         [Cite as State v. Mincey, 2018-Ohio-662.]
                 IN THE COURT OF APPEALS
             FIRST APPELLATE DISTRICT OF OHIO
                  HAMILTON COUNTY, OHIO



STATE OF OHIO,                                       :   APPEAL NO. C-160565
                                                         TRIAL NO. B-1406170B
        Plaintiff-Appellant,                         :
                                                                 O P I N I O N.
  vs.                                                :

MICHELLE MINCEY,                                     :

    Defendant-Appellee.                              :




Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: February 23, 2018


Joseph T. Deters, Hamilton County Prosecuting Attorney, Ronald Springman and
Sean Donovan, Assistant Prosecuting Attorneys, for Plaintiff-Appellant,

Michaela M. Stagnaro, for Defendant-Appellee.
                      OHIO FIRST DISTRICT COURT OF APPEALS



M ILLER , Judge.

       {¶1}    After her first trial ended in a mistrial, and following a second trial, a

jury found Michelle Mincey guilty of felonious assault for being complicit in throwing

sulfuric acid on Shailah Robinson’s face and body. The trial court sentenced Mincey

to the maximum term of eight years in prison. We affirm.

                                      The State’s Case

       {¶2}    Mincey’s teenage daughters, Deajah and Shay, were embroiled in an

on-going dispute with Robinson’s sister, Tynia Jones, and others culminating in a

large street fight. Roughly an hour before this melee, Deajah fought with one of

Tynia’s friends, Tonya Miller. Tynia witnessed the earlier fight, and cell phone video

of the fight was admitted at trial.

       {¶3}    The street fight initially involved Robinson, Tynia, Deajah, Shay and a

few other women and girls. Mincey, along with her sister Denna and their cousin,

Latressa Conley, ran out of Mincey’s home and joined in. Mincey carried a stun gun,

Conley a spray bottle of isopropyl alcohol, and Denna a glass jar of a concentrated

sulfuric acid solution. According to Robinson, in the midst of the fight, Mincey

pointed at Robinson and said, “It’s that bitch right there,” prompting Denna to throw

acid onto Robinson’s face. As Robinson tried to wipe the acid from her face, Denna

threw the remainder of the jar’s contents onto Robinson’s body.

       {¶4}    Tynia corroborated Robinson’s testimony, and added that Denna’s

first throw was underhanded, and the second, overhanded. Robinson testified that

the acid made her feel like her body was “on fire,” and that her pain level on a scale of

1-to-10 was “over 10.”     She was hospitalized for two-and-a-half weeks and still

experiences pain daily.




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                     OHIO FIRST DISTRICT COURT OF APPEALS



       {¶5}   Officer Kurtz responded to the scene. Mincey gave him permission to

search her house. Kurtz encountered Denna on the second floor as she exited from

the bathroom, appearing to have just showered. The officer found a bottle of “Liquid

Fire” drain cleaner in Mincey’s home. It was later discovered that there were burns

on Denna’s hand and back.

       {¶6}   Dana Greely, a crime lab technician, tested the Liquid Fire and

remnants of acid collected from the scene. Greely testified that Liquid Fire is a

sulfuric acid solution, and that the liquid from the crime scene was also a sulfuric

acid solution. She concluded that Denna’s shirt and Robinson’s clothing had been

burned with sulfuric acid.     Greely could not say whether the acid thrown on

Robinson was the Liquid Fire found in Mincey’s home.

                                    Mincey’s Defense

       {¶7}   In her first trial, Mincey had had expert witness Larry Dehus

appointed at her request to test the evidence found at the scene and the Liquid Fire.

Dehus’s report contained conclusions very similar to Greely’s. She did not call Dehus

as a witness in either trial. Prior to her second trial, Mincey moved the trial court to

appoint a second expert witness, who Mincey claimed would possibly be able to

testify that the Liquid Fire from her home was not the acid thrown on Robinson. Her

motion was denied.

       {¶8}   Mincey’s defense centered on casting doubt on the identity of Denna as

the acid-thrower, and Mincey as the one who told Denna to throw the acid on

Robinson. The defense argued that Denna could not have carried a jar of acid to the

fight because an eye-witness testified that Denna had been physically fighting before

the acid was thrown. Denna admitted that there were burns on her hands and back,




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                     OHIO FIRST DISTRICT COURT OF APPEALS



but explained that the burn on her hand was from an oven and that the burn on her

back occurred when someone behind her at the fight threw the acid at Robinson.

                                          Analysis

       {¶9}   Admission of the cell phone video. In her first assignment of

error, Mincey contends that the trial court erred when it admitted into evidence the

cell phone video of the earlier fight between Mincey’s daughters and Tonya Miller.

Mincey raises three arguments: the video (1) was not properly authenticated; (2) was

irrelevant and/or unduly prejudicial; and (3) constituted impermissible “other acts”

evidence. None of these arguments is meritorious.

       {¶10} We review the trial court’s admission of the video for an abuse of

discretion. See State v. Sage, 31 Ohio St.3d 173, 510 N.E.2d 343 (1987), paragraph

two of the syllabus. An abuse of discretion is more than a mere error in judgment; it

suggests that the court acted in an unreasonable, arbitrary, or unconscionable

manner. State v. Adams, 62 Ohio St.2d 151, 157-158, 404 N.E.2d 144 (1980).

