[Cite as State v. Crosby, 2015-Ohio-5176.]


STATE OF OHIO                     )                   IN THE COURT OF APPEALS
                                  )ss:                NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN                  )

STATE OF OHIO                                         C.A. No.      15CA010724

        Appellee

        v.                                            APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
DONZELLE CROSBY                                       COURT OF COMMON PLEAS
                                                      COUNTY OF LORAIN, OHIO
        Appellant                                     CASE No.   11CR082579

                                 DECISION AND JOURNAL ENTRY

Dated: December 14, 2015



        HENSAL, Presiding Judge.

        {¶1}     Donzelle Crosby appeals his convictions in the Lorain County Court of Common

Pleas for aggravated murder, murder, aggravated robbery, aggravated burglary, felonious assault,

and tampering with evidence. For the following reason, this Court affirms.

                                                 I.

        {¶2}     According to Michelle Neal, she used to allow Mr. Crosby to sell drugs out of her

house in Lorain. On March 1, 2011, Mr. Crosby came to the house with a couple of other men.

Ms. Neal told them that they could not stay, however, because she had company. About 45

minutes later, the men came back to the house, alleging that one of them had lost a cell phone

inside it. After Ms. Neal’s boyfriend let them enter, Mr. Crosby walked over to Ms. Neal’s

bedroom, which was on the main floor. Inside the bedroom, Jason Smith was playing cards with

James Woods. He also had been selling drugs to the other people in the house. Ms. Neal

testified that, when Mr. Crosby reached the bedroom, he told Mr. Smith to “give me all your
                                                 2


shit[.]” When Mr. Smith refused, Mr. Crosby shot him, then fled out the front door with the men

who accompanied him. Mr. Smith chased after Mr. Crosby, but collapsed on the driveway

outside the house. Ms. Neal called 911 and stayed with Mr. Smith until an ambulance arrived.

Mr. Smith, nevertheless, died from his wounds.

       {¶3}    The Grand Jury indicted Mr. Crosby for aggravated murder, murder, aggravated

robbery, aggravated burglary, felonious assault, and tampering with evidence. It included a

death penalty specification, which the trial court dismissed after testing revealed that Mr.

Crosby’s I.Q. is in the 50s. A jury found Mr. Crosby guilty of the offenses and associated

firearm specifications. The trial court, after merging many of the offenses, sentenced Mr. Crosby

to life in prison with parole eligibility after 30 years. Mr. Crosby has appealed, assigning four

errors. This Court has reordered the assignments of error for ease of consideration.

                                 ASSIGNMENT OF ERROR II

       WHETHER CONTRADICTIONS IN TESTIMONY WERE SO GREAT THAT
       THE EVIDENCE WAS INSUFFICIENT TO SUPPORT THE APPELLANT’S
       CONVICTIONS.

       {¶4}    Mr. Crosby argues that his convictions are not supported by sufficient evidence.

Whether a conviction is supported by sufficient evidence is a question of law, which we review

de novo. State v. Thompkins, 78 Ohio St.3d 380, 386 (1997). In making this determination, we

must view the evidence in the light most favorable to the prosecution:

       An appellate court’s function when reviewing the sufficiency of the evidence to
       support a criminal conviction is to examine the evidence admitted at trial to
       determine whether such evidence, if believed, would convince the average mind
       of the defendant’s guilt beyond a reasonable doubt. 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. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the syllabus.
                                                 3


       {¶5}     Mr. Crosby argues that Ms. Neal’s testimony conflicted with the testimony of two

other people who witnessed the shooting. He notes that Ms. Neal testified that, at the time of the

shooting, she was in her bedroom playing cards with Mr. Smith and James Wood. Mr. Wood,

however, testified that only he and Mr. Smith were in the room playing cards and that Ms. Neal

was not in the vicinity. One of Mr. Crosby’s co-defendants, Jeremy Brown, also testified that the

only people he saw in the bedroom were two men.

