         [Cite as State v. Jones, 2020-Ohio-281.]
                 IN THE COURT OF APPEALS
             FIRST APPELLATE DISTRICT OF OHIO
                  HAMILTON COUNTY, OHIO



STATE OF OHIO,                                      :   APPEAL NO. C-170647
                                                        TRIAL NO. B-1602671
        Plaintiff-Appellee,                         :
                                                        O P I N I O N.
  vs.                                               :

EARL JONES,                                         :

    Defendant-Appellant.                            :




Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is:                Affirmed in Part, Reversed in Part, and Cause
                                          Remanded

Date of Judgment Entry on Appeal: January 31, 2020


Joseph T. Deters, Hamilton County Prosecuting Attorney, and Scott M. Heenan,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Timothy Young, Ohio State Public Defender, and Peter Galyardt, Assistant State
Public Defender, for Defendant-Appellant.
                     OHIO FIRST DISTRICT COURT OF APPEALS



C ROUSE , Judge.

       {¶1}   Defendant-appellant Earl Jones appeals his convictions for aggravated

murder and carrying a concealed weapon.            In his appeal, Jones raises nine

assignments of error for our review. For the reasons set forth below, we affirm in

part and reverse in part the judgment of the trial court.

                                 Facts and Procedure

       {¶2}   In 2012, defendant-appellant Earl Jones fathered a child with Cyerra

Prather. Jones and Prather dated for the next three years and eventually ended their

relationship in October 2015. Approximately two months later, in December 2015,

Prather began dating Kevin Neri. From January 2016 to May 2016, Neri lived with

Prather and her family.

       {¶3}   There was instant animosity between Jones and Neri. Jones regularly

referred to Neri through racial epithets and directed vulgar insults at both Neri and

Prather. Because of the relationship between Jones and Neri, Prather’s family took

various steps to reduce the chances for confrontation. For example, Prather’s mother

acted as an intermediary for the pick-up and drop-off of Jones and Prather’s son.

Prather’s mother would drop their son off at Jones’s apartment and she would meet

Jones outside when he returned their son to Prather’s house. In addition, Prather’s

family attempted to make transfers of the child quick. Prather’s family wanted to reduce

the time Jones had to wait at Prather’s house and reduce the chances of Jones and Neri

seeing each other.

       {¶4}   Jones and Neri also had a history of arranging fist fights that never

occurred. Jones would tell Neri to meet him at a specific location, Neri would go to that

location, and Jones would not be there. A similar set of circumstances occurred on May

16, 2016. Throughout the morning and early afternoon of May 16, Jones and Neri



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                       OHIO FIRST DISTRICT COURT OF APPEALS



exchanged several taunting and derogatory text messages. During the exchange, Neri

asked Jones if Jones wanted to fight. Jones replied in the affirmative, stating that he

would be in the area the following day to pick up his and Prather’s son.

        {¶5}    Around 4:00 p.m., Jones asked Prather if he could get their son that night

instead of the following day. Prather agreed and Jones asked that Prather bring their

son to his apartment. Prather stated that her sister would drop the child off at Jones’s

apartment. However, Prather’s sister refused when she found out that Jones had posted

half-naked pictures of Prather on social media earlier in the day. Prather instead offered

Jones to pick their son up from her house at 8:00 p.m. Jones agreed and immediately

texted Neri to reschedule the previously-arranged fight to occur at the same time Jones

would be at Prather’s house. Neri agreed to meet Jones at the end of the street.

        {¶6}    At 7:29 p.m., Jones messaged Prather to ask when he should leave.

Prather responded, “I thought you were gonna be here by 8.” Jones replied, “Making

sure you’ll still be home by 8.” At 7:55 p.m., Jones again messaged Prather stating,

“Im stopping by my friend ruths house first he lives around the corner from you.”

Jones then called Prather at 8:09 p.m. to confirm that he had left his friend’s house

and was on his way to Prather’s house.

        {¶7}    Jones arrived at Prather’s house around 8:10 p.m. Jones parked his car

on the right side of the street in front of Prather’s mailbox, an area designated as a no-

parking zone. According to the state’s witnesses, Neri was outside standing in the yard

when Jones arrived. Jones pocketed a loaded firearm and got out of the car, leaving the

engine running and the driver’s side door open. The two men began walking towards

each other. Jones then pulled the firearm out of his pocket and shot Neri three times.

Jones immediately returned to his car, called 9-1-1 to report the shooting, and turned

himself in to the local sheriff’s station.



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       {¶8}   Jones was subsequently indicted on one count of aggravated murder in

violation of R.C. 2903.01(A), one count of murder in violation of R.C. 2903.02(A), one

count of felony murder in violation of R.C. 2903.02(B), and one count of carrying a

concealed weapon in violation of R.C. 2923.12(A)(2). Despite his claims of self-defense,

a jury found Jones guilty of all counts and the trial court sentenced him to life

imprisonment without the possibility of parole. Jones timely filed this appeal and raised

the following assignments of error:

       1. Earl Jones’s Conviction for Aggravated Murder Under R.C.

           2903.01(A) is Not Supported by Sufficient Evidence, and the Trial

           Court Erred When it Denied his Crim.R. 29 Motion.

       2. Earl Jones’s Conviction for Aggravated Murder is Not Supported by

           the Manifest Weight of the Evidence.

       3. The Trial Court Violated Earl Jones’s Constitutional Right to Present

           a Complete Defense.

       4. The Trial Court Erred When it Admitted Photographs That Were Both

           Misleading and Substantially More Prejudicial than Probative.

       5. Earl Jones’s Defense Counsel Was Constitutionally Ineffective.

       6. The Trial Court Erred When it Denied Earl Jones’s Mistrial Request.

       7. The Trial Court Erred When it Admitted Prejudicial Photographs.

       8. The Trial Court Erred When it Sentenced Earl Jones to Life Without

           the Possibility of Parole Despite the Fact that the Record Clearly and

           Convincingly Did Not Support Such a Punitive Sentence, and R.C.

           2953.08(D)(3) is Unconstitutional if it Prohibits Appellate Review of

           Earl’s Sentence.




                                           4
                     OHIO FIRST DISTRICT COURT OF APPEALS



       9. The Cumulative Effect of the First, Second, Third, Fourth, Fifth, Sixth,

           and Seventh Assignments of Error Denied Earl Jones a Fair Trial.

We find the first, third, fourth, seventh, and ninth assignments of error dispositive of

this appeal, and therefore, the other five assignments of error are rendered moot.

                                   Law and Analysis

                            I.   Sufficiency of the Evidence

       {¶9}   In his first assignment of error, Jones argues that his conviction for

aggravated murder was based upon insufficient evidence. Jones contends that he did

not act with the requisite “prior calculation and design.”

       {¶10} To determine whether a conviction is supported by sufficient evidence,

“[t]he relevant inquiry is whether, after viewing the evidence in a light most

favorable to the prosecution, any rational trier of fact could have found the essential

elements of the crime proven beyond a reasonable doubt.” State v. Jenks, 61 Ohio

St.3d 259, 274, 574 N.E.2d 492 (1991).

       {¶11} Jones was convicted of aggravated murder under R.C. 2903.01(A),

which states: “No person shall purposely, and with prior calculation and design,

cause the death of another.” “ ‘[P]rior calculation and design’ is a more stringent

element than the ‘deliberate and premeditated malice’ which was required under

prior law.” State v. Cotton, 56 Ohio St.2d 8, 381 N.E.2d 190 (1978), paragraph one of

the syllabus. As noted by the Ohio Supreme Court in State v. Taylor, 78 Ohio St.3d

15, 19, 676 N.E.2d 82 (1997), “the phrase ‘prior calculation and design’ [was

employed] to indicate studied care in planning or analyzing the means of the crime

as well as a scheme encompassing the death of the victim.” “All prior calculation and

design offenses will necessarily include purposeful homicides; not all purposeful




                                            5
                      OHIO FIRST DISTRICT COURT OF APPEALS



homicides have an element of prior calculation and design.” State v. Walker, 150

Ohio St.3d 409, 2016-Ohio-8295, 82 N.E.3d 1124, ¶ 18.