       {¶11} “The requirement of authentication or identification as a condition

precedent to admissibility is satisfied by evidence sufficient to support a finding that

the matter in question is what its proponent claims.” Evid.R. 901(A); Great Seneca

Fin. v. Felty, 170 Ohio App.3d 737, 2006-Ohio-6618, 869 N.E.2d 30, ¶ 9 (1st Dist.).

Tynia witnessed the earlier fight. She testified that the video was a fair and accurate

depiction of the fight. This was sufficient foundation to admit the video. Midland

Steel Prods. Co. v. U.A.W. Local 486, 61 Ohio St.3d 121, 129, 573 N.E.2d 98 (1991).

       {¶12} The video was relevant. “Relevant evidence” is “evidence having 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. The question of whether evidence is relevant is “one



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                     OHIO FIRST DISTRICT COURT OF APPEALS



which the trial court can resolve based on common experience and logic.” State v.

Lyles, 42 Ohio St.3d 98, 99, 537 N.E.2d 221 (1989). Here, the trial court stated that

evidence of the earlier fight provided a possible motive for the later street fight. We

find no error in this determination.

       {¶13} Excluding this video was not required by Evid.R. 403(A). That rule

provides, “[a]lthough relevant, evidence is not admissible if its probative value is

substantially outweighed by the danger of unfair prejudice, of confusion of the issues,

or of misleading the jury.” See State v. Combs, 62 Ohio St.3d 278, 284, 581 N.E.2d

1071 (1991). Mincey claims that the video was unduly prejudicial because its only

purpose was to show that Mincey must have been angry at the girls involved in the

earlier fight against her daughters. We fail to see how the probative value of this

evidence was substantially outweighed by the danger of unfair prejudice.

       {¶14} Finally, Mincey contends that the video contained prohibited “other

acts” evidence under Evid.R. 404(B). This objection was not raised in the trial court.

Mincey has therefore forfeited all but plain error on appeal. See State v. Rogers, 143

Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, ¶ 3.               Forfeited error “is not

reversible error unless it affected the outcome of the proceeding and reversal is

necessary to correct a manifest miscarriage of justice.” Id. On appeal, Mincey has

not argued, let alone demonstrated, that “but for” the alleged error the outcome of

her trial would have been otherwise, or that reversal is necessary to correct a

manifest miscarriage of justice. See Rogers at ¶ 3; State v. Harrison, 122 Ohio St.3d

512, 2009-Ohio-3547, 912 N.E.2d 1106, ¶ 61; State v. Long, 53 Ohio St.2d 91, 97, 372

N.E.2d 804 (1978).

       {¶15}   Mincey’s first assignment of error is overruled.




                                           5
                       OHIO FIRST DISTRICT COURT OF APPEALS



        {¶16}    Expert Witness. In her second assignment of error, Mincey argues

that the trial court violated her right to due process by overruling her motion to appoint

a second expert witness.1 According to her proffer, her requested expert, Professor

Thomas Ridgway, “would possibly allow elimination” of the Liquid Fire found in her

house as the source of the acid that burned Robinson.

        {¶17}    This was Mincey’s second request for an expert to test the acid found at

the scene. In Mincey’s first trial, that ended in a mistrial, the court had appointed expert

witness Dehus. Dehus tested the Liquid Fire found in Mincey’s home, acid residue

found at the scene, and Robinson’s and Michelle Mincey’s clothing. Dehus’s report

concluded that the Liquid Fire was a concentrated sulfuric acid solution, that the acid

residue was sulfuric acid residue, and that the chemical damage to Robinson’s and

Denna Mincey’s clothing was indicative of sulfuric acid.         Dehus could not determine

whether the acid found at the scene and on the tested clothing was from the Liquid Fire

found in Mincey’s home. Dehus did not testify at either trial. The state’s expert, Greely,

who testified in Mincey’s second trial, came to similar conclusions as Dehus after she

tested the evidence from the scene. However, according to Mincey, Ridgway would be

able to perform more sensitive testing than either Dehus or Greely that could possibly

exclude the Liquid Fire as the agent that burned Robinson.

        {¶18}    As a guarantee of due process, indigent defendants are entitled to receive

the “raw materials” and the “basic tools of an adequate defense.” Ake v. Oklahoma, 470

U.S. 68, 77, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985), quoting Britt v. North Carolina, 404

U.S. 226, 227, 92 S.Ct. 431, 30 L.Ed.2d 400 (1971). However, due process, under the

Fifth and Fourteenth Amendments to the United States Constitution and Section 16,



1 The trial court never put on an entry overruling the motion. We may presume that it did so sub
silentio. See State v. Reid, 1st Dist.. Hamilton No. C-050465, 2006-Ohio-6450, ¶ 8.


                                               6
                     OHIO FIRST DISTRICT COURT OF APPEALS



Article I of the Ohio Constitution, does not require the state to provide an expert to an

indigent defendant in the absence of a particularized showing of need. State v. Mason,

82 Ohio St.3d 144, 150, 694 N.E.2d 932 (1998). A defendant must demonstrate “a

reasonable probability that an expert would aid in his defense, and that denial of expert

assistance would result in an unfair trial.” Id., citing Little v. Armontrout, 835 F.2d

1240, 1244 (8th Cir.1997). The mere possibility of aid from an expert is not enough. Id.;

see State v. Broom, 40 Ohio St.3d 277, 283, 533 N.E.2d 682 (1988). We review the trial

court’s decision whether to appoint an expert witness for an abuse of discretion. See

State v. Jenkins, 15 Ohio St.3d 164, 473 N.E.2d 264 (1984), paragraph four of the

syllabus.

