[Cite as State v. Boaston, 2017-Ohio-8770.]




                             IN THE COURT OF APPEALS OF OHIO
                                 SIXTH APPELLATE DISTRICT
                                      LUCAS COUNTY


State of Ohio                                     Court of Appeals No. L-15-1274

        Appellee                                  Trial Court No. CR0201401647

v.

Ronald Boaston                                    DECISION AND JUDGMENT

        Appellant                                 Decided: December 1, 2017

                                              *****

        Julia R. Bates, Lucas County Prosecuting Attorney, and
        Evy M. Jarrett, Assistant Prosecuting Attorney, for appellee.

        Stephen P. Hanudel, for appellant.

                                              *****

        JENSEN, P.J.

        {¶ 1} Defendant-appellant, Ronald Boaston, appeals from a murder conviction and

sentence imposed in connection with the 2014 death of his ex-wife, Brandi Gonyer-

Boaston. For the reasons that follow, we affirm the judgment of the trial court.
      {¶ 2} On the morning of February 15, 2014, Brandi Gonyer-Boaston was found

dead in the hatchback of her Dodge Journey. Her vehicle was parked, engine running,

more than 35 feet off a rural roadway in a snow-covered field in Fulton County, Ohio.

      {¶ 3} On April 21, 2014, the Lucas County Grand Jury returned a two-count

indictment against Boaston: one count of aggravated murder in violation of R.C.

2903.02(A) and 2929.02, an unclassified felony, and one count of murder in violation of

R.C. 2903.02(B) and 2929.02, an unclassified felony.

      {¶ 4} At a trial by jury, the following evidence was adduced.

      {¶ 5} Brandi first met Boaston when she worked as a babysitter for Boaston’s

three children. In time, Brandi and Boaston began a relationship with each other and had

two children together. They married in October 2005 and divorced in October 2006.

Brandi became involved with another man and bore his child. A short time after Brandi’s

third child was born, Brandi and Boaston reentered into a relationship. They moved into

an apartment with five of the six children (Boaston’s two children from another marriage,

the two children Brandi and Boaston share, and the child Brandi had with another man).

      {¶ 6} In 2013, Brandi finished nursing school and began working at Arbors of

Waterville. There, she met co-worker Daron Walls-Jones. Brandi was flirtatious with

Daron at work, by text, and by phone. In October of 2013, Boaston became aware of

Brandi’s relationship with Daron. From October of 2013 until her death in February

2014, Boaston installed three different types of spyware on Brandi’s mobile phone. The




2.
spyware allowed him to track her location, read her text messages, and listen to her

telephone conversations.

      {¶ 7} Sometime in late January or early February 2014, there was an incident

involving Brandi and Boaston in the bathroom of the apartment they shared. A woman

that lived next door to the family indicated that she heard running water and a woman’s

scream. She also felt a “vibration” through the shared wall.

      {¶ 8} Boaston’s son, W.B, was 16 at the time of Brandi’s death. W.B. testified

that one afternoon, a few weeks before Brandi died, he came home from school and saw

Brandi walk out of the bathroom with a towel on her head. She “was purple with black

eyes.” It appeared to him as though Brandi had just gotten out of the bath or shower.

W.B. explained, “from her head down she was purple and blue, looked like she had lack

of oxygen. She showed me her shoulders and her arms and they were colored the same

way as her face.” She appeared “upset and scared.” Over Boaston’s objections, W.B.

stated, “She told me that she was taking a bath, dad was just shaving, minding his own

business, they were talking. Then out of nowhere, seemed like nobody was inside of his

body anymore, he just pounced on her and tried to drown her.” W.B. indicated that after

the bathtub incident, Brandi started the process of moving out of the apartment. On

February 3, 2014, Brandi and Boaston informed the children that they were separating.

      {¶ 9} On the witness stand, Brandi’s mother, Cindy Gonyer-Rumer, recalled

seeing Brandi a few weeks before she died. Cindy had purchased a new pair of shoes for

Brandi and insisted that Brandi come to her home to pick them up. When Brandi arrived,




3.
her face was hidden under the hood of her sweatshirt. Cindy insisted that Brandi put her

head down. That is when Cindy noticed that Brandi’s eyes were black and blue and her

nose was a little crooked. Over Boaston’s objections, Cindy explained:

      [Brandi] started crying and she told me that what happened was bad. So

      my thought was that he raped her and she said, no, it was worse than that.

      And I said, well, what could be worse than that? And she said, he tried to

      drown me. And I goes, what do you mean, he tried to drown you? And

      she goes, yeah, she goes, he asked me to take a bath with him, so I was in

      the tub, he was shaving his head. She goes, and I never seen this look on

      his face before and he jumped on me * * * She said that that – that he tried

      to drown her and she was fighting him off.