         {¶12} In this case, the state does not argue that Jones, with prior calculation

and design, decided to shoot Neri after Jones pulled up in his car and saw Neri in the

front yard. And the evidence would be insufficient to prove prior calculation and

design under those circumstances. See id. (“Evidence of an act committed on the

spur of the moment or after momentary consideration is not evidence of * * * a

studied consideration of the method and the means to cause a death.”). Rather, the

state contends that Jones went to Prather’s home with prior calculation and design

to kill Neri, having formed the intent to kill earlier that day.

         {¶13} The Ohio Supreme Court has repeatedly held that “it is not possible to

formulate a bright-line test that emphatically distinguishes between the presence or

absence of ‘prior calculation and design.’ Instead, each case turns on the particular

facts and evidence presented at trial.” Taylor at 20. In determining whether prior

calculation and design exists, courts are guided by three factors: “(1) Did the accused

and 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’?” Id.

at 19, quoting State v. Jenkins, 48 Ohio App.2d 99, 102, 355 N.E.2d 825 (8th Dist.

1976).

         {¶14} In light of the Taylor factors, we find that the evidence does not

support the jury’s determination of prior calculation and design. It is undisputed

that Jones and Neri knew each other and that the relationship was severely strained.

However, a strained relationship alone is not enough to support a conviction for




                                             6
                     OHIO FIRST DISTRICT COURT OF APPEALS



aggravated murder.      Rather, the existence of a strained relationship must be

considered in light of the other Taylor factors.

       {¶15} In support of its argument that Jones went to Prather’s house with the

prior calculation and design to kill Neri, the state points to evidence that Jones

engaged in what Prather described at trial as “weird” behavior of repeatedly verifying

when he was to pick up his son. The state contends that parking his car on the

“wrong” side of the street, leaving the car engine running, and pocketing a loaded

firearm that he had in the car is evidence of prior calculation and design.        In

addition, the state emphasizes the fact that Jones shot Neri three times while

advancing on him, including after Neri tried to flee. The state lastly points to the

testimony of one of the witnesses who claimed that Jones smiled at Prather after he

shot Neri.

       {¶16} While we believe the state presented sufficient evidence that Jones

purposefully killed Neri, the state’s theory of prior calculation and design is

unsupported by the evidence. There is simply no evidence that Jones planned Neri’s

murder before he arrived at Prather’s residence, i.e., that he engaged in a studied

consideration of the method, means, or location of the killing.

       {¶17} The plan that existed the night of May 16 was a fistfight up the street,

not a murder at Prather’s house. The uncontroverted evidence showed it was Neri

who initially challenged Jones to a fistfight. The extraction report of Jones’s cell

phone recounts the following conversation on the morning and early afternoon of the

shooting:

       Neri: So are you tryna hit or no?

       Jones: I’ll be there tomorrow

                                           ***



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                     OHIO FIRST DISTRICT COURT OF APPEALS



       Neri: Don’t flake lil boy

       Jones: I’ll be there about 4 30

                                         ***

       Neri: Come a lil early. I’m sure you don’t want MY son to watch you

       get your ass beat

       Jones: I got work lil boy man meet me somewhere low key just you its

       going to be just me were going to settle this boi I dont want my son

       there or your lil friends just you and me

                                         ***

       Neri: Meet me at the end of cyerras street tomorrow

       Jones: Ill be there around 4 30 lil boy

       {¶18} Approximately three and a half hours later, Jones messaged Prather

asking to pick their son up that night instead of the following day. The following

conversation took place:

       Jones: Im off tomorrow can I pick the baby up and have him stay then

       ill take him to baseball tomorrow and drop him off after baseball

                                         ***

       Prather: You can come around 8

       Jones: What do you have going on today?

       Jones: Like could you drop him off

       Prather: At 8?

       Jones: Or whenever your done doing what your doing

       Prather: My sister will drop him off at 8

       {¶19} The next contact between Jones and Prather occurred approximately

an hour and a half later. Prather informed Jones that her sister could not drop their



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                     OHIO FIRST DISTRICT COURT OF APPEALS



son off at Jones’s residence, but instead Jones could pick him up at her house at 8:00

p.m.   Jones accepted the invitation and then messaged Neri to reschedule the

previously-arranged fight. Specifically, Jones asked Neri if he was going to be at

Prather’s residence that night at 8:00 p.m. and Neri responded, “You meet Neil [sic]

the street.” Jones replied, “Just meet me at the top of the street.”

       {¶20} The only other contact between Jones and Prather is the “weird”

behavior to which the state alludes. At 7:29 p.m., approximately two hours after

their previous conversation, Jones asked Prather, “When should I leave?” Prather

responded, “I thought you were gonna be here by 8.” Jones replied, “Making sure

you’ll still be home by 8.” At 7:55 p.m., Jones again messaged Prather stating, “Im

stopping by my friend ruths house first he lives around the corner from you.” Jones

then called Prather at 8:09 p.m. to confirm that he had left his friend’s house and

was on his way to Prather’s house.

       {¶21} Based on the uncontroverted text messages and call log, it is clear that

Jones did not choose the time or location of the shooting. In fact, the record is

completely devoid of any evidence that Jones knew Neri would be at Prather’s

residence when he arrived.        Instead, the text messages demonstrate Jones’s

deliberate avoidance of Neri. Jones initially asked for his son to be dropped off at his

apartment. When Prather’s sister refused, Prather offered Jones to pick their son up

at Prather’s house at 8:00 p.m.—i.e., Prather’s chosen time.           Jones agreed and

immediately rescheduled the fight with Neri to occur earlier than originally

planned—i.e., at the same time he was supposed to get his son. Per Neri’s earlier

suggestion, Jones told Neri to meet him at the end of Prather’s street. It defies logic

to conclude that Jones’s plan was to shoot Neri in the front yard of his ex-girlfriend’s

house with witnesses around and his child present. This is especially true given



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                     OHIO FIRST DISTRICT COURT OF APPEALS



Jones’s earlier statements that he wanted to meet Neri “somewhere low key” and that

he did not want his son or Neri’s friends there.

       {¶22} The dissent argues that arranging for a fight up the street rendered it

likely that Neri would be nearby, suggesting that the jury could infer that Jones’s

plan was to shoot Neri if he ran into him that night. However, even a planned

contingency to kill is not evidence of a preconceived plan to kill. See State v. Noggle,

140 Ohio App.3d 733, 749, 749 N.E.2d 309 (3d Dist.2000) (holding that “merely

being prepared to kill if the situation calls for it does not amount to prior calculation

and design”), citing State v. Reed, 65 Ohio St.2d 117, 418 N.E.2d 1359 (1981) (“The

statements appellant made to a classmate that he would kill any police officer who

got in his way of a crime he might commit do not show that appellant designed a

scheme in order to implement a calculated decision to kill.”).

       {¶23} The parties do not dispute that Jones had a loaded firearm in the car.

However, Ohio courts have consistently held that “mere possession of a weapon is

not, without more, evidence of prior calculation and design.” State v. Hill, 8th Dist.

Cuyahoga No. 98366, 2013-Ohio-578; see State v. Johnson, 10th Dist. Franklin No.

97APA03-315, 1998 WL 226441 (May 5, 1998). This is especially true where the

evidence demonstrated that Jones frequently carried a weapon.             According to

Prather, Jones owned guns and always talked about the right to carry a gun. In

addition, Jones introduced a police report into evidence wherein Jones reported a

handgun stolen from the center console of his car. The fact that Jones, upon seeing

Neri standing in the front yard, pocketed the firearm and exited from the vehicle,

even when viewed in the light most favorable to the prosecution, does not

demonstrate more than instantaneous deliberation.