       {¶19}   Here, Mincey did not demonstrate more than a “mere possibility” that

Ridgway would have aided in her defense. Mincey wanted Ridgway to counter the

coroner’s analyst’s results. Her first expert was unable to do so. Both Greely and Dehus

came to the same conclusions after testing—i.e. that Liquid Fire contained a

concentrated sulfuric acid solution and that the evidence collected from the scene was

sulfuric acid. Greely’s and Dehus’s results were inconclusive as to whether the Liquid

Fire was the acid used in the attack. Mincey did not show how more testing would have

led to a different result. Her argument in support of a second expert was speculative,

raising only the “possibility,” and not a “reasonable probability” that yet more testing

would yield a result favorable to Mincey. Further, Mincey had an opportunity to

adequately cross-examine the coroner’s analyst about the lab results, and thereby cast

doubt on the analysis or the lab results themselves. And there is no indication in the

record that Mincey’s first expert was unavailable, had she wished to call her own expert

witness.




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                      OHIO FIRST DISTRICT COURT OF APPEALS



       {¶20}    Additionally, while the presence of Liquid Fire in Mincey’s home was

significant, the heart of the state’s case was other evidence—primarily eyewitness

testimony—connecting Mincey to the crime. Mincey was convicted of complicity for

directing her sister to throw the acid on Robinson. Where the acid came from was less

important. She therefore cannot show that the trial court abused its discretion and that

the failure of the court to appoint a second expert resulted in an unfair trial. We overrule

the second assignment of error.

       {¶21}    Prosecutorial Misconduct. In her third assignment of error,

Mincey claims that prosecutorial misconduct deprived her of a fair trial. She alleges

that the assistant prosecuting attorney committed misconduct by (1) trying his case

to the jury during voir dire, (2) introducing cell phone video of the fight, (3) making

inaccurate statements during closing argument, and (4) misstating facts in the state’s

sentencing memorandum.

       {¶22}    The test for prosecutorial misconduct is whether the remarks or

actions were improper, and if so, whether they affected the accused’s substantial

rights. State v. Lott, 51 Ohio St.3d 160, 165, 555 N.E.2d 293 (1990). To constitute

reversible error, the alleged misconduct must have deprived the defendant of a fair

trial. State v. Diar, 120 Ohio St.3d 460, 2008-Ohio-6266, 900 N.E.2d 565, ¶ 140;

State v. Neeley, 143 Ohio App.3d 606, 621, 758 N.E.2d 745 (1st Dist.2001).

       {¶23}    The admission of the cell phone video was a decision made by the trial

court, not the prosecuting attorney. Even if the sentencing memorandum contained

inaccurate facts, it was submitted to the court after Mincey had been found guilty. It

could not have had an effect on the fairness of Mincey’s trial. Therefore, these

allegations cannot form the basis for claims of prosecutorial misconduct.




                                             8
                      OHIO FIRST DISTRICT COURT OF APPEALS



       {¶24}    Next, Mincey makes a general reference in her brief to a few instances

where the trial court admonished the prosecuting attorney during voir dire for

speaking about the particulars of the case. She has not demonstrated how these

statements deprived her of a fair trial. And, upon a review of the record, we hold that

they did not.

       {¶25}    Finally, Mincey claims that the prosecuting attorney made several

improper statements during closing argument. There were no objections to these

statements, and Mincey has not argued or shown plain error on appeal. See Rogers,

143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, at ¶ 3; Long, 53 Ohio St.2d at

97, 372 N.E.2d 804.

       {¶26}    Mincey’s third assignment of error is overruled.

       {¶27}    Jury Charge. In her fourth assignment of error, Mincey argues that

the trial court left out an element of “complicity” in its charge to the jury. This

presents a question of law that we review de novo. Cincinnati v. Flannery, 176 Ohio

App.3d 181, 2008-Ohio-1437, 891 N.E.2d 775, ¶ 11 (1st Dist.).

       {¶28}    In pertinent part, “complicity” is defined in R.C. 2923.03(A)(2) as “no

person acting with the kind of culpability required for the commission of an offense

shall * * * aid or abet another in committing the offense.” The jury was instructed

using this exact language. The trial court also instructed the jury that “knowingly”

was the mens rea for felonious assault, and properly defined “knowingly.” The

defense submitted proposed jury instructions on the complicity charge that inserted

the mens rea of “knowingly” into the complicity instruction, itself. Mincey contends

that, by not inserting the word “knowingly” into its complicity instruction itself, the

court left out an element of this crime. It did not.




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                     OHIO FIRST DISTRICT COURT OF APPEALS



       {¶29}   The dissent goes beyond the assigned error by discussing the

effectiveness of the instruction. Mincey challenges only whether a mens rea

instruction was given. It was. The dissent’s analysis of the unassigned error suffers

from two significant flaws.

       {¶30}   First, the dissent treats the Ohio Jury Instructions (“OJI”) as law. OJI

is merely nonbinding guidance. State v. Napier, 105 Ohio App.3d 713, 720, 664

N.E.2d 1330 (1st Dist.1995). OJI is “ ‘the product of a committee of the Ohio Judicial

Conference which suggests model instructions, but which have no force or effect as a

rule of law. They are merely the suggestions of one or more trial or appellate judges

as to what those judges feel is an appropriate instruction.’ ” Id. at 720-721, quoting

State v. Mitchell, 10th Dist. Franklin No. 88AP-695, 1989 WL 47083 (May 2, 1989);

see State v. Burchfield 66 Ohio St.3d 261, 263 611 N.E.2d 819 (1993) (recognizing

that OJI should not be “blindly applied”).        The proper inquiry is whether the

instruction was proper.

