[Cite as State v. Elder, 2015-Ohio-3564.]


                                        COURT OF APPEALS
                                       STARK COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


STATE OF OHIO                                :       JUDGES:
                                             :       Hon. W. Scott Gwin, P.J.
        Plaintiff-Appellee                   :       Hon. Sheila G. Farmer, J.
                                             :       Hon. Craig R. Baldwin, J.
-vs-                                         :
                                             :
NICOS TRAVIAL ELDER                          :       Case No. 2014CA00135
                                             :
        Defendant-Appellant                  :       OPINION



CHARACTER OF PROCEEDING:                             Appeal from the Court of Common
                                                     Pleas, Case No. 2013CR1334




JUDGMENT:                                            Affirmed




DATE OF JUDGMENT:                                    August 31, 2015




APPEARANCES:

For Plaintiff-Appellee                               For Defendant-Appellant

JOHN D. FERRERO                                      JONATHAN T. SINN
Prosecuting Attorney                                 137 South Main Street
By: RONALD MARK CALDWELL                             Suite 300
Assistant Prosecuting Attorney                       Akron, OH 44308
110 Central Plaza South
Suite 510
Canton, OH 44702-1413
Stark County, Case No. 2014CA00135                                                       2

Farmer, J.

       {¶1}      On August 19, 2013, two masked men entered the apartment of Cleneisha

Jones. At the time, Ms. Jones was engaged in sexual intercourse with the victim, Jamar

Johnson. The intruders placed Ms. Jones in a closet and demanded money from Mr.

Johnson. Eventually, a struggle ensued and Mr. Johnson was shot as well as one of

the intruders.

       {¶2}      The police arrived and discovered Mr. Johnson on the front yard of the

apartment building. The police found appellant, Nicos Travial Elder, hiding in a nearby

wooded area. Appellant was wearing a black hoodie and a red bandana. He had been

shot in the leg. Appellant told the police he had been shot while attempting to help Mr.

Johnson. Mr. Johnson died at the scene, and appellant was transported to the hospital

where he received two surgeries to repair the damage to his leg.

       {¶3}      Ms. Jones told police one of the intruders was wearing a black hoodie and

a red mask.

       {¶4}      The day after his second surgery, the police interviewed appellant at the

police station. He was in a wheelchair and wearing a hospital gown, wrapped in a

blanket.

       {¶5}      On October 8, 2013, the Stark County Grand Jury indicted appellant on

one count of aggravated murder in violation of R.C. 2903.01(B), one count of

kidnapping in violation of R.C. 2905.01(A)(2), and one count of aggravated robbery in

violation of R.C. 2911.01(A)(1) and/or (A)(3), all with attendant firearm specifications in

violation of R.C. 2941.145, and one count of having weapons while under disability in
Stark County, Case No. 2014CA00135                                                      3


violation of R.C. 2923.13(A)(3).        The indictment included two death penalty

specifications under R.C. 2929.04(A)(7).

      {¶6}   On February 25, 2014, appellant filed a motion to suppress his statements

to the police, claiming his statements were not voluntary because he was in severe pain

and was under the influence of pain medication. Hearings were held on March 5 and

18, 2014. By judgment entry filed May 14, 2014, the trial court denied the motion.

      {¶7}   A jury trial commenced on June 2, 2014 on all charges save the weapons

count. The jury found appellant guilty as charged. The trial court found appellant guilty

of the weapons count. The mitigation trial commenced on June 16, 2014. The jury

recommended that appellant be sentenced to life in prison without the eligibility for

parole. By judgment entry filed July 21, 2014, the trial court sentenced appellant to life

in prison without parole eligibility as recommended by the jury. All other sentences

were ordered to be served concurrently, except for the three year term for the firearm

specification which was ordered to be served consecutively.