                                           10
                     OHIO FIRST DISTRICT COURT OF APPEALS



       {¶24} With respect to the third factor, the state points to evidence that Jones

walked towards Neri, pulled the weapon out of his pocket, shot Neri three times, got

back in his car, and drove away. Even viewed in a light most favorable to the

prosecution, this demonstrates only Jones’s anger at the moment.                  The

uncontroverted evidence indicates that the time between Jones arriving at Prather’s

house and driving to the police station was a span of one to two minutes. The

extraction report of Jones’s cell phone details that Jones called Prather at 8:09:11

p.m. to confirm that he was on his way to her house. The call lasted for one minute

and 15 seconds, placing Jones’s arrival at Prather’s house a little after 8:10 p.m.

Jones first attempted to call 9-1-1 at 8:12:38 p.m. Although a jury could reasonably

infer that Jones purposely decided to shoot Neri in that span of time, the length of

time is insufficient to infer prior calculation and design.

       {¶25} “Aggravated murder is a purposeful killing that also requires proof of

prior calculation and design: forethought, planning, choice of weapon, choice of

means, and the execution of the plan.” Walker, 150 Ohio St.3d 409, 2016-Ohio-

8295, 82 N.E.3d 1124, at ¶ 28. “The element of prior calculation and design requires

evidence that supports more than the inference of purpose.            Inferring prior

calculation and design from an inference of purpose is mere speculation.” Id. at ¶ 26.

Finding prior calculation and design on the facts of this case will blur the line

between planned killings and purposeful killings to the point where there will no

longer be a difference between the two. This is not the type of case envisioned by the

General Assembly when it adopted the more stringent requirement of “prior

calculation and design.”

       {¶26} Even when all the evidence is viewed in a light most favorable to the

prosecution, the jury could not have reasonably found the required element of prior



                                            11
                         OHIO FIRST DISTRICT COURT OF APPEALS



calculation and design. In this case, there was sufficient evidence that Jones had the

purpose to kill, but not a plan to kill. Therefore, the evidence was insufficient to

support a conviction for aggravated murder.

        {¶27} Jones’s first assignment of error is sustained.

                                 II.    Evidentiary Errors

        {¶28} In several assignments of error, Jones contends that the trial court

committed four major evidentiary errors that deprived him of his constitutional right to

a fair trial. In his third assignment of error, Jones argues that the trial court violated his

constitutional right to present a complete defense when it erroneously excluded

favorable “state-of-mind” evidence, including (1) social media postings by Neri, (2)

statements from Jones’s relatives describing threats made by Neri against Jones, and (3)

the race of Jones’s extended family members. In his fourth and seventh assignments of

error, Jones argues that the trial court erred when it admitted irrelevant and prejudicial

photographs of guns and ammunition found in Jones’s bedroom. In his ninth

assignment of error, Jones argues that the cumulative effect of these errors denied him a

fair trial.   Thus, Jones argues that that the exclusion of certain evidence and the

inclusion of other evidence, either alone or in combination, violated his constitutional

right to a fair trial.

                                 1. Admission of Photographs

        {¶29} We begin with Jones’s fourth and seventh assignments of error, in which

Jones argues that the trial court erred when it admitted prejudicial photographs of guns

and ammunition found in Jones’s bedroom during a search.                Jones contends the

photographs were irrelevant, or if relevant, more prejudicial than probative and

improper under Evid.R. 404(B). Because these assignments of error raise similar issues,

we will address them together.



                                             12
                     OHIO FIRST DISTRICT COURT OF APPEALS



       {¶30} The admission of evidence is 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. To find an abuse of discretion, we must find that the trial court’s decision was

unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217,

219, 450 N.E.2d 1140 (1983).

       {¶31} Prior to trial, Jones filed a motion in limine to exclude photographs of

guns and ammunition interspersed among children’s toys and other child-specific items

located throughout Jones’s bedroom on the day of the shooting. The trial court correctly

granted the motion because the photographs were irrelevant to the charges against

Jones, and prejudicially portrayed Jones as a violent person and a bad father.

       {¶32} Evid.R. 404(B) precludes evidence of other acts “to prove the character of

a person in order to show action in conformity therewith.” The Ohio Supreme Court has

held that the introduction of other-weapons evidence—i.e., irrelevant evidence of

weapons unrelated to the charges—falls within the scope of Evid.R. 404(B). State v.

Thomas, 152 Ohio St.3d 15, 2017-Ohio-8011, 92 N.E.3d 821. Therefore, other-weapons

evidence must be excluded when it leads only to inferences about the defendant’s

dangerous character. Id. at ¶ 41; see, e.g., State v. Carusone, 1st Dist. Hamilton No. C-

010681, 2003-Ohio-1018 (holding that the trial court erred in admitting “other acts”

evidence that defendant had “always carried a gun” and that he had previously fired a

gun at other people on other occasions); State v. Crosby, 186 Ohio App.3d 453, 2010-

Ohio-1584, 928 N.E.2d 795, ¶ 16 (8th Dist.) (evidence of another gun the defendant was

known to have carried “does not link defendant to the gun used to shoot the victim, and

was therefore improperly admitted”).




                                           13
                      OHIO FIRST DISTRICT COURT OF APPEALS



       {¶33} Jones argues that the trial court erred in finding that defense counsel

“opened the door” to the introduction of the photographs during his cross-examination

of Detective Stockmeier when the following exchange took place:

       Defense counsel: Is this area where I am pointing, that is the safe that is

       the subject in the photo, right?

       Stockmeier: Yes, sir.

       Defense counsel: Where was it located in the closet?

       Stockmeier: That’s up on a shelf that is mounted to the wall.

       Defense counsel:     All right.    We are about the same height.         So

       approximately our eye height?

       Stockmeier: Yeah.

       Defense counsel: So if you had a small child, that would be a good place

       to put it?

       Stockmeier: Sure.

       {¶34} After this exchange, the state argued that admission of the photographs

was necessary to rebut defense counsel’s “touting [of Jones’s] gun safety and child-

rearing skills.” Based on defense counsel’s questions, the court determined that counsel

“implied” that “[Jones] was this * * * stellar guy, that was protecting his kid.”

Specifically, the court ruled that defense counsel “opened the door to character.”

       {¶35} However, whether Jones was “parent of the year” is not probative of the

issue of whether he purposely murdered Neri or justifiably acted in self-defense.

“Opening the door is one thing. But what comes through the door is another.” United

States v. Winston, 447 F.2d 1236, 1240 (D.C.Cir.1971).

       [T]he doctrine [of opening the door] is to prevent prejudice and is not to

       be subverted into a rule for injection of prejudice. * * * The introduction



                                            14
                      OHIO FIRST DISTRICT COURT OF APPEALS



        of otherwise inadmissible evidence under the shield of this doctrine is

        permitted only to the extent necessary to remove any unfair prejudice

        which might otherwise have ensued from the original evidence.

(Internal quotations omitted.) State v. Bronner, 9th Dist. Summit No. 20753, 2002-

Ohio-4248, ¶ 73. Accord United States v. Beno, 324 F.2d 582, 588-589 (2d Cir.1963)

(“[I]t makes little sense to insist that once incompetent evidence is erroneously

admitted, the error must of necessity be compounded by ‘opening the door’ so wide that

rebutting collateral, inflammatory and highly prejudicial evidence may enter the minds

of the jurors.”).

        {¶36} We disagree that such a brief implication during cross-examination, that

perhaps could be interpreted to imply that Jones was a “stellar guy” with good “gun

safety and child-rearing skills,” put Jones’s character into issue such that irrelevant and

unnecessarily prejudicial photographs could come into evidence. No unfair prejudice to

the state resulted from defense counsel’s brief question during cross-examination. Thus,

the trial court abused its discretion in admitting the photographs.

