[Cite as State v. Drescher, 2016-Ohio-403.]


                                        COURT OF APPEALS
                                       STARK COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

STATE OF OHIO                                      JUDGES:
                                                   Hon. W. Scott Gwin, P.J.
        Plaintiff-Appellee                         Hon. William B. Hoffman, J.
                                                   Hon. John W. Wise, J.
-vs-
                                                   Case No. 2015CA00020
ALEX DRESCHER

        Defendant-Appellant                        OPINION




CHARACTER OF PROCEEDING:                       Appeal from the Stark County Court of
                                               Common Pleas, Case No. 2014CR1238(A)


JUDGMENT:                                      Affirmed


DATE OF JUDGMENT ENTRY:                         February 2, 2016


APPEARANCES:


For Plaintiff-Appellee                         For Defendant-Appellant


JOHN D. FERRRERO                               DONOVAN HILL
Prosecuting Attorney                           116 Cleveland Ave. North, Suite 808
Stark County, Ohio                             Canton, Ohio 44702

By: RENEE WATSON
Assistant Prosecuting Attorney
Appellate Section
110 Central Plaza, South – Suite 510
Canton, Ohio 44702-1413
Stark County, Case No. 2015CA00020                                                         2

Hoffman, J.


      {¶1}    Defendant-appellant Alex Drescher appeals his convictions entered by the

Stark County Court of Common Pleas on complicity to murder, complicity to felonious

assault and complicity to tampering with evidence. Plaintiff-appellee is the state of Ohio.

                           STATEMENT OF THE FACTS AND CASE

      {¶2}    On the evening of July 24, 2014, and into the early morning hours of July

25, 2014, Appellant visited Gatsby’s Bar with X’Avire Cobb. Zebulum Schoolcraft, Dino

Crawford and James Delgado were also at Gatsby’s Bar. At the time Gatsby’s Bar closed,

the five left and got into a car driven by Schoolcraft. Everyone in the car was high and/

or drunk.

      {¶3}    Appellant was dropped off at a house, and Schoolcraft, Cobb, Crawford and

Delgado proceeded in the car without him. Schoolcraft subsequently lost control of the

car and crashed into a utility pole. As a result of the crash, X’Avire Cobb, who was seated

in the backseat and unrestrained, hit his mouth and chipped and/or loosened a front tooth.

      {¶4}    After the accident, Schoolcraft, Cobb, Crawford and Delgado all took off

running in separate directions to avoid being arrested. Cobb, who was upset about his

tooth, went looking for Schoolcraft. Cobb asked Appellant to help him seek out

Schoolcraft through the use of Facebook and to set up a meeting for a fight.

       {¶5}   Schoolcraft received messages via Facebook about the accident, and a

fight was arranged at “Shakes”, an area ice cream parlor and meeting place.

       {¶6}   Dino Crawford testified at trial relative to the events of the evening/morning,

including the meeting at “Shakes” and the incident leading up the shooting. He stated he

observed Appellant pull a gun from his side, wave it around, point it at Crawford and
Stark County, Case No. 2015CA00020                                                       3


Schoolcraft, and offer it to Cobb. He testified Appellant urged Cobb during the fight to

shoot Schoolcraft. Cobb then fired seven shots at Schoolcraft, ending his life.

      {¶7}   Testimony at trial also established Appellant later brokered a trade of the

murder weapon for another firearm in the days following the shooting.

      {¶8}   The Stark County Grand Jury indicted Appellant on charges of complicity to

murder, in violation of R.C. 2923.03(A)(2) and R.C. 2903.02(B); complicity to felonious

assault, in violation of R.C. 2923.03(A)(2) and R.C. 2903.11(A)(1)/(A)(2); and complicity

to tampering with evidence, in violation of R.C. 2923.03(A)(2) and R.C. 2921.12(A)(1).

Both the murder and felonious assault charges carried attendant firearm specifications in

violation of R.C. 2941.145.

      {¶9}   Following a jury trial, Appellant was convicted on all counts. On January

28, 2015, Appellant was sentenced to a total of twenty-one years to life imprisonment.

      {¶10} Appellant appeals, assigning as error:

      {¶11} I. APPELLANT’S CONVICTIONS WERE AGAINST THE MANIFEST

WEIGHT AND SUFFICIENCY OF THE EVIDENCE.

      {¶12} II. APPELLANT WAS DENIED DUE PROCESS AND A FAIR TRIAL WHEN

THE COURT OVERRULED APPELLANT’S MOTION FOR A MISTRIAL AFTER THE

JURY WAS MADE AWARE OF APPELLANT’S INCARCERATION.