      {¶8}   Appellant filed an appeal and this matter is now before this court for

consideration. Assignments of error are as follows:

                                            I

      {¶9}   "THE APPELLANT'S STATEMENT GIVEN TO THE POLICE ON

AUGUST 22, 2014, SHOULD BE STRIKEN (SIC) FROM THE RECORD AND NOT BE

CONSIDERED IN THE CURRENT PROCEEDING BECAUSE IT HAS BEEN

REMOVED FROM THE EVIDENCE VAULT BY THE APPELLEE WITHOUT A COURT

ORDER; THEREBY, MAKING IT UNAVAILABLE FOR THE UNDERSIGNED AND THIS

COURT TO REVIEW."
Stark County, Case No. 2014CA00135                                 4


                                     II

     {¶10} "THE TRIAL COURT ERRED IN REFUSING TO GRANT THE

APPELLANT'S MOTION TO SUPPRESS BECAUSE AT THE TIME THE STATEMENT

WAS MADE HE WAS IN EXTREME PAIN, UNDER THE INFLUENCE OF HIGH

POWERED PAIN MEDICATION AND HAD SURGERY JUST THE DAY BEFORE THE

STATEMENT WAS GIVEN."

                                     III

     {¶11} "THE TRIAL COURT ERRED IN NAMING CLENEISHA JONES AS A

COURT'S WITNESS PER EVID.R. 614, BECAUSE IT WAS NOT ESTABLISHED THAT

THE WITNESS WAS BEING EVEN REMOTELY DIFFICULT WITH THE STATE OF

OHIO WHICH CALLED HER TO TESTIFY AND HER STATEMENTS WERE

CONSISTENT WITH THE STATEMENTS SHE GAVE THE POLICE AND COUNSEL

FOR THE STATE."

                                     IV

     {¶12} "THE TRIAL COURT ERRED IN NOT GRANTING THE APPELLANT'S

MOTION FOR CRIM.R. 29 EQUITTAL (SIC) BECAUSE THERE WAS INSUFFICIENT

EVIDENCE PRESENTED BY THE APPELLEE TO PROVE EACH AND EVERY

ELEMENT OF AGGRAVATED MURDER AND THE ACCOMPANYING DEATH

PENALTY SPECIFICATION, AGGRAVATED ROBBERY AND KIDNAPPING."

                                     V

     {¶13} "THE APPELLANT'S CONVICTIONS OF AGGRAVATED MURDER WITH

SPECIFICATIONS, AGGRAVATED ROBBERY AND KIDNAPPING ARE AGAINST

THE WEIGHT OF THE EVIDENCE."
Stark County, Case No. 2014CA00135                                                   5


                                            VI

      {¶14} "THE APPELLANT WAS DENIED HIS SIXTH AMENDMENT RIGHT TO

EFFECTIVE TRIAL COUNSEL BECAUSE TRIAL COUNSEL FAILED TO MOVE THE

COURT TO INCLUDE LESSER AND INCLUDED OFFENSES INSTRUCTIONS OF

FELONY MURDER, INVOLUNTARY MANSLAUGHTER AND RECKLESS HOMICIDE."

                                           VII

      {¶15} "THE JURY ERRED IN SENTENCING THE APPELLANT TO LIFE IN

PRISON WITHOUT THE POSSIBILITY OF PAROLE RATHER THAN LIFE IN PRISON

WITH THE POSSIBILITY OF PAROLE AFTER SERVING 25 OR 30 YEARS ON (SIC)

PRISON."

                                            I

      {¶16} Appellant claims his videotaped statement given to police should be

stricken from the record because the videotape is unavailable for review. We disagree.

      {¶17} In his brief at 4, appellant claimed the following:



             In the matter at hand, Appellate counsel has attempted to locate

      the recorded interview of Mr. Elder, but was informed by the trial court

      administrator that it had been removed by the Appellee and was therefore,

      unavailable.   There was a transcript of the (sic) Mr. Elder's statement

      marked as an Exhibit, Exhibit 16, but was not made a part of the record.

      See Trial Transcript - Volume VII, page 228.
Stark County, Case No. 2014CA00135                                                      6


       {¶18} From a review of the exhibits marked into evidence by the court reporter

and listed in Vol. VII T. at 6, State's Exhibit 16 is the "Recorded Interview – Defendant"

and is a CD.         Id. at 228.       State's Exhibit 17 is "Interview Transcript of

Defendant/Redacted."      Both were admitted into evidence.      Id. at 314-316.   Clearly

appellant's videotaped statement to police was made a part of the record. In fact, this

court reviewed the videotaped statement for purposes of this appeal.

