         [Cite as State v. Summerlin, 2017-Ohio-7625.]
                 IN THE COURT OF APPEALS
             FIRST APPELLATE DISTRICT OF OHIO
                  HAMILTON COUNTY, OHIO



STATE OF OHIO,                                    :      APPEAL NO. C-160539
                                                         TRIAL NO. B-1405335
        Plaintiff-Appellee,                       :

  vs.                                             :         O P I N I O N.

GREG SUMMERLIN,                                   :

    Defandant-Appellant.                          :




Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: September 15, 2017


Joseph T. Deters, Hamilton County Prosecuting Attorney, and Philip R. Cummings,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,

William F. Oswalt Jr., for Defendant-Appellant.
                      OHIO FIRST DISTRICT COURT OF APPEALS




C UNNINGHAM , Presiding Judge.

       {¶1}     Raising seven assignments of error, defendant-appellant Greg Summerlin

appeals from his convictions, following a jury trial, for the aggravated murder of Wynton

Burton, and the attempted aggravated murder of Wayne Walker. We find none of the

assignments of error to have merit and affirm the trial court’s judgment.

       {¶2}     On the evening of September 11, 2014, Allen Grace saw Summerlin, his

companion Priest Huffaker, and another person milling about a common area in the

Winton Terrace neighborhood of Cincinnati. Summerlin, whose street name was “Joker,”

and Huffaker approached Burton and Walker. Walker had known “Joker” and Priest for

over a year. He saw that Summerlin was armed with a .357-caliber revolver, and Huffaker

with a semiautomatic pistol. Burton, too, knew Summerlin. Three weeks previously,

Burton had told his father that Summerlin had threatened him.

       {¶3}     Burton owned a semiautomatic pistol with an iridescent “rainbow” finish.

Summerlin and Huffaker asked to see it. Burton refused. Within minutes, as Walker told

the jury, Summerlin drew his revolver and fired two rounds into Burton, and then two

more as he stood over Burton’s supine form. As Walker, standing nearby, ran to aid

Burton, he was shot in the neck. He saw Summerlin take Burton’s pistol. It was never

recovered.

       {¶4}     Walker then fled for his life. He heard Summerlin yell to Huffaker,

“Finish him off.” Though Huffaker shot Walker eight times, Walker was able to stumble

into the street where he was found by a patrolling Cincinnati police officer.

       {¶5}     Walker told paramedics summoned to aid him that “Joker” had shot

Burton.   Burton died at the scene.       Among other items, police investigators found

Huffaker’s cellular telephone, semiautomatic-pistol shell casings, and a box of .357

ammunition bearing Summerlin’s fingerprints at the scene.


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       {¶6}     Subsequent investigation led the police to access Summerlin’s Facebook

profile page and cellular telephone records from which they confirmed that Summerlin

was “Joker,” that he carried a handgun, and that he associated with Huffaker. The phone

records placed Summerlin near the crime scene on the night Burton was killed. Over the

next few days, Summerlin texted his associates that there were warrants for his arrest, that

he was “hot,” and that they should not open their doors to any unknown persons. While

still a fugitive, Summerlin spoke on the telephone with an associate, Dathan Hall, then

incarcerated in the Hamilton County Justice Center, about arranging “cheese,” or hush

money for Walker to buy his silence. Summerlin was ultimately arrested in northern

Hamilton County.

       {¶7}     In a six-count indictment, Summerlin was charged with the aggravated

murder, murder, and aggravated robbery of Burton, and with the attempted aggravated

murder and attempted murder of Walker, with accompanying firearm specifications. The

jury returned guilty verdicts on each count and specification. The trial court afforded

Summerlin the protections of the allied-offenses statute, merging a number of the

offenses. It ultimately imposed a life-without-parole sentence for the aggravated murder

of Burton, to be served consecutively to an 11-year prison term for the attempted

aggravated murder of Walker, and consecutively to a three-year prison term for a firearm

specification. Summerlin appealed.