When asked to describe Brandi’s demeanor at the time of the conversation, Cindy stated,

“[Brandi] was really upset and she told me that he was gonna kill her one of these days.

And I said, then let’s go to the cops or something, Brandi, you know. And she said, no,

mom, I can’t. She said, I won’t be able to see my kids.”

      {¶ 10} Some of Brandi’s co-workers also testified about statements Brandi made

regarding the alleged bathtub incident. Judy Holmes testified that once every two weeks

she worked the same shift as Brandi at Arbors of Waterville. Judy never saw any injuries

on Brandi. However, she did recall a conversation she had with Brandi the day before

she died wherein Brandi indicated that she was no longer with Boaston because “he tried

to drown her in the bathtub.”




4.
      {¶ 11} Shelby Hanes also worked with Brandi at Arbors of Waterville. Shelby

recalled going into work one day—perhaps three to seven days before Brandi died—and

noticing “what looked like popped blood vessels in her eyes * * * so it appear[ed] as

though she had two black eyes.” Brandi told Shelby that she received the injury by

running into a door. Brandi asked Shelby to help her “cover the bruises” with make-up.

Queen Anderson also worked with Brandi at Arbors of Waterville. Queen testified that

she noticed a “mark” on Brandi’s face on the day Shelby covered it with make-up.

Queen could not remember where the mark was. She did, however, recall a conversation

regarding the bathtub incident. Queen testified:

      [Brandi] told me that her and her husband had got into a disagreement or

      argument. * * * She didn’t say what the argument was about, she said that

      she thought everything was fine between them, you know, that he ran her a

      bath water and she took a bath. She said she don’t know what happened,

      what triggered him, but he came in the bathroom and he tried to hold her

      down in the tub. She said that that’s when she was getting out of the tub –

      trying to get out and she hit her face. * * * But she didn’t say anything

      about, you know, him hitting her or anything, she said that he was holding

      her down in the water and that’s how she got the mark on her face.

      {¶ 12} One of Boaston’s friends also testified about the bathtub incident. Derek

Wood testified that he and Boaston had been friends for 12 or 13 years. A few weeks




5.
before Brandi’s death, Boaston told Derek that he and Brandi had gotten into an

argument in their apartment bathroom. Derek explained:

               A. [Boaston] texted me and said, I fucked up.

               Q. And did he elaborate?

               A. There was really no – too much elaboration via text message but

         he kind of just told me – kind of described the scenario of what happened.

         We talked about it more in person though. * * * That they were arguing in

         the bathroom and that she says that he held her under water and that she

         couldn’t, you know, breathe for a few seconds and then he let her up and –

         but he said that he didn’t remember doing anything like that to her and did

         not remember hitting her either.

         {¶ 13} On Monday, February 3, 2014, Brandi placed her apartment key in

Boaston’s mailbox and packed some things in a tote. She began staying with her mother,

Cindy.

         {¶ 14} Despite what had occurred between Brandi and Boaston in the apartment

bathroom, Brandi continued to see and communicate with Boaston on a daily basis. On

numerous occasions, she went over to Boaston’s apartment and helped him get the

children ready for school and assist with the children’s homework.

         {¶ 15} On February 10, 2014, Brandi and her mother signed a rental application

for a mobile home. Brandi listed her three children as dependents on the application.




6.
       {¶ 16} On February 12, 2014, Cindy received a phone call from her daughter.

Brandi informed Cindy that Boaston was with her at Cindy’s home. When Cindy arrived

at her home a few minutes later, Boaston was standing on the porch holding the screen

door ajar. Boaston followed Cindy into the home and shut the door. According to Cindy,

Boaston started talking to Brandi and told her that either Brandi or Daron “was gonna

pay.” Despite the heated conversation, Brandi agreed to follow Boaston to Target to

purchase Valentine’s Day treats for the kids.

       {¶ 17} Brandi worked her usual shift from 6:00 p.m. to 6:00 a.m., February 12-13,

2014. After work, Brandi went to Boaston’s apartment to help get the children off to

school. Brandi stayed alone with Boaston for six hours. Boaston later reported to a

friend that he and Brandi had sex while they were alone together.

       {¶ 18} Brandi worked from 6:00 p.m. to 7:00 a.m., February 13-14, 2014. While

at work, Brandi made plans with co-worker Judy Holmes to go out to a club on

Valentine’s Day evening. From 8:34 p.m. on February 13, 2014 through 2:20 a.m. on

February 14, 2014, Brandi and Daron exchanged 46 text messages, some of which were

sexual in nature.