       {¶31}   State v. Skatzes is informative. 104 Ohio St.3d 195, 2004-Ohio-6391,

819 N.E.2d 215. In Skatzes, the Supreme Court of Ohio considered the following

instruction given under the former complicity statute, R.C. 2923.04: “ ‘Before you

can find the defendant guilty, you must find beyond a reasonable doubt that * * * the

defendant, acting with the required culpable mental state for the particular offense, *

* * conspired with another to commit the offenses.’ ” Id. at ¶ 58. The court concluded

that the instruction was not erroneous because the language tracked the complicity

statute and was not ambiguous. Id. The court also held that the “jurors would have

understood this instruction to mean that they should apply the culpable mental state

for the offense that they found to be the object of the conspiracy.” Id.




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                      OHIO FIRST DISTRICT COURT OF APPEALS



       {¶32}    The same reasoning applies here. The trial court followed the

language of the statute. The culpable mental state was referenced in connection with

the felonious assault charge—which was given by the court immediately following the

complicity instruction. The jurors would have understood that they should apply

“knowingly” to the complicity charge. Thus, the court included all elements in its

charge to the jury.

       {¶33}    Second, the dissent’s laser focus on the complicity instruction alone is

too narrow. After completing the lengthy complicity instruction, the trial court next

instructed the jury on felonious assault, including the mens rea.          Viewing the

instructions as a whole, as required, it is beyond dispute that the jury was instructed

that the mens rea for Mincey’s complicity charge was the same as the mens rea for

felonious assault—“knowingly”—which was given. See State v. Price, 60 Ohio St.2d

136, 398 N.E.2d 772 (1979), paragraph four of the syllabus. (“A single instruction to a

jury may not be judged in artificial isolation but must be viewed in the context of the

overall charge.”). The dissent’s insistence that the mens rea be charged differently

isn’t based in the law.

       {¶34}    Because the jury was instructed on all elements of complicity, we

overrule this assignment of error.

       {¶35}    Ineffective Assistance of Trial Counsel. In the fifth

assignment of error, Mincey contends that she was denied the effective assistance of

trial counsel because counsel failed to object to what Mincey contends were improper

remarks by the assistant prosecutor during closing argument. To establish ineffective

assistance warranting reversal of a conviction, Mincey must show that counsel’s

performance was deficient, and that the deficient performance deprived her of a fair

trial. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674



                                           11
                      OHIO FIRST DISTRICT COURT OF APPEALS



(1984); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), paragraph two of

the syllabus. She has not done so.

         {¶36}   Mincey asserts that counsel should have objected to a number of

statements to the effect that Mincey had been angry all day and that she had been

looking for a fight. It is well-established that during closing argument, the

prosecution is given wide latitude to convincingly advance its strongest arguments.

State v. Phillips, 74 Ohio St.3d 72, 90, 656 N.E.2d 643 (1995). Mincey has not

explained how these statements were improper, or deprived her of a fair trial.

         {¶37}   Mincey also claims that the assistant prosecuting attorney misstated

the law. Even if this occurred, the trial court correctly informed the jury that “[i]t’s

the duty of the court to instruct you on the law. That is, to instruct you on the law

which you must apply to the facts as you determine them to be in order to arrive at

your verdict.” Jurors are presumed to follow the court’s instructions. Pang v.

Minch, 53 Ohio St.3d 186, 195, 559 N.E.2d 1313 (1990). Thus, Mincey has failed to

establish prejudice resulting in an unfair trial. We overrule her fifth assignment of

error.

         {¶38}   Weight and Sufficiency of the Evidence. In her sixth

assignment of error, Mincey argues that her conviction was against the weight and

sufficiency of the evidence. It was not. Mincey was convicted of being complicit with

her sister, Denna, in committing felonious assault. Mincey’s argument on appeal

centers on her perceived weaknesses in the state’s case against Denna. Eyewitness

testimony established that Denna came to the fight with a jar filled with liquid. In

regard to Mincey, the state presented evidence that, upon seeing Robinson, Mincey

said to Denna, “That’s the bitch right there,” which prompted Denna to throw the

contents of the jar on Robinson’s face and body. Robinson testified that she was



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                      OHIO FIRST DISTRICT COURT OF APPEALS



severely injured as a result of this attack. Later testing confirmed that there were

sulfuric acid burns on Robinson’s and Denna’s clothing. Denna also had burns on

her hands and back.

       {¶39}   Viewing this evidence in a light most favorable to the prosecution, we

hold that a rational trier of fact could find that the state proved its case against

Mincey beyond a reasonable doubt. See State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d

492 (1991), paragraph two of the syllabus. And although Mincey presented a version

of events that, if believed, would have exonerated her, in weighing the evidence

presented there is no indication that the jury lost its way in choosing to believe the

state’s evidence instead. While Denna denied that she threw the acid, and pointed to

the fact that there were burns on her back, there was testimony that Denna had

thrown the acid overhanded, thereby explaining how acid could have spilled out of

the jar onto her back. See State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d

541 (1997); State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1983). We

find no error in the jury’s verdict. This assignment of error is overruled.

       {¶40}   Motion for a New Trial. In her seventh assignment of error,

Mincey argues that the trial court erred when it denied her motion for a new trial.

