[Cite as State v. Carter, 2017-Ohio-1233.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                                ALLEN COUNTY




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                                CASE NO. 1-15-62

        v.

MARKELUS Q. CARTER,                                        OPINION

        DEFENDANT-APPELLANT.




                   Appeal from Allen County Common Pleas Court
                            Trial Court No. CR2014 0139

                                       Judgment Affirmed

                               Date of Decision: April 3, 2017




APPEARANCES:

        F. Stephen Chamberlain for Appellant

        Jana E. Emerick for Appellee
Case No. 1-15-62



SHAW, J.

       {¶1} Defendant-appellant, Markelus Q. Carter (“Carter”), brings this appeal

from the September 22, 2015, judgment of the Allen County Common Pleas Court

sentencing Carter after he was found guilty in a jury trial of Aggravated Murder

with a firearm specification in violation of R.C. 2903.01(A) and R.C. 2941.145(A),

and Having Weapons While Under Disability in violation of R.C. 2923.13(A)(3), a

felony of the third degree. On appeal, Carter argues that there was insufficient

evidence presented to convict him, that his convictions were against the manifest

weight of the evidence, that the trial court erred by denying his request for a mistrial

based upon an altercation that occurred in a holding cell between Carter and a State’s

witness, that the trial court improperly allowed evidence of the altercation to be

introduced during the trial, that the State committed discovery violations, that the

State committed prosecutorial misconduct in closing arguments, and that Carter

received ineffective assistance of counsel.

                           Facts and Procedural History

       {¶2} On April 17, 2014, Carter was indicted for Aggravated Murder with a

firearm specification in violation of R.C. 2903.01(A) and R.C. 2941.145(A)

respectively, and Having Weapons While Under Disability in violation of R.C.

2923.13(A)(3), a felony of the third degree. It was alleged that Carter shot and killed

Kenneth Warrington shortly after 5 a.m. on February 23, 2009. Warrington had a

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relationship with Carter’s ex/the mother of Carter’s children, Sonya Burkholder

(nka “Hughes”). Warrington was shot six times just outside of Sonya’s residence

in Lima, Ohio. Carter pled not guilty to the charges.

       {¶3} After a lengthy pre-trial process that included, inter alia, multiple

suppression hearings and a competency evaluation, Carter’s case proceeded to a jury

trial, which was held September 8-22, 2015. At trial the State presented the

testimony of 30 witnesses and over 150 exhibits, then rested its case.       Carter

presented the testimony of 8 witnesses and in excess of 30 exhibits, then rested his

case. Ultimately the jury found Carter guilty of Aggravated Murder with a firearm

specification and Having Weapons While Under Disability, all as indicted.

       {¶4} Carter was sentenced to life in prison without parole on the Aggravated

Murder charge, a three-year consecutive prison term on the firearm specification,

and a three-year concurrent prison term on the Having Weapons While Under

Disability charge. A judgment entry memorializing Carter’s sentence was filed

September 22, 2015. It is from this judgment that Carter appeals, asserting the

following assignments of error for our review.

                   ASSIGNMENT OF ERROR 1
       THE TRIAL COURT COMMITTED ERROR PREJUDICIAL
       TO THE DEFENDANT BY FAILING TO EXCLUDE
       EVIDENCE OF AN ALTERCATION BETWEEN THE
       DEFENDANT AND A GOVERNMENT WITNESS IN A
       HOLDING CELL OF THE COURT DURING TRIAL AND
       ALLOWING A VIDEO OF THAT ALTERCATION TO BE


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      PLAYED FOR THE JURY DURING THE GOVERNMENT’S
      CASE IN CHIEF.

                  ASSIGNMENT OF ERROR 2
      THE TRIAL COURT COMMITTED ERROR PREJUDICIAL
      TO THE DEFENDANT BY OVERRULING DEFENDANT’S
      MOTION FOR MISTRIAL FILED ON SEPTEMBER 16, 2016,
      BASED UPON RULE 16 DISCOVERY VIOLATIONS AND
      BRADY DISCOVERY VIOLATIONS RELATED TO
      TESTIMONY OF A GOVERNMENT WITNESS ON
      FIREARMS.

                   ASSIGNMENT OF ERROR 3
      THAT THE CONVICTION OF THE DEFENDANT WAS
      AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE
      AND, IN THE ALTERNATIVE, WAS BASED UPON
      INSUFFICIENT EVIDENCE.

                  ASSIGNMENT OF ERROR 4
      THAT THE PROSECUTION STATEMENTS IN CLOSING
      ARGUMENT MISSTATE THE EVIDENCE AND RISE TO
      THE LEVEL OF PROSECUTORIAL MISCONDUCT AND
      REQUIRE A REVERSAL.

                   ASSIGNMENT OF ERROR 5
      THAT THE DEFENDANT WAS DEPRIVED OF A FAIR
      TRIAL DUE TO INEFFECTIVE ASSISTANCE OF COUNSEL.

      {¶5} For ease of discussion, we elect to address the assignments of error out

of the order in which they were raised.

                           Third Assignment of Error

      {¶6} In Carter’s third assignment of error, he argues that there was

insufficient evidence presented to convict him of Aggravated Murder with a firearm




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specification and Having Weapons While Under Disability. Carter also argues that

his convictions were against the manifest weight of the evidence.

                                 Standard of Review

       {¶7} Whether there is legally sufficient evidence to sustain a verdict is a

question of law. State v. Thompkins, 78 Ohio St.3d 380, 386 (1997). Sufficiency is

a test of adequacy.      Id.   When an appellate court reviews a record upon

a sufficiency challenge, “ ‘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.’

” State v. Leonard, 104 Ohio St.3d 54, 2004–Ohio–6235, ¶ 77, quoting State v.

Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the syllabus.

       {¶8} By contrast, in reviewing whether the trial court’s judgment was against

the manifest weight of the evidence, the appellate court sits as a “thirteenth juror”

and examines the conflicting testimony. State v. Thompkins, 78 Ohio St.3d 380,

387 (1997). In doing so, this Court must review the entire record, weigh the

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

and determine whether in resolving conflicts in the evidence, the factfinder “clearly

lost its way and created such a manifest miscarriage of justice that the conviction

must be reversed and a new trial ordered.” Thompkins at 387. Furthermore, “[t]o

reverse a judgment of a trial court on the weight of the evidence, when the judgment


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results from a trial by jury, a unanimous concurrence of all three judges on the court

of appeals panel reviewing the case is required.” Thompkins at paragraph 4 of the

syllabus, citing Ohio Constitution, Article IV, Section 3(B)(3).

                                   Relevant Statutes

       {¶9} Carter was convicted of Aggravated Murder, which is codified in R.C.

2903.01(A), and reads, “No person shall purposely, and with prior calculation and

design, cause the death of another or the unlawful termination of another’s

pregnancy.”

       {¶10} A firearm specification was attached to the Aggravated Murder, which

is codified in R.C. 2941.145. It requires that “the offender had a firearm on or about

the offender’s person or under the offender’s control while committing the offense

and displayed the firearm, brandished the firearm, indicated that the offender

possessed the firearm, or used it to facilitate the offense.”

       {¶11} Carter was also convicted of Having Weapons While Under Disability

for possessing the weapon he used in the murder of Kenneth Warrington. Having

Weapons While Under Disability is codified in R.C. 2923.13(A)(3), and reads “ * *

*[N]o person shall knowingly acquire, have, carry, or use any firearm or dangerous

ordnance, if * * * [t]he person * * * has been convicted of any felony offense

involving the illegal possession, use, sale, administration, distribution, or trafficking

in any drug of abuse[.]


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                                Evidence Presented

                   a. Testimony Regarding Events Prior to the
                           February 23, 2009 Murder

       {¶12} Carter and Sonya Burkholder had two children together, Tarah and

Markelus. The children and Sonya lived with Carter until 2004 when Sonya’s

mother became “gravely ill,” so Sonya moved in with her. After Sonya’s mother

died, Sonya stayed in her mother’s former residence until Sonya lost the house in

2007. At that time, Sonya moved back in with Carter; however, it was not to

rekindle a romantic relationship. Rather, according to Sonya the relationship was

platonic and she and Carter lived more as “roommates.” While staying at Carter’s

residence, Sonya slept in her daughter Tarah’s room with her.

       {¶13} Despite the fact that Sonya indicated she and Carter did not have a

romantic relationship in 2007, Sonya testified that Carter was very controlling.

Sonya indicated that Carter had been that way during their relationship when they

were previously together, not allowing Sonya to socialize on her own. Additionally,

Sonya stated that Carter did not give her a key to his home when she moved in

during 2007 and that Carter had to let her in the house or she would get locked out.

       {¶14} While living with Carter in late 2007, Sonya was working as a security

shift supervisor for Allied Barton Security Services, which did security for the

Husky Refinery in Lima. Through her job, Sonya developed a friendship with



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Kenneth Warrington, who worked at the refinery. Sonya indicated that she did not

tell Carter about her friendship with Warrington.

         {¶15} On December 15-16, 2007, Sonya and Warrington exchanged

flirtatious emails, which were included in the record at trial. Sonya testified that

Carter was good with computers and got into her email and found her exchanges

with Warrington. The day after the email exchange, December 17, 2007, Sonya

worked second shift at her security job and returned to Carter’s home, showered and

went to bed in Tarah’s room. According to Sonya, Carter woke her up that night,

extremely angry, and told her to pack her bags and get out.1

         {¶16} Sonya stated that Carter had a gun in his hand, that he followed her

down the stairs, and that Carter struck her across the jaw with the gun.2 Sonya stated

that she went outside and flagged down a police officer who happened to be in the

area and told the officer what happened. The officer then approached Carter’s

residence but Carter would not come outside or let the officers see the children. As

a result of being informed that Carter had a gun, that children were inside, and that

police were refused access to check on the safety of the children, more officers were

called to the scene.




1
 It was insinuated that it was at this point Carter found the emails between Sonya and Warrington.
2
 Tarah’s testimony differed as to this incident, stating that Carter never struck Sonya with a gun. There was
also conflicting testimony as to whether Sonya had some actual injury on her face from any purported strike.