        {¶37} Crim.R. 52(A) requires us to next determine whether this error was

harmless. See Crim.R. 52(A) (“Any error, defect, irregularity, or variance which does not

affect substantial rights shall be disregarded.”). “If a court determines that the error did

not affect the defendant’s substantial rights, then the error is harmless and shall be

discarded.” State v. Morris, 141 Ohio St.3d 399, 2014-Ohio-5052, 24 N.E.3d 1153, ¶ 23.

        {¶38} In Morris, the Ohio Supreme Court set out a three-part test to determine

the effect of the errors: (1) “[T]here must be prejudice to the defendant as a result of the

admission of the improper evidence at trial”; (2) “an appellate court must declare a

belief that the error was not harmless beyond a reasonable doubt”; and (3) “in

determining whether * * * the error is harmless beyond a reasonable doubt, the court



                                            15
                       OHIO FIRST DISTRICT COURT OF APPEALS



must excise the improper evidence from the record and then look to the remaining

evidence.” Id. at ¶ 27-29. The Morris court cautioned that “our role upon review of

[the] case is not to sit as the supreme trier of fact, but rather to assess the impact of this

erroneously admitted testimony on the jury.” Id. at ¶ 29.

          {¶39} As this court observed in State v. Benson, 1st Dist. Hamilton No. C-

180128, 2019-Ohio-3255, ¶ 24, “[t]he [harmless-error] analysis usually turns on the

consideration of the strength of the remaining evidence.” In general, evidentiary errors

by the trial court are harmless if “such evidence would not tend to negate overwhelming

proof of defendant’s guilt.” State v. Gilmore, 28 Ohio St.3d 190, 193, 503 N.E.2d 147

(1986).

          {¶40}   However, Jones presented a theory of self-defense at trial. The Ohio

Supreme Court has consistently recognized self-defense as a “justification for admitted

conduct.” State v. Poole, 33 Ohio St.2d 18, 19, 294 N.E.2d 888 (1973); State v. Martin,

21 Ohio St.3d 91, 94, 488 N.E.2d 166 (1987). In other words, a defendant claiming self-

defense “admits the facts claimed by the prosecution and then relies on independent

facts or circumstances which the defendant claims exempt him from liability.” Martin at

94. “Self-defense seeks to relieve the defendant from culpability rather than to negate an

element of the offense charged.” Id.

          {¶41} Therefore, when a defendant asserts the affirmative defense of self-

defense, an appellate court cannot determine whether the errors are harmless simply by

looking at the strength of the remaining evidence. In such a case, the impact of the

offending evidence on the verdict becomes a bigger focus. As stated in Morris, “blatant

prejudice may override even a strong case and require a new trial.” Morris, 141 Ohio

St.3d 399, 2014-Ohio-5052, 24 N.E.3d 1153, at ¶ 32.




                                             16
                      OHIO FIRST DISTRICT COURT OF APPEALS



       {¶42} We have already found that there was insufficient evidence to support a

conviction for aggravated murder. Thus, it is impossible to say that the other evidence

against Jones was overwhelming. The evidence certainly was sufficient for the jury to

find that Jones purposely killed Neri. And Jones did not dispute the existence of those

elements. Instead, Jones sought to justify his actions on the ground that he acted in self-

defense.

       {¶43} Under these circumstances, Jones’s credibility was crucial to his defense.

Jones testified about his version of the facts and his belief that he needed to act in self-

defense. Indeed, it would have been very difficult to prove Jones’s state of mind at the

time of the shooting without Jones’s testimony. The state does not deny that it sought to

introduce the photographs in order to negate Jones’s claim that he feared Neri was

armed and dangerous. In its appellate brief, the state contends that “these photos were

introduced to show that Jones’ alleged concerns about Neri were a sham.”

       {¶44} In addition to the prejudicial nature of the evidence, the state capitalized

on the trial court’s improper rulings in its closing argument. As both the Ohio Supreme

Court and this court have noted, “the actions of a prosecutor may combine with an

evidentiary error to cause greater impact.” Morris, 141 Ohio St.3d 399, 2014-Ohio-

5052, 24 N.E.3d 1153, at ¶ 31; State v. Hall, 1st Dist. Hamilton No. C-170699, 2019-

Ohio-2985, ¶ 27. We are specifically concerned with the following remarks:

       [Jones] had no honest fear of [Neri]. * * * He is so scared of little Wayne

       being around [Neri] and his guns, yet when you get the exhibits back in

       the jury room take a look at Exhibit Number 22. Take a look at Exhibit

       Number 22. Take a look at the shotgun that he just has laying out on the

       wall. If he is a good dad—remind yourself, if he is a good dad, he doesn’t

       want to have his kid around guns, be in danger, but the shotgun is laying



                                            17
                        OHIO FIRST DISTRICT COURT OF APPEALS



         out against the wall, the shells and the .38 rounds are on the—in the

         bedroom on the mattress with the toys and the child’s sheets on it. But he

         doesn’t want Wayne to be around [Neri], because he has got guns. It’s a

         little contradictory.

Based on these statements, there is no question that the state highlighted the improper

evidence for the jury. There is also no question that the improper evidence prejudiced

Jones.     It is clear that the other-weapons photographs unfairly hampered Jones’s

credibility. The photographs undermined Jones’s character by prejudicially portraying

him as a violent person and a bad father, and ultimately, undermined Jones’s theory of

defense.

         {¶45} However, we need not answer whether this error alone was not harmless

beyond a reasonable doubt because we examine this error in conjunction with the

additional evidentiary errors discussed in the next section. “Although violations of the

Rules of Evidence during trial, singularly, may not rise to the level of prejudicial error, a

conviction will be reversed where the cumulative effect of the errors deprives a

defendant of the constitutional right to a fair trial.” State v. DeMarco, 31 Ohio St.3d 191,

509 N.E.2d 1256 (1987), paragraph two of the syllabus.

                            2. Exclusion of “State-of-Mind” Evidence

         {¶46} In Jones’s third assignment of error, he argues that the trial court violated

his constitutional right to present a complete defense when it excluded certain “state-of-

mind” evidence.

         {¶47} “Whether rooted directly in the Due Process Clause of the Fourteenth

Amendment * * * or in the Compulsory Process or Confrontation clauses of the Sixth

Amendment, * * * the Constitution guarantees criminal defendants ‘a meaningful

opportunity to present a complete defense.’ ” Crane v. Kentucky, 476 U.S. 683, 690, 106



                                             18
                         OHIO FIRST DISTRICT COURT OF APPEALS



S.Ct. 2142, 90 L.Ed.2d 636 (1986), citing Chambers v. Mississippi, 410 U.S. 284, 93

S.Ct. 1038, 35 L.Ed.2d 297 (1973), Washington v. Texas, 388 U.S. 14, 23, 87 S.Ct. 1920,

18 L.Ed.2d 1019 (1967), Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347

(1974), and California v. Trombetta, 467 U.S. 479, 485, 104 S.Ct. 2528, 81 L.Ed.2d 413

(1984).     A criminal defendant’s constitutional right to present a complete defense

includes the right to offer the testimony of witnesses and to present the defendant’s

version of the facts. Washington at 19. However, “[t]he accused does not have an

unfettered right to offer testimony that is * * * inadmissible under standard rules of

evidence.” Taylor v. Illinois, 484 U.S. 400, 410, 108 S.Ct. 646, 98 L.Ed.2d 798 (1988).

A defendant’s right to present a defense is violated only when the court prevents him

from introducing evidence essential to his defense. Crane at 690.

          {¶48} In determining whether a defendant’s constitutional right to present a

complete defense was violated, we must first determine whether there was a valid reason

to limit the excluded evidence. See Montana v. Engelhoff, 518 U.S. 37, 53, 116 S.Ct.

2013, 135 L.Ed.2d 361 (1996) (explaining that the Court’s holding in Crane, which

concluded that the exclusion of certain evidence violated the defendant’s constitutional

rights, “rested not on a theory that all ‘competent, reliable evidence’ must be admitted,

but rather on the ground that the Supreme Court of Kentucky’s sole rationale for the

exclusion . . . was wrong.”).