       {¶8}     Summerlin argues, in his first assignment of error, that the trial court

erred when it denied his request for new counsel. On the first day of trial, with prospective

jurors waiting outside the courtroom, Summerlin complained to the court that his two

court-appointed attorneys had failed to share all the state’s discovery with him.

       {¶9}     The decision whether to appoint substitute counsel rests within the

sound discretion of the trial court. See State v. Clark, 1st Dist. Hamilton No. C-020550,



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2003-Ohio-2669, ¶ 8.      The trial court is required to make an inquiry into the

defendant’s complaint, including whether the motion was timely and whether there had

been a complete breakdown in communication between the defendant and his counsel.

See id. at ¶ 7; see also State v. Murphy, 91 Ohio St.3d 516, 747 N.E.2d 765 (2001); State

v. Gordon, 149 Ohio App.3d 237, 2002-Ohio-2761, 776 N.E.2d 1135, ¶ 13 (1st Dist.).

       {¶10}    We note that 16 months before this challenged ruling, the court had

entertained an identical oral motion from Summerlin. At that time, the court had

carefully explained the limitation placed on Summerlin’s counsel by Crim.R. 16(C) but

nonetheless appointed new counsel to represent him.

       {¶11}    While the trial court’s initial response had been perfunctory, when

Summerlin renewed his motion, the court asked appointed defense counsel to respond.

Summerlin’s experienced trial counsel explained that he and co-counsel had provided

Summerlin with all discovery material that had not been designated “counsel only”

under Crim.R. 16(C). They had met with Summerlin 15 times before trial and had

explained to him the limitations placed on them by the discovery rules. They had

discussed at length their trial strategy and the plea negotiation. Counsel stated that he

did not believe the attorney-client relationship had broken down. Summerlin also

addressed the court, admitting that his counsel were experienced, but again requesting

new counsel.

       {¶12}    We conclude that the trial court’s decision to deny Summerlin’s ill-

timed, successive request for substitute counsel exhibited a sound reasoning process,

and it will not be disturbed on appeal. See Clark, 1st Dist. Hamilton No. C-020550,

2003-Ohio-2669, at ¶ 7; see also AAAA Ents., Inc. v. River Place Community Urban

Redev. Corp., 50 Ohio St.3d 157, 161, 553 N.E.2d 597 (1990). The first assignment of

error is overruled.



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                      OHIO FIRST DISTRICT COURT OF APPEALS



         {¶13}   Summerlin next challenges the trial court’s decision denying him the

opportunity to impeach Grace, a hearsay declarant, with evidence of his prior

convictions. At trial, Burton’s uncle testified, over objection, that Grace had told him

Summerlin was present when Burton and Walker were shot. Grace did not testify at

trial.   After the uncle’s direct examination, Summerlin asked to examine Grace’s

criminal record. He intended to use the criminal record, if any existed, to impeach

Grace during the cross-examination of Burton’s uncle.

         {¶14}   The state responded that Summerlin could not impeach Grace with his

prior convictions without Grace being present at trial and on the witness stand as

mandated in Evid.R. 609(F). That rule requires that a witness’ record of conviction be

shown to him during his examination. The trial court agreed and denied Summerlin’s

motion.

         {¶15}   But Evid.R. 806(A) provides that when a hearsay statement has been

admitted into evidence, “the credibility of the declarant may be attacked * * * by any

evidence that would be admissible for those purposes if declarant had testified as a

witness.” Under Evid.R. 806(C), a party may use Evid.R. 609 prior-conviction records

to impeach a hearsay declarant even if that declarant does not testify. See State v.

Chambers, 12th Dist. Butler No. CA2010-06-136, 2011-Ohio-1187, ¶ 24; see also State

v. Menton, 7th Dist. Mahoning No. 07 MA 70, 2009-Ohio-4640, ¶ 113; State v. Hatcher,

108 Ohio App.3d 628, 632, 671 N.E.2d 572 (1st Dist.1996) (holding, before the addition of

Evid.R. 806(C), that a hearsay declarant’s criminal conviction could be admitted under

Evid.R. 806 even though she did not testify). Thus the trial court’s refusal to permit

Summerlin access to Grace’s record of prior convictions, if any existed, was error.