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       {¶17} A four-hour “stand-off” then ensued wherein Carter had multiple

phone conversations with a police hostage negotiator. On the calls, some of which

were recorded and played for the jury, Carter denied that his children were being

held hostage, but he would not come outside and would not let the police see the

children. On the calls Carter talked about honor and dishonor and how an honorable

person should not have to go to jail. Meanwhile, the police attempted to keep him

calm. Eventually the situation ended peacefully and Carter was taken into custody.

Although an “air gun” was found inside Carter’s home, no actual firearm was

located at that time. No charges were brought against Carter as a result of the

“stand-off” incident.

       {¶18} After the December 2007 incident, Sonya moved out of Carter’s

residence and moved in with friends Krista and Don Bodiker, who also worked

security at the refinery. Sonya stayed with the Bodikers until late-summer/early fall

of 2008 when she moved into a house at 436 McKibben Street in Lima.

       {¶19} While living with the Bodikers, Sonya sought and received a civil

protection order (“CPO”) against Carter based primarily on the “stand-off” incident.

Carter contested the CPO and appealed the granting of that CPO to this Court. We




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affirmed the CPO in Burkholder v. Carter, 3d Dist. Allen No. 1-08-20, 2008-Ohio-

4644.3

         {¶20} Meanwhile, after he was not charged as a result of the December 2007

“stand-off” incident, Carter was in contact with the Lima Police Department seeking

to have Sonya charged for filing a false report or making false claims regarding the

incident. That case was eventually assigned to a detective, though the detective

testified that it was low priority and he did not look into it for a while.

         {¶21} During 2008, Sonya and Warrington’s relationship deepened and

according to Sonya the relationship became sexual for about two weeks in the

summer of 2008. When Sonya moved out of the Bodikers’ residence and into her

own house on McKibben Street around August of 2008, Warrington occasionally

stayed at the residence.

         {¶22} Throughout Warrington’s relationship with Sonya, Warrington was

married to Faye Warrington. Warrington and Faye had been married since 1983.

Faye testified that Warrington told her about his relationship with Sonya when it

began. Faye testified that despite the affair she did not want a divorce because

Warrington still brought his paycheck home and Faye was hopeful that they would

reconcile. Warrington did eventually move out of the marital residence though, and



3
  In our 2008 opinion, the last name of Krista and Don Bodiker was spelled “Boedeker,” likely due to what
the court reporter typed in the corresponding transcripts. Krista and Don spelled their last name for the record
in this transcript.

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it was Faye’s understanding that Warrington stayed either at his uncle’s residence

or at Sonya’s residence.

        {¶23} Faye testified that she did not tell her family about Warrington’s

infidelity, choosing instead to speak with her minister about it. Faye indicated that

she did not want others to change their opinion of Warrington. However, Faye

testified that her family found out about Warrington’s affair because they had

received anonymous letters informing them of the situation. Faye testified that she

did not know who wrote the letters, but she had received phone calls from Carter

informing her of the relationship between Warrington and Sonya, which Faye

already knew about.

        {¶24} Faye testified that Carter called her many times, sometimes at two or

three in the morning stating that Warrington’s truck was at Sonya’s residence.4 Faye

testified that on one of the calls in the weeks prior to Warrington’s death in February

of 2009, Carter stated that he was going to give Warrington “one more chance” and

that Carter stated he was going to call Warrington and tell him to stay away from

Sonya. (Trial Tr. at 339). Faye asked whether Carter was threatening Warrington

and she testified that Carter did not respond.

        {¶25} Similarly, the Husky Refinery received a call that was linked to Carter

in early January of 2009. A man identifying himself as “Mark Carter” called the


4
 Her specific words were, “after that, I can’t even tell you how many phone calls I got from him.” (Trial
Tr. at 338).

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refinery requesting company policies regarding the use of property for employees

engaged in an extramarital affair, specifically Sonya and Warrington. Pam Callahan

answered the call for Husky and she stated that although the caller stated that he

needed the information for a lawsuit and he sounded professional, she did not

believe it was legitimate.

       {¶26} On February 18, 2009, the detective who had looked into Carter’s

claims that Sonya should be charged for making a false report regarding the 2007

“stand-off” incident informed Carter that he had looked into the matter and he

recommended that no charges be filed against Sonya. The detective informed Carter

that he turned the case over to the city prosecutor’s office, which agreed with him.

The detective indicated Carter was not happy with the results.

             b. Testimony Regarding the Murder and its Investigation

       {¶27} On February 22, 2009, Sonya saw Warrington at work and Warrington

indicated that he needed a key to her residence because Sonya had mistakenly taken

Warrington’s off of the counter and he did not have his key at the time. It seems

that at that time the two worked different shifts that overlapped at the end of Sonya’s

and the beginning of Warrington’s.        According to Sonya, the two were not

romantically involved at the time but Warrington still stayed at her residence




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occasionally and he kept some work uniforms in her son’s room.5 Sonya testified

that when she gave Warrington her key it was the last time she saw Warrington

alive.

         {¶28} Sonya testified that she left work and went to pick up Tarah at Carter’s

residence. Sonya indicated that Tarah had sent Sonya a text message earlier asking

if Warrington was coming over to Sonya’s that night and Sonya found it odd. Sonya

testified that she asked Tarah about the text message but Tarah did not know

anything about it. Sonya then returned with Tarah to her home at 436 McKibben

and went to sleep.

         {¶29} Work records established that Warrington clocked out of the refinery

at 5:04 a.m. on February 23, 2009. Sometime shortly thereafter, Warrington was

shot six times just outside a side entrance of Sonya’s home.

         {¶30} Donald Hovest, who was picking up trash on his route on a street close

to 436 McKibben, heard the gunshots in his general area. He indicated that the

gunshots occurred after 5 a.m., sometime possibly around 5:20. He reported the

gunshots to police, which dispatched officers related to possible gunshots in the area

at 5:18 a.m. Police responded to the area but officers did not observe anything

relevant at that time.



5
 The extent of Sonya and Kenneth’s relationship at the time of Kenneth’s death was a source of some dispute.
When making a later 9-1-1 call Tarah referred to Kenneth as his mother’s boyfriend. Sonya maintained that
the two were good friends at the time of his death but no longer romantically involved.

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           {¶31} Rosalind Johnson was asleep on her couch across the street from 436

McKibben and was awakened by the noise from the gunshots. She looked out her

window and saw a person coming out of the alley with a “hoodie jacket on, a

camouflage jacket.” (Trial Tr. at 819). However, Johnson did not see any actual

shooting and she simply went back to sleep.

           {¶32} Sonya woke up at 6 a.m. on February 23, 2009, and noticed that

Warrington’s truck was parked at her residence but he had not come inside. After

waking up Tarah and mentioning that it was odd, Sonya discovered Warrington’s

body just outside and screamed. Tarah called 9-1-1 after checking Warrington for

a pulse. The 9-1-1 call was played for the jury.

           {¶33} Police responded to the scene and began an investigation. It was

ultimately determined that Warrington’s death was a homicide resulting from six

gunshot wounds. The shots were to his chin, right forearm, left chest, right buttock

and two in the back. There were 12 holes total because all six bullets exited

Warrington’s body. The investigation further revealed that Warrington was shot by

Winchester 9mm bullets. Shell casings and bullets were collected at the scene.

Warrington was discovered with $160 on him, which officers felt ruled out a

robbery, along with a gym bag and a cooler. Photographs of how and where

Warrington was found just outside Sonya’s door were included in the record.6



6
    The jury also took a jury view of what was Sonya’s residence at the time.

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         {¶34} While at Sonya’s residence surveying the scene, one officer noticed

that there was an electric bill for Carter on the counter and the officer recalled the

2007 “stand-off” incident.7 Officers then wanted to get into contact with Carter.

The detective that handled Carter’s allegations against Sonya for filing a false

report, Sergeant Godfrey, indicated that he had Carter’s phone number so he called

Carter around 8 a.m. and generally asked Carter to come into the station. When

Carter answered, Carter asked if Sergeant Godfrey was calling because there had

been some movement on his case with Sonya. At that time Carter was told to just

come in without any further information being provided to him and Carter said he

would be in shortly.

         {¶35} A half-hour passed and Carter had not come in, so Sergeant Godfrey

called Carter again and said something had happened to “Kenneth” and Carter

needed to come in. Carter stated that he did not like the sound of that but would

come to the police station as soon as he finished a work-related errand.8

         {¶36} Before Carter came to the police station, Carter called his attorney Ken

Rexford’s office to ask if something had happened to him since Carter was informed

that something had happened to “Kenneth.” Leah Rexford, the attorney’s wife who



7
  It appears that Tarah was using the electric bill to show proof of residence for a school-related issue. It was
not insinuated that Carter himself had left the electric bill or that he had brought it there himself.
8
  Carter stated that he had to drop off some “proofs” to an insurance agent before he would come into the
station. When Carter was later stopped, he did have the referenced “proofs” on him. However, officers
spoke with the insurance agent who indicated that he had requested the proofs so long ago from Carter that
he was not specifically expecting them that day.

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also worked at the law firm, informed Carter that nothing had happened to Carter’s

attorney Ken Rexford.             Carter made another call to Rexford’s office shortly

thereafter where Carter was “inconsolable” and talking about something happening

to his baby.

         {¶37} As Carter drove around to apparently complete his errands that

morning, he was being followed by Detective Timothy Clark who was not in a

marked cruiser. Detective Clark noticed that Carter’s license plates did not match

and he called for a marked cruiser to stop Carter. A patrol officer then did stop

Carter and Detective Clark approached and told Carter that he wanted Carter to

come in for questioning. According to one officer, Carter then “exploded in

emotion,” as he kept talking about his baby, meaning his daughter Tarah. Officers

were surprised by Carter’s demeanor and assured Carter that Tarah was fine but

Carter kept referring to her.9 After being repeatedly assured that his daughter was

fine, Carter then voluntarily went to the police station for an interview.

         {¶38} During Carter’s interview, he stated that the night prior to

Warrington’s murder Sonya picked up Tarah sometime after 10 p.m. and took Tarah

to Sonya’s residence. Carter stated that he went to bed after watching shows on his

computer and then woke up at 6 a.m. to his alarm clock. Also during the interview,

Carter admitted to owning a .357 but denied owning a 9mm at that time. Carter told


9
 A video of the stop was introduced into evidence. In the video, Carter wails repeatedly as he says something
happened to his “baby,” despite being told by officers that nothing had happened to Tarah.