                                                I.

      {¶13} In the first assignment of error, Appellant maintains his convictions are

against the manifest weight and sufficiency of the evidence.

      {¶14} The Supreme Court has explained the distinction between claims of

sufficiency of the evidence and manifest weight. Sufficiency of the evidence is a question
Stark County, Case No. 2015CA00020                                                        4


for the trial court to determine whether the State has met its burden to produce evidence

on each element of the crime charged, sufficient for the matter to be submitted to the jury.

       {¶15} Manifest weight of the evidence claims concern the amount of evidence

offered in support of one side of the case, and is a jury question. We must determine

whether the jury, in interpreting the facts, so lost its way that its verdict results in a

manifest miscarriage of justice, State v. Thompkins (1997), 78 Ohio St.3d 387, citations

deleted. On review for manifest weight, a reviewing court is “to examine the entire record,

weigh the evidence and all reasonable inferences, consider the credibility of the witnesses

and determine whether in resolving conflicts in the evidence, the trier of fact clearly lost

its way and created such a manifest miscarriage of justice that the judgment must be

reversed. The discretionary power to grant a new hearing should be exercised only in the

exceptional case in which the evidence weighs heavily against the judgment.” State v.

Thompkins, 78 Ohio St.3d 380, 387, 1997-Ohio-52, citing State v. Martin (1983), 20 Ohio

App.3d 172, 175. Because the trier of fact is in a better position to observe the witnesses'

demeanor and weigh their credibility, the weight of the evidence and the credibility of the

witnesses are primarily for the trier of fact. State v. DeHass (1967), 10 Ohio St.2d 230,

syllabus 1.

       {¶16} The standard of review for a challenge to the sufficiency of the evidence is

set forth in State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991) at paragraph two

of the syllabus, in which the Ohio Supreme Court held, “An appellate court's function

when reviewing the sufficiency of the evidence to support a criminal conviction is to

examine the evidence admitted at trial to determine whether such evidence, if believed,

would convince the average mind of the defendant's guilt beyond a reasonable doubt.
Stark County, Case No. 2015CA00020                                                         5


The 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.”

        {¶17} Specifically, Appellant maintains his convictions are unreliable in that they

are based upon contradictory testimony, biased and impaired witnesses and insufficient

evidence. In State v. Cobb, Stark App. No. 2014CA00218, 2015-Ohio-3661, this Court

held,

                A fundamental premise of our criminal trial system is that ‘the jury is

        the lie detector.’ United States v. Barnard, 490 F.2d 907, 912 (C.A.9 1973)

        (emphasis added), cert. denied, 416 U.S. 959, 94 S.Ct. 1976, 40 L.Ed.2d

        310 (1974). Determining the weight and credibility of witness testimony,

        therefore, has long been held to be the ‘part of every case [that] belongs to

        the jury, who are presumed to be fitted for it by their natural intelligence and

        their practical knowledge of men and the ways of men.’ Aetna Life Ins. Co.

        v. Ward, 140 U.S. 76, 88, 11 S .Ct. 720, 724–725, 35 L.Ed. 371 (1891)”.

        United States v. Scheffer (1997), 523 U.S. 303, 313, 118 S.Ct. 1261, 1266–

        1267.

                The jury was free to accept or reject any and all of the evidence

        offered by the parties and assess the witness's credibility. “While the jury

        may take note of the inconsistencies and resolve or discount them

        accordingly * * * such inconsistencies do not render defendant's conviction

        against the manifest weight or sufficiency of the evidence”. State v. Craig

        (Mar. 23, 2000), Franklin App. No. 99AP–739, citing State v. Nivens (May
Stark County, Case No. 2015CA00020                                                       6


      28, 1996), Franklin App. No. 95APA09–1236 Indeed, the jurors need not

      believe all of a witness' testimony, but may accept only portions of it as true.

      State v. Raver, Franklin App. No. 02AP–604, 2003–Ohio–958, at ¶ 21, citing

      State v. Antill (1964), 176 Ohio St. 61, 67, 197 N.E.2d 548.; State v. Burke,

      Franklin App. No. 02AP1238, 2003–Ohio–2889, citing State v. Caldwell

      (1992), 79 Ohio App.3d 667, 607 N.E.2d 1096.