       {¶19} We find appellant's argument that the videotaped statement was not made

a part of the record to be incorrect. Further, a redacted transcript of the videotaped

statement was admitted as State's Exhibit 17, not 16, and was also made a part of the

record. We note at no time did appellant, through his trial counsel or appellate counsel,

make a request to the trial court for a copy of the CD itself.

       {¶20} Assignment of Error I is denied.

                                              II

       {¶21} Appellant claims the trial court erred in denying his motion to suppress

because his statement to the police was involuntary as he had been recently released

from the hospital following surgery, was in extreme pain, and was on high powered pain

medication. We disagree.

       {¶22} There are three methods of challenging on appeal a trial court's ruling on a

motion to suppress. First, an appellant may challenge the trial court's findings of fact.

In reviewing a challenge of this nature, an appellate court must determine whether said

findings of fact are against the manifest weight of the evidence. State v. Fanning, 1

Ohio St.3d 19 (1982); State v. Klein, 73 Ohio App.3d 486 (4th Dist.1991); State v.

Guysinger, 86 Ohio App.3d 592 (4th Dist.1993). Second, an appellant may argue the
Stark County, Case No. 2014CA00135                                                            7


trial court failed to apply the appropriate test or correct law to the findings of fact. In that

case, an appellate court can reverse the trial court for committing an error of law. State

v. Williams, 86 Ohio App.3d 37 (4th Dist.1993).          Finally, assuming the trial court's

findings of fact are not against the manifest weight of the evidence and it has properly

identified the law to be applied, an appellant may argue the trial court has incorrectly

decided the ultimate or final issue raised in the motion to suppress. When reviewing

this type of claim, an appellate court must independently determine, without deference

to the trial court's conclusion, whether the facts meet the appropriate legal standard in

any given case. State v. Curry, 95 Ohio App.3d 93 (8th Dist.1994); State v. Claytor, 85

Ohio App.3d 623 (4th Dist.1993); Guysinger. As the United States Supreme Court held

in Ornelas v. U.S., 517 U.S. 690, 116 S.Ct. 1657, 1663 (1996), "…as a general matter

determinations of reasonable suspicion and probable cause should be reviewed de

novo on appeal."

       {¶23} As the trial court noted in its May 14, 2014 judgment entry denying the

motion to suppress, appellant was read his constitutional rights and signed a waiver of

his Miranda rights. Appellant's waiver must be voluntarily, knowingly, and intelligently

made. Miranda v. Arizona, 384 U.S. 436 (1966). As stated in State v. Nelson, 4th Dist.

Ross No.1984, 1994 WL 534930, at *2 (Sept. 22, 1994), a valid waiver of constitutional

rights should be reviewed in the context of the totality of the circumstances surrounding

the waiver and must meet two criteria:



              The analysis of a waiver's validity has two distinct aspects. First,

       the relinquishment of the right must have been voluntary in the sense that
Stark County, Case No. 2014CA00135                                                        8


       it was the product of a free and deliberate choice, rather than intimidation,

       coercion, or deception. Second, the waiver must have been made with a

       full awareness of both the nature of the right abandoned and the

       consequences of the decision to abandon it.



       {¶24} In its judgment entry, the trial court noted when appellant gave his

statement to the police, he was wearing a hospital gown and was wrapped in a blanket.

The trial court stated, "[i]t is apparent from the video of the interview, that at times the

defendant appeared to be woozy, cold, and in pain." Although the trial court stated it did

not condone the manner in which appellant was taken from the hospital in his hospital

gown and interviewed so soon after having surgery, the trial court concluded the

following:



              A review of the transcript and videotape of the interview of the

       defendant in this case, does not reflect coercive conduct by the police nor

       is there evidence of activity sufficient to overbear the will of the accused.

       In looking at the totality of the circumstances including the defendant's

       age, mentality and prior criminal experience, and the brief period of the

       interrogation, the Court finds that defendant's statement was voluntarily

       made. The defendant was not threatened or handcuffed and the officers

       asked about his comfort level. He was also provided with food, drink and

       both a smoke and bathroom break. Finally, the defendant's mental state
Stark County, Case No. 2014CA00135                                                     9


      was further demonstrated by this own questions as well as his request for

      an attorney during the interrogation.