         {¶16}   Here, our record does not reveal whether Grace had any criminal record

that could have been used for impeachment even if the trial court had followed Evid.R.



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                      OHIO FIRST DISTRICT COURT OF APPEALS



806. Evidence of Summerlin’s guilt was overwhelming, and Grace’s declaration was

merely cumulative of other admissible evidence placing Summerlin at the scene of the

shooting, including Walker’s eyewitness testimony, phone records, and Summerlin’s

fingerprints on the discarded ammunition box. Walker testified at trial and was subject

to cross-examination.     Thus the trial court’s erroneous ruling did not prejudice

Summerlin. The second assignment of error is overruled.

       {¶17}    Summerlin next argues, in his third assignment of error, that he was

denied the effective assistance of counsel for various claimed deficiencies of his trial

counsel, including counsel’s comment in closing argument that the jury did not get to

hear “both sides of the story,” and his failure to object to a police detective’s testimony

regarding Grace’s hearsay statements that Summerlin was at the shooting scene.

Summerlin also notes, but does not support with argument here, that trial counsel

failed to object to jury instructions pertaining to the attempted murder of Walker as

alleged in Count 5 of the indictment.

       {¶18}    To prevail on a claim of ineffective assistance of trial counsel,

Summerlin must show, first, that trial counsel’s performance was deficient and, second,

that the deficient performance was so prejudicial that he was denied a reliable and

fundamentally fair proceeding. See Lockhart v. Fretwell, 506 U.S. 364, 113 S.Ct. 838,

122 L.Ed.2d 180 (1993); see also Strickland v. Washington, 466 U.S. 668, 689, 104

S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373

(1989), paragraphs two and three of the syllabus.

       {¶19}    Here, Summerlin’s trial counsel worked diligently to discredit the state’s

theory of the case including effectively highlighting inconsistencies in the testimony of

the state’s witnesses. Counsel’s inartful reference to Summerlin’s failure to articulate

his version of events, commented on by the state in its closing argument, was part of his



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                      OHIO FIRST DISTRICT COURT OF APPEALS



larger contention that the state had failed to carry its heavy burden of proof. After

reviewing counsel’s brief comment, within the totality of the evidence before the jury,

and more particularly within the context of the entire closing argument, we cannot say

that but for that comment the result of the trial would have been different or that it was

so unreliable that the judgment must be reversed. See Bradley at 142. Moreover,

Summerlin was not prejudiced by the detective’s mention of Grace’s statement, in light

of Walker’s trial testimony. After reviewing the entire record, we hold that Summerlin

cannot demonstrate the requisite prejudice to establish his claim, because the record

does not support a determination that but for these remarks or omissions, the result of

the trial would have been different. See Strickland at 687; see also Bradley at 141–142.

The third assignment of error is overruled.

       {¶20}    In his fourth assignment of error, Summerlin contends that, over his

timely objection, the trial court erred in instructing the jury on his flight from the scene

of the shootings.    He argues that the evidence did not show that he had taken

affirmative steps to avoid detection. We disagree.

       {¶21}    Evidence of flight is admissible to show consciousness of guilt. See

State v. Taylor, 78 Ohio St.3d 15, 27, 676 N.E.2d 82 (1997). An instruction on flight is

proper if the record contains sufficient evidence to support the charge. Flight means

some escape or affirmative attempt to avoid apprehension including fleeing from the

police or eyewitnesses. See State v. Brundage, 1st Dist. Hamilton No. C-030632, 2004-

Ohio-6436, ¶ 17. The instruction may not raise a presumption of guilt or shift the

burden of proof to the defendant to explain his flight. See State v. McKibbon, 1st Dist.