       {¶6}     Mr. Brown testified that he saw Mr. Crosby shoot Mr. Smith after demanding

money from him. Ms. Neal also testified that she saw Mr. Crosby shoot Mr. Smith after he lied

to gain access to her house and after he demanded Mr. Smith’s possessions. Viewing their

testimony in a light most favorable to the State, it was sufficient to establish the elements of

aggravated murder, murder, aggravated robbery, aggravated burglary, and felonious assault. Mr.

Crosby has not developed a sufficiency argument with respect to his tampering offense, and we

will not construct one for him. See App.R. 16(A)(7). Mr. Crosby’s second assignment of error

is overruled.

                                  ASSIGNMENT OF ERROR I

       WHETHER APPELLANT’S CONVICTION’S WERE AGAINST THE
       MANIFEST WEIGHT OF THE EVIDENCE WHEN THEY WERE BASED ON
       TWO EYEWITNESSES WITH TESTIMONY THAT WAS CONTRADICTED
       AND BOTH RECEIVING CONSIDERATION FOR THEIR TESTIMONY.

       {¶7}     Mr. Crosby next argues that his convictions are against the manifest weight of the

evidence. If a defendant asserts that his convictions are against the manifest weight of the

evidence

       [a]n appellate court must review the entire record, weigh the evidence and all
       reasonable inferences, consider the credibility of witnesses and determine
       whether, in resolving conflicts in the evidence, the trier of fact clearly lost its way
       and created such a manifest miscarriage of justice that the conviction must be
       reversed and a new trial ordered.
                                                 4



State v. Otten, 33 Ohio App.3d 339, 340 (9th Dist.1986). Weight of the evidence pertains to the

greater amount of credible evidence produced in a trial to support one side over the other side.

Thompkins, 78 Ohio St.3d at 387. An appellate court should only exercise its power to reverse a

judgment as against the manifest weight of the evidence in exceptional cases. State v. Carson,

9th Dist. Summit No. 26900, 2013-Ohio-5785, ¶ 32, citing Otten at 340.

       {¶8}    Mr. Crosby argues that the witnesses gave conflicting accounts of who was in the

bedroom as well as Ms. Neal’s whereabouts at the time of the shooting. He also argues that they

were inconsistent about whether Mr. Smith gave Mr. Crosby any drugs or money in response to

Mr. Crosby’s demands and about whether Mr. Smith ran or crawled out of the house after Mr.

Crosby. Mr. Crosby argues that Mr. Brown was not credible because he accepted a 12-year

prison sentence for his role in the offenses, despite claiming that he did nothing wrong.

       {¶9}    Mr. Crosby notes that Ms. Neal was not charged with any offenses, even though

she admittedly allowed drugs to be sold and used at her home. He also notes that several of the

witnesses had gunshot residue on their hands and that many of them had been drinking or using

drugs at the time of the shooting. He further notes that the coroner testified that Mr. Smith was

in a defensive “flinching” position at the time he was shot, which none of the alleged eye

witnesses recounted. According to Mr. Crosby, in light of the “highly conflicting evidence” and

“wildly conflicting testimony” of the witnesses, his convictions are against the manifest weight

of the evidence.

       {¶10} It is the jury’s province to take note of inconsistencies in the testimony of the

witnesses and resolve or discount them accordingly. State v. Sykes, 9th Dist. Summit No. 25263,

2011-Ohio-293, ¶ 21. “Likewise, it is the jury’s role to evaluate the credibility of the witnesses,

and to determine what weight to give any inconsistencies in the[ir] testimony.” Id., quoting State
                                                5


v. Gooden, 9th Dist. Summit No. 24896, 2010-Ohio-1961, ¶ 30. “[A] jury is free to believe or

reject the testimony of each witness * * *.” State v. Miles, 9th Dist. Summit No. 26187, 2012-

Ohio-2607, ¶ 24, quoting State v. Rice, 9th Dist. Summit No. 26116, 2012-Ohio-2174, ¶ 35.