             ***

             Pursuant to a review of the totality of the circumstances, and as

      demonstrated by the Defendant's exercise of his right to counsel during

      the interrogation by requesting an attorney, the Court finds that the

      Defendant knowingly and intelligently waived his Miranda rights.



      {¶25} In reviewing the videotape (State's Exhibit 16), this court found appellant

appeared cognitive and responsive. He was able to answer questions regarding his

address or lack thereof, his mother's address and phone number, the location of the

incident, and the events of the evening prior to the incident. Once confronted with what

the police knew about the incident, appellant requested an attorney and asked to call

his mother. All of these factors lead to the single conclusion that appellant's statement

was voluntary and was knowingly and intelligently given.

      {¶26} Upon review, we find the trial court did not err in denying appellant's

motion to suppress.

      {¶27} Assignment of Error II is denied.

                                              III

      {¶28} Appellant claims the trial court erred in calling Cleneisha Jones as a

court's witness pursuant to Evid.R. 614. We disagree.

      {¶29} Evid.R. 614(A) and (C) state, respectively: "[t]he court may, on its own

motion or at the suggestion of a party, call witnesses, and all parties are entitled to
Stark County, Case No. 2014CA00135                                                      10


cross-examine witnesses thus called" and "[o]bjections to the calling of witnesses by the

court or to interrogation by it may be made at the time or at the next available

opportunity when the jury is not present."

      {¶30} Evid.R. 607(A) states in part: "The credibility of a witness may be attacked

by any party except that the credibility of a witness may be attacked by the party calling

the witness by means of a prior inconsistent statement only upon a showing of surprise

and affirmative damage."

      {¶31} As explained by our brethren from the Second District in State v. Arnold,

189 Ohio App.3d 507, 2010-Ohio-5379, ¶ 44 (2nd Dist.):



             "A trial court possesses the authority in the exercise of sound

      discretion to call individuals as witnesses of the court." State v. Adams

      (1980), 62 Ohio St.2d 151, 16 O.O.3d 169, 404 N.E.2d 144, paragraph

      four of the syllabus. "It is well-established that a trial court does not abuse

      its discretion in calling a witness as a court's witness when the witness's

      testimony would be beneficial to ascertaining the truth of the matter and

      there is some indication that the witness's trial testimony will contradict a

      prior statement made to police." State v. Schultz, Lake App. No. 2003–L–

      156, 2005-Ohio-345, 2005 WL 238153, ¶ 29; State v. Lather, 171 Ohio

      App.3d 708, 2007-Ohio-2399, 872 N.E.2d 991, ¶ 3.
Stark County, Case No. 2014CA00135                                                        11


       {¶32} We note a specific objection was not made to the trial court calling Ms.

Jones as a witness. Defense counsel simply stated, "I contend that she hasn't changed

her story.***I can argue that. At the appropriate time." Vol. VI T. at 1003.

       {¶33} An error not raised in the trial court must be plain error for an appellate

court to reverse. State v. Long, 53 Ohio St.2d 91 (1978); Crim.R. 52(B). In order to

prevail under a plain error analysis, appellant bears the burden of demonstrating that

the outcome of the trial clearly would have been different but for the error. Long. Notice

of plain error "is to be taken with the utmost caution, under exceptional circumstances

and only to prevent a manifest miscarriage of justice." Id. at paragraph three of the

syllabus.

       {¶34} In declaring Ms. Jones a court's witness, the trial court implied she was a

hostile witness: "It is clear from the testimony and from the attitude of the witness, in

response to your question and in response to the questions by the State of Ohio, that

she is not here to support the state's position in this case. Clearly, this is an appropriate

time for 614." Vol. VI T. at 1003-1004.

       {¶35} We are not convinced that the trial court's opinion that Ms. Jones was not

there to support the state's case was the appropriate standard vis-á-vis Evid.R. 607(A).

Nevertheless, given the nature of the cross-examination by defense counsel and the

subsequent re-cross by the state and defense counsel, we find any error to be harmless

for the following reasons.

       {¶36} During cross-examination by defense counsel, Ms. Jones affirmatively

stated appellant was not one of the two intruders who came into her apartment. Vol. VI

T. at 999. During the state's re-cross, Ms. Jones stuck with her testimony that she did
Stark County, Case No. 2014CA00135                                                    12

not know one of the two intruders was appellant. Id. at 1005, 1008-1009. During re-

cross by defense counsel, Ms. Jones explained her testimony (Id. at 1012-1013):



             A. I told them [the police] that I did not know it was Nicos until the

      next day.