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the police that they could have his .357 and he allowed the police to do a gunshot

residue test on his hands.

         {¶39} Carter was under a disability for a prior conviction10 and could not

own a firearm, so the police indicated they were going to search his house to get the

.357. A search warrant was then obtained and executed on Carter’s residence to

look specifically for weapons. Two guns were located at Carter’s residence at that

time along with a box of Winchester 9mm ammunition with some of the bullets

missing. Testing later indicated that the bullets were consistent with those that

killed Warrington, although they were relatively common bullets. However, testing

indicated that neither of the firearms that were found at Carter’s residence were used

in the murder. Similarly, neither of those firearms were the subject of the Having

Weapons While Under Disability charge in this case. Rather, the murder weapon,

which was never found, was the firearm related to the charge.

         {¶40} As the investigation continued on the day of the murder, a second

search warrant was executed on Carter’s residence looking for anything related to a

homicide. On Carter’s kitchen table, a number of papers were found together

including a copy of the private emails between Warrington and Sonya from

December of 2007, a copy of the CPO Sonya had obtained against Carter, and a



10
  The prior conviction is essentially undisputed on appeal but a certified copy of a judgment entry indicating
that Carter had been found guilty of two fourth degree drug-related felonies in 1995 was entered into
evidence. (State’s Ex. 99).

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copy of the related police report from the December 2007 incident. There was also

a document officers described as a “script” that appeared to correspond to the phone

call that had been made to the Husky Refinery in January related to Sonya and

Warrington’s affair.

        {¶41} In addition to this paperwork, officers located camouflage clothing,

which was later tested for gunshot residue (“GSR”). A short sleeve camouflage

shirt and a long sleeve camouflage shirt both tested positive for GSR despite Carter

stating in his interview that he had not fired a gun in years. Rosalind Johnson

indicated that the camouflage pattern was consistent with what she had seen from

her window on the morning of the murder. However, neither of the camouflage

shirts contained a hood, which she had mentioned seeing. Nevertheless, officers

also located a pair of gloves on a table and the gloves tested positive for GSR as

well.

        {¶42} Various electronics belonging to Carter were seized during the search

and analyzed. On one of Carter’s digital cameras, there were images of streets in

Lima and a picture of Warrington’s truck parked outside of Sonya’s home at 436

McKibben dated January 9, 2009. A forensic search of Carter’s computer revealed

he had been on the county auditor’s website for information on the property at 436

McKibben and that he had been looking at a map of the surrounding area. In

addition, there were google searches performed for Sonya Burkholder and Kenneth


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Warrington. A separate “palm” device also contained an address for Kenneth and

Faye Warrington as well as a phone number, which had a *67 designation by it

indicating that the number had been used while dialing *67 to block the caller ID.

        {¶43} On the day of the murder Carter was arrested for Having Weapons

While Under Disability, which is separate from the same charge in this case. When

Carter was taken into custody, he requested to speak with Sergeant Godfrey for a

second time that day. Another interview of Carter was then conducted, and that

interview was played for the jury. In the interview, Carter had some kind of ‘tic,’

or seizure-like occurrence that the officers did not believe was genuine. Little of

relevance came out of the interview.

        {¶44} While Carter was incarcerated for Having Weapons While Under

Disability, Joey Moore, another inmate, stated that he heard Carter discussing the

murder investigation. Moore testified at trial that Carter said that police found 16

grams of crack at his residence but they did not find a Mac-10 firearm that Carter

claimed to have disassembled. A ballistics expert from BCI testified that a “Mac-

10 style” firearm would be one of over 130 possible 9mm firearms that could have

been consistent with the firearm that fired the bullets that killed Warrington.11 Joey

Moore also testified that Carter indicated that he had killed his girlfriend’s


11
   The State’s ballistic expert testified that the “Mac” in Mac-10 is an abbreviation for “Military Armament
Corporation” and the 10 stands for model 10. The ballistic expert testified that multiple manufacturers made
a firearm similar to the Mac-10, though they were not actual “Mac-10’s,” which were produced by a specific
manufacturer.

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Case No. 1-15-62


boyfriend.12       Police found Moore’s statement credible because he was fairly

accurate in the amount of crack that was found at Carter’s residence and it was not

something Moore could have known otherwise.

         {¶45} Also while Carter was incarcerated, he contacted a friend named

Carlotta Williams and requested that she visit him. When she did, Carlotta testified

that Carter held up a note asking her to tell the police that she was with him from

1:00 a.m. to 6:00 a.m. on the day of the murder. Carlotta refused and stated that the

alibi Carter was requesting her to provide was false. She also stated at trial that she

had seen Carter with a gun resembling a Mac-10 before when she was shown a

generic demonstrative picture of a Mac-10 style firearm, though she said she had

little familiarity with firearms.

         {¶46} Stephen Upham, another inmate who was incarcerated with Carter,

testified that Carter told him about the murder. Upham testified that Carter indicated

that he had gotten into an argument with the mother of his children and her boyfriend

got mad and threatened Carter’s children. Carter told Upham that a couple of weeks

after this incident Carter shot the boyfriend. Upham testified that Carter indicated

he watched the victim for a couple of weeks coming and going and that he was

wearing camouflage and a paintball mask when he committed the murder.



12
   Moore’s testimony is slightly confusing on this issue as he initially states that Carter told him that he
“smoked the bitch” referring to Carter’s girlfriend, but Moore then clarifies when prompted that he meant
that Carter indicated he smoked the boyfriend of his girlfriend.

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         {¶47} Notably just before Upham testified, he was mistakenly placed in the

same holding cell with Carter during a brief recess in the trial. Upham asked Carter

how his trial was going, and stood up, then Carter assaulted Upham. A video of this

incident was introduced into evidence.13

                                     Sufficiency of the Evidence

         {¶48} At the conclusion of the State’s case, which consisted of 30 witnesses

and over 150 exhibits, Carter made a Crim.R. 29 motion for acquittal. Carter’s

motion was overruled by the trial court. Carter now contends on appeal that the

State presented insufficient evidence to convict him of Aggravated Murder, the

accompanying firearm specification, and Having Weapons While Under Disability.

         {¶49} Although Carter claims that there was insufficient evidence to convict

him his actual arguments related to his convictions seem to be that his convictions

were against the manifest weight of the evidence because he contends that the

State’s testimony was not credible and that Sonya was more likely to be the killer

than Carter. These arguments go to weight of the evidence rather than sufficiency.

         {¶50} Nevertheless, to the extent that Carter is arguing that there was

insufficient evidence presented to convict him, we do not find Carter’s arguments

well-taken as the State produced ample evidence to establish each element of

Aggravated Murder, the accompanying firearm specification, and Having Weapons


13
  Whether this incident and the evidence related to it were admissible is the subject of a separate assignment
of error, which will be discussed infra.

                                                    -21-
Case No. 1-15-62


While Under Disability. In fact, the State presented substantial circumstantial

evidence against Carter. Notably, the Supreme Court of Ohio has stated that, “direct

evidence of a fact is not required, and circumstantial evidence may be more certain,

satisfying, and persuasive than direct evidence.” State v. Jackson, 57 Ohio St.3d

29, 38 (1991).

        {¶51} In this case the State clearly established evidence of a motive and it

also clearly established a plan for Carter to murder Warrington based on Carter’s

statements to Faye, the pictures Carter took essentially casing the area around

Sonya’s residence, and the searches Carter did on his computer. Warrington was

shot six times just as he was returning to Sonya’s from work, indicating that the

murder was not an accident and that the killer had been waiting for him to return

and aware of his schedule, which is essentially what Carter told Upham.

        {¶52} The State also presented evidence of a witness who saw someone near

the scene at the time of the gunshots wearing camouflage and Carter was found in

possession of camouflage clothing and gloves that had GSR on them. Corroborative

of this evidence was the fact that Carter told Upham that Carter had committed a

murder while wearing camouflage and a paintball mask.14 Further, Carter possessed

bullets of the same type and caliber that were used to kill Warrington.




14
 Carter was known to play paintball and a picture of Carter wearing a paintball mask on the top of his head
was introduced into evidence.

                                                  -22-
Case No. 1-15-62


       {¶53} Moreover, multiple jailhouse witnesses testified that Carter admitted

to killing someone and Carter also sought out a friend to manufacture an alibi.

Additionally, on the day of the murder officers remarked on the repeatedly odd

behavior of Carter during the traffic stop and during his interviews, much of which

was viewed by the jury.

       {¶54} Based on all of this we conclude that sufficient evidence was presented

to find that Carter committed Aggravated Murder and did so with a gun, which

would make him guilty of the accompanying firearm specification and Having

Weapons While Under Disability as well.

                          Manifest Weight of the Evidence

       {¶55} Turning to Carter’s argument that his convictions were against the

manifest weight of the evidence, we must review all of the evidence presented,

which includes the evidence presented by Carter. Carter called several witnesses

on his behalf who were inmates with the inmates who testified against Carter. The

inmates testifying on Carter’s behalf casted doubt on the credibility of the State’s

inmate-witnesses, particularly Upham.

       {¶56} Carter also emphasized that sometime after the “stand-off” incident,

Sonya got a concealed-carry license. In addition, Carter called a witness who

testified that prior to Warrington’s death a sign had been put on Warrington’s license




                                        -23-
Case No. 1-15-62


plate that said “Number One Asshole.” Sonya previously testified that she put that

sign on Warrington’s truck in jest, as Warrington was a practical joker.

       {¶57} In his case-in-chief, Carter also called a fingerprint expert from BCI

who testified that none of the prints taken from Warrington’s truck were consistent

with Carter’s prints. Finally, Carter called his daughter, Tarah, who testified that

Carter did not strike Sonya with a gun during the 2007 “stand-off” incident, contrary

to what Sonya had testified. Tarah also testified that Warrington was not at Sonya’s

residence every night; however, Tarah testified, contrary to Sonya, that Sonya

indicated she was waiting on Warrington to get a divorce, and that Warrington had

indicated to Sonya that it was imminent. Finally, Tarah testified that the night before

the murder Sonya was “acting different,” and that she was drunk, which Tarah had

never seen.

