

that he signed the affidavit. Third, the detectives tried to cause problems in Harvey’s life

by contacting the mother of his minor child and informing her that Carter was


                                              11
unnecessarily “involving” himself in a murder investigation.

       {¶45} Although Harvey refused to testify at trial, the court considered Harvey’s

dismissal motion testimony. Moreover, Harvey fully explained why he believed it would

have been impossible for appellant to have committed the murder in Geauga County.

Thus, appellant was not denied due process by Harvey’s failure to appear at trial.

       {¶46} Appellant further asserts that the detectives intimidated another potential

alibi witness, Chad Malay. According to Harvey, Malay and appellant were assigned to

work together on the day of the murder, and Malay would have told Harvey if appellant

missed work. During the motion hearing, appellant presented evidence tending to show

that Detective Vetter spoke with Malay at some point during the investigation. But there

was no evidence concerning what the detective said to Malay. As a result, appellant

has not established outrageous conduct.

       {¶47} Appellant also submits that Stanifer and Jacobs would have been

favorable witnesses had detectives not intimidated them during interrogation. Although

defense counsel presented a legal argument during the motion hearing as to how the

detectives’ actions resulted in a violation of his right to a fair trial, no proffer was made

regarding the substance of Stanifer’s and Alva’s proposed testimony. In the absence of

a proffer, this court cannot determine whether their testimony could have affected the

trial’s outcome and, thus, whether appellant was denied a fair trial.         See State v.

Archibald, 11th Dist. Lake Nos. 2006-L-047 and 2006-L-207, 2007-Ohio-4966, ¶43.

       {¶48} Appellant separately contends that he was denied a fair trial when

Detective Vetter searched his Lake County jail cell and reviewed his personal papers

regarding the upcoming trial. As of February 2016, approximately nine months after he

was indicted, appellant was being held in the Lake County jail. Earlier, he had been


                                             12
transferred from the Geauga County jail to Lake County because he was attempting to

communicate with one of his co-defendants. At that time, Detective Vetter obtained

information from a prison informant that appellant was receiving mail at the Lake County

jail from the co-defendant. Consequently, she obtained a search warrant and searched

the contents of his jail cell, including the papers appellant had concerning his case.

Although the detective did not find any letters from a co-defendant, she made copies of

all papers she found and forwarded them to the Geauga County Prosecutor for review.

      {¶49} Appellant asserts that Detective Vetter’s actions violated his due process

rights because the papers are subject to attorney-client privilege. At the motion hearing,

Vetter testified as to the papers confiscated. Some of the papers were personal letters

not about the case.     The remainder of the papers consisted of his notes of the

audiotapes of the 2010-2011 interviews between Detective Levan and Carter. The

notes, however, do not contain any communication between appellant and defense

counsel regarding trial strategy. The papers were, therefore, not covered by attorney-

client privilege. Moreover, appellant has failed to show that the state’s review of the

papers denied him a fair trial. Appellant’s second assignment is not well taken.

      {¶50} Under his next assignment, appellant maintains that the trial court violated

his constitutional rights by restricting the scope of his cross-examination of three state

witnesses. He argues the court erred in not permitting him to refresh the recollection of

the witnesses through tape recordings of interviews, depositions, and telephone calls.

      {¶51} While cross-examining Detectives Keough, Detective Logan, and Carter,

defense counsel sought to refresh their memories with statements other prison

informants made during prior interviews.      The trial court did not allow this line of

questioning. Without reaching the propriety of these rulings, appellant failed to proffer


                                           13
the expected responses. Accordingly, appellant failed to show prejudice. Archibald,

2007-Ohio-4966, at ¶43.

       {¶52} Under his last assignment, appellant argues cumulative error. Although a

criminal conviction can be reversed on the grounds that the cumulative effect of legal

errors throughout the trial resulted in a deprivation of the right to a fair trial, the doctrine

is inapplicable absent multiple instances of harmless error, not present here. State v.

Boynton, 8th Dist Cuyahoga No. 93598, 2010-Ohio-4248, ¶60 quoting State v. Garner,

74 Ohio St.3d 49, 64, 656 N.E.2d 623 (1995). Therefore, appellant’s fourth assignment

is without merit.

       {¶53} The judgment of the Geauga County Court of Common Pleas is affirmed.



CYNTHIA WESTCOTT RICE, P.J.,

TIMOTHY P. CANNON, J.,

concur.




                                              14