             Q. Okay.

             A. And that I did not have anything to do with it.

             Q. And how did you know the next day that it was Nicos?

             A. Because the streets was saying that it was him.

             Q. Okay. So it was out on the street: Hey, this is the guy that they

      arrested for this?

             A. Right.

             Q. Right? What was your reaction to that?

             A. To what?

             Q. To hearing that they'd arrested Nicos and said that he was the

      one who did this?

             A. I just didn't understand. Like.

             Q. Okay. Why didn't you understand?

             A. 'Cause like Nicos like know him like.

             Q. Was he man who was in your apartment?

             A. No, he was not.
Stark County, Case No. 2014CA00135                                                      13


      {¶37} The calling of Ms. Jones pursuant to Evid.R. 614 gave defense counsel

another opportunity to have her state that appellant was not one of the perpetrators.

      {¶38} Under a plain error standard, we find the outcome was not prejudiced by

the mode of interrogation as it provided an additional avenue for defense counsel to

establish appellant did not commit the crime.

      {¶39} Assignment of Error III is denied.

                                          IV, V

      {¶40} Appellant claims the trial court erred in denying his Crim.R. 29 motion for

acquittal and the evidence was insufficient to support the jury's guilty findings. Because

all the direct evidence was given during the state's case-in-chief and only one witness,

Ericka Johnson, M.D., was presented by the defense, we will address these

assignments collectively.1

      {¶41} On review for manifest weight, a reviewing court is to examine the entire

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

witnesses and determine "whether in resolving conflicts in the evidence, the jury clearly

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

be reversed and a new trial ordered." State v. Martin, 20 Ohio App.3d 172, 175 (1st

Dist.1983). See also, State v. Thompkins, 78 Ohio St.3d 380, 1997-Ohio-52. The

granting of a new trial "should be exercised only in the exceptional case in which the

evidence weighs heavily against the conviction." Martin at 175. We note the weight to



1
 Dr. Johnson was called to testify about appellant's severe orthopedic injury and
surgeries and to establish that she had prescribed pain medication to appellant prior to
his statement to the police. Vol. VII T. at 160-162. Dr. Johnson admitted she did not
have "any personal knowledge as to what was or was not taken" by appellant. Id. at
165.
Stark County, Case No. 2014CA00135                                                      14


be given to the evidence and the credibility of the witnesses are issues for the trier of

fact. State v. Jamison, 49 Ohio St.3d 182 (1990). The trier of fact "has the best

opportunity to view the demeanor, attitude, and credibility of each witness, something

that does not translate well on the written page." Davis v. Flickinger, 77 Ohio St.3d 415,

418, 1997-Ohio-260.

       {¶42} Crim.R. 29 governs motion for acquittal.         Subsection (A) states the

following:



              The court on motion of a defendant or on its own motion, after the

       evidence on either side is closed, shall order the entry of a judgment of

       acquittal of one or more offenses charged in the indictment, information,

       or complaint, if the evidence is insufficient to sustain a conviction of such

       offense or offenses. The court may not reserve ruling on a motion for

       judgment of acquittal made at the close of the state's case.



       {¶43} The standard to be employed by a trial court in determining a Crim.R. 29

motion is set out in State v. Bridgeman, 55 Ohio St.2d 261 (1978), syllabus: "Pursuant

to Crim.R. 29(A), a court shall not order an entry of judgment of acquittal if the evidence

is such that reasonable minds can reach different conclusions as to whether each

material element of a crime has been proved beyond a reasonable doubt."

       {¶44} The jury found appellant guilty of aggravated murder in violation of R.C.

2903.01(B), kidnapping in violation of R.C. 2905.01(A)(2), aggravated robbery in
Stark County, Case No. 2014CA00135                                                     15


violation of R.C. 2911.01(A)(1) and/or (A)(3), and the firearm specifications in violation

of R.C. 2941.145:



             [R.C. 2903.01(B)] No person shall purposely cause the death of

      another or the unlawful termination of another's pregnancy while

      committing or attempting to commit, or while fleeing immediately after

      committing or attempting to commit, kidnapping, rape, aggravated arson,

      arson, aggravated robbery, robbery, aggravated burglary, burglary,

      trespass in a habitation when a person is present or likely to be present,

      terrorism, or escape.