       {¶ 19} Meanwhile on the evening of February 13, 2014, Mark Reno was hanging

out with his friend, Matt Gwozdz. Matt and Boaston were friends. Sometime between 9-

11:00 p.m., Boaston arrived at Gwozdz’s home. When Reno headed towards the door to

leave, Boaston followed him. Boaston asked Reno if he could “get a gun” or knew

anyone that could “take care of business.” Reno asked Boaston if he needed him to




7.
“gather up the home boys and go take care of some shit.” Boaston said “something like

that, but deeper.” Reno asked Boaston, “what do you want to do? You want to pistol

whip him, put him in ICU or something, send a message to him?” According to Reno,

Boaston looked down and shook his head. Reno testified, “it just didn’t seem, real, I

blew it off and left.”

       {¶ 20} Boaston called Reno at 2:51 a.m. The phone call lasted nearly eight and

one-half minutes. According to Reno, Boaston had called him and asked him to “have

lunch and talk.” Reno indicated that he did not take Boaston’s lunch invitation seriously

and had no intention of speaking with Boaston again.

       {¶ 21} At 4:05 a.m. Boaston filled his vehicle with gasoline. He then conducted

two transactions at a nearby ATM.

       {¶ 22} At 7:21 a.m. on February 14, 2014, Brandi went to McDonalds and

purchased two breakfast sandwiches; one for herself and one for Boaston. Brandi made it

to Boaston’s apartment at about 7:30 a.m. Shortly thereafter, she and Boaston each ate

one of the breakfast sandwiches. The kids finished getting ready for school. The last

child boarded the school bus at 8:30 a.m.

       {¶ 23} W.B. never heard from Brandi on the afternoon of February 14, 2014, even

though Brandi had made plans to drive W.B. and his girlfriend to a local restaurant for an

early Valentine’s Day dinner. According to family members, it was unusual for Brandi to

fail to follow through with plans she had made. W.B. became concerned about Brandi

and telephoned Brandi’s brother, Kevin Gonyer. Kevin tried to contact Brandi by phone,




8.
to no avail. Every time he called he heard a message that Brandi’s voice mailbox was not

set up.

          {¶ 24} Kevin went to Boaston’s apartment and asked Boaston to track Brandi

down using the spyware installed on Brandi’s phone. Boaston left the room for a few

moments. When he came back, Boaston informed Kevin that Brandi’s phone was not on.

          {¶ 25} Kevin tried to call Brandi again. This time, he heard a message that the

number he called was either changed or disconnected. Kevin went to Cindy’s house.

Cindy began calling Brandi’s phone. She too heard a message that Brandi’s number had

been changed or disconnected. Cindy called Boaston to ask about Brandi. Boaston

informed her that Brandi had stopped by the apartment after work, paid the gas bill, and

gave him her debit card and pin number with instructions to spend the rest of her

paycheck on the kids. Boaston also informed Cindy that Brandi had showered and put

her dirty work clothes back on before she left the apartment at 10:30 a.m. At the time,

Cindy thought Boaston’s statements were odd because Brandi was saving money for the

mobile home. Brandi always purchased things for the children herself. Cindy also

testified, and W.B. confirmed, that it was unusual for Brandi to put dirty clothes on after

she showered. In fact, she often scolded the children when they did so.

          {¶ 26} At 11:45 p.m. on February 14, 2014, Boaston called 911 to report Brandi’s

disappearance. Toledo Police Officer Martin Przybysz responded to the call. When the

officer arrived at the apartment, Boaston invited him into the foyer. Boaston indicated

that his ex-wife was not answering her phone and she was not at her mother’s home.




9.
Boaston did not inform the officer that he had the ability to track Brandi’s phone nor did

he mention that Brandi’s phone was turned off. Officer Przybysz characterized

Boaston’s demeanor as calm.

         {¶ 27} Just before 8:00 a.m. on Saturday, February 15, 2014, hunters came across

Brandi’s vehicle parked in a snow-covered field in Fulton County, Ohio. One set of boot

prints lead from the driver’s side of the vehicle to the road. One of the hunters called his

son, Matthew Smithmyer, a deputy with the Fulton County Sheriff’s Office.

         {¶ 28} When Deputy Smithmyer arrived at the scene, he noted two key fobs lying

on the vehicle’s front passenger seat. Officer Smithmyer opened the unlocked rear

driver-side door and looked around. He then opened the rear hatch of the vehicle and

found a woman’s body wrapped in a clear plastic tarp. A shattered mobile phone was

found on the roadway. The Bureau of Criminal Investigation was called in to process the

scene.

         {¶ 29} The Fulton County Sheriff’s Department contacted the Lucas County

Sheriff’s Department who, in turn, contacted Toledo Police. Officers from each agency

met at Toledo’s detective bureau and discussed how to proceed with the investigation.

Jeff Kozak, a detective with the Lucas County Sheriff’s Department, went to Boaston’s

home and asked Boaston if he would be willing to go down to the bureau to speak with

detectives about Brandi’s disappearance. Boaston agreed. Boaston called Brandi’s

mother and asked her to come over to the apartment and get the kids. During the time

they were waiting for Cindy to arrive, Boaston never asked the detective if they had




10.
found Brandi nor did he ask the detective whether he had any information about where

Brandi might be. In Detective Kozak’s opinion, Boaston appeared calm.