       {¶58} On appeal, Carter contends that the evidence actually established that

Sonya was the more likely suspect or, at the very least, the evidence created

reasonable doubt as to whether Carter killed Warrington.            Despite Carter’s

arguments, officers testified that Sonya was investigated and that she was ruled-out

as a suspect. In addition, Sonya testified that she took the concealed-carry course

with a number of people at work who were doing the course but she never actually

purchased a gun. The jurors were also able to see and hear Sonya’s testimony, as




                                         -24-
Case No. 1-15-62


well as any contrary testimony of her daughter Tarah, and evaluate their credibility

for themselves.

       {¶59} Notwithstanding      Sonya,     Carter    ignores    the   overwhelming

circumstantial evidence establishing him as the culprit of the Warrington murder,

which was discussed previously. After a thorough review of the record, the

transcripts, and the exhibits presented we cannot find that the jury clearly lost its

way and created a manifest miscarriage of justice. Therefore, we find that Carter’s

arguments are not well-taken and his third assignment of error is overruled.

                             First Assignment of Error

       {¶60} In Carter’s first assignment of error, he argues that the trial court erred

by failing to declare a mistrial after there was an altercation between Carter and one

of the State’s inmate-witnesses, which occurred in a holding cell during a recess on

the seventh day of trial. In addition, Carter argues that the trial court erred by

permitting evidence of the altercation to be presented to the jury, claiming that it

was improper under Evid.R. 403 and Evid.R. 404(B).

                                 Standard of Review

       {¶61} The grant or denial of a motion for a mistrial rests within the sound

discretion of the trial court. State v. Garner, 74 Ohio St.3d 49, 59 (1995). Thus the

trial court’s decision is to be given great deference. State v. Hines, 3d Dist. Marion

No. 9-15-13, 2005-Ohio-6696, ¶ 23. Notably, mistrials are appropriate only when


                                         -25-
Case No. 1-15-62


the ends of justice so require and a fair trial is no longer possible. State v. Franklin,

62 Ohio St.3d 118, 127 (1991). Because the decision to grant or deny a motion for

mistrial rests within the sound discretion of the court, we will apply an abuse of

discretion standard in reviewing the issue. An abuse of discretion constitutes a

decision that is arbitrary, capricious, or grossly unsound. Blakemore v. Blakemore,

5 Ohio St.3d 217, 219 (1983).

       {¶62} Similarly, as to the evidentiary issues raised by Carter, we review a

trial court’s decision to admit or exclude evidence under an abuse of discretion

standard. State v. Cassel, 2d Dist. Montgomery No. 26708, 2016-Ohio-3479, ¶ 13,

citing State v. Graham, 58 Ohio St.2d 350 (1979), and State v. Morris, 132 Ohio

St.3d 337, 2012-Ohio-2407, ¶ 19.

                             Relevant Rules of Evidence

       {¶63} Carter contends that Evidence Rules 403 and 404(B) should have

precluded presentation of the altercation between Carter and Upham at trial.

Evidence Rule 403(A) reads as follows.

       (A) Exclusion Mandatory. Although 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.

Evidence Rule 404(B) reads,

       (B) Other Crimes, Wrongs or Acts. Evidence of other crimes,
       wrongs, or acts is not admissible to prove the character of a
       person in order to show action in conformity therewith. It may,

                                          -26-
Case No. 1-15-62


         however, be admissible for other purposes, such as proof of
         motive, opportunity, intent, preparation, plan, knowledge,
         identity, or absence of mistake or accident. In criminal cases, the
         proponent of evidence to be offered under this rule shall provide
         reasonable notice in advance of trial, or during trial if the court
         excuses pretrial notice on good cause shown, of the general nature
         of any such evidence it intends to introduce at trial.

                          The Altercation, the Mistrial Motion, and the
                           Introduction of Evidence of the Altercation

         {¶64} On the seventh day of Carter’s trial, Steven Upham, an inmate who

had previously been incarcerated with Carter, was set to testify against Carter.

Upham was the inmate who Carter had told that Carter killed a man while wearing

camouflage and a paintball mask.

         {¶65} Just prior to Upham testifying, Upham was placed in a holding cell.

When the trial court took a brief afternoon recess, Carter was taken and placed in

the same holding cell with Upham.15 No one else was present in the holding cell at

that time. It is undisputed that neither Carter nor Upham said anything to the

corrections officers questioning why they were placed in the same holding cell or

alerting the officers to the situation.

         {¶66} Upham was seated when Carter entered the holding cell. According

to Upham, who was surprised that they were placed in the same cell, Upham said to

Carter, “How’s your trial going?” (Trial Tr. at 1396). Carter then responded by



15
   Just after the incident both parties stated that they believed the incident was entirely accidental. (Trial Tr.
at 1362).

                                                      -27-
Case No. 1-15-62


saying, “Why are you lying on me?” (Id. at 1397). At that time, Upham stood up

and Carter then approached and assaulted Upham by throwing a punch. Next,

Upham tried to put Carter in a headlock and Carter put his finger in Upham’s eye.

Carter also bit Upham’s arm, leaving teeth marks. After roughly forty seconds,

officers responded and broke up the altercation. The incident was recorded by

surveillance video but there was no accompanying sound. Upham had several

abrasions from the altercation, which were photographed.

          {¶67} Following the altercation, the trial court recessed the trial for the day.

When court reconvened the following morning defense counsel moved to have

evidence of the incident excluded contending that it was improper character

evidence. In the event that the evidence was not excluded, defense counsel argued

that the trial court should declare a mistrial. The State strongly opposed a mistrial

and argued that the evidence should be admissible as showing a “consciousness of

guilt.”

          {¶68} The trial court permitted both parties to make arguments in support of

their positions. Defense counsel argued that placing Carter and Upham in the

holding cell together was a complete accident and that the incident itself was not

created by Carter. Defense counsel argued that evidence of the incident would be

highly prejudicial and it would constitute improper “other acts” evidence under

Evid.R. 404(B). Further, defense counsel argued that if Upham was to testify


                                            -28-
Case No. 1-15-62


defense counsel would be seeking a mistrial due to visible marks that may be on

Upham from the incident, which could further prejudice Carter. Moreover, defense

counsel was concerned that the jury may have heard about the incident because it

had been covered in the newspaper.

       {¶69} By contrast, the State argued that while Carter and Upham should not

have been placed in the same holding cell together, the ultimate assault was an

intentional act perpetrated by Carter and that he should not be granted a mistrial on

the basis of his own actions in assaulting a State’s witness. As to the admissibility

of the evidence, the State argued that Carter’s actions reflected “consciousness of

guilt” as Carter was aware of what Upham’s testimony was likely to be, particularly

since a number of Carter’s witnesses were inmates seeking to discredit Upham.

       {¶70} After allowing the parties to make their arguments, the court addressed

both the motion for mistrial and the ability of the State to present evidence of the

altercation. The court began with Carter’s motion for mistrial because, “obviously

if I grant the mistrial then everything else is, I suppose, moot[.]” (Trial Tr. at 1366).

       {¶71} The trial court then analyzed the issue on the record, citing a number

of cases to support its decision. First, the trial court noted that a mistrial only needed

to be declared when a fair trial was no longer possible and that a mistrial should not

be ordered merely because some error or irregularity had intervened. State v.

Franklin, 62 Ohio St.3d 118, 127-128 (1991). Then, the trial court cited the invited


                                          -29-
Case No. 1-15-62


error doctrine, wherein a party could not take advantage of an error that the party

induced, and indicated that the invited error doctrine had been applied to motions

for a mistrial where the defendant had been disruptive. The trial court cited a

number of cases to support its point. See State v. Greathouse, 2d Dist. Montgomery

No. 21536, 2007-Ohio-2136 (defendant’s own disruptive actions in the courtroom

could not be grounds for a mistrial); State v. Chambers, 10th Dist. No. 99AP-1308,

2000 WL 963890 *5 (“In the present case, appellant cannot participate in numerous,

intentional, disruptive acts and then seek the protection of the court from his own

misbehavior.”); State v. Gonzalez, 4th Dist. Athens No. 97CA52, 1998 WL 823737

(invited error doctrine precluded defendant from taking advantage of any prejudice

that resulted from his own disruptive behavior in courtroom); State v. James, 2d

Dist. Clark No. 98-CA-54, 1999 WL 76815 *4 (defendant could not take advantage

of his own outburst because it would “provide a criminal defendant with a

convenient device for provoking a mistrial whenever he chose to do so.”).

       {¶72} After citing these cases, among others, for their overriding principles,

the trial court came to the following conclusion regarding the motion for a mistrial.

       Now, I agree with the defense characterization, and based upon
       all of the information that I have that’s been presented that’s on
       the record, it was an accident. It was an unfortunate accident that
       the defendant and the witness were put in the same holding room.
       But, what occurred thereafter I find was not an accident. It was
       intentional based upon the viewing of the video of that. I’m going
       to find that the defendant cannot participate in an intentional act.


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Case No. 1-15-62


            So, I’m going to overrule the Motion for a Mistrial under the
       invited error doctrine.

(Trial Tr. at 1368-69).

       {¶73} Next, the trial court turned to whether evidence of the altercation could

be presented at trial. The trial court determined that Evid.R. 404(B) was not

implicated in situations where the act is related to the crime or has a connection to

the offense. See State v. Goehring, 6th Dist. No. OT-06-023 2007-Ohio-5886, ¶ 15,

quoting State v. Lowe, 69 Ohio St.3d 527, 531 (1994) (“Evid.R. 404(B) allows the

admission of ‘other acts’ evidence if it is ‘related to and share[s] common features

with the crime in question * * *.’ ”). To support its position, the trial court cited,

inter alia, State v. Williams, 8th Dist. Cuyahoga No. 89461, 2008-Ohio-1948, which

stated, “Evidence of threats or intimidation of witnesses reflect a consciousness of

guilt and are admissible as admission by conduct.” Williams at ¶ 29; see also, State

v. Soke, 105 Ohio App.3d 226 (8th Dist.1996).