          [T]he exclusion of defense evidence violates a defendant’s constitutional

          right to   present    a   defense only     where it     is   “arbitrary”   or

          “disproportionate,” that is, where “important defense evidence” is

          excluded without serving “any legitimate interests” or in a manner that is

          “disproportionate to the ends that [the rationale for exclusion is] asserted

          to promote.”



                                              19
                      OHIO FIRST DISTRICT COURT OF APPEALS



United States v. Reichert, 747 F.3d 445, 453 (6th Cir.2014), quoting Holmes v. South

Carolina, 547 U.S. 319, 324-326, 126 S.Ct. 1727, 164 L.Ed.2d 503 (2006).

   a. Threats against Jones.

       {¶49} Jones argues that, in order to show his state of mind at the time of the

offense, he should have been permitted to testify that his father and aunt told him about

an incident where Neri made threatening statements against Jones while possessing a

gun. Jones contends that the trial court erred in holding that such statements were

hearsay, and therefore, Jones could not testify about them.

       {¶50} During direct examination, defense counsel asked Jones, “[D]id you ever

have any other information that gave you reason to believe that [Neri] might be armed?”

The state objected on hearsay grounds. At sidebar, defense counsel proffered that

Jones’s father told Jones of an incident where Neri threatened Jones while armed with a

weapon. Defense counsel further proffered that Jones’s aunt “will testify that [Neri]

came looking for [Jones] at the apartment while armed with a weapon.” When the court

asked if Jones’s father was testifying, defense counsel replied, “Yes, ma’am.”             In

response, the court ruled in the following manner: “[Y]ou can ask, were you told

something? Who told you? My father. My aunt. And leave it at that. And they can

testify to what it was.” Defense counsel never called Jones’s father or aunt to testify.

       {¶51} We agree with Jones that his testimony about the threat was not hearsay

because it was not offered to prove the truth of the matter asserted. Evid.R. 801(C).

Rather, the testimony was offered to provide a basis for Jones’s state of mind and his

alleged fear that Neri was armed and dangerous. In State v. Wetherall, 1st Dist.

Hamilton No. C-000113, 2002 WL 440700, *7 (Mar. 22, 2002), this court held that

testimony by the accused concerning specific instances of violent conduct by the victim

is admissible to prove the accused’s state of mind at the time of his offense. See State v.



                                             20
                      OHIO FIRST DISTRICT COURT OF APPEALS



Roth, 1st Dist. Hamilton No. C-030303, 2004-Ohio-374 (“[A] defendant must be

allowed to present evidence of a victim’s propensity for violence when the defendant is

putting forth the affirmative defense of self-defense.”); State v. Levett, 1st Dist. Hamilton

No. C-040537, 2006-Ohio-2222. When evidence of specific instances of violent conduct

are offered to show the accused’s state of mind, the proponent of the evidence need only

show that the accused had prior knowledge of the conduct. Wetherall at *7.

       {¶52} Therefore, Jones should have been allowed to testify about any known

prior instances of Neri’s violent behavior to demonstrate his state of mind at the time of

the shooting. The trial court’s rationale for excluding the testimony, i.e., that it was

hearsay, was erroneous.

   b. Social media postings.

       {¶53} Jones argues that he should have been permitted to introduce into

evidence social media postings by Neri to show Jones’s state of mind at the time of the

offense, particularly to show that Jones had reason to fear that Neri was reaching for a

gun.

       {¶54} During trial, Jones sought to admit numerous Twitter posts by Neri

involving violence, guns, and drugs to show why Jones believed Neri was armed with a

weapon at the time of the shooting. The state objected on relevancy grounds to the

admission of any posts by Neri.        After further discussions at side bar, the state

maintained its objection to any posts concerning drugs and drug dealing, but withdrew

its objection to any posts concerning guns and violence.

       {¶55} For the sake of clarity, the court asked the state to read into the record the

exhibit numbers of those posts to which it maintained an objection. Specifically, the

state objected to nine exhibits, which included the following Twitter posts:

       Send them boys from O-Block to come shoot up yo whole block



                                             21
                      OHIO FIRST DISTRICT COURT OF APPEALS



       Rather be a dope boy, I really love sellin shit

       Them 12 bricks they can make you rich

       Nigga that’s a hand gun, we bringing out the choppa

       When I get too bored I go out back with this rifle and hunt small creatures
       while I smoke

       People lie that’s why I just take actions over words eventually I’ll stop
       caring or trying

       If anyone in that car live, just tell that nigga I owe him

       [A]sking me to pull up with a sack without even asking for the price

       Mfs think I’m a lick or sumn

       Ain’t no salary cap in the dope game

       They bouta put me in population with the nigga that got Manny shot and
       left him to die. Putting him down on sight

       [I]t’s a surface wound

       I gotta talk myself out of smoking my whole blunt on break

       Good dope sell itself

The state argued, and the trial court agreed, that “[t]here is nothing in any of those

tweets * * * that lends itself to an essential element of self-defense.” Therefore, the court

excluded the Twitter posts.

       {¶56} In the same fashion, the court asked the state to read into the record the

exhibit numbers of those posts to which it withdrew an objection. Specifically, the state

did not object to nine exhibits, which included the following Twitter posts:

       [Picture of Prather’s car with bullet holes.]

       I’m zoned cause dude pulled up next to me with tha strap if his lap. Soon
       as he upped it I hit skkrt and he start dumping his whole clip.

       6 head shots I’ll erode a nigga

       I gotcho life right here on my hip



                                             22
                       OHIO FIRST DISTRICT COURT OF APPEALS



       Took off soon as them bands hit my lap

       My uzi it weighed a ton

       [W]hen I got out to look at the car, I found this [bullet] stuck to my hip

       [M]fs started bussing at me last night

       Niggas swear they shooters but don’t even know how to hold a strap

       Always keep a black tool cause bullies aren’t bulletproof

Based on the state’s decision to withdraw its objection, the court stated that it felt it had

no choice but to admit those posts into evidence.

       {¶57} As discussed above, evidence concerning specific instances of violent

conduct by the victim, of which the accused had prior knowledge, is admissible to prove

the accused’s state of mind at the time of his offense. Wetherall, 1st Dist. Hamilton No.

C-000113, 2002 WL 440700, at *7. Here, the court arbitrarily admitted certain Twitter

posts pertaining to guns and violence, while arbitrarily excluding other Twitter posts

pertaining to guns and violence. For example, the court excluded posts such as “Send

them boys from O-Block to come shoot up yo whole block”; “Nigga that’s a hand gun, we

bringing out the choppa”; and “They bouta put me in population with the nigga that got

Manny shot and left him to die. Putting him down on sight.” As discussed in more

detail later, Jones particularly takes issue with the court’s exclusion of the May 12 post,

“If anyone in that car live, just tell that nigga I owe him.” Jones contends that this post

was relevant to his state of mind because it was “an apparent vengeful threat suggestive

of lethal violence against someone” and because it was the most recent Tweet, posted

only four days before the shooting.

       {¶58} We agree with Jones that the trial court’s reliance on the state’s

delineation of admissible and inadmissible evidence resulted in an arbitrary and

unreasonable ruling.    It is clear from the record that the trial court excluded the



                                             23
                     OHIO FIRST DISTRICT COURT OF APPEALS



introduction of any exhibits to which the state objected, and permitted the introduction

of any exhibits to which the state did not object. Based on the arbitrary nature of the

ruling, we find that the trial court erred in excluding posts pertaining to guns and

violence.

       {¶59} The exclusion of the Twitter posts pertaining to drugs and drug dealing is

a closer call. Jones contends that the Twitter posts were relevant because guns are

commonly equated with illegal drug sales, and his defense was based on Neri’s violent

nature and Jones’s fear that Neri was going to shoot him. However, the trial court

expressed concern that Jones was attempting to simply besmirch Neri’s character by

labeling him as a drug dealer, and stated that the admission of evidence that Neri might

have sold drugs was irrelevant.