             [R.C. 2905.01(A)(2)] No person, by force, threat, or deception, or, in

      the case of a victim under the age of thirteen or mentally incompetent, by

      any means, shall remove another from the place where the other person is

      found or restrain the liberty of the other person***[t]o facilitate the

      commission of any felony or flight thereafter.

             [R.C. 2911.01(A)(1) and/or (A)(3)] No person, in attempting or

      committing a theft offense, as defined in section 2913.01 of the Revised

      Code, or in fleeing immediately after the attempt or offense, shall***[h]ave

      a deadly weapon on or about the offender's person or under the offender's

      control and either display the weapon, brandish it, indicate that the

      offender possesses it, or use it; or [i]nflict, or attempt to inflict, serious

      physical harm on another.
Stark County, Case No. 2014CA00135                                                    16


             [R.C. 2941.145] Imposition of a three-year mandatory prison term

      upon an offender under division (B)(1)(a) of section 2929.14 of the

      Revised Code is precluded unless the indictment, count in the indictment,

      or information charging the offense specifies 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.



      {¶45} Appellant argues evidence was not presented to specifically identify him

as the shooter and/or perpetrator or establish that he possessed a firearm during the

commission of the offense. Appellant further argues direct evidence was not presented

linking him to the acts that resulted in Mr. Johnson's death. We disagree with these

arguments for the following reasons.

      {¶46} The direct evidence established appellant's shoe, cell phone, and DNA

were found at the scene of the crime, Ms. Jones's apartment. Vol. IV T. at 749-750,

755, 785; Vol. VI T. at 1050-1052; Vol. VII T. at 217-219; State's Exhibits 1-Q, 1-N, and

2-6. Mr. Johnson's blood was found on appellant's sweatshirt and shoes. Vol.IV T. at

744-748, 755-757, 784-785; State's Exhibits 1-Q and 8.

      {¶47} One of the perpetrators was described by Ms. Jones as wearing a black

hoodie and a red mask. Vol. VI T. at 963-964. Appellant was found on the north side of

the crime scene, hiding in the woods, wearing a black hoodie and a red bandana. Vol.

V T. at 818-820, 846-847. The left cuff of appellant's hoodie contained gunshot residue.
Stark County, Case No. 2014CA00135                                                       17


Vol. VII T. at 144-145; State's Exhibits 8 and 8-A. From our review of the videotape of

appellant's statement to the police that was also viewed by the jury, it is evident that

appellant is left handed. Vol. VII T. at 232; Vol. VIII T. at 50.

       {¶48} Appellant, at the scene and during his videotaped statement some two

days later, told the police he was a passerby who observed the wounded and dying Mr.

Johnson on the front lawn and went to his aid only to be shot himself. Vol. V T. at 844,

848; States Exhibit 16. The defense argued by defense counsel was different and was

tailored to fit the evidence gathered from the crime scene.

       {¶49} The jury, as the trier of fact, determines which evidence is worthy of belief.

Direct evidence was presented to establish appellant's presence at the crime scene and

that he was the shooter which could have reasonably led to the jury's guilty verdicts.

       {¶50} Upon review, we find sufficient evidence to overcome the Crim.R. 29

motion for acquittal and no manifest miscarriage of justice.

       {¶51} Assignments of Error IV and V are denied.

                                              VI

       {¶52} Appellant claims his trial counsel was deficient in failing to request jury

instructions on felony murder, involuntary manslaughter, and reckless homicide. We

disagree.

       {¶53} The standard this issue must be measured against is set out in State v.

Bradley, 42 Ohio St.3d 136 (1989), paragraphs two and three of the syllabus. Appellant

must establish the following:
Stark County, Case No. 2014CA00135                                                     18


              2. Counsel's performance will not be deemed ineffective unless and

       until counsel's performance is proved to have fallen below an objective

       standard of reasonable representation and, in addition, prejudice arises

       from counsel's performance. (State v. Lytle [1976], 48 Ohio St.2d 391, 2

       O.O.3d 495, 358 N.E.2d 623; Strickland v. Washington [1984], 466 U.S.