       {¶ 30} Detective Kozak testified that when Cindy arrived to pick up the children,

she was crying and begging for information about her daughter. At the time, Detective

Kozak did not reveal any information about what had been found in Fulton County.

Instead, he informed Cindy that they were “working on it.” A few minutes after Cindy

left with the children, Toledo Police Detectives arrived with a crime scene unit and a

search warrant.

       {¶ 31} Boaston arrived at the bureau just before 6:30 p.m. on February 15, 2014;

detectives noted small scratches on Boaston’s face and neck. Photographs of the injuries

were presented to the jury. Boaston’s coat had a 2.5 inch rip in the seam near the wound

on his neck. Detectives found a glove in each pocket of Boaston’s coat. One of the

gloves had “a lot” of light brown human hair embedded in an outer Velcro strap and

buckle. Forensic testing of the hair revealed that the DNA profile from the hairs was

consistent with Brandi Boaston’s DNA profile.

       {¶ 32} Boaston’s interview with police lasted from 6:30 p.m. on February 15,

2014, through 4:15 a.m. the following morning. The interview was recorded. Portions of

the recording were redacted and the jury was shown over 4.5 hours of the interview.

       {¶ 33} During the interview, Boaston told Detective Ryder that he withdrew $100

from the ATM at 4:07 a.m. on the morning of February 14, 2014, because he was “out

with friends.” He further indicated that he needed the money for gasoline. However, a




11.
receipt from the gas station indicates Boaston used a credit card to put $20 of fuel in his

vehicle.

       {¶ 34} Cell phone record analysis indicated that Brandi’s cell phone utilized a

tower near Delta, Ohio, at 11:15 a.m. February 14, 2014. Less than 15 minutes later,

Brandi’s cell phone utilized a tower near where her body was found. No signals were

detected from Brandi’s phone after 4:36 p.m. on February 14, 2014. During a critical

time in the chronology of events (from 10:41 a.m. through 11:35 a.m.) Boaston’s phone

did not utilize any cell phone towers. At 11:36 a.m. Boaston’s phone utilized a cell

phone tower north and west of his home. Then, at 12:04 p.m., Boaston called Brandi’s

phone. A minute later, he texted her asking, “are you awake yet?” and “call me so we

can go file taxes.” He was in the vicinity of his apartment when the 12:04 call and 12:05

texts were made.

       {¶ 35} Deputy Coroner Dr. Diane Scala-Barnett performed the autopsy on

Brandi’s body. At trial, Dr. Scala-Barnett described the injuries on Brandi’s face and

neck. Dr. Scala-Barnett opined that the manner of death was homicide by strangulation.

       {¶ 36} After Brandi’s death, Boaston appeared “calm, not caring” to some of his

family members. One day, while watching the local news, Boaston commented to his

son, “so far there’s nothing going on with this investigation and hopefully there’s nothing

else and [the investigation into Brandi’s death] should end soon.” Boaston also said, “the

evidence doesn’t point towards anybody and the evidence doesn’t point towards [me].”




12.
       {¶ 37} Boaston was found guilty of murder on both counts. At sentencing, the

trial court merged offenses, and the state elected to proceed on the violation of R.C.

2903.02(A) and 2929.02. The trial court sentenced Boaston to a term of life with parole

eligibility after 15 years.

                                First Assignment of Error

       {¶ 38} Boaston’s first assignment of error provides:

               The trial court erred by allowing the coroner to opine the victim’s

       time of death based on the contents in her stomach.

       {¶ 39} A year before trial, the state forwarded to trial counsel a copy of Dr. Scala-

Barnett’s report of autopsy. Relevant to this assignment of error, the report indicates:

“The stomach contains 110 cc of recognizable particles of meat and brownish-tan liquid.”

The report does not include any findings, conclusions, or opinions resulting from the

deputy coroner’s analysis of the stomach contents.

       {¶ 40} Nineteen days before trial, trial counsel interviewed Dr. Scala-Barnett.

During the interview, Dr. Scala-Barnett opined, based upon stomach contents that Brandi

died within two hours of eating a breakfast sandwich. Surprised by this revelation, trial

counsel orally requested that the state supplement the report of autopsy with a summary

of Dr. Scala-Barnett’s time-of-death opinion. The state refused. Trial counsel did not

notify the court that the state refused to provide him with a summary of Dr. Scala-

Barnett’s time-of-death opinion.




13.
       {¶ 41} The case went to trial by jury. After opening arguments, but before Dr.