       {¶60} It is true, as Jones argues, that Ohio courts have frequently found that

drug dealing and guns go hand in hand. See, e.g., State v Nevins, 2d Dist. Montgomery

No. 24070, 2011-Ohio-389, ¶ 43 (“We also note that Officer Riegel testified that in his

experience as a police officer in the narcotics division, it was common to find guns on or

near individuals involved in illegal drug sale or manufacture in order to protect them

because they are frequently robbed for the drugs or money.”); State v. Harry, 12th Dist.

Butler No. CA2008-01-0013, 2008-Ohio-6380, ¶ 52 (noting as common fact that “drugs

and weapons are often found within close proximity to one another”). However, we

cannot say that the trial court’s exclusion of the Twitter posts about drugs and drug

dealing amounted to an unreasonable or arbitrary ruling.

       {¶61} At trial, Jones did not base his defense on the fact that Neri was allegedly

involved with drugs. Jones did not argue that the shooting occurred as the result of a

drug deal gone wrong. Jones also did not claim that Neri appeared intoxicated on the

night of the shooting. Moreover, the record shows that Prather had already testified that



                                           24
                         OHIO FIRST DISTRICT COURT OF APPEALS



Neri sold marijuana. Therefore, the court did not abuse its discretion in excluding the

Twitter posts pertaining solely to drugs and drug dealing.

   c. Race of Jones’s family members.

          {¶62} Jones argues that he should have been permitted to testify about the race

of his relatives to explain his motives in using racial epithets towards Neri.

          {¶63} During direct examination, defense counsel asked Jones, “You saw the

language that you are using here?” Jones replied,

          Yeah.     I mean, we have all seen it.    It is definitely inappropriate.

          Honestly, I think inappropriate is not a good enough word for it. It’s

          degrading, disrespectful. And, I mean, I have people of color in my

          family.

                                             ***

          I feel like my language has definitely disrespected people in my family,

          you know, and I’m ashamed of it.

The state objected and the trial court sustained the objection, asking defense counsel to

“direct a question at his own feelings versus his family.”

          {¶64} We find that the trial court properly concluded that the statements were

irrelevant. Evidence is relevant if it has “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. In determining relevance, we look

to the elements of the offense charged and whether the evidence tends to prove or

disprove any material element. State v. Gardner, 59 Ohio St.2d 14, 20, 391 N.E.2d 337

(1979).

          {¶65} Testimony concerning the race of Jones’s relatives was not relevant to

show Jones’s state of mind as an element of the crimes charged. The fact that the race of



                                             25
                      OHIO FIRST DISTRICT COURT OF APPEALS



his relatives may have motivated Jones to choose one word over another had no bearing

on whether he purposely murdered Neri or justifiably acted in self-defense. Rather,

Jones’s statements were calculated to create sympathy for him.

       {¶66} Moreover, the record shows that Jones did testify about his motives in

using racial epithets towards Neri. The court allowed into evidence the following

testimony:

       Defense counsel: It is more than disrespectful, pretty hateful language?

       Jones: I agree.

       Defense counsel: The purposes of that is what?

       Jones: Just they are insults. I wanted to hurt somebody with my words.

       Defense counsel: Okay. Why did you choose the word nigger?

       Jones: It’s the lowest blow that you can make. You can’t—I mean, in my

       mind I don’t think you can get no lower than that. And, I mean, what we

       all know about life, and I knew that word was going to stick.

       {¶67} Under these circumstances, the trial court’s decision to exclude testimony

about the race of Jones’s family members was neither arbitrary nor wrong.

               3. Jones’s Right to Present a Complete Defense Was Violated

       {¶68} Having determined that the trial court erred in excluding Jones’s

testimony about an incident where Neri made a threat against Jones while possessing a

gun and certain Twitter posts by Neri about guns and violence, we must now determine

whether the exclusion of this evidence violated Jones’s constitutional right to present a

complete defense.

       {¶69} The errors will only amount to a constitutional violation if they deprived

Jones of a fair trial. In order to determine if the trial was fair, this court must examine

whether the defendant had “a meaningful opportunity to present a complete defense.”



                                            26
                     OHIO FIRST DISTRICT COURT OF APPEALS



Trombetta, 467 U.S. at 485, 104 S.Ct. 2528, 81 L.Ed.2d 413. In determining whether the

opportunity was “meaningful,” the United States Supreme Court has examined whether

a defendant’s “defense was far less persuasive than it might have been” had the excluded

evidence been admitted. See Chambers, 410 U.S. at 294, 93 S.Ct. 1038, 35 L.Ed.2d 297.

Specifically, the Supreme Court has examined whether the excluded evidence was

“critical,” “vital,” or “central” to the defense. Id. at 302 (finding that the defendant’s

constitutional right to present a complete defense was violated because the excluded

evidence was “critical” to his defense); Washington, 388 U.S. at 16, 87 S.Ct. 1920, 18

L.Ed.2d 1019 (finding that the excluded evidence would have been not only relevant and

material, but “vital to the defense”); Crane, 476 U.S. at 690, 106 S.Ct. 2142, 90 L.Ed.2d

636 (finding that the blanket exclusion of evidence concerning the circumstances of the

defendant’s confession violated his constitutional right to present a complete defense

because the “evidence is central to the defendant’s claim of innocence”).

       {¶70} Thus, in determining whether Jones’s constitutional right to present a

complete defense was violated, we must examine the excluded errors in the context of

the entire case. When there are multiple errors, we need not examine each individual

error in isolation. See Chambers at 298 (“We need not decide, however, whether this

error alone [limitation of cross-examination of a key witness] would occasion reversal

since Chambers’ claimed denial of due process rests on the ultimate impact of that error

when viewed in conjunction with the trial court’s refusal to permit him to call other

witnesses.”). “[E]rroneous evidentiary rulings can, in combination, rise to the level of a

due process violation.” Engelhoff, 518 U.S. at 53, 116 S.Ct. 2013, 135 L.Ed.2d 361.

       {¶71} To determine the impact of the erroneous exclusion of evidence, courts

typically engage in some sort of harmless-error analysis. For instance, in Crane, the

state argued that “any error was harmless since the very evidence excluded by the trial



                                            27
                      OHIO FIRST DISTRICT COURT OF APPEALS



court’s ruling ultimately came in through other witnesses.” Crane at 691. Although the

Court declined to address the merits of the state’s harmless-error argument, it agreed

that the erroneous ruling was subject to a harmless-error analysis and remanded the

case to the state court to conduct such an analysis.

       {¶72} Like in Crane, the state here argues that any error was harmless because

the trial court allowed Jones to admit other state-of-mind evidence. For example, when

asked why he shot and killed Neri, Jones replied, “I thought that [Neri] was going to kill

me that day.”     The court then allowed into evidence nine Twitter posts by Neri

concerning violence and firearms. When asked about those posts, Jones stated that they

concerned him because “[i]t indicates * * * that [Neri] is involved with guns and

potentially violent.” The court also allowed Jones to testify concerning two specific

instances of violent conduct by Neri prior to the shooting. In the first instance, Jones

testified that, two weeks prior to the shooting, Neri “[stood] up out of the driveway” and

“yell[ed] for [him]” as he drove past. In the second instance, Jones testified that, three

days prior to the shooting, he drove past Neri while Neri “had his shirt off, arms raised in

the air, with a gun on his hip.”

       {¶73} But the fact that a defendant was able to present some evidence of his

defense is not dispositive of whether the error was harmless. See, e.g., McDonald v.