Hamilton No. C-010145, 2002-Ohio-2041. The decision whether to instruct the jury on

flight lies within the trial court’s discretion. A reviewing court will not reverse that

decision absent an abuse of that discretion. See Brundage at ¶ 18.



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                     OHIO FIRST DISTRICT COURT OF APPEALS



       {¶22}   Here, the state’s evidence showed that Summerlin, knowing that the

police would soon arrive, had immediately left the scene of the shootings even though

Burton lay mortally wounded and Walker appeared to be seriously injured. Summerlin

hid from police, removing himself from the city following the shootings. He made

statements that he knew that he was “hot,” acknowledging that the police were looking

for him. The state also adduced evidence that Summerlin or his associates had offered

Walker money not to testify. Moreover, the trial court instructed the jury that it could

find an innocent explanation for Summerlin’s flight.

       {¶23}   We conclude that the trial court acted within its discretion. Its decision

to give the flight instruction was supported by the evidence adduced at trial and

exhibited a sound reasoning process, and it will not be disturbed on appeal.

See Brundage at ¶ 18; see also AAAA Ents., Inc., 50 Ohio St.3d at 161, 553 N.E.2d 597.

The fourth assignment of error is overruled.

       {¶24}   Summerlin next argues that the evidence at trial was insufficient to

convict him of the attempted aggravated murder of Walker as alleged in Count 5 of the

indictment. Summerlin contends that, because there was no evidence that Walker had

been robbed, the state had failed to establish an essential element of attempted

aggravated murder. He argues, without citation to any authority, that he could not be

convicted of the attempted aggravated murder of Walker because Walker had not been

robbed.

       {¶25}   In Count 5, Summerlin was convicted of attempted aggravated murder

under R.C. 2903.01(B) and 2923.02(A), which proscribe purposely engaging in conduct

that if successful would have resulted in the aggravated murder of Wayne Walker while

attempting to commit, or while fleeing immediately after attempting to commit,




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                     OHIO FIRST DISTRICT COURT OF APPEALS



aggravated robbery. There is no limitation in the indictment that the robbery offense

had to be committed against Walker.

       {¶26}    The aggravated-robbery charges against Summerlin, contained in

Counts 3 and 4, were governed by R.C. 2911.01(A)(1) and 2911.01(A)(3). Under these

statutes, the state was required to prove that Summerlin, in attempting or committing a

theft offense against Burton, had a deadly weapon on or about his person, and had

brandished or used that weapon, or had inflicted, or attempted to inflict serious

physical harm on Burton.

       {¶27}    When reviewing the legal sufficiency of the evidence to support a

criminal conviction, we must examine the evidence admitted at trial in the light most

favorable to the prosecution and determine whether the evidence could have convinced

any rational trier of fact that the essential elements of the crime were proven beyond a

reasonable doubt. See State v. Conway, 108 Ohio St.3d 214, 2006-Ohio-791, 842

N.E.2d 996, ¶ 36; see also Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d

560 (1979). In deciding if the evidence was sufficient, we neither resolve evidentiary

conflicts nor assess the credibility of the witnesses, as both are functions reserved for

the trier of fact. See State v. Campbell, 195 Ohio App.3d 9, 2o11-Ohio-3458, 958

N.E.2d 622 (1st Dist.).

       {¶28}    Throughout its case-in-chief, the state had argued that Summerlin was

complicit with Huffaker in the attempt to kill Walker—an eyewitness to the aggravated

robbery and murder of Burton.         Under R.C. 2923.03(F), a complicitor may be

prosecuted and punished as if he were a principal offender. See State v. Corcoran, 1st

Dist. Hamilton No. C-160627, 2017-Ohio-7084, ¶ 29.

       {¶29}    Here, the record reflects substantial, credible evidence from which the

trier of fact could reasonably have concluded that all the elements of attempted



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                      OHIO FIRST DISTRICT COURT OF APPEALS



aggravated murder had been proved beyond a reasonable doubt, including that

Summerlein had participated in the theft, at gunpoint, of Burton’s pistol and had

ordered Huffaker to kill Walker to effect their escape. See State v. Sanders, 1st Dist.