She alleges that the trial court should have granted her motion because (1) the court

erroneously instructed the jury on complicity, (2) the court erred in admitting

evidence of the earlier altercation between Mincey’s daughters and Tonya Miller, (3)

the court erroneously denied Mincey’s request for an expert witness, and (4) the state

failed to present sufficient evidence to convict Mincey.

       {¶41}   We have evaluated all of these arguments and determined that there

was no prejudicial error. We therefore overrule this assignment of error.




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                     OHIO FIRST DISTRICT COURT OF APPEALS



       {¶42}    Mincey’s Sentence. In her eighth assignment of error, Mincey

asserts that the trial court erred when it sentenced her to the maximum term of eight

years’ incarceration.   She claims that the court did not properly consider the

purposes and principles of sentencing in R.C. 2929.11 and 2929.12 before imposing

sentence, and that her sentence is therefore clearly and convincingly contrary to law.

See State v. White, 2013-Ohio-4225, 997 N.E.2d 629, ¶ 12 (1st Dist.). This argument

has no merit.

       {¶43}    The trial court did not specifically reference R.C. 2929.11 or 2929.12

before sentencing Mincey. However, the court did state on the record that it had

“reviewed everything,” and that Mincey had committed “the worst possible offense.”

See R.C. 2929.12(B). The court also noted that Robinson suffered serious physical

and emotional harm, and that the maximum sentence was necessary to prevent

future crime and to protect the public. See R.C. 2929.12(B)(2) and 2929.11. Finally,

the court indicated that Mincey had shown no remorse, and was still acting in a

threatening manner towards others. It is evident from these statements that the

court considered R.C. 2929.11, and some of the factors in R.C. 2929.12. And we may

presume from a silent record that the court considered the balance of the R.C.

2929.12 factors—unless Mincey can demonstrate otherwise. See State v. Kennedy,

2013-Ohio-4221, 998 N.E.2d 1189, ¶ 118 (1st Dist.). She has not.

       {¶44}    Finally, Mincey claims that the trial court erred when it failed to

notify her that she would be required to submit to DNA testing, that she could not

ingest or be injected with a drug of abuse, and that she would be required to submit

to random drug testing in prison. This was harmless error. See State v. Taylor, 1st

Dist. Hamilton No. C-150488, 2016-Ohio-4548, ¶ 5-6.

       {¶45}    Mincey’s eighth assignment of error is overruled.



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                     OHIO FIRST DISTRICT COURT OF APPEALS



                                    Conclusion

       {¶46}   All assignments of error having been overruled, the trial court’s

judgment is affirmed.

                                                                   Judgment affirmed.

MYERS, J., concurs separately.

ZAYAS, P.J., concurs in part and dissents in part.


MYERS, J., concurring separately.


       {¶47} I concur, but write separately to address the admissibility of the cell

phone video. I would find that the trial court erred in admitting the cell phone video

which showed a fight earlier in the day between Mincey’s daughters and Tonya

Miller. Mincey was not present during the fight, and there is no testimony that she

ever saw the video prior to the altercation at issue here. Thus, what specifically

happened at the fight is irrelevant. What is relevant is Mincey’s knowledge that a

fight occurred and any information that was conveyed to her about the fight. While I

would find that the trial court abused its discretion in admitting this video, I would

find that the error was harmless.



ZAYAS, P.J., concurring in part and dissenting in part.

       {¶48} I concur with the separate concurring opinion with respect to the

admissibility of the cell phone video and the majority's resolution of the first, third,

fifth, sixth, and eighth assignments of error. However, I respectfully dissent from its

conclusions as to the fourth and seventh assignments of error regarding the

erroneous jury instructions, and from the decision to affirm the trial court’s

judgment. Appellant argues that the complicity instructions omitted the mental



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                     OHIO FIRST DISTRICT COURT OF APPEALS



capacity, an element of the crime, which affected her substantial rights. The majority

determines that the trial court's failure to instruct the jury on the proper mens rea for

complicity did not omit an essential element of the offense. I respectfully disagree

with this conclusion.

                          Requested Jury Instruction

       {¶49} Mincey was charged with the principal offense of felonious assault, but

the state’s theory of the case was that Mincey aided and abetted her sister Denna by

providing the acid, pointing to Robinson, and stating, “It’s that bitch right there.”

       {¶50} Both Mincey and the state filed several proposed jury instructions.

Mincey filed written requested jury instructions with a complicity definition that

included the mens rea of knowingly, and an instruction that explained to the jury

that to find Mincey guilty, the state had to prove the mental state of knowingly

beyond a reasonable doubt. The court held an off-the-record conference to discuss

the instructions and objections.       Afterwards, Mincey discussed her proposed

instructions and objected to the court’s instruction that criminal intent may be

inferred from the defendant’s presence. Mincey also objected to an instruction on

attempting to commit an offense because it did not apply to the facts of Mincey’s

case. The court then stated on the record that the parties thoroughly reviewed all of

the objections and instructions in conference, and the court determined the final jury

instructions after the discussion.     Because Mincey specifically objected to the

instruction regarding criminal intent, and the trial court stated it was fully aware of

Mincey’s objections, she did not waive her objection. See State v. Wolons, 44 Ohio

St.3d 64, 67, 541 N.E.2d 443 (1989) (holding that “in a criminal case, where the

record affirmatively shows that a trial court has been fully apprised of the correct law

governing a material issue in dispute, and the requesting party has been unsuccessful



                                           16
                     OHIO FIRST DISTRICT COURT OF APPEALS



in obtaining the inclusion of that law in the trial court's charge to the jury, such party

does not waive his objections to the court's charge by failing to formally object

thereto.”); Presley v. Norwood, 36 Ohio St.2d 29, 33, 303 N.E.2d 81 (1973).