Scala-Barnett took the stand, trial counsel moved, under Crim.R. 16(K), to preclude the

state from introducing evidence of Dr. Scala-Barnett’s time-of-death opinion. At a bench

conference, trial counsel admitted he became aware of Dr. Scala-Barnett’s time-of-death

opinion 19 days before trial. The state accused trial counsel of gamesmanship asserting

that under Crim.R. 12, a motion to exclude the time-of-death opinion testimony should

have been filed before the jury was empaneled. Upon consideration, the trial court

denied Boaston’s motion to exclude the time-of death opinion testimony.

       {¶ 42} Dr. Scala-Barnett testified that once an individual dies, digestion ceases.

She explained that a small meal begins to empty from the stomach in about two hours.

Dr. Scala-Barnett opined that Brandi died “within one to two hours after she ate her

[breakfast] sandwich.”

       {¶ 43} On appeal, Boaston contends that the trial court abused its discretion when

it overruled his motion to exclude the time-of-death testimony under Crim.R. 16(K). He

further asserts that the deputy-coroner’s time-of-death opinion testimony was prejudicial

and contributed to his conviction.

       {¶ 44} “Ordinarily, a trial court is vested with broad discretion in determining the

admissibility of evidence in any particular case, so long as such discretion is exercised in

line with the rules of procedure and evidence.” Rigby v. Lake County, 58 Ohio St.3d 269,

271, 569 N.E.2d 1056 (1991).




14.
       {¶ 45} For decades, Crim.R. 16 has governed discovery and inspection in criminal

cases. In October 2009, the Supreme Court Commission on the Rules of Practice and

Procedure proposed an overhaul of Crim.R. 16 to provide more open discovery in

criminal cases. Grove, Criminal Discovery in Ohio: “Civilizing” Criminal Rule 16, 36

Dayton L.Rev. 143, 144 (2011). Comprehensive changes to Crim.R. 16 went into effect

July 1, 2010.

       {¶ 46} In regard to witnesses, former Crim.R. 16(B)(1)(e) required the prosecutor,

upon request, to provide to the defendant the names and addresses of all witnesses that

the state intended to call at trial. If a party failed to comply with discovery, the trial court

had complete discretion to formulate an appropriate remedy. Former Crim.R. 16(E)(3)

provided:

       If at any time during the course of the proceedings it is brought to the

       attention of the court that a party has failed to comply with this rule or with

       an order issued pursuant to this rule, the court may order such party to

       permit the discovery or inspection, grant a continuance, or prohibit the

       party from introducing in evidence the material not disclosed, or it may

       make such other order as it deems just under the circumstances.

       {¶ 47} Nothing under the prior version of Crim.R. 16 required an expert to prepare

a written report. However, the new Crim.R. 16(K) specifically provides, “An expert

witness for either side shall prepare a written report summarizing the expert witness’s




15.
testimony, findings, analysis, conclusions, or opinion, and shall include a summary of the

expert’s qualification.” (Emphasis added). The rule further states:

       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. (Emphasis

       added.) Id.

       {¶ 48} Here, Boaston argues that Crim.R. 16(K) is unambiguous. He asserts that

the state’s failure to amend the report of autopsy, in writing, to include a summary of Dr.

Scala-Barnett’s time-of-death opinion is a clear violation of the rule. Boaston further

asserts that when the state’s failure to amend was brought to the trial court’s attention, the

trial court had but one option: to exclude Dr. Scala-Barnett’s time-of-death opinion

testimony.

       {¶ 49} For the following reasons, we find that Boaston waived his right to assert

error under Crim.R. 16(K). Thus, we will not address whether Crim.R. 16(K) is as

unambiguous as Boaston contends. We caution that our decision should in no way be

construed as validation of the state’s refusal to respond to Boaston’s oral request to

supplement the report of autopsy to include a summary of Dr. Scala-Barnett’s time-of-

death opinion.




16.
       {¶ 50} Crim.R. 12 governs pleadings and pretrial motions. Division (A) provides

that “[d]efenses and objections raised before trial which heretofore could have been

raised by one or more of them shall be raised only by motion to dismiss or to grant

appropriate relief, as provided in these rules.” Crim.R. 12(C) states: “Prior to trial, any

party may raise by motion any defense, objection, evidentiary issue, or request that is

capable of determination without the trial of the general issue. The following must be

requested before trial: * * * (4) Requests for discovery under Crim.R. 16.” With some

limited exceptions, all pretrial motions must be made within 35 days after arraignment or

7 days before trial, whichever is earlier. Crim.R. 12(D). Failure by a defendant to timely

raise defenses or objections “shall constitute waiver of the defenses or objections.”

Crim.R. 12(H).