       {¶74} Here, the trial court found that there was a connection to the offense

because Upham was going to testify that Carter had confessed a murder to him and

relayed some of the details. Then the court determined that,

       [Evid.R.] 404(B) is not implicated. This is intrinsic evidence not
       wholly independent of the offenses and it is evidence of an
       admission by conduct reflecting a consciousness of guilt that tends
       logically to prove an element of the crimes charged. But, even if
       404(B) were implicated, which I don’t think it is, but if 404(B)
       would be implicated it would be admissible for other purposes
       other than to prove character or that the defendant acted in

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Case No. 1-15-62


       conformity with character, such as intent, knowledge, motive, and
       things that are listed in 404(B).

(Trial Tr. at 1371).

       {¶75} Thus the trial court permitted the State to introduce evidence of the

incident at trial through the testimony of Upham. Upham then testified regarding

the incident, stating that Carter punched him and that Upham put Carter in a

headlock in the hopes that guards would respond shortly. In addition, the State

introduced the surveillance video from the holding cell, which showed the

altercation. The State also introduced multiple pictures of Upham’s injuries.

       {¶76} After Upham testified, defense counsel again moved for a mistrial

stating that Carter was now being charged with intimidation of a witness for Carter’s

actions during the altercation.        Additionally, defense counsel stated his

understanding that there was an investigation being done as to how Carter and

Upham had been placed in the same holding cell. Defense counsel stated that he

wanted that investigation to be included in the record. The court ordered that

investigation to be included in the record, and the reports that were produced were

included as court exhibits separate from the trial.

       {¶77} Those court exhibits were included in the record on appeal and they

contained offense reports from various officers stating what happened from their

perspective, including one that concluded, “[i]t was later discovered that there was

a miscommunication between jail staff and court security which lead to Dep. Enyart

                                         -32-
Case No. 1-15-62


placing the two inmates together in the same holding cell by mistake.” (Court’s Ex.

4).

       {¶78} After hearing defense counsel’s argument renewing his motion for a

mistrial, the trial court went on to state its own view of what led to the incident,

beginning with the court’s recollection of an in-chambers discussion of the logistics

of having the prison witnesses in the same building as Carter.

       My understanding was that they would be separated. I double-
       checked my entries. * * * It was the Court’s understanding that
       that would have been generally understood. In our chamber
       conference there was a discussion about the prison inmates,
       specifically Mr. Upham, being kept in the probate holding room,
       which is separate from the regular holding room. I think it was
       in the nature of perhaps a mistake because Mr. Upham was
       dressed in stripes instead of in typical Department of Corrections
       garb that somehow there was a non-communication, or a
       miscommunication, to the booking officers who brought him up.
       So, it was an accident/mistake. I think I already mentioned that
       on the record. So, that’s the court’s take on that.

(Trial Tr. at 1562-63).

       {¶79} The court then overruled defense counsel’s renewed motion for a

mistrial. The court did indicate it would inquire into whether anyone on the jury had

heard about the incident from the news, and the court did so. No one on the jury

indicated having heard anything about the case outside of the courtroom. (Id. at

1374-75).

       {¶80} In addition, the trial court did state that it would give a specific

instruction to the jury that the incident could only be considered to show

                                        -33-
Case No. 1-15-62


consciousness of guilt and not to show actions in conformity with character. The

trial court did, in fact, give the jury such an instruction. It read,

       Testimony has been admitted indicating that the defendant was
       involved in a physical altercation with a witness in the holding
       room. You are instructed that defendant’s conduct alone does not
       raise a presumption of guilt, but it may tend to indicate the
       defendant’s consciousness or awareness of guilt. If you find that
       the facts do not support that the defendant’s conduct, or if you
       find that some other motive prompted the defendant’s conduct,
       or if you are unable to decide what the defendant’s motivation
       was, then you should not consider this evidence for any purpose.
       However, if you find that the facts support that the defendant
       engaged in such conduct and if you decide that the defendant was
       motivated by a consciousness or an awareness of guilt, you may,
       but are not required to, consider that evidence in deciding
       whether the defendant is guilty of the crimes charged. You alone
       will determine what weight, if any, to give to this evidence.

(Trial Tr. at 1844-45).

         Carter’s Arguments Related to the Motion for Mistrial on Appeal

       {¶81} On appeal, Carter renews his argument that the trial court should have

granted his motion for a mistrial. Carter contends that the cases cited by the trial

court in making its decision to overrule the motion for a mistrial were

distinguishable and that the situation in this case was not of Carter’s making. Carter

contends that court personnel created the situation, not Carter as the trial court

determined. Carter contends that the cases cited by the trial court were all situations

where the defendant was specifically disruptive without provocation, and most often

in front of the jury.


                                          -34-
Case No. 1-15-62


       {¶82} In our review of the matter, we cannot condone the serious lapse that

occurred by placing Carter in the same holding cell with Upham; however, we

cannot find that the trial court abused its discretion in determining that the physical

altercation itself was actually a direct result of Carter’s own intentional action in

assaulting Upham. As the trial court indicated, when Carter was paced in the

holding cell he could have told the authorities that it was Upham in the cell or Carter

could simply have chosen not to assault Upham when they were in the same cell.

Instead, Carter chose to assault Upham, which was not an action by the State.

       {¶83} Moreover, in the cases cited by the trial court, James, Gonzalez,

Greathouse, and Chambers, supra, multiple Ohio Appellate Courts found that in

situations where a defendant’s actions led to his own motion for a mistrial, it was

not an abuse of discretion for the trial court to overrule the defendant’s motion for

a mistrial, particularly under the invited error doctrine. While Carter contends that

the cases cited by the court to overrule his motion for a mistrial were distinguishable,

they do stand for the proposition that a defendant cannot take advantage of a

situation that he created himself. It may be true that the altercation would not have

been possible had Carter and Upham been kept separate as they were ordered to be,

but Carter ignores that Upham never would have been struck had Carter simply

ignored him upon entering the holding cell, or taken some action other than resorting

to physical violence.


                                         -35-
Case No. 1-15-62


           {¶84} In sum, while we wish to emphasize that Carter and Upham should

never have been placed in the same holding cell, we cannot find that the trial court

abused its discretion in declining to grant Carter a mistrial based on Carter’s actions.

Thus, Carter’s argument is not well-taken.

                           Admissibility of Evidence of the Altercation

           {¶85} Carter next contends that even if it was not error for the trial court to

overrule his motion for a mistrial, any evidence related to the altercation should not

have been presented to the jury.                  More specifically, Carter contends that his

altercation with Upham in the holding cell in 2015 was not connected to the 2009

murder of Kenneth Warrington.

           {¶86} In support of his position, Carter urges this Court to apply the dissent’s

rationale in a 4-3 decision by the Supreme Court of Ohio, State v. Richey, 64 Ohio

St.3d 353, 1992-Ohio-44, abrogated in part by State v. McGuire, 80 Ohio St.3d 390,

1997-Ohio-335. In Richey the Supreme Court of Ohio determined that threats made

by Richey to the prosecutor were admissible evidence as “consciousness of guilt,

similar to evidence of flight to avoid prosecution, or efforts made to cover up a crime

or intimidate witnesses.”16 Richey at 357.

           {¶87} By contrast, the dissent in Richey, which Carter relies upon, stated that

           A person wrongly accused could easily take out his frustration
           and anger in this fashion. In particular, Richey's anti-social and

16
     Richey was reviewed under a plain error standard.

                                                     -36-
Case No. 1-15-62


       borderline personality traits might make the urge to lash out from
       a false accusation stronger. In any case, jailhouse threats are of a
       different order than flight from prosecution or a coverup as
       evidence of guilt.

            The threats made by Richey are, pure and simple, acts
       separate and distinct from the one for which he was being tried.
       Proof of such threats can be admitted during the guilt phase only
       to show motive, opportunity, intent, plan, and so forth. (Evid.R.
       404[B].) As the threats came after the events for which Richey was
       being tried, none of these factors can possibly be proved by
       evidence of later threats. Therefore the evidence is inadmissible
       for the guilt phase of trial, and it was error for the trial court to
       admit it.

Richey at 374-375.

       {¶88} Carter contends that the rationale in the Richey dissent should be

applied in this case. However, the cited portion is facially from the Richey dissent

rather than the majority. Moreover, while a separate portion of Richey has been

abrogated, the majority’s ruling on consciousness of guilt has not been altered.

Richey’s underlying holding related to “consciousness of guilt” has, in fact, been

cited even recently by multiple Ohio Appellate Courts. State v. White, 10th Dist.

Franklin No.15AP-565, 2016-Ohio-1405; State v. Tucker, 10th Dist. Franklin Nos.

15AP-434, 15AP-435, 2016-Ohio-1033, ¶ 17; State v. Culegrove, 8th Dist.

Cuyahoga No. 102173, 2015-Ohio-3476, ¶ 20, citing State v. Soke, 105 Ohio App.3d

226, 250 (8th Dist.1995) (“Intimidation of a witness is not independent of the

charged offense; it is an indicator of guilt.”). This court has also used similar

reasoning to Richey recently, although we did not directly cite Richey. State v.

                                       -37-
Case No. 1-15-62


Missler, 3d Dist. Hardin No. 6-14-06, 2015-Ohio-1076, (“Moreover, ‘[u]nder Ohio

law, ‘evidence of threats or intimidation of witnesses reflects a consciousness of

guilt and is admissible as admission by conduct.’ ”).

       {¶89} Carter thus urges this Court to essentially disavow a majority decision

from the Supreme Court of Ohio and ignore decisions from various districts,

including a prior opinion from this Court, indicating that threats against a witness

can be used to show consciousness of guilt. Until this Court is given guidance

otherwise from the Supreme Court of Ohio, we are bound to follow the majority

opinion in Richey, and we are persuaded by the precedent of this Court and the other

appellate courts. In these circumstances, we cannot find that the trial court abused

its discretion in finding that Carter’s actions could be reflective of a consciousness

of guilt and thus were admissible at trial.

       {¶90} Although Carter next contends that evidence of the altercation would

not be admissible under Evid.R. 404(B) if it was not admissible as “consciousness

of guilt,” we need not address this issue having found that it was not an abuse of

discretion for the trial court to find that the evidence was admissible as

consciousness of guilt. However, Carter does contend that even if this Court did

find that the evidence was somehow relevant and admissible, its probative value

was still substantially outweighed by the danger of unfair prejudice and it should

have been excluded under Evid.R. 403.