      {¶18} Appellant was convicted of complicity to murder, complicity to felonious

assault and complicity to tampering with evidence for soliciting, procuring, aiding or

abetting another in committing the offenses. To support a conviction for complicity by

aiding and abetting pursuant to R.C. 2923.03(A)(2), the evidence must show that the

defendant supported, assisted, encouraged, cooperated with, advised, or incited the

principal in the commission of the crime, and the defendant shared the criminal intent of

the principal. Such intent may be inferred from the circumstances surrounding the crime.

State v. Johnson, 93 Ohio St.3d 240, 245, 754 N.E.2d 796, 2001-Ohio-1336.

      {¶19} Officer Bill Adams of the Canton Police Department testified at trial he

identified Appellant through the use of Facebook, and through his interview with Dino

Crawford following the shooting.

      {¶20} Dino Crawford testified at trial, on cross-examination,

             Q. And Alex [Appellant] and X [Cobb] show up for a fight, Zeb

      [Schoolcraft] meets them - -

             A. Yeah, but somebody brought a gun.

             Q. Yeah, that’s right, and Zeb [Schoolcraft] winds up getting shot.

      That wasn’t the point, though, right?
Stark County, Case No. 2015CA00020                                                       7


            A. I couldn’t tell you. Usually when someone brings a gun, that could

     be the point very easily, right?

            Q. Okay. You say that Alex [Appellant] pulls the gun out and starts

     waving it around?

            A. Waving it around, pointing it at us, asked me if I wanted hit too.

     Obviously I’m not going to try to fight somebody when they got a gun pointed

     at me, right?

            Q. Yeah, but Zeb [Schoolcraft] did. Why didn’t you guys just leave?

            A. I don’t know. I guess - - I guess we’re not little girls, I don’t know.

            Q. I mean - -

            A. I wish we would have.

            ***

            Q. Again, you show up for a fight, somebody brings a gun to a fight,

     you see it first thing, right?

            A. Yeah.

            Q. Why didn’t you go at that point?

            A. I couldn’t tell you that.

            Q. Okay. But it didn’t stop them from squaring up, right? Zeb

     [Schoolcraft] and X [Cobb] still squared up?

            A. No, I’m pretty sure Lexx [Appellant] was telling them to square up.

            Q. He wasn’t telling Zeb [Schoolcraft] or you to square up, right? I

     mean, it’s not like somebody put a gun to your head - -

            A. No, he was telling X’Avire [Cobb].
Stark County, Case No. 2015CA00020                                                  8


           Q. Okay. And they fought, right?

           A. I wouldn’t say so. They squared up, ain’t nobody get hit.

           Q. They didn’t throw any blows?

           A. They probably threw a couple punches, but X’Avire [Cobb] kept

     backing up so nobody got punched.

           Q. Okay. Did they even get to a point where they were standing - -

           A. Before they - -

           Q. - - face-to-face talking about X’s [Cobb’s] tooth?

           A. Yeah, and Zeb [Schoolcraft] tried to apologize.

           Q. What did X [Cobb] say?

           A. Obviously he didn’t take the apology.

           Q. And how did Zeb [Schoolcraft] react to that?

           A. I don’t know. They started arguing again, started arguing with

     Lexx [Appellant].    Lexx [Appellant] started saying he was from the

     northwest, and blah, blah, blah, that’s how the argument got to a bigger - -

           Q. Who started to say they were from the northwest?

           A. Lexx [Appellant] started saying Zeb [Schoolcraft] was from the

     northwest.

           Q. Okay. That pissed him off?

           A. Yes, sir.

           Q. Pissed you off?

           A. No, I didn’t really care. I thought it was kind of corny.
Stark County, Case No. 2015CA00020                                                     9


            Q. And all this time you’re jawing with a guy who’s waving a gun

     around?

            A. Yeah, I was telling him to put it down. I know him. I thought - - I

     thought maybe I could talk some sense into him.

            Q. At some point they start to walk back; is that true?

            A. Zeb [Schoolcraft] started - -

            Q. They started to walk away from you and Zeb [Schoolcraft]?

            A. No.

            Q. No?

            A. No, I don’t remember ever seeing that.

            Q. Okay. And at some point does Zeb [Schoolcraft] charge at X

     [Cobb]?

            A. No.

            Q. What prompted - -

            A. Zeb [Schoolcraft] went to leave - -

            Q. What prompted - -

            A.- - and then X’Avire [Cobb] asked for the gun at the end of the

     situation, after Lexx [Appellant] already offered it to him a couple times. And

     I told Lexx [Appellant] to put the gun down, and he didn’t give it to him

     because of me.