       {¶ 51} Relevant to our inquiry is Crim.R. 16(A), which sets forth the rule’s

purpose and scope. Crim.R. 16(A) provides, in relevant part, as follows:

              This rule is to provide all parties in a criminal case with the

       information necessary for a full and fair adjudication of the facts, to protect

       the integrity of the justice system and the rights of defendants, and to

       protect the well-being of witnesses, victims, and society at large. All duties

       and remedies are subject to a standard of due diligence, apply to the

       defense and the prosecution equally, and are intended to be reciprocal.

       (Emphasis added).




17.
Previously, we have defined “due diligence” as “[t]he diligence reasonably expected

from, and ordinarily exercised by, a person who seeks to satisfy a legal requirement or to

discharge an obligation.” Doe v. Robinson, 6th Dist. Lucas No. L-07-1051, 2007-Ohio-

5746, ¶ 41, citing Black’s Law Dictionary (8 Ed.Rev.2004) 488.

       {¶ 52} Also relevant to our inquiry is Crim.R. 16L(1) which states:

              The trial court may make orders regulating discovery not

       inconsistent with this rule. If at any time during the course of the

       proceedings it is brought to the attention of the court that a party has failed

       to comply with the rule or with an order issued pursuant to this rule, the

       court may order such party to permit the discovery, or inspection, grant a

       continuance, or prohibit the party from introducing in evidence the material

       not disclosed, or it may make such other order as it deems just under the

       circumstances.

       {¶ 53} Considering the due diligence requirement of Crim.R. 16(A), the trial

court’s obligation upon notification that a party has failed to comply with a discovery rule

to fashion a just remedy under Crim.R. 16(L)(1), and the pretrial motion requirements set

forth in Crim.R. 12, we find that trial counsel, with pretrial knowledge that the deputy

coroner had formed an opinion about Brandi’s time of death was obligated to bring the

state’s failure to supplement the coroner’s report to the attention of the trial court by

motion before the jury was empaneled. Boaston’s failure to file a pretrial motion to

compel or exclude the evidence constitutes a waiver of his Crim.R. 16(K) objection. See




18.
Crim.R. 12(H). Any other conclusion by this court would encourage the gamesmanship

long discouraged by the Criminal Rules, and would be contrary to the commission’s

intent to ensure, under a due diligence standard, open discovery in criminal cases. See

State v. Howard, 56 Ohio St.2d 328, 333, 383 N.E.2d 912 (1978). (“The philosophy of

the Criminal Rules is to remove the element of gamesmanship from a trial.”). Boaston’s

first assignment of error is not well-taken.

                               Second Assignment of Error

       {¶ 54} In his second assignment of error, Boaston asserts that:

              The trial court erred by allowing testimony insinuating that

       appellant’s winter glove buckle matched and caused the bruise on the

       victim’s chin.

       {¶ 55} At trial, Dr. Scala-Barnett explained to the jury the injuries she found on

Brandi’s body during the autopsy. She noted that there was a “very unusual-looking

abrasion” under Brandi’s chin. Two days after the autopsy was complete, Detective

Lenhardt brought a number of items to the morgue to do a side-by-side comparison.

Included in the items taken to the morgue was the pair of gloves found in Boaston’s coat.

On the outside of each glove was a patch of Velcro and a buckle. Dr. Scala-Barnett

covered Brandi’s body with clear plastic and she and Detective Lenhardt “test-fitted” the

buckle to the abrasion. Photographs that were taken during the test-fitting were presented

to the jury at trial. Dr. Scala-Barnett explained her finding to the jury:




19.
             A. So there you have that same abrasion you saw and she’s all

      covered in plastic now, so we have the plastic between the two items. And

      this buckle, part of the plastic was compared to the abrasion or the white

      area underneath the abrasion. Because the plastic is soft the plastic itself is

      not going to abrade it, it’s the Velcro that can abrade it. * * * [next photo

      exhibit is introduced] * * * And we can come back to this. There’s a closer

      up. Remember I said look at the corners of this abrasion, how they come

      down. There’s a little square here and it goes back down. That’s the same

      configuration of this into the buckle. See how it comes down, it goes

      down, it goes down, this goes down, it goes down, it goes down.

             Q. Okay. Is that injury that you depicted in State’s Exhibit 129

      consistent with having been made by that glove?

             A. It is. * * * [I]t’s consistent with the pattern, it’s consistent with

      the shape, it’s consistent with the Velcro, roughened material, causing an

      abrasion. And you have to remember, when somebody is being assaulted

      or strangled, they are trying – they are moving, their head is not going to

      stay in one spot and get a perfect impression. They are fighting.

             Q. So it could be made by something like that or something very

      similar to that?

             A. Right.

             ***




20.
              Q. Is that based upon a reasonable degree of scientific certainty?

              A. It is.

       {¶ 56} Boaston cites Crim.R. 16(K) in support of his argument that the trial court

abused its discretion in allowing Dr. Scala-Barnett to offer an opinion about the side-by-

side comparison because a summary of her opinion was not included in the report of

autopsy. Here, trial counsel discovered that the deputy coroner had formed an opinion

about a matter not contained in the written report 19 days before trial. Boaston’s failure

to file a pretrial motion to compel a supplement to the report of autopsy or exclude the

evidence constitutes a waiver of his objection to the state’s use of this opinion testimony.