                                         -38-
Case No. 1-15-62


       {¶91} After reviewing the record and the arguments, we cannot find Carter’s

argument well-taken. Undoubtedly there is some inherent prejudice in evidence

being used against Carter but there is probative value in the altercation as well. We

cannot find that the trial court abused its discretion in determining that the probative

value was not substantially outweighed by the danger of unfair prejudice,

particularly given the deference accorded to trial courts in evidentiary matters.

Therefore, Carter’s first assignment of error is overruled.

                            Second Assignment of Error

       {¶92} In Carter’s second assignment of error, he argues that the trial court

erred by failing to grant a mistrial based upon what he claims are discovery

violations committed by the State. Carter argues that the State failed to disclose

information that was testified to by its ballistic expert and that Carter was prejudiced

by it. Carter also argues that the State failed to disclose a demonstrative picture of

a Mac-10 style firearm to the defense.

                                 Standard of Review

       {¶93} As stated previously, the decision to grant a mistrial is within the

sound discretion of the trial court. State v. Ahmed, 103 Ohio St.3d 27, 2004-Ohio-

4190, ¶ 92. Regarding the alleged discovery violations, we will also review the trial

court’s decision under an abuse of discretion standard. See State v. Opp, 3d Dist.

Seneca No. 13-13-33 2014-Ohio-1138, ¶¶ 7-15.


                                         -39-
Case No. 1-15-62


                                Criminal Rule 16(K)

       {¶94} In this assignment of error, Carter contends that the State violated

Crim.R. 16(K), which reads,

       (K) Expert Witnesses; Reports. An expert witness for either side
       shall prepare a written report summarizing the expert witness’s
       testimony, findings, analysis, conclusions, or opinion, and shall
       include a summary of the expert’s qualifications. The written
       report and summary of qualifications shall be subject to
       disclosure under this rule no later than twenty-one days prior to
       trial, which period may be modified by the court for good cause
       shown, which does not prejudice any other party. Failure to
       disclose the written report to opposing counsel shall preclude the
       expert’s testimony at trial.

                     The Alleged Discovery Violation, Mistrial
                       Motion, and Ruling by the Trial Court

       {¶95} On the sixth day of Carter’s trial, the State called Kevin Kramer, a

forensic scientist with the Ohio Bureau of Criminal Identification and Investigation

to testify. Kramer was qualified as an expert in “forensic firearm ballistic bullet and

casing analysis” with no objection by the defense.

       {¶96} Kramer then testified that he “re-worked” or re-analyzed the ballistic

evidence in this case. The ballistic evidence had been analyzed twice previously.

The first person to analyze the ballistic evidence for the State, Todd Wharton, had

taken a new job in Florida and the second person to analyze the evidence, Heather

Williams, was on a leave of absence due to a medical issue so Kramer was asked to

analyze the evidence and testify at trial. Kramer testified that he did not review the


                                         -40-
Case No. 1-15-62


prior reports before doing his own analysis and that he actually did not even have

access to notes or findings from the prior testing until he got his own results.

       {¶97} Kramer testified that as a result of his examination he determined that

the casings found at the scene of the Warrington murder were fired from the same

firearm and that they were 9mm Luger cartridges. In addition, Kramer testified that

the box of Winchester ammo—which had been located in Carter’s residence—

contained bullets consistent with the bullets presented by the State for him to test,

although they were relatively common bullets. However, Kramer concluded that

the bullets at the scene of the murder were not fired by the weapons submitted to

him that were found during the search of Carter’s residence.

       {¶98} Kramer’s report reflected his findings and was entered into evidence.

It read, in pertinent part, “Examination of the three (3) fired bullets * * * revealed

they are consistent with 9mm Luger full metal jacketed bullets fired from a

conventional rifled barrel having (6) lands and six (6) grooves, right-hand twist.”

(State’s Ex. 138). Kramer’s findings were consistent with the findings of the two

prior analysts.

       {¶99} After testifying to his analysis, Kramer was asked whether he was

familiar with a firearm referred to as a Mac-10 and he answered in the affirmative.

As Kramer was being shown a demonstrative exhibit of a generic picture of a Mac-

10 style firearm, defense counsel asked to approach the bench. Defense Counsel


                                         -41-
Case No. 1-15-62


objected to the photo and the questioning, stating that the picture was not provided

in discovery and that he was not prepared to cross-examine Kramer relative to a

Mac-10 because there was nothing in Kramer’s report regarding a Mac-10.

       {¶100} The State argued that it had already shown the demonstrative picture

of a Mac-10 style firearm to Carlotta Williams, who previously testified in the trial,

that defense counsel did not object at that time, and that Kramer was an expert in

firearms and could therefore testify regarding his familiarity with a Mac-10. The

State also argued that the defense was put on notice of possible inquiry into a Mac-

10 due to the statements of Joey Moore. Carter had made statements that were

overheard by Moore, including that when the police searched Carter’s residence the

police did not find a disassembled Mac-10. Ultimately the trial court overruled

defense counsel’s objection and allowed the State to ask questions regarding a Mac-

10.

       {¶101} The questioning of Kramer then resumed. Kramer testified that the

demonstrative picture produced by the State in Exhibit 139 was “consistent in style

and appearance with what’s been described as a Mac-10 style of firearm.” (Trial

Tr. at 1176). Next, Kramer described a Mac-10’s appearance and how it operated.

Kramer was then asked if back in 2009 there was any kind of Mac-10 that could

have fired the bullets found at the scene of the Warrington murder. Kramer stated

that given the specific “groove” characteristics in the bullets, after reviewing Todd


                                        -42-
Case No. 1-15-62


Wharton’s report and notes and Heather Williams’s report and notes there was a

Mac-10 style weapon on the list of possible candidate firearms that could have fired

the bullets. Defense counsel objected to portions of this testimony.

       {¶102} Before the defense cross-examined Kramer, defense counsel asked

to break for the evening given what he termed the “surprise of the disclosure.”

Defense counsel argued that tying the rifling specifics on the bullets at the scene of

the murder to the Mac-10 was a new issue to him and it was not disclosed in

Kramer’s report. The trial court then excused the jury for the night and at that time

defense counsel moved for a mistrial, contending that Kramer’s testimony went

beyond the scope of his report.

       {¶103} At that time defense counsel acknowledged that he had received

Kramer’s report and the reports from the prior analysts. However, defense counsel

stated that he had never seen any list from any expert tying a Mac-10 style firearm

to the bullets from the Warrington Murder scene.          But, defense counsel did

acknowledge that he was aware of Joey Moore’s statement regarding a Mac-10.

       {¶104} Defense counsel then contended that he could not properly cross-

examine Kramer based on the new information. He indicated that he would need to

get his own expert. The State, by contrast, indicated that the previous analysts’

reports and the discussions regarding rifling grooves on the bullets should have put




                                        -43-
Case No. 1-15-62


defense counsel on notice, particularly when combined with Joey Moore’s

statement.

       {¶105} The trial court inquired as to whether the defense had the candidate

list of the firearms that BCI stated were possibly consistent with the rifling

characteristics on the bullets, and defense counsel stated he did not. The State was

then ordered to give the candidate list to the defense at that time. Court then

recessed for the evening, and reconvened the following morning.

       {¶106} On the morning of the seventh day of Carter’s trial, defense counsel

filed a written motion for a mistrial. The trial court heard arguments from both

parties on the matter. Defense counsel again contended that the State had violated

Crim.R. 16 by not disclosing the possible firearm candidate list, which contained

over 130 firearms that could have fired the 9mm Luger rounds and created similar

“lands and grooves” on the bullets that were found at the scene of the Warrington

murder.

       {¶107} Defense counsel also stated that he had contacted an expert who

defense counsel thought could contradict the State’s evidence, or at least indicate

that the State’s candidate list was overly broad and that the potential expert could

possibly exclude the Mac-10 as a candidate. Defense counsel argued that he was

prejudiced by the State’s non-disclosure of the firearm candidate list.




                                        -44-
Case No. 1-15-62


       {¶108} By contrast, the State argued that the defense was not unfairly

surprised as the firearm candidate list was more akin to notes used in generating an

expert report and thus was not required to be given under Crim.R. 16(D). The State

maintained that the candidate list was simply a large list of possible firearms that

could match the lands and grooves on the fired bullets, leading to Todd Wharton’s

stated conclusion that he could not match the bullets at the scene to a single specific

firearm. Todd Wharton’s report, which the trial court included as a court exhibit,

contained the following language.

       Examination of the evidence bullets * * * revealed that they are
       9mm Luger caliber, full metal jacketed design, and fired from a
       barrel with conventional rifling consisting of six (6) lands and six
       (6) grooves, right-hand twist. Microscopic comparisons of the
       three (3) evidence bullets to each other revealed matching
       individual barrel engraved striations, confirming that the
       evidence bullets were fired from the same firearm. Further
       microscopic comparison of the evidence bullets to test fires from
       the Glock pistol, submitted as item #1, revealed dissimilar general
       rifling class characteristics (polygonal rifling versus conventional
       rifling). These findings confirm that the evidence bullets were not
       fired by the submitted pistol.

       The rifling specifications on the evidence bullets correspond to
       numerous brands of 9mm Luger caliber semi-automatic firearms.

       ***

       Digital images of the individual characteristics present on the
       evidence cartridge case, submitted as item #4, have been entered
       into Ohio’s computerized firearms identification system
       (“NIBIN/IBIS”) and compared with images of all similar
       specimens currently on file. No identification was made at this
       time; however, the images will remain in the system and will be

                                         -45-
Case No. 1-15-62


       routinely compared with all future images entered by any of the
       laboratories in the Ohio network.

(Court Exhibit 1-M).

       {¶109} The State argued that the analysts’ reports contained the conclusions

that were required to be turned over under Crim.R. 16 and that defense counsel was

on notice and could have examined any of the experts related to what possible

weapons matched the rifling characteristics on the bullets, particularly given that

Wharton and Kramer’s reports contained those rifling characteristics.