       668, 104 S.Ct. 2052, 80 L.Ed.2d 674, followed.)

              3. To show that a defendant has been prejudiced by counsel's

       deficient performance, the defendant must prove that there exists a

       reasonable probability that, were it not for counsel's errors, the result of

       the trial would have been different.



       {¶54} This court must accord deference to defense counsel's strategic choices

made during trial and "requires us to eliminate the distorting effect of hindsight." State

v. Post, 32 Ohio St.3d 380, 388 (1987).

       {¶55} The entire case was tried under the theory that appellant was not the

perpetrator of the offense, but was in fact a victim.

       {¶56} During opening statement, defense counsel explained appellant went to

Ms. Jones's apartment because he felt "bad about not giving her the money that he

owed her." Vol. IV T. at 713. Defense counsel then explained (Id. at 714-716):



              The only light that would have been on in the apartment, you'll hear,

       is coming from the television, because she was playing music through her

       X box. And, ah, the, the TV lights up, with like the name of the song and
Stark County, Case No. 2014CA00135                                                    19


     the name of the artist on the television screen, and that was the source of

     light in the room.

            So Nicos hears the music and heads back to the bedroom. When

     he gets into the bedroom, he realizes that there is someone lying on the

     floor with duct tape on their hands.

            You'll hear testimony that the individual on the floor had duct tape

     around their eyes, around their hands, around their ankles.

            Later on, Nicos will, will figure out this is Mr. Johnson.

            As he enters the room and sees the man laying on the floor, you

     will hear testimony that he feels a gun to the back of his head.

            Person behind him says, Empty your pockets onto the bed.

            And Nicos does that. He takes the money that he was going to pay

     Cleneisha out of his pocket, puts it on the bed. He also takes some crack

     cocaine out of his pocket and puts that on the bed.

            At this point in time, once his pockets are empty, the person behind

     him puts a red bandana around his face and ties it on so that Nicos' vision

     is blocked.

            At this point you will hear testimony that while this, this perpetrator

     was defend - - or was distracted, Mr. Johnson attempted to lunge at him to

     try and get away from the situation. And the man with the gun began firing

     his gun.

            Nicos tried to run out of the room, but found he couldn't run,

     because he'd been shot in the leg.
Stark County, Case No. 2014CA00135                                                     20


             The bullet broke both of the bones in his leg, shattering the bones,

      and part of the bone was sticking out almost through the skin by the time

      he got to the hospital.

             So he drug himself out of the apartment.



      {¶57} During closing argument, defense counsel argued appellant was in the

wrong place at the wrong time, and there were other logical explanations for the facts

i.e., the existence of appellant's shoe, cell phone, and blood in the apartment. Vol. VIII

T. at 36-41. Defense counsel admitted that appellant lied to the police, but excused it

as a cultural fact that in appellant's "neighborhood," you do not speak to the police and

he was under the influence of pain medication. Id. at 42-43, 45. It was appellant's

consistent defense that he did not break-in to the apartment and attempt to rob or

murder Mr. Johnson.

      {¶58} With this specific theory, we do not find defense counsel was deficient in

not requesting alternative offenses.

      {¶59} Assignment of Error VI is denied.

                                           VII

      {¶60} Appellant claims the trial court erred in sentencing him to life imprisonment

without the eligibility for parole based upon the mitigating factors presented.       We

disagree.

      {¶61} Following a determination that the sentence imposed is not contrary to

law, a trial court's decision on sentencing is reviewed under an abuse of discretion. In

order to find an abuse of discretion, we must determine the trial court's decision was
Stark County, Case No. 2014CA00135                                                      21


unreasonable, arbitrary or unconscionable and not merely an error of law or judgment.

Blakemore v. Blakemore, 5 Ohio St.3d 217 (1983). As appellant was facing the death

penalty, life imprisonment without parole eligibility is not contrary to law. R.C. 2929.02

and 2929.04.

      {¶62} The jury, as the trier of fact in weighing the mitigation factors,

recommended life imprisonment without parole eligibility.