For the reasons set forth in our discussion of appellant’s first assignment of error,

Boaston’s second assignment of error is also not well-taken.

                                Third Assignment of Error

       {¶ 57} In his third assignment of error, appellant asserts that:

              The trial court erred by allowing cell phone tower tracking evidence

       without establishing its scientific validity and reliability.

       {¶ 58} For over 23 years, William Jay Gast has been employed as a detective with

the Toledo Police Department. Since 2008, Detective Gast has attended various training

sessions on the forensics of cellular technology. At trial, Detective Gast was certified,

without objection, as an expert in “phone records analysis.”

       {¶ 59} Detective Gast explained that in the course of his investigation into

Brandi’s death he requested various cell phone records from several cell phone service




21.
providers. The records included text messages and the duration of various cell phone

calls. The records also included “cell tower” locations. In turn, the tower locations

enabled Detective Gast to determine the approximate location of several cell phones at

times relevant to the investigation.

       {¶ 60} Prior to trial, Detective Gast prepared a 25 page “Fact Chronology” that

included cell phone activity from Saturday, February 1, 2014, through Saturday,

February 15, 2014. Detective Gast explained that on February 14, 2014, from 5:09 a.m.

through 10:41 a.m. on February 14, 2014, Boaston’s cellphone data usage indicates that

his phone was utilizing the southeast section of Tower 17. Gast testified that this was

consistent with Boaston’s cell phone being located in the apartment during that time.

       {¶ 61} However, at 11:36 a.m., Boaston’s Sprint cell phone registered in the

northeast sector of Tower 17. This data enabled the state to argue that Boaston was not at

home as he suggested to the investigators, but on his way back from parking Brandi’s car

in the Fulton County field.

       {¶ 62} Relying on Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579,

113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), Boaston claims that the trial court erred by

failing to conduct a hearing on the reliability of Detective Gast’s cell tower testimony.

However, Boaston never challenged the relevance and reliability of Gast’s testimony in

the trial court, thus he waived all but plain error. Crim.R. 52(B).

       {¶ 63} Under Crim.R. 52(B), the appellant bears the burden of demonstrating that

a plain error affected his substantial rights. State v. Perry, 101 Ohio St.3d 118, 2004-




22.
Ohio-297, 802 N.E.2d 643, ¶ 14. In State v. Barnes, 94 Ohio St.3d 21, 2002-Ohio-68,

759 N.E.2d 1240, the Supreme Court of Ohio explained:

              By its very terms, [Crim.R. 52(B)] places three limitations on a

       reviewing court’s decision to correct an error despite the absence of a

       timely objection at trial. First, there must be an error, i.e., a deviation from

       a legal rule. * * * Second, the error must be plain. To be “plain” within the

       meaning of Crim.R. 52(B), an error must be an “obvious” defect in the trial

       proceedings. * * * Third, the error must have affected “substantial rights.”

       We have interpreted this aspect of the rule to mean that the trial court’s

       error must have affected the outcome of the trial. (Internal citation omitted).

       Id. at 27.

“Notice of plain error under Crim.R. 52(B) is to be taken with the utmost caution, under

exceptional circumstances and only to prevent a manifest miscarriage of justice.” State v.

Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978), paragraph three of the syllabus.

       {¶ 64} The state asserts that Boaston cannot satisfy the three-prong test set forth in

Barnes because Ohio courts have allowed cell tower utilization testimony from lay

witnesses. Thus, the state argues, trial counsel’s failure to request a Daubert hearing was

not an “obvious” defect. We agree.

       {¶ 65} Some Ohio courts have allowed non-experts to testify about a cell phone’s

tower utilization to identify the geographic area in which a phone was located at a

specific period of time. For example, in State v. Daniel, 8th Dist. Cuyahoga No. 103258,




23.
2016-Ohio-5231, ¶ 69, the Eighth District Court of Appeals held that “the location of

cellular towers used by appellant’s phone in relation to other locations relevant to the

crime * * * does not require ‘specialized knowledge, skill, experience, training or

education’ regarding cellular networks.” See also State v. Perry, 11th Dist. Lake No.

2011-L-125, 2012-Ohio-4888, ¶ 65 (A witness testifying about cell phone towers was

not offering independent findings or forming an opinion, rather he simply “explained the

contexts of the complex and detailed phone records.”).