       {¶110} Separately, the State argued that the demonstrative picture of a Mac-

10 style firearm was listed as a potential exhibit to be presented at trial in the State’s

exhibit list, which was given to defense counsel just prior to trial. Specifically, the

exhibit list indicates “Mac-10 Photo” with Kramer and C. Williams as the witnesses

who would identify the exhibit. (Court’s Ex. 1-M).

       {¶111} After hearing the parties’ arguments, the trial court proceeded to rule

on the matter. The trial court indicated that it had reviewed the memorandum

supporting defense counsel’s motion for a mistrial, that it had reviewed what had

been disclosed in discovery and what had not been disclosed, and that it had

reviewed relevant case authority.

       {¶112} The trial court then conducted its analysis on the record, stating that

defense counsel did have Joey Moore’s statement regarding the Mac-10, that it did

have Todd Wharton’s report indicating that there was a list of possible candidate

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Case No. 1-15-62


firearms but none of them could be specifically identified as the weapon used in the

murder, and that defense counsel had information that other firearms could have

fired the bullets. What defense counsel did not have, was the actual list of candidate

firearms (Defense Exhibit HH), which contained 131 possible matching firearms

made by dozens of manufacturers.

       {¶113} The court then made the following ruling.

       But, I find it’s not necessarily a discovery violation not giving the
       defense exhibit ‘HH’ until yesterday because Mr. Wharton’s
       report indicates that there was a list of guns that could have fired
       the casings that were tested. The defendant knew of Mr.
       Wharton’s report. The defendant’s counsel knew that Moore had
       said that the defendant had an unassembled Mac-10 at his house.
       Therefore, since the defendant had Wharton’s report and knew
       that there was evidence that the casings could have been fired
       from any number of guns, including a Mac-10, I find that failure
       to provide the full exhaustive hundred and thirty-one list is not a
       willful discovery violation. It’s more in the nature of notes or data
       that supports the conclusion in Wharton’s report.

             Did the defendant have prior discovery that the State would
       show a picture of the Mac-10? Apparently at the very earliest
       would be on the day the trial started when the list of exhibits was
       provided. I find that the picture is demonstrative or illustrative
       of what Moore said that the defendant told him, or that he heard
       the defendant say. Demonstrative evidence is admissible if it
       satisfies the general standard of relevance set forth in Evidence
       Rule 401, if it is substantially similar to an object that it is
       intended to represent.

(Trial Tr. at 1242-43).

       {¶114} In sum, the trial court stated,



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Case No. 1-15-62


           The defense had access to all B.C.I. reports. The defense had
           access to all the witnesses. If there is a violation I think the only
           violation here would be not giving the actual picture of the Mac-
           10, the purported Mac-10, State’s Exhibit ‘139’. So with that in
           mind, finding that there has not been any other discovery
           violation, I’m going to exercise discretion.

(Id. at 1243).

           {¶115} The court thus found that there was no willful violation of the

discovery rules by the State in this instance. Therefore, the court determined that

the severe sanction of a mistrial was not appropriate. The court indicated that it had

given defense counsel the evening to prepare for cross-examination of Kramer and

that defense counsel had demonstrated that he was prepared to do so through his

argument to the court in support of his motion for a mistrial. However, the court

stated that if defense counsel needed a continuance when the trial reached the

defense’s case-in-chief to present an expert, the court would take that under

advisement at that time. In addition, the court noted that it would give an instruction

that the photograph of the Mac-10 style-weapon was merely a demonstrative

exhibit.17

           {¶116} Following the hearing on the mistrial, trial resumed and defense

counsel cross-examined Kramer. On cross-examination Kramer indicated that an

actual “Mac-10” was not on the candidate firearm list, but two manufacturers made




17
     The trial court did give a generic instruction regarding demonstrative exhibits.

                                                       -48-
Case No. 1-15-62


a firearm similar to the Mac-10, and they were on the candidate list. Kramer also

acknowledged that over 130 different 9mm firearms could have fired the bullets that

were located at the Warrington murder and if Kramer was shown a demonstrative

photograph of each and every one of them he would agree that they were all

consistent with the rifling pattern of the bullets from the scene of the Warrington

murder.

                    Carter’s Argument on Appeal and Analysis

       {¶117} Carter now renews his argument on appeal that the trial court should

have granted his motion for a mistrial and that the State committed discovery

violations. Carter argues that Crim.R. 16(K) requires an expert to produce a report

summarizing his testimony and he contends that Kramer’s report only summarized

part of his testimony. In addition, Carter argues that there is actually little validity

to the science behind Kramer’s testimony. Carter argues that various publications

have questioned the validity of comparing a bullet collected at a crime scene to a

fired bullet in a lab and that such an analysis does not reach the level of rigor to be

considered scientifically viable. Finally, Carter argues that defense counsel had

indicated he had been in contact with an expert who had said that he would

undermine the State’s ballistic evidence had defense counsel been aware of the Mac-

10 information.




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Case No. 1-15-62


       {¶118} In our own review of the trial court’s decision on this matter, we

would begin by noting that the trial court was very thorough in addressing these

issues. The trial court also prepared a thorough record, having the referenced

ballistic expert reports and the “candidate list” included in the record as court

exhibits separate from the trial, many of which may not have otherwise been

included. In addition, the trial court also held lengthy arguments on these issues

and clearly considered the record and some relevant caselaw.

       {¶119} Dealing first with the purported discovery violations, we cannot find

that the trial court abused its discretion. Defense counsel was in possession of Joey

Moore’s statement regarding a Mac-10 and defense counsel also did have the reports

from the analysts indicating that a number of potential firearms could cause similar

groove patterns on the bullets in this case. A Mac-10 style weapon was one of over

130 of those firearms and Kramer, the expert, could only say that the Mac-10 style

was one of many possible candidates. Defense counsel thus did receive a summary

of the experts’ findings and was clearly aware that a Mac-10 style firearm was a

weapon that Carter was alleged to be in possession of. Moreover, defense counsel

was able to effectively cross-examine Kramer on the issue given the extra night to

prepare.

       {¶120} As to the demonstrative photograph of a Mac-10 style firearm,

defense counsel was provided with an exhibit list indicating that the photograph


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Case No. 1-15-62


would be used. While the State should still have provided the defense with the

actual photograph, defense counsel did have the ability to ask for it. Similarly

defense counsel did not object to the use of the demonstrative photo with a prior

witness and was aware of it at that time, prior to Kramer’s testimony. Again,

defense counsel was also aware of the possibility of reference to a Mac-10 given

that Joey Moore was set to be a witness at trial.

       {¶121} Given the trial court’s familiarity with the case and its analysis of the

issue, we cannot find that the trial court abused its discretion in finding that there

was no discovery violation, or that if there was it was not serious enough to warrant

a mistrial. Mistrials are to be granted only in exceptional circumstances, and we

cannot find given the specific facts before us that the trial court abused its discretion

in declining to grant Carter’s motion for a mistrial, even if there were some

discovery irregularities.    Therefore, Carter’s second assignment of error is

overruled.

                            Fourth Assignment of Error

       {¶122} In Carter’s fourth assignment of error, he argues that the prosecutor

committed misconduct during closing arguments. Specifically, Carter argues that

the prosecutor misstated evidence and that the State attempted to shift the burden of

proof to the defense. In addition, Carter argues that the cumulative discovery

violations constituted prosecutorial misconduct.


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Case No. 1-15-62


                                 Standard of Review

       {¶123} Prosecutorial misconduct is generally not grounds for reversal unless

it so taints the proceedings as to deprive the defendant of a fair trial. State v. Johns,

3d. Dist. Seneca No. 13-04-23, 13-04-24, 13-04-25, 2005-Ohio-1694, ¶ 25. Where

it is clear beyond a reasonable doubt that the jury would have found the defendant

guilty, even absent the alleged misconduct, the defendant has not been prejudiced,

and his conviction will not be reversed.         See State v. Underwood, 2d Dist.

Montgomery No. 24186, 2011-Ohio-5418, ¶ 21.                We review allegations of

prosecutorial misconduct in the context of the entire trial. State v. Stevenson, 2d

Dist. Greene No. 2007-CA-51, 2008-Ohio-2900, ¶ 42, citing Darden v. Wainwright,

477 U.S. 168, 106 S.Ct. 2464 (1986). “In making this determination, an appellate

court should consider several factors: (1) the nature of the remarks, (2) whether an

objection was made by counsel, (3) whether corrective instructions were given by

the court, and (4) the strength of the evidence against the defendant.” State v.

Braxton, 102 Ohio App.3d 28, 41 (8th Dist.1995).

       {¶124} Furthermore, as to prosecutorial misconduct allegations related to

closing arguments, “[p]arties have wide latitude in their closing statements,

particularly ‘latitude as to what the evidence has shown and what inferences can be

drawn from the evidence.’ ” State v. Wolff, 7th Dist. Mahoning No. 07MA166,

2009-Ohio-7085, at ¶ 13, quoting State v. Diar, 120 Ohio St.3d 460, 2008-Ohio-


                                          -52-
Case No. 1-15-62


6266, at ¶ 213. A prosecutor may comment upon the testimony of witnesses and

suggest the conclusions to be drawn. State v. Hand, 107 Ohio St.3d 378, 2006-

Ohio-18, at ¶ 116.

                Alleged Improper Statements in Closing Arguments

       {¶125} Carter first argues that during its rebuttal closing argument the State

made an improper statement related to the expert testimony of Matthew Congleton,

who had performed the GSR testing in this case. Carter claims that the following

statement during the prosecutor’s rebuttal closing argument was improper.

       Now, there was not gunshot residue found on that car. True. But,
       Mr. Congleton told you that gunshot residue does not stick to
       smooth surfaces. If there was any on Mr. Carter’s bare hands
       and then transferred to that door handle it probably wouldn’t
       stick to that door handle. If it did, it may have blown away in the
       wind as Mr. Carter drove.

       [DEFENSE COUNSEL]: Objection. That was not the expert’s
       testimony.

       THE COURT: Well, the jury can remember what the testimony
       was. This is argument. It’s not evidence.

(Trial Tr. at 1812).

       {¶126} Carter contends that a “fair review” of Congleton’s testimony shows

that Congleton did not make any statements as to GSR blowing away as Carter drove

away. Contrary to Carter’s argument, a “fair review” of the prosecutor’s statement

indicates that the prosecutor was suggesting something that “may” have happened.