      {¶63} R.C. 2929.04 governs criteria for imposing death or imprisonment for a

capital offense. Subsections (B) and (C) state the following:



               (B) If one or more of the aggravating circumstances listed in

      division (A) of this section is specified in the indictment or count in the

      indictment and proved beyond a reasonable doubt, and if the offender did

      not raise the matter of age pursuant to section 2929.023 of the Revised

      Code or if the offender, after raising the matter of age, was found at trial to

      have been eighteen years of age or older at the time of the commission of

      the offense, the court, trial jury, or panel of three judges shall consider,

      and weigh against the aggravating circumstances proved beyond a

      reasonable doubt, the nature and circumstances of the offense, the

      history, character, and background of the offender, and all of the following

      factors:

               (1) Whether the victim of the offense induced or facilitated it;
Stark County, Case No. 2014CA00135                                                     22


            (2) Whether it is unlikely that the offense would have been

     committed, but for the fact that the offender was under duress, coercion,

     or strong provocation;

            (3) Whether, at the time of committing the offense, the offender,

     because of a mental disease or defect, lacked substantial capacity to

     appreciate the criminality of the offender's conduct or to conform the

     offender's conduct to the requirements of the law;

            (4) The youth of the offender;

            (5) The offender's lack of a significant history of prior criminal

     convictions and delinquency adjudications;

            (6) If the offender was a participant in the offense but not the

     principal offender, the degree of the offender's participation in the offense

     and the degree of the offender's participation in the acts that led to the

     death of the victim;

            (7) Any other factors that are relevant to the issue of whether the

     offender should be sentenced to death.

            (C) The defendant shall be given great latitude in the presentation

     of evidence of the factors listed in division (B) of this section and of any

     other factors in mitigation of the imposition of the sentence of death.

            The existence of any of the mitigating factors listed in division (B) of

     this section does not preclude the imposition of a sentence of death on the

     offender but shall be weighed pursuant to divisions (D)(2) and (3) of

     section 2929.03 of the Revised Code by the trial court, trial jury, or the
Stark County, Case No. 2014CA00135                                                      23


      panel of three judges against the aggravating circumstances the offender

      was found guilty of committing.



      {¶64} The mitigating factors established appellant was twenty-seven years old

and had a non-participating father who was involved with drugs and had a criminal and

violent history, including domestic violence with appellant's mother, a mother who tried,

but did not cooperate with the school system in assisting appellant. Mitigation T. at 43-

44, 49, 53-55, 82-83, 117, 133-134. Appellant has a low I.Q. of 77, with an early onset

of learning problems, is learning disabled, is unable to focus on things, and has a low

frustration tolerance. Id. at 134-135, 141-142, 145, 149, 166.

      {¶65} He was seriously injured at five years old when his foot was run over by a

car, was not strictly supervised, and was an at-risk child. Id. at 61-64. Starting at about

eight years old, appellant would ride the bus by himself from Canton to Massillon and

stay with his older half-sister, and at around twelve years old, moved into her home. Id.

at 44, 62-64, 123. Part of the problem he had with his mother was that he was resistant

to following rules. Id. at 162. Appellant was "on the streets" from age eleven/twelve,

and started selling drugs. Id. at 116, 123, 130, 132, 135, 162-163.

      {¶66} The mitigation expert, psychologist Jeffrey Smalldon, Ph.D., met with

appellant and described him as "polite, respectful, cooperative, though in sort of a

passive, depressed, seething way. He was pretty sluggish, lethargic." Id. at 127-128.

Although appellant has a child, he appears to not be parenting very seriously. Id. at

135-136.    Appellant's abuse of alcohol and drugs were viewed as an escape

mechanism. Id. at 137-138. Dr. Smalldon diagnosed appellant with a mood disorder,
Stark County, Case No. 2014CA00135                                                     24


alcohol and marijuana dependency, cognitive disorder, learning disorder, and possibly

undiagnosed ADD. Id. at 149-150.

      {¶67} We find these factors clearly outweigh the imposition of death, but do not

outweigh the sentence of life imprisonment.

      {¶68} Upon review, we find the trial court did not abuse its discretion in following

the jury's recommendation.

      {¶69} Assignment of Error VII is denied.

      {¶70} The judgment of the Court of Common Pleas of Stark County, Ohio is

hereby affirmed.

By Farmer, J.

Gwin, P.J. and

Baldwin, J. concur.




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