            Q. What did Zeb [Schoolcraft] say when he saw X [Cobb] with the

     gun?
Stark County, Case No. 2015CA00020                                                      10


             A. I mean it was a matter of a second. He put his arms up and said,

      fuck it, shoot me. Nobody charged anybody.

             Q. That’s when X [Cobb] shot?

             A. Yeah.

             Q. When was Alex [Appellant] running?

             A. He handed him the gun and said, fuck it, shoot him, and took off

      running immediately.

             Q. Is that the story you told the police the next morning or that night?

             A. Yeah, it was that night?

             Q. Okay. Do you blame Alex [Appellant]?

             A. Yeah, I believe if Alex [Appellant] wouldn’t have brought a gun,

      my friend would still be here.

Tr. at 150-157.

      {¶21} Appellant argues the testimony offered by the witnesses presented by the

State at trial was biased and inconsistent. Specifically, Appellant cites the testimony of

Jason Smith as inconsistent with the testimony offered by Crawford. Smith testified at

trial, while he was incarcerated with Appellant, Appellant told him of the murder of

Schoolcraft and related he had told Cobb, “You got to shoot that nigga before he shoots

you.” Tr. at 267. Appellant told Smith he then handed Cobb the gun. Tr. at 267. Smith

testified Appellant told him he hit Crawford over the head as Crawford was the only person

who could identify him. Tr. at 267-268. Smith testified Appellant had further described

the firearm to Smith. Tr. at 267. Appellant argues Smith’s testimony was offered as a

result of a plea deal; therefore, biased. Appellant further maintains the testimony is in
Stark County, Case No. 2015CA00020                                                       11


contrast to the statements testified to by Crawford, as the testimony of Crawford never

claimed Appellant hit him.

       {¶22} Upon review, we do not find Smith’s statements contradictory to the

evidence presented at trial. While there was no evidence offered Appellant hit Crawford

over the head, Smith’s testimony was offered to corroborate the testimony of Robert Pryor

and Dino Crawford regarding Appellant’s incitement of Cobb to shoot Schoolcraft and of

Appellant providing Cobb with the murder weapon. Smith testified Appellant told him he

provided Cobb with the murder weapon and Appellant told Cobb to shoot Schoolcraft.

       {¶23} Further, Appellant argues the testimony of Robert Pryor, a neighbor who

witnessed the incident from his window, is in contrast to the testimony of Dino Crawford.

Pryor testified his dog started barking on the night of the incident and he could see the

incident from his home window. He testified to the events of the evening as he observed

them. Tr. at 169. He could hear arguing back and forth, and someone state, “Pop this

fucking nigger.” Tr. at 169. He testified he then saw a gun flash.

       {¶24} Appellant cites Pryor’s testimony, “I don’t even think they got to the point of

where they fought. Honestly, I don’t remember seeing swinging. I think the gun came out,

he shot him before they actually went to blows.” Tr. at 176. Appellant maintains the

testimony is inconsistent with Crawford’s testimony, the shooting happened after the fight.

However, upon review of Crawford’s testimony, he states, “they probably threw a couple

of punches, but nobody got punched.” He describes the incident as more of a “squaring

up.” Therefore, we do not find the testimony inherently contradictory, and the jury was

free to accept all or any part of Pryor and Crawford’s testimony.
Stark County, Case No. 2015CA00020                                                         12


        {¶25} Appellant further cites the testimony of Emily Smith as evidence Cobb, not

Appellant, brought the gun to the fight. Emily Smith testified at trial she and Ashleigh

Brown picked Appellant and Cobb up after the fight. Tr. at 193. She testified Appellant

later told her Cobb had shot someone, and Appellant told her he had given Cobb the gun.

Tr. at 194. She learned of the shooting later on Facebook.       Tr. at 195.

        {¶26} Dino Crawford testified at trial as to Appellant’s involvement on Facebook

leading up to the fight and his presence at the incident. He further testified as to Appellant

having a gun at the fight and waving it around, offering it to Cobb. He stated Appellant

incited Cobb to shoot Schoolcraft. This is further supported by the testimony of both Pryor

and Jason Smith. Emily Smith testified Appellant himself testified he provided the gun to

Cobb. Accordingly, the evidence provided at trial is sufficient to prove each and every

element of complicity to murder and complicity to felonious assault. We find the jury did

not lose its way in convicting Appellant herein.