The prosecutor was not indicating that the GSR expert actually did testify that the

                                        -53-
Case No. 1-15-62


GSR likely blew off of the vehicle. Rather the prosecutor was making an inference

based on Congleton’s testimony. Congleton actually did testify that “[a] smoother

object obviously would have less adhesion power—it would give the particles less

stick-to-itiveness than a rougher surface.” (Trial Tr. at 1135). Congleton also

testified that, “[g]enerally speaking * * * [t]he more an object or person moves, or

it rubs up against something or themselves, the more likely you will have gunshot

residue shed and continue to be shed from whatever surface it might be.” (Id. at

1136). Thus the prosecutor’s statement is a fair inference made from the evidence.

       {¶127} Finally, even if the statement was somehow error, which we do not

find that it is, the jury was clearly instructed that closing arguments were not

evidence and we presume the jury followed that instruction. Thus Carter’s argument

on this issue is not well-taken.

       {¶128} Carter next argues that the following statement made during the

State’s rebuttal closing argument was improper.

       [PROSECUTOR]: [Defense Counsel] also said, “Well, maybe
       that gunshot residue got on those clothes,” not one article, and not
       two articles, but three articles of clothing collected from the
       defendant’s house, “got on those clothes at the Police station.”
       Maybe. Maybe. Okay, now we have two possibilities. I would
       submit to you that the more possibilities we have the more likely
       it is that each one of them is a mere possibility. Okay? Well,
       maybe. Maybe. Maybe just isn’t good enough. Maybe doesn’t
       get you to reasonable doubt. The jury instructions tell you that.




                                       -54-
Case No. 1-15-62


       [DEFENSE COUNSEL]: Objection, Your Honor. He’s reversing
       the burden of proof. Maybe doesn’t get you reasonable doubt is
       reversing the burden of proof in this case.

       [PROSECUTOR]: I’m speaking directly to the jury instructions
       that talks specifically about mere possible doubt.

       [THE COURT]: Okay. The Statement you just made I’ll sustain
       and tell the jury to disregard. But, continue.

       [PROSECUTOR]: Okay.

       THE COURT: The State has the burden of proof.

(Trial Tr. at 1808-1809).

       {¶129} Here, clearly the trial court sustained an objection and the jury was

instructed to disregard. We must presume that the jury followed the court’s

instructions, particularly given that shortly thereafter the jury was specifically

instructed on reasonable doubt as follows.

       Reasonable doubt is present when, after you have carefully
       considered and compared all of the evidence, you cannot say you
       are firmly convinced of the truth of the charge. Reasonable doubt
       is a doubt based on reason and common sense. Reasonable doubt
       is not a mere possible doubt because everything relating to human
       affairs or depending on moral evidence is open to some possible
       or imaginary doubt. Proof beyond a reasonable doubt is proof of
       such a character that an ordinary person would be willing to rely
       and act upon it in the most important of the person’s own affairs.

            If, after a full and impartial consideration of all of the
       evidence, you are firmly convinced of the truth of the charge the
       State has proved its case beyond a reasonable doubt. If you are
       not firmly convinced of the truth of the charge you must find the
       defendant not guilty.


                                       -55-
Case No. 1-15-62


(Trial Tr. at 1830-31).

       {¶130} Given that the trial court sustained the objection to the prosecutor’s

statement, that the trial court gave thorough instructions related to reasonable doubt,

and given our presumption that the jury followed the trial court’s instructions, we

can find no error here, let alone prejudicial error.

       {¶131} Next, Carter argues that the prosecutor committed error in making

the following statement in rebuttal closing argument.

       Also with respect to Sonya [Defense Counsel] brings up the idea
       that she was with a lot of other men. Well, we know of one other
       than Mr. Warrington and that would be Arguello Harris. Okay?
       I don’t know that there was any evidence of a lot of other men.
       But, again, even assuming there were other men, is it just a mere
       possibility that some other man did this? Because a mere
       possibility does not rise to a level of reasonable doubt.

       [DEFENSE COUNSEL]: Objection, your Honor. It’s shifting the
       burden.

       THE COURT: The Court will remind the jurors, and I’ll tell you
       in the instructions, it’s the State’s burden to prove.

(Trial Tr. at 1817).

       {¶132} Here, the state’s indication that a mere possibility does not rise to the

level of reasonable doubt is straight out of the jury instructions. Again the court

also provided specific instructions related to reasonable doubt. We can find no error

here, let alone prejudicial error.




                                         -56-
Case No. 1-15-62


       {¶133} Next, Carter argues that the following statement of the prosecutor

during rebuttal closing argument was error.

       Now, Carlotta. [Defense Counsel] said something with respect to
       Carlotta and this is very important. He said – [Defense Counsel]
       suggested that Mr. Carter was not trying to set up an alibi because
       he was guilty, but because maybe he was innocent and the alibi
       was true.

       [DEFENSE COUNSEL]: Objection. That’s not what I said.

       THE COURT: It’s just argument. The jury will decide what the
       evidence is. Overruled.

(Trial Tr. at 1826).

       {¶134} It appears that the prosecutor’s statement in rebuttal closing argument

was in reference to the following portion of defense counsel’s closing argument.

       Carlotta, when asked by the Prosecutor, said this whole thing
       about this alibi stuff. It wasn’t meant by Markelus because he
       was guilty and he was trying to create a falsehood to get out of it.
       Markelus Carter feels, and felt, like the system wasn’t going to
       give him a fair shake and he needed extra help to do it.

(Trial Tr. at 1803).

       {¶135} While the prosecutor’s characterization of what defense counsel said

in rebuttal closing argument was not entirely accurate, we cannot find that it was an

unfair characterization of the evidence or that it in any way prejudiced the outcome

of the trial or rose to the level of prosecutorial misconduct. Thus Carter’s arguments

related to statements made during the prosecutor’s rebuttal closing statements are

not well-taken.

                                        -57-
Case No. 1-15-62


       {¶136} Finally, Carter argues summarily in two sentences in his brief that

the State’s discovery violations and improper arguments cumulatively constitute

reversible error. We found no error in closing arguments and although there were

discovery irregularities in this case, we cannot find that anything here rose to the

level of prosecutorial misconduct. Thus there is no basis for cumulative error.

Therefore, Carter’s fourth assignment of error is overruled.

                            Fifth Assignment of Error

       {¶137} In Carter’s fifth assignment of error, he argues that he received

ineffective assistance of counsel. Specifically, he contends that defense counsel

poorly handled the government firearms expert, Kramer, and that defense counsel

failed to adequately investigate the possibility of a Mac-10 style weapon being

involved in this case.

                                Standard of Review

       {¶138} To establish his claims on appeal, Carter must show that trial

counsel’s performance was deficient and that counsel’s deficient performance

prejudiced him. State v. Jackson, 107 Ohio St.3d 53, 2005–Ohio–5981, ¶ 133, citing

Strickland v. Washington, 466 U.S. 668, 687 (1984). The failure to make either

showing defeats a claim of ineffective assistance of counsel. State v. Bradley, 42

Ohio St.3d 136, 143 (1989), quoting Strickland at 697 (“[T]here is no reason for a

court deciding an ineffective assistance claim to approach the inquiry in the same


                                        -58-
Case No. 1-15-62


order or even to address both components of the inquiry if the defendant makes an

insufficient showing on one.”).

                   Purported Ineffective Assistance and Analysis

       {¶139} Carter contends that if the State is to be believed that defense counsel

should have been on notice from discovery that a Mac-10 style firearm would be

painted as the alleged murder weapon, then defense counsel was ineffective for

failing to adequately investigate the matter. In addition, Carter contends that

defense counsel failed to call an expert related to ballistics despite indicating on the

record that he had been in contact with one.

       {¶140} Contrary to Carter’s arguments, there is no evidence in the record

that his trial counsel could have called a witness to dispute Kramer’s testimony.

Multiple days before Carter presented his case-in-chief, the trial court addressed

Carter’s motion for a mistrial related to discovery matters, which was discussed in

the second assignment of error. As defense counsel argued for a mistrial, he

indicated that he had been in contact with an expert and the expert would look into

the matter and the expert gave some brief opinions on the matter over the phone,

but it did not appear that the expert had actually reviewed the ballistic evidence yet

based on Carter’s counsel’s representations. Although it overruled Carter’s motion

for a mistrial, the trial court indicated that it would consider granting Carter a

continuance when the trial reached his case-in-chief if Carter needed to bring in an


                                         -59-
Case No. 1-15-62


expert, but defense counsel never requested such a continuance. In fact, defense

counsel did not suggest at any point later in the trial that he had received further

word from the expert and would like to call the expert to testify.

       {¶141} On appeal, Carter would have us find, without any facts to support it,

that his counsel was ineffective for failing to investigate, request a continuance, or

call an expert when there is no indication that a ballistic expert would actually have

been able to meaningfully contradict testimony by the State. It is equally likely,

though equally uncertain, that the expert reviewed the evidence and could not

provide any exculpatory testimony. Carter would have this Court engage in pure

speculation that some expert existed who would have provided exculpatory

testimony related to ballistics that would somehow overcome the mountain of other

circumstantial evidence against him.

       {¶142} Moreover, even if Carter could produce evidence disputing the

State’s expert that a Mac-10 style firearm was one of over 130 firearms that could

match the groove patterns on the bullets found at the Warrington murder scene, such

testimony would only call into question the type of firearm used in the murder, not

the murder itself. Thus we cannot find any prejudicial error here.

       {¶143} This is particularly true given that Carter’s trial counsel was able to

effectively cross-examine the State’s expert and have him admit that the bullet

grooves matched with over 130 weapons, giving little weight to his assertion that


                                        -60-
Case No. 1-15-62


the Mac-10 style weapon was one of many possible firearms. For these reasons,

Carter’s fifth assignment of error is overruled.

                                     Conclusion

       {¶144} For the foregoing reasons Carter’s assignments of error are overruled

and the judgment of the Allen County Common Pleas Court is affirmed.

                                                              Judgment Affirmed

PRESTON, P.J. and WILLAMOWSKI, J., concur.

/jlr




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