       {¶11} In this case, the jury observed each of the witnesses and determined that either

Ms. Neal’s or Mr. Brown’s account of the shooting was credible, if not both of their testimony.

“[A] verdict is not against the manifest weight of the evidence where the jury’s resolution of

credibility is reasonable and where the jury ultimately chose to believe the State’s witnesses * *

*.” State v. Brown, 9th Dist. Summit No. 26490, 2013-Ohio-5112, ¶ 20. Upon review of the

record, we conclude that, despite minor inconsistencies in the accounts of the witnesses, this is

not the extraordinary case in which the jury clearly lost its way, resulting in a manifest

miscarriage of justice. Otten, 33 Ohio App.3d at 340. Mr. Crosby’s first assignment of error is

overruled.

                                ASSIGNMENT OF ERROR III

       WHETHER TRIAL COUNSEL WAS INEFFECTIVE WHEN IT FAILED TO
       OBJECT TO INADMISSIBLE EVIDENCE INCLUDING BRUTON
       TESTIMONY, WITNESS BOLSTERING, & HEARSAY EVIDENCE WHEN
       THE CASE FACTS WERE DEPENDENT ON EYEWITNESSES WITH
       CONFLICTING TESTIMONY.

       {¶12} Mr. Crosby next argues that his trial counsel was ineffective. To prevail on a

claim of ineffective assistance of counsel, Mr. Crosby must establish (1) that his counsel’s

performance was deficient to the extent that “counsel was not functioning as the ‘counsel’

guaranteed the defendant by the Sixth Amendment” and (2) that but for his counsel’s deficient

performance the result of the trial would have been different. Strickland v. Washington, 466 U.S.

668, 687 (1984). A deficient performance is one that falls below an objective standard of

reasonable representation. State v. Bradley, 42 Ohio St.3d 136 (1989), paragraph two of the
                                                   6


syllabus. A court, however, “must indulge a strong presumption that counsel’s conduct falls

within the wide range of reasonable professional assistance; that is, the defendant must overcome

the presumption that, under the circumstances, the challenged action ‘might be considered sound

trial strategy.’” Strickland at 689, quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955). In

addition, to establish prejudice, Mr. Crosby must show that there exists a reasonable probability

that, were it not for counsel’s errors, the result of the trial would have been different. Id. at 694.

       {¶13} Mr. Crosby argues that his lawyer should have objected when a police sergeant,

allegedly, bolstered the testimony of Ms. Neal, Mr. Brown, and the other individuals who were

in Ms. Neal’s house at the time of the shooting. According to the sergeant, after receiving

statements from those witnesses, he went to Ms. Neal’s house to see if they would have actually

been able to see the things they claimed from their various vantage points.

       {¶14} Mr. Crosby cites State v. Pruett, 8th Dist. Cuyahoga No. 101471, 2015-Ohio-

1377, in support of his argument. In Pruett, a police officer testified that he had verified

information provided by the victims. A detective also testified that, based on his investigation,

he had no reason to doubt the victims. In actuality, neither had conducted any investigation

beyond speaking to the defendant and the victims. Id. at ¶ 8. The Eighth District Court of

Appeals determined that Mr. Pruett’s counsel was ineffective for not objecting to the officers’

testimony because it improperly bolstered the testimony of the victims. Id. at ¶ 15, 17; see also

State v. Dzelajlija, 8th Dist. Cuyahoga No. 88805, 2007-Ohio-4050, ¶ 34-36 (concluding that

police officer improperly testified that witnesses were being truthful when he interviewed them).

       {¶15} The sergeant in this case did not testify that the other witnesses were being

truthful. He merely stated that, after talking to them, he went to Ms. Neal’s house to “check to

see whether [he] could see the things that those individuals were reporting * * *.” Unlike in
                                                 7


Pruett, it appears that he did, in fact, do additional investigation in an attempt to corroborate the

witnesses’ stories. He also did not reveal the results of his investigation. We, therefore,

conclude that his testimony does not constitute improper bolstering under Pruett.