Hamilton Nos. C-140579 and C-140580, 2o15-Ohio-5232, ¶ 40. The trier of fact could

reasonably have found that Summerlin committed or was complicit in Huffaker’s

commission of the attempted aggravated murder of Walker and the aggravated robbery

of Burton. See R.C. 2923.03(F); see also Conway at ¶ 36; State v. Johnson, 93 Ohio

St.3d 240, 754 N.E.2d 796 (2001), syllabus. The fifth assignment of error is overruled.

       {¶30}    Because we have found no error associated with the sufficiency of the

evidence to support a conviction under Count 5, Summerlin’s argument, raised in his

third assignment of error above, that his trial counsel was deficient for failing to object

to the jury instructions on that count must also fail.

       {¶31}    In his sixth assignment of error, Summerlin challenges the manifest

weight of the evidence adduced to support his convictions. He argues that the state

failed to establish that he was the perpetrator of the offenses. We disagree.

       {¶32}    Our review of the entire record fails to persuade us that the jury, acting

as the trier of fact, clearly lost its way and created such a manifest miscarriage of justice

that the convictions must be reversed and a new trial ordered. See State v. Thompkins,

78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997). We can find no basis in this record to

conclude that this is that “exceptional case” in which the jury lost its way. See State v.

Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).

       {¶33}    The jury was entitled to reject Summerlin’s theory that evidence tying

him to the crimes was largely circumstantial because he had not been apprehended at

the scene, little physical evidence was introduced, and Walker’s testimony was “not

credible.” The state presented ample evidence to support the convictions, including



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                      OHIO FIRST DISTRICT COURT OF APPEALS



testimony that Burton had told his father that Summerlin had threatened him. Walker

told paramedics at the scene that “Joker” had shot Burton. He testified at trial that he

saw Summerlin shoot Burton, and that Summerlin had ordered Huffaker to shoot him.

Summerlin’s fingerprints were found on an ammunition box left at the scene.

Communications from Summerlin's cellular telephone made after the killing of Burton

and the wounding of Walker indicated that he thought he was “hot.”

       {¶34}    As the weight to be given the evidence and the credibility of the

witnesses were primarily for the trier of fact to determine, the jury, in resolving conflicts

in the testimony, could properly have found Summerlin guilty of the charged crimes

and thus did not lose its way. See State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212

(1967), paragraph one of the syllabus. The sixth assignment of error is overruled.

       {¶35}    In his seventh assignment of error, Summerlin claims that the trial

court erred in admitting into evidence, over his objection, two prejudicial photographs

taken from his Facebook profile page.          See Evid.R. 403(A).      One photo shows

Summerlin with a gun in his waistband. The other shows Summerlin with Huffaker,

each with a gun.      The admission or exclusion of relevant evidence rests within

the sound discretion of the trial court. State v. Sage, 31 Ohio St.3d 173, 510 N.E.2d 343

(1987), paragraph two of the syllabus; see State v. Morris, 132 Ohio St.3d 337, 2012-

Ohio-2407, 972 N.E.2d 528, syllabus.

       {¶36}    Here, the photos served to identify Summerlin as “Joker” and to

demonstrate Summerlin’s association with Huffaker.             In light of Walker’s trial

testimony, the trial court’s decision that the photographs’ probative value was not

substantially outweighed by the danger of unfair prejudice exhibited a sound reasoning

process and will not be disturbed on appeal. See Morris at ¶ 14; see also AAAA Ents.,




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                     OHIO FIRST DISTRICT COURT OF APPEALS



Inc., 50 Ohio St.3d at 161, 553 N.E.2d 597. The seventh assignment of error is

overruled.

       {¶37}   Therefore, the trial court’s judgment is affirmed.

                                                                    Judgment affirmed.

Z AYAS and D ETERS , JJ., concur.


Please note:

       The court has recorded its own entry on the date of the release of this opinion.




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