       {¶51} The trial court accepted the state’s proposed jury instruction, and

rejected Mincey’s requests. I note that the written jury instructions that the trial

court gave to the jury were not included in the record on appeal as required by R.C.

2945.10 (G). However, I presume the written instructions were the same as the oral

instructions since both parties reviewed the written instructions, and neither party

alleged a discrepancy between the two. See State v. Smith, 8th Dist. Cuyahoga No.

82710, 2004-Ohio-3479, ¶ 73 (concluding the trial court’s failure to preserve the

written jury instructions was not error when both parties reviewed the written

instructions and did not identify a variation between the oral and written

instructions).

       {¶52} A review of the trial transcript confirms that the trial court’s

instruction on complicity mirrored the written proposed instruction submitted by

the state. The trial court instructed the jury as follows:

       Now, this is the definition of complicity, which you heard something

       about. No person, acting with the kind of culpability required

       for the commission of an offense, shall do any of the following:

       Solicit or procure another to commit the offense;

       Aid or abet another in committing the offense;

       Conspire with another to commit the offense;

       Cause an innocent or irresponsible person to commit the offense.

(Emphasis added.)




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                       OHIO FIRST DISTRICT COURT OF APPEALS



        {¶53} Next, the court defined the terms solicit, procure, and conspire, and

explained that “aid or abet means support, assist, encourage, cooperate with, advise,

or incite.”    The court also instructed that, “The State need not establish the

principal’s identity, but need only prove that a principal committed the offense.

Defendant’s criminal intent may be inferred from the defendant’s

presence, companionship, and conduct before and after the offense is

committed.” (Emphasis added.)

        {¶54} Finally, the court’s concluding instruction regarding how to reach a

verdict explained that, “If you find beyond a reasonable doubt that Denna Mincey

and/or Michelle Mincey was complicit with another in the commission of a felonious

assault, she is to be regarded as if she were the principal offender and is just as guilty

as if she had personally performed every act constituting the offense of felonious

assault.” The court then proceeded to instruct the jurors on felonious assault.

                       Ohio Jury Instructions on Complicity

        {¶55} Prior to 2016, OJI had one jury instruction for complicity whether the

defendant was charged under R.C. 2923.03 or charged in terms of the principal

offense. Former Ohio Jury Instructions, CR Section 523.03. In 2016, OJI was

amended to create two instructions, the instruction for defendants charged with the

complicity statute,2 and a new instruction for defendants charged in terms of the

principal offense. Both require the court to include the culpable mental state in the

concluding instruction.




2 That instruction states, in relevant part, that:
The defendant is charged with complicity in the commission of (specify offense). Before you can
find the defendant guilty, you must find beyond a reasonable doubt that * * * the defendant
(insert culpable mental state if one is required for the commission of the principal offense). Ohio
Jury Instructions, CR Section 523.03(A) (Rev. 2/6/16).



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                      OHIO FIRST DISTRICT COURT OF APPEALS



       {¶56} When the defendant is charged in terms of the principal offense under

a complicity theory, the model instruction states:

       1. The state of Ohio has presented a theory that the defendant acted

          in complicity with the principal offender in the commission of

          (insert name of offense[s]).      A person who is complicit with

          another in the commission of a criminal offense is regarded as

          guilty as if he/she personally performed every act constituting the

          offense. This is true even if he/she did not personally perform

          every act constituting the offense or was not physically present at

          the time the offense was committed.

       2. Before you can find the defendant guilty of complicity in the

          commission of (insert name of offense[s]), you must find beyond a

          reasonable doubt, that * * * the defendant (insert applicable

          culpable mental state if one is required for the commission of the

          principal offense)

          (Use appropriate alternative[s])

          (A)(1) (solicited) (procured) another to commit the offense of

          (specify offense);

          (or)

          (A)(2) aided or abetted another in committing the offense of

          (specify offense);

          (or)

          (A)(3) conspired with another to commit the offense of (specify

          offense);

          (or)



                                          19
                     OHIO FIRST DISTRICT COURT OF APPEALS



           (A)(4) caused an (innocent) (irresponsible) person to commit the

           offense of (specify offense).

       {¶57} The jury should not be instructed on conspiracy unless the defendant

was charged with conspiracy in violation of R.C. 2923.01. After providing the jury

with the appropriate alternative, the trial court is required to define the culpable

mental state to the jury. Next, the jury should be instructed on “aided or abetted” as

follows:

       Before you can find the defendant guilty of complicity by aiding and

       abetting, you must find beyond a reasonable doubt that the defendant

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

       the principal offender in the commission of the offense and that the

       defendant shared the criminal intent of the principal offender. Such

       intent may be inferred from the circumstances surrounding the offense

       including but not limited to, presence, companionship and conduct

       before and after the offense was committed. The mere presence of the

       defendant at the scene of the offense is not sufficient to prove, in and

       of itself, that the defendant was an aider and abettor.

Then the court should define the elements of the principal offense together with any

applicable definitions.   The court should not instruct on an attempt unless the

defendant is charged with complicity in an attempt.