        {¶27} Appellant was also convicted of complicity to tampering with evidence, in

violation of R.C. 2921.12(A)(1). Anwar Shelton testified at trial Appellant approached him

regarding a gun his friend had to trade, and he traded him another firearm for the gun.

Tr. at 232. The trade happened a day or two after the shooting. Tr. at 233. Appellant

was at the trade with Cobb, and the firearm traded later proved to be the murder weapon.

Tr. at 234. Again, the evidence is sufficient to support Appellant’s conviction on complicity

to tampering with evidence, and the jury did not lose its way in convicting Appellant of the

same.

        {¶28} The first assignment of error is overruled.
Stark County, Case No. 2015CA00020                                                     13


                                               II.

      {¶29} In the second assignment of error, Appellant maintains the trial court erred

in denying his motion for a mistrial after the jury was made aware of Appellant’s

incarceration.

      {¶30} Specifically, Appellant cites the testimony of Jason Smith, during which

Smith testified he was incarcerated with Appellant.

      {¶31} At trial, the following exchange occurred on the record,

             Q. And you know Alex Drescher?

             A. Not on the - - like, when we were free. I met him in the county jail

      when we was down in the hole.

             Q. And you met him sometime in October or - -

             A. Yes.

             MR. CAZANTZES: Objection, Your Honor, may we approach?

             THE COURT: Yeah, please.

             ------------

             (A conference was held at the bench outside the hearing of the jury.)

             MR. CAZANTZES: Your Honor, unfortunately, the cat is out of the

      bag. The point that he -- I’ll move to strike that last statement. For the

      record, I’m going to move for a mistrial on the basis that he has indicated to

      the jury that the Defendant is an inmate at the Stark County Jail and was in

      the hole. So he must have done something to get into that. He does have

      a constitutional right to not have the jury know that he is currently

      incarcerated. That information in and of itself could be prejudicial.
Stark County, Case No. 2015CA00020                                                     14


             THE COURT: Well, here’s where I’m at.        Number one, I’ll give a

     curing instruction because we heard testimony that the marshals picked him

     up in front of his house earlier this morning. So I will strike that comment.

     I can’t strike that comment because they’ve already heard that he’s been

     incarcerated, but - -

             MS. MLINAR: He didn’t say he’s currently incarcerated.

             THE COURT: No, he said he was in the hole, that’s what he said.

     Go to the next issue. Is it going to be a statement he made to him while in

     jail?

             MS. MLINAR: Yes.

             THE COURT: How are we going to get around this issue?

             MS. MLINAR: I don’t know that we had - -

             THE COURT: Yeah, I mean - -

             MS. CAZANTZES: While it is a statement from the Defendant just to

     get it is going to cross that prejudicial issue of, you know, he’s incarcerated

     and he’s in the hole.

             THE COURT: The cat was out of the bag this morning when he was

     aware that he was arrested by the marshals, okay? So I’ll give a curing

     instruction to this and indicate that to the jury – whether he was incarcerated

     at that time or not has no reflection on the case. I mean that’s all that I can

     do.

             MR. CAZANTZES: Well, I guess - -

             THE COURT: Can’t give you a mistrial on this.
Stark County, Case No. 2015CA00020                                                        15


              MS. MLINAR: But, you know, this statement comes from the jail,

       you’ve known it for—I gave it to you in October.

              MR. CAZANTZES: I got it. I made my motion, he denied the motion.

              ***

              THE COURT: Okay, ladies and gentlemen of the jury, I’ll sustain the

       statement regarding the hole. Where the statement—or where the

       statement is made is not relative in this case. And we will proceed further.

       So go ahead, counsel.

Tr. at 263-266.

       {¶32} As indicated in the record, the jury was aware through another witness

Appellant had been arrested by the U.S. Marshal’s office and there was no objection to

that testimony. The trial court sustained the objection and gave a curative instruction

advising the jury the statement had no bearing on the case. Further, the evidence was

cumulative evidence in support of the testimony offered by the State’s other witnesses.

       {¶33} We note, the declaration of a mistrial is an extreme remedy and the granting

of a mistrial lies within the sound discretion of the trial court. State v. Trimble, 122 Ohio

St.3d 297, 2009-Ohio-2961. Accordingly, we find the trial court did not abuse its discretion

herein in not granting a mistrial due to the testimony cited.

       {¶34} The second assignment of error is overruled.
Stark County, Case No. 2015CA00020                                            16


      {¶35} Appellant’s convictions in the Stark County Court of Common Pleas are

affirmed.

By: Hoffman, J.

Gwin, P.J. and

Hoffman, J. concur