United States, 904 A.2d 377, 381 (D.C.Cir.2006) (“Because McDonald’s testimony about

his injuries would have been neither unduly repetitive nor irrelevant, we are constrained

to conclude that the trial judge abused her discretion in precluding it. Moreover, the

error resulted in an unconstitutional deprivation of McDonald’s right to present a

complete defense.”); State v. Ciacchi, 8th Dist. Cuyahoga No. 92705, 2010-Ohio-1975, ¶

18, 25 (“Although Ciacchi was able to provide limited testimony about the victim

propositioning him and was able to cross-examine the victim, he was not afforded his



                                            28
                       OHIO FIRST DISTRICT COURT OF APPEALS



right to present a complete defense” because “he was precluded from testifying in detail

about what the victim stated to him on the street and while at her apartment.”); O’Neal

v. Balcarcel, 933 F.3d 618, 627 (6th Cir.2019) (exclusion of a third-party jailhouse

confession to the murder, while in part cumulative to other evidence already admitted at

trial, “very well could have been the straw that broke the camel’s back in establishing a

reasonable doubt as to [defendant’s] guilt”); Hawkins v. United States, 358 U.S. 74, 80,

79 S.Ct. 136, 3 L.Ed.2d 125 (1958) (declining to find an error harmless even though it

was “in part cumulative” when it pertained to “a sharply contested issue of fact which, on

the evidence in the record, the jury could have resolved either way depending largely” on

which party it believed). A “meaningful” opportunity to present a complete defense

“must be full and fair, not arbitrarily and significantly curtailed.” McDonald at 381.

        {¶74} To prove self-defense, Jones had to establish that he had “a bona fide

belief that he was in imminent danger of death or great bodily harm and that his only

means of escape from such danger was in the use of such force.” State v. Robbins, 58

Ohio St.2d 74, 388 N.E.2d 755 (1979), paragraph two of the syllabus.1 Because Ohio has

adopted a subjective standard for determining whether a defendant acted in self-

defense, “[t]he defendant’s state of mind is crucial to this defense.” State v. Purcell, 107

Ohio App.3d 501, 505, 669 N.E.2d 60 (1st Dist.1995); State v. Koss, 49 Ohio St.3d 213,

215, 551 N.E.2d 970 (1990). In fact, the sole contested issue at trial was Jones’s state of

mind at the time of the shooting.

        {¶75} With regard to the exclusion of Jones’s testimony that Neri was looking

for him with a gun, Jones argues that this was a threat that Jones believed was directly

aimed at him. Furthermore, this was the third incident that Jones claims made him



1 We recognize that R.C. 2901.05 was revised during the pendency of this action, and self-defense
is no longer an affirmative defense in Ohio.


                                               29
                     OHIO FIRST DISTRICT COURT OF APPEALS



believe Neri was armed and dangerous. The state, and the dissent, counter that Jones

was not prevented from presenting a complete defense because the court stated it would

allow the testimony through Jones’s father and aunt.

       {¶76} Certainly, pursuant to Wetherall, testimony by corroborating witnesses

concerning specific instances of violent conduct by the victim is admissible to prove the

accused’s state of mind at the time of an offense. Wetherall, 1st Dist. Hamilton No. C-

000113, 2002 WL 440700, at *7. Thus, Jones’s father and aunt could have testified

about the statements. But this does not negate the fact that it was error to preclude

Jones himself from testifying about the statements.       Clearly, “the most important

witness for the defense in many criminal cases is the defendant himself.” Rock v.

Arkansas, 483 U.S. 44, 52, 107 S.Ct. 2704, 97 L.Ed.2d 37 (1987).

       {¶77} With regard to the Twitter posts, Jones argues that they were relevant to

his state of mind because they were “suggestive of lethal violence against someone.”

Although Jones was permitted to enter several of Neri’s Twitter posts into evidence

regarding guns and violence, the court arbitrarily excluded a Twitter post from May 12,

just four days before the shooting. This may not have been significant in light of the

other Twitter posts that were admitted, except for the fact that the state capitalized on

the trial court’s improper ruling in its closing argument. We are specifically concerned

with the following remarks by the prosecutor during closing argument:

       There was no honest belief on the part of the defendant that he was in

       immediate or imminent danger. He wants you to believe that [he] saw all

       of those tweets and posts from Kevin and he was scared. First of all, take

       a look at all of this. They are from December, January, March. Not from

       May 13, 14, 15, not from that day, two days, a week, or even a month

       before this happened.



                                           30
                      OHIO FIRST DISTRICT COURT OF APPEALS



But one of the improperly-excluded posts was from May 12, four days before the

shooting.

       {¶78} Jones’s testimony about a particular incident of Neri looking for him with

a gun on his hip and the May 12 Twitter post were critical, vital, and central to Jones’s

affirmative defense of self-defense because they evidenced his state of mind at the time

of the shooting. The erroneous exclusion of this evidence made Jones’s defense far less

persuasive than it might have been had the excluded evidence been admitted. Because

we cannot say the exclusion of this evidence was harmless beyond a reasonable doubt,

the trial court’s improper exclusion of Jones’s state of mind evidence violated his

constitutional right to present a complete defense.

                                     4. Cumulative Error

       {¶79} We also agree with Jones’s ninth assignment of error that the cumulative

effect of the evidentiary errors denied Jones a fair trial. The jury’s determination of guilt

rested solely on whether it believed Jones. The exclusion of the state-of-mind evidence

and the inclusion of prejudicial character evidence, which was emphasized by the state

during closing argument, made Jones’s testimony and theory of the defense “far less

persuasive.” We cannot be sure that these evidentiary errors did not tip the scale against

Jones on the close and vital issue of his state of mind. Under these circumstances, we

cannot say, beyond a reasonable doubt, that the cumulative effect of the errors was

harmless.

       {¶80} Accordingly, Jones’s third, fourth, seventh and ninth assignments of error

are sustained.

                                         Summary

       {¶81} In sum, we sustain Jones’s first, third, fourth, seventh, and ninth

assignments of error. Assignments of error two, five, six, and eight, which concern



                                             31
                     OHIO FIRST DISTRICT COURT OF APPEALS



alleged errors that occurred during trial and at sentencing, are thereby rendered moot.

Consequently, we reverse Jones’s aggravated-murder conviction under R.C. 2903.01(A),

discharge Jones from further prosecution on that underlying count, and remand the

cause for a new trial on the remaining murder counts under R.C. 2903.02(A) and

2903.02(B). Because Jones has failed to raise any assignments of error challenging his

conviction for carrying a concealed weapon under R.C. 2923.12(A)(2), we affirm that

conviction. See App.R. 16(A); see also State v. Perez, 1st Dist. Hamilton Nos. C-040363,

C-040364 and C-040365, 2005-Ohio-1326, ¶ 21-23.

                                                                 Judgment accordingly.

Z AYAS , P.J., concurs.
B ERGERON , J., concurs in part and dissents in part.

B ERGERON , J., concurring in part and dissenting in part.

       {¶82} I agree with aspects of the majority’s opinion and with its affirmance of

Mr. Jones’s conviction for carrying a concealed weapon, but I respectfully disagree

with the conclusion that Mr. Jones’s conviction for aggravated murder was not

supported by sufficient evidence demonstrating prior calculation and design and

with its decision to remand for a new trial.

                                                A.

       {¶83} I’ll start with the prior calculation and design issue. While this is

certainly a close case, Mr. Jones’s appellate brief relies heavily on the defense’s

version of the facts and contradicting evidence to support his claim that his

conviction for aggravated murder lacked sufficient evidence. That is not, however,

the lens through which we should view this question. A challenge to the sufficiency

of the evidence asks whether “the evidence is legally sufficient to support the jury

verdict as a matter of law.” State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d




                                           32
                     OHIO FIRST DISTRICT COURT OF APPEALS



541 (1997). As a reviewing court, we must determine whether “after viewing the

evidence in a light most favorable to the prosecution, any rational trier of fact could

have found the essential elements of the crime proven beyond a reasonable doubt.”

State v. Bedell, 2018-Ohio-721, 107 N.E.3d 160, ¶ 11 (1st Dist.), quoting State v.

Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus.

Thus, sufficiency of the evidence is a “test of adequacy.” Thompkins at 386. Most

importantly, a review of the sufficiency of the evidence “[does] not consider its

credibility or effect in inducing belief.” State v. Richardson, 150 Ohio St.3d 554,

2016-Ohio-8448, 84 N.E.3d 993, ¶ 13, citing Thompkins at 386-387. Proceeding

under this framework, I would find that the state met its burden here.

       {¶84} We are guided in this endeavor by the Ohio Supreme Court’s three-

part test described in State v. Taylor, 78 Ohio St.3d 15, 676 N.E.2d 82 (1997).

Heavily fact-dependent, this inquiry asks us to consider: (1) whether the accused and

victim knew each other, and the nature of the relationship; (2) whether the accused

gave thought or preparation to choosing the murder weapon or murder site; and (3)

whether the act was drawn out or an almost instantaneous eruption of events. Id. at

19 (describing State v. Jenkins, 48 Ohio App.2d 99, 355 N.E.2d 825 (8th Dist.1976)).

While this three-part test (like many such inquiries) leaves something to be desired,

as I filter the facts at hand through the Taylor criteria, I walk away convinced that

the state satisfied its burden. Although Mr. Jones frequently carried a gun, the fact

that he exited the vehicle, gun in hand, could have allowed the jury to reasonably

infer that he carried the gun with intent to use it. See Taylor at 22 (“The jury could

reasonably have inferred that appellant may have carried the gun with an intention

to use it. The jury could have drawn that inference from all the circumstances

surrounding the shooting * * *.”). Indeed, there is a marked difference between



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carrying a gun holstered on one’s person versus walking around with that same gun

out, in hand, presumably at the ready.

       {¶85} Evidence presented at trial further indicated that Mr. Neri was

standing in front of the house when Mr. Jones arrived. Mr. Jones then parked

directly in front of the house and left his car running with the door open. Moreover,

testimony showed that Mr. Jones exited his car and deliberately took steps towards

Mr. Neri, raised the gun which he was already holding and fired, paused in between

shots to speak to Mr. Neri, and even fired shots as Mr. Neri was fleeing. Similar

factors supported the jury’s finding of prior calculation and design in Taylor, despite

the fact that the events there unfolded very quickly. Id. at 21-22 (appellant’s decision

to strategically position himself and friends before the shooting and continue

shooting once the victim was on the ground provided sufficient evidence of prior

calculation and design, despite short duration of the encounter).

       {¶86} And we certainly cannot divorce the background context from what

happened in those two minutes or so when the shooting occurred. We had a long-

simmering feud between Mr. Jones and Mr. Neri that seemed to be escalating. See

id. at 21 (emphasizing the “strained relationship” between the accused and the

victim). Evidence presented at trial established that the two men were constantly

threatening and planning fights, and that the two desired a fight for months leading

up to the murder. Indeed, Mr. Jones was trying to arrange a fight with Mr. Neri that

very day. Mr. Jones protests, insisting that he intended to ensure that Mr. Neri was

at another location at the time he arrived to pick up his son, but the jury certainly

could have seen that differently. The location for their planned brawl sat just a

stone’s throw from the house, rendering it likely that Mr. Neri would be nearby in

any event.



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                     OHIO FIRST DISTRICT COURT OF APPEALS



       {¶87} We also know that Mr. Jones was apprehensive about actually fighting

Mr. Neri based on the disparity in their sizes. It’s also probably fair to conclude that

he knew that he could not run from Mr. Neri forever. Ms. Prather’s conduct suggests

that she knew the fight needed to happen, and just wanted it over with. But when

that day of reckoning arrived, Mr. Jones brought a gun rather than just his fists.

       {¶88} Here the jury could have reasonably found, based on the evidence

presented, that Mr. Jones formulated a plan to kill Mr. Neri that involved

ascertaining his whereabouts under the guise of planning the fight. Then, upon

arriving at the house and seeing Mr. Neri out front, Mr. Jones strategically parked (to

ensure a quick getaway) and jumped out of the car, gun in hand, approaching Mr.

Neri and firing upon him even as he fled.

       {¶89} Is Mr. Jones’s alternative explanation for all of these events plausible

and is some of this evidence disputed? Sure. But we must construe the evidence in a

light most favorable to the state, consistent with the jury’s verdict and in line with

Taylor.

       {¶90} In sum, the finding of prior calculation and design is “justified ‘[w]here

evidence adduced at trial reveals the presence of sufficient time and opportunity for

the planning of an act of homicide to constitute prior calculation, and the

circumstances surrounding the homicide show a scheme designed to implement the

calculated decision to kill.’ ” State v. Phelps, 1st Dist. Hamilton No. C-100096, 2011-

Ohio-3144, ¶ 26, quoting State v. Cotton, 56 Ohio St.2d 8, 381 N.E.2d 190 (1978),

paragraph three of the syllabus (more than “instantaneous deliberation” when

factors demonstrated a “scheme designed to implement the calculated decision to

kill.”). Our duty here is not to evaluate who we should believe more, but rather, if

believing all the evidence that the prosecution presented, could a rational jury find



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                     OHIO FIRST DISTRICT COURT OF APPEALS



all the elements proven beyond a reasonable doubt. For all the foregoing reasons, I

would find that the prosecution met that burden based on the record at hand.

                                               B.

       {¶91} When I consider the evidentiary issues that the majority discusses, I

agree that: (1) the trial court erred in admitting the photo of the guns and

ammunition in Mr. Jones’s bedroom; (2) the trial court erred in precluding Mr.

Jones from testifying about the threats from Mr. Neri; and (3) the trial court

inconsistently handled admissibility of the social media posts.

       {¶92} But I part company with the majority on the harmless error aspect of

its analysis, and here’s why. Instrumental to the conclusion that the court deprived

Mr. Jones of his ability to present a defense was the court’s barring him from

testifying about the threats from Mr. Neri. But when we look at the transcript,

defense counsel proffered that Mr. Jones’s father and aunt would testify that Mr.

Neri came searching for Mr. Jones armed with a weapon, points they later conveyed

to Mr. Jones.

       {¶93} The trial court handled this by inquiring whether those witnesses (who

encountered the threats first-hand) would testify, asking “[i]s his father testifying?”

Counsel responded, “Yes, ma’am,” prompting the court to conclude, “[t]hen he can

say it.” After further back-and-forth, the trial court reiterated that the father and

aunt “can testify to what” happened.

       {¶94} Was this how this issue should have been resolved? No. But did

counsel have a path—one he professed he was going to go down—to get evidence of

these threats into the record? Yes.

       {¶95} For reasons beyond the confines of the record, counsel did not pursue

that path and did not summon the father and aunt to testify. Maybe that was a wise



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                     OHIO FIRST DISTRICT COURT OF APPEALS



strategic decision, maybe not. But I find myself unable to conclude that the court

unduly deprived the defendant of his right to present a defense on this record.

       {¶96} Similarly, with respect to the social media posts, I share the majority’s

difficulty in discerning the distinction between the admitted and excluded posts, but

ultimately I conclude that the excluded posts would have, at best, provided

cumulative evidence of the admitted ones. In other words, nothing so dramatic and

impactful occurred in them that the jury did not already have before it in the

admissible tweets.

       {¶97} However, I am troubled by the timing issue regarding the May post

(given that the state seized upon that in closing) and the gun photograph. See State

v. Lavender, 1st Dist. Hamilton No. C-180003, 2019-Ohio-5352, ¶ 151-154

(Bergeron, J., dissenting).     Nevertheless, I view the harmless error conclusion

differently than the majority based on my conclusion about prior calculation and

design and the threats. After thoroughly reviewing the record, I cannot say that

these two evidentiary issues justify a new trial based on how I would resolve the

other aspects of this appeal.

       {¶98} Therefore, I respectfully concur in part and dissent in part.

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




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