                            Standard of Review

       {¶58} “Due process requires that the state establish beyond a reasonable

doubt every fact necessary to constitute the crime charged.” State v. Lynn, 129 Ohio

St.3d 146, 2011-Ohio-2722, 950 N.E.2d 931, ¶ 15. Generally, a defendant is entitled

to have the court instruct the jury “on all elements that must be proved to establish



                                           20
                       OHIO FIRST DISTRICT COURT OF APPEALS



the crime with which he is charged, and, where specific intent or culpability is an

essential element of the offense, a trial court's failure to instruct on that mental

element constitutes error.” State v. Adams, 62 Ohio St.2d 151, 153, 404 N.E.2d 144

(1980). The failure to instruct a jury concerning an essential element effectively

removes that element from the jury’s deliberations.

           {¶59} If the defendant objects to the error, an appellate court applies a

harmless-error review. State v. Perry, 101 Ohio St.3d 118, 2004-Ohio-297, 802

N.E.2d 643, ¶ 15.       Under that standard, “the government bears the burden of

demonstrating that the error did not affect the substantial rights of the defendant.”

Id., citing United States v. Olano, 507 U.S. 725, 113 S.Ct. 1770, 123 L.Ed.2d 508

(1993). See State v. Gross, 97 Ohio St.3d 121, 2002-Ohio-5524, 776 N.E.2d 1061, ¶

136 (“Once [the defendant] objected to the [error], the burden shifted to the state to

demonstrate an absence of prejudice.”). The inquiry is whether it appears beyond a

reasonable doubt that the error complained of did not contribute to the verdict.

Neder v. United States, 527 U.S. 1, 15, 119 S.Ct. 1827, 144 L.Ed 2d 35 (1999). When

the court fails to instruct on an element, the error is harmless if the “omitted element

is supported by uncontroverted evidence[.]” Id. at 18. “An appellate court must

reverse a conviction if the government does the not satisfy this burden * * * .” Perry

at ¶ 15.

                    The State Failed to Meet its Burden

           {¶60} Here, the state failed to demonstrate an absence of prejudice. The

state does not dispute that the trial court failed to instruct that the mens rea for

complicity to commit felonious assault was knowingly. Instead, the state merely

argues on appeal that Mincey was not prejudiced by the omission because the

instruction tracked the language of the complicity statute, R.C. 2923.03, and the



                                           21
                     OHIO FIRST DISTRICT COURT OF APPEALS



court defined complicity as “acting with the kind of culpability required for the

commission of an offense * * *.” However, the state did not demonstrate that the

error did not contribute to the conviction.

       {¶61} The state’s sole theory and the evidence at trial was that Mincey was an

accomplice rather than the principal offender. No testimony supported a theory that

Mincey threw the acid. Rather, the evidence was that Mincey’s sister threw the acid

and that Mincey aided and abetted her. Therefore, I must conclude that the jury

found Mincey guilty on an aiding-and-abetting theory.

       {¶62} The model instructions required that the jurors be instructed that they

must find, beyond a reasonable doubt, that Mincey knowingly aided or abetted

another, and immediately after that instruction, the court should have defined

knowingly. Additionally, the definition of aid and abet should have made it clear that

Mincey must have shared the criminal intent of her sister.

       {¶63} In this case, the jury instructions on complicity did not affirmatively

state the correct culpable mental state for complicity. The complicity instructions

completely omitted the mens rea of knowingly. Although the court mentioned in its

complicity definition that “no person, acting with the culpability required for the

commission of an offense shall do any of the following,” the court failed to specify

that the requisite culpability was knowingly, and did not instruct the jury that the

underlying offense was felonious assault. This error was compounded by the fact

that the court instructed the jurors that “defendant’s criminal intent may be

inferred,” without clarifying that the defendant shared the criminal intent of the

principal offender. The concluding instruction did not include any culpable mental

state. These jury instructions were flawed because they did not make it clear that

Mincey could only be convicted as an aider and abettor if she knowingly acted to aid



                                          22
                     OHIO FIRST DISTRICT COURT OF APPEALS



and abet in the felonious assault.

       {¶64} When the court fails to instruct the jury as to all of the elements of an

offense, the error is not harmless unless the “omitted element is supported by

uncontroverted evidence.” Neder, 527 U.S. at 15, 119 S.Ct. 1827, 144 L.Ed.2d 35. In

this case, the evidence against Mincey was not overwhelming and was contested.

The only independent witness, Todd Martin, a construction worker, testified that he

saw a woman walk up to a house and start yelling and screaming. Two teenaged

girls, who looked like twins, came out of the house, and stood on the porch arguing

with the woman on the sidewalk. After the woman left, the other two teenagers

walked down the street. Later, he saw one of the teenaged girls again leave the same

porch and walk down the street with a mason jar with a brownish-reddish liquid.

Although he did not see the teen return to the home to retrieve the glass jar, he

testified that the home in question was not the Mincey home.

       {¶65} Robinson testified that she did not see Denna leave the house with a

jar, but saw her running on the street with a jar without a lid that was completely full

with a brown liquid. None of the liquid splashed or spilled while Denna was running.

Denna approached Robinson with the jar and asked, “Which one?”                  Mincey

responded, “It’s that bitch right there.” Robinson also testified that she did not see

Mincey or Denna fighting with anyone, and that she did not fight with Denna.