        {¶16} Mr. Crosby also argues that the sergeant improperly testified about phone calls

between Mr. Brown and Mr. Crosby because his testimony involved hearsay.              The sergeant,

however, did not testify about the content of any phone calls, he only verified that Mr. Crosby

called Mr. Brown twice after the shooting. His testimony, therefore, did not constitute hearsay.

See Evid. R. 801(C) (defining hearsay as “a statement, other than one made by the declarant

while testifying at the trial or hearing, offered in evidence to prove the truth of the matter

asserted.”).

        {¶17} Mr. Crosby also argues that his lawyer should have objected to the sergeant’s

testimony about telephone call records because the actual records were not admitted into

evidence. He has not provided any authority, however, to suggest that a witness cannot testify

about telephone records unless the records are also admitted. See App.R. 16(A)(7).

        {¶18} Mr. Crosby next argues that his lawyer failed to object to the sergeant’s statement

that Ms. Neal no longer looks like a drug addict. He alleges that the comment bolstered her

testimony. The Ohio Supreme Court has held that an expert witness may not testify as to the

veracity of a witness’s statements. State v. Boston, 46 Ohio St.3d 108 (1989), syllabus, modified

on other grounds by State v. Dever, 64 Ohio St.3d 401 (1992), paragraph one of the syllabus.

Courts, however, have not prohibited witnesses from indirectly bolstering the testimony of other

witnesses. State v. Jones, 2d Dist. Montgomery No. 26289, 2015-Ohio-4116, ¶ 92, quoting State

v. Cashin, 10th Dist. Franklin No. 09AP-367, 2009-Ohio-6419, ¶ 20 (“[I]ndirect bolstering of a

victim’s credibility is not the same as the direct rendering of an opinion as to a victim’s veracity
                                                 8


* * *.”). Accordingly, we cannot say that Mr. Crosby’s counsel’s performance was deficient for

not objecting to the sergeant’s statement.

       {¶19} Mr. Crosby also argues that his lawyer should have objected to a detective’s

testimony that he used secret techniques that he learned through his work with the fugitive task

force to uncover that Mr. Crosby went to Blairsville, Pennsylvania after the shooting. According

to Mr. Crosby, the detective’s testimony implied that this case was so important that the

Department of Justice authorized the detective to use secret techniques to find him. Upon review

of the transcript, however, the detective’s testimony was actually that members of task force are

not permitted to disclose the tactics they use in any case. Mr. Crosby’s counsel was not

ineffective for not objecting to the detective’s explanation of the task force’s work.

       {¶20} Mr. Crosby next argues that his counsel should have objected to the testimony of

another woman who was inside the house at the time of the shooting. According to Mr. Crosby,

although the woman could not identify the shooter herself, she recounted statements that Ms.

Neal made at the time of the shooting that identified Mr. Crosby as the shooter. Mr. Crosby

argues that “[t]his allowed the jury to infer that [the woman] knew [Mr.] Crosby was the

shooter.”

       {¶21} The woman testified that she saw a man in Ms. Neal’s house who put out his arm

and demanded money from Mr. Smith just before Mr. Smith was shot. She testified that she

heard Ms. Neal refer to the man as “Dollar.” The woman did not know Dollar’s real identity, but

other witnesses testified that “Dollar” was Mr. Crosby’s nickname. Upon review of the record,

we conclude that, even if Mr. Crosby’s lawyer had objected to the woman’s testimony, her

recounting that Ms. Neal identified the man as “Dollar” would fall under the present sense

impression exception to the hearsay rule.       Evid.R. 803(1) (“Present sense impression.     A
                                                  9


statement describing or explaining an event or condition made while the declarant was

perceiving the event or condition * * *.”). In addition, Mr. Crosby has not explained how the

woman’s testimony indicated that she knew he was the shooter.

       {¶22} Mr. Crosby’s final ineffective assistance of counsel argument is that his lawyer

should have objected when Mr. Woods testified about statements that one of Mr. Crosby’s

accomplices made while Mr. Crosby and his accomplices were robbing him and Mr. Smith.

According to Mr. Crosby, because the co-defendant did not testify, Mr. Woods’s testimony

violated his right to confrontation.

       {¶23} In State v. Amore, 9th Dist. Lorain No. 03CA008281, 2004-Ohio-958, this Court

recognized that the United States Supreme Court has held that it violates a defendant’s right to

confrontation if a confession by his co-defendant is admitted at trial and he is not able to cross-

examine the co-defendant. Id. at ¶ 17, citing Bruton v. United States, 391 U.S. 123, 132 (1968).

This case is distinguishable because the alleged statements of Mr. Crosby’s co-defendant did not

involve a confession or admission. Mr. Woods only testified that the co-defendant ordered him

to “[g]et your money out [of] your pockets,” which does not implicate Bruton.

       {¶24} Upon review of the record, we conclude that Mr. Crosby has not established

ineffective assistance of trial counsel. His third assignment of error is overruled.

                                  ASSIGNMENT OF ERROR IV

       THE TRIAL COURT ABUSED ITS DISCRETION, AND/OR COUNSEL WAS
       INEFFECTIVE, WHEN IT LEARNED OF CROSBY’S 52 IQ, AND DID NOT
       ORDER A NEW COMPENTENCY BASED ON THIS INFORMATION.

       {¶25} Mr. Crosby’s final argument is that the trial court should have reconsidered

whether he was competent to stand trial after testing revealed that his I.Q. is only 52. Revised

Code Section 2945.37(B) provides that the court, the prosecutor, or the defendant may raise the
                                                  10


issue of the defendant’s competence to stand trial. If the issue is raised before trial, the court

“shall hold a hearing on the issue * * *.” Id.

       {¶26} At a pre-trial hearing on Mr. Crosby’s motion for competency evaluation, Mr.

Crosby’s lawyer explained that Mr. Crosby’s intelligence had “tested out to a 55.”           At a

subsequent hearing on whether Mr. Crosby was competent to stand trial, the parties jointly

submitted a report by Dr. Bob Stinson, which indicated that Mr. Crosby’s I.Q. was “in the 50s.”

Following that hearing, the trial court determined that Mr. Crosby was competent to stand trial.

A few months later, an evaluation regarding whether Mr. Crosby is intellectually disabled

indicated that the result of the original I.Q. test had actually been 52.

       {¶27} Mr. Crosby did not move for another competency hearing after receiving the

evaluation with the correct I.Q. score. The question, therefore, is whether the trial court erred

when it failed to schedule a new competency hearing sua sponte. Upon review of the record, we

conclude that the fact that Mr. Crosby’s I.Q. was actually a few points lower than previously

thought was not “sufficient indicia of incompetence” to have required the court to conduct

another competency hearing. See State v. Berry, 72 Ohio St.3d 354, 359 (1995); see also Pate v.

Robinson, 383 U.S. 375, 385 (1966) (“Where the evidence raises a ‘bona fide doubt’ as to the

defendant’s competence to stand trial, the judge on his own motion must * * * conduct a sanity

hearing * * *.”).

       {¶28} We note that Mr. Crosby’s fourth assignment of error also alleges that his counsel

was ineffective for not requesting a new competency evaluation. He has not developed an

argument regarding that issue in his brief, however, and we will not develop one for him. See

App.R. 16(A)(7). Mr. Crosby’s fourth assignment of error is overruled.
                                                11


                                                III.

       {¶29} Mr. Crosby’s assignments of error are overruled. The judgment of the Lorain

County Court of Common Pleas is affirmed.

                                                                              Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of

this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                       JENNIFER HENSAL
                                                       FOR THE COURT



WHITMORE, J.
SCHAFER, J.
CONCUR.
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APPEARANCES:

JOHN D. TOTH, Attorney at Law, for Appellant.

DENNIS P. WILL, Prosecuting Attorney, and MARY R. SLANCZKA, Assistant Prosecuting
Attorney, for Appellee.