       {¶66} Tynia, Robinson’s younger sister, testified that she saw the Minceys

leave the house and hurry down the street. Denna did not have anything in her

hands. Mincey and Denna began fighting. Denna fought, using both fists, with

Keisanna, Tynia, Lakesha and Robinson. Tynia was fighting with Mincey when

Mincey used a taser on her. During a pause in the fight, Mincey gave Denna a jar

that was three quarters of the way full, pointed at Robinson, and said, “Get that bitch



                                          23
                     OHIO FIRST DISTRICT COURT OF APPEALS



right there.” Denna threw the liquid on Robinson. Tynia initially told the police that

Denna was wearing a white shirt. She also testified at the first trial trial that the

person who threw the jar was wearing a tight white shirt. During the second trial,

she testified that she could not remember if Denna was wearing a blue or white shirt.

The evidence was uncontroverted that Denna was wearing a blue shirt.

       {¶67} Both Mincey sisters testified that they did not have a jar of acid.

Denna further testified that she did not throw the acid during the fight. Finally,

Mincey denied pointing at Robinson and stating, “It’s that bitch right there.”

Because the evidence was contested, I cannot conclude that the failure to instruct on

the mens rea did not contribute to the verdict.

       {¶68} The majority concludes that the faulty instructions did not omit an

element of the offense. In reaching this conclusion, the majority relies on Skatzes,

which held that an instruction that tracked the language of the statute was sufficient.

Skatzes, 104 Ohio St.3d 195, 2004-Ohio-6391, 819 N.E.2d 215, at ¶ 58.              The

concluding instruction in Skatzes, which included a reference to the culpable mental

state, instructed that “before you can find the defendant guilty, you must find beyond

a reasonable doubt that * * * the defendant, acting with the required culpable

mental state for the particular offense, * * * conspired with another to commit

the offense.” Unlike Skatzes, the concluding instruction in this case did not mention

anything about the requisite mental culpability.

       {¶69} Further, the Ohio Jury Instructions have changed since Skatzes. They

currently require that the mens rea be included and defined when the offender is not

charged with violating the complicity statute. Although the instructions are not

mandatory, “they are recommended instructions, based primarily upon case law and

statutes.” State v. Jones, 2015-Ohio-5029, 52 N.E.3d 263, ¶ 15 (12th Dist.). “The



                                          24
                     OHIO FIRST DISTRICT COURT OF APPEALS



standard instructions are crafted by the Ohio judicial conference and sanctioned by

the Ohio Supreme Court to assist trial judges and lawyers in correctly and efficiently

charging the jury on the law applicable to a particular case.           The [Ohio Jury

Instructions] are authoritative, and are generally to be followed and applied by

Ohio's courts.” State v. Jeffries, 11th Dist. Lake No. 2007-L-011, 2008-Ohio-1894, ¶

107 (O’Toole, J. concurring).

       {¶70} The model instructions “suggest that the trial court’s failure to instruct

on the mens rea of complicity was significant.” Langford v. Warden, Ross Corr.

Inst., 593 Fed.Appx. 422, 433 (6th Cir.2014), vacated and remanded, __ U.S. __,

135 S.Ct. 2888, 192 L.Ed.2d 919 (2015), aff’d, 665 Fed.Appx. 388 (6th Cir.2016),

cert. denied, __ U.S. __, 137 S.Ct. 2187, 198 L.Ed.2d 255 (2017). In Langford, the

defendant was charged with aggravated murder and murder, both with gun

specifications, for the death of a rival gang member in a shootout. Id. at 425. At

trial, the state presented two theories of the murder. Id. at 425-426. The first was

that Langford was the actual shooter, and the second was that he was an accomplice.

Id. at 426. However, the evidence presented at trial was consistent with a theory of

accomplice liability rather than principal offender liability. Id. at 432.

       {¶71} The trial court’s concluding instruction stated: “Before you can find the

defendant guilty of a crime as a complicitor or aider and abettor, you must find

beyond a reasonable doubt that … the defendant aided or abetted another in

purposely committing the offenses….”        Id. at 429.    However, the court did not

instruct the jury that complicity required a mens rea of purposely. Id. at 429. The

jury convicted Langford of murder. Id. at 426.

       {¶72} The Sixth Circuit Court of Appeals affirmed the trial court’s decision

granting Langford’s habeas petition because the failure to properly instruct on the



                                           25
                      OHIO FIRST DISTRICT COURT OF APPEALS



mental culpability for a complicitor violated his jury-trial right. Id. at 428. Although

the trial court included the mens rea of purposely in its definition in the instructions

on aggravated murder, the Sixth Circuit found that the complicity instruction was

erroneous because the instruction did not specifically include that the defendant

purposely aided and abetted another. Id. at 428-429. “[T]he trial court improperly

inserted the culpable mental state before the wrong verb.” Id. at 433. The court

ultimately concluded that “[t]he failure to instruct on the mens rea of complicity,

therefore, had a substantial influence in determining the jury’s verdict.” Id.

       {¶73} Here, as in Langford, the trial court failed to instruct on the mens rea

of complicity. As the Sixth Circuit explained, “although the instructions did not

directly state that complicity is a strict-liability crime, they also did not affirmatively

state the correct mens rea. Rather, the instructions omitted mention of the mens rea

for complicity altogether.” Id. at 429. Every element of the offense must be proved

beyond a reasonable doubt, and the failure to instruct a jury concerning an essential

element effectively removes that element from the jury’s deliberations. In this case,

the failure to instruct on that element constitutes harmless error. See Adams, 62

Ohio St.2d at 153, 404 N.E.2d 144.

       {¶74} Therefore, I conclude that the trial court’s failure to instruct on an

essential element of the offense was error that contributed to the conviction.

Accordingly, I would sustain the fourth and seventh assignments of error, reverse the

judgment of the trial court, and remand the cause for a new trial.


Please note:

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




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