       {¶ 66} Pursuant to the above, even if the trial court erred when it failed to sua

sponte conduct a Daubert hearing to test the validity of Detective Gast’s cell phone tower

testimony, such error was not a plain or obvious defect in the trial proceedings, as various

courts have found that testimony concerning cell phone towers need not come from an

expert witness. Accordingly, Boaston’s third assignment of error is not well-taken.

                               Fourth Assignment of Error

       {¶ 67} In his fourth assignment of error, Boaston asserts that:

              The trial court erred by allowing other acts and hearsay evidence

       characterizing appellant as hostile toward the victim.

       {¶ 68} First, Boaston asserts that the trial court abused its discretion when it

allowed the state to introduce improper character or other acts evidence.

       {¶ 69} Evid.R. 404(B) provides:

              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




24.
       may, however, be admissible for other purposes, such as proof of motive,

       opportunity, intent, preparation, plan, knowledge, identity, or absence of

       mistake or accident.

The exceptions allowing the Evid.R. 404(B) evidence “must be construed against

admissibility, and the standard for determining admissibility of such evidence is strict.”

State v. Broom, 40 Ohio St.3d 277, 533 N.E.2d 682 (1988), paragraph one of the

syllabus. However, “the admission or exclusion of relevant evidence rests within the

sound discretion of the trial court.” State v. Sage, 31 Ohio St.3d 173, 510 N.E.2d 343

(1987), paragraph two of the syllabus. Thus, we review the trial court’s decision under

an abuse of discretion standard.

       {¶ 70} Boaston asserts that the trial court allowed impermissible character

evidence when various witnesses were permitted to relay Brandi’s statements about the

“bathtub incident” to the jury. Boaston contends that the evidence was introduced to

demonstrate that Boaston had a propensity toward violence. In response, the state argues

that the evidence was admissible to prove the identity of Brandi’s killer.

       {¶ 71} Previously, this court has held that evidence of prior violence between a

defendant and a murder victim is admissible if the prior incident is sufficiently connected

in a temporal sense to the facts of the murder to be probative of the identity of the

perpetrator. See State v. Carter, 6th Dist. Lucas No. L-13-1255, 2014-Ohio-5212, ¶ 28.

Thus, we find that the trial court did not abuse its discretion by allowing evidence of

Boaston choking Brandi in the apartment two weeks before Brandi died of strangulation.




25.
       {¶ 72} Second, Boaston asserts that the trial court abused its discretion when it

allowed hearsay evidence of Brandi “telling others that Boaston tried to drown her in the

bathtub” and that Brandi “feared he would kill her someday.” In response, the state

asserts that the statements were properly admitted as “excited utterances or then-existing

state of mind or emotions.”

       {¶ 73} Evid.R. 803(2) defines the “excited utterance” exception to the hearsay rule

as “[a] statement relating to a startling event or condition made while the declarant was

under the stress of excitement caused by the event or condition.”

       {¶ 74} Evid.R. 803(3) defines the “then existing, mental, emotional, or physical

condition” exception to the hearsay rule as “[a] statement of the declarant’s then existing

state of mind, emotion, sensation, or physical condition (such as intent, plan, motive,

design, mental feeling, pain, and bodily health), but not including a statement of memory

or belief to prove the fact remembered or believed * * *.”

       {¶ 75} W.B. had encountered Brandi as she exited the bathroom with a towel on

her head. He testified that it looked like she had just gotten out of the bath or shower.

Brandi was “upset or scared” and indicated that Boaston “pounced on her” and “tried to

drown her.” The record demonstrates that Brandi experienced a startling event and her

statements were made “under the stress of excitement caused by the event.” Evid.R.

803(2). Accordingly, the trial court did not err when it held W.B.’s statement was

allowed under the excited utterance exception to the hearsay rule.




26.
       {¶ 76} Cindy testified that about two weeks before Brandi died, her daughter came

to her house and tried to hide injuries to her face under the hood of her sweatshirt. When

Cindy instructed Brandi to put the hood down, Brandi started crying and revealed what

had happened in the bathtub. Brandi further stated that she was afraid Boaston “was

gonna kill her one of these days.”

       {¶ 77} The record does not indicate that Brandi’s visit to her mother occurred

under the stress or excitement caused by the event. Rather, it occurred “about two

weeks” before Brandi died. Thus, Cindy’s hearsay statement about the bathtub incident

was inadmissible under Evid.R. 803(2). We further note that the reasons or basis behind

a victim’s fearful state of mind are not admissible under Evid.R. 803(3). See State v.

Ahmed, 103 Ohio St.3d 27, 2004-Ohio-4190, 813 N.E.2d 637, ¶ 74.

       {¶ 78} The trial court did not err, however, in allowing Cindy to testify that Brandi

was afraid of Boaston. Evidence that a victim had a fearful state of mind is admissible as

a hearsay exception under Evid.R. 803(3) as a statement of “then existing state of mind,

emotion, sensation or physical condition.”

       {¶ 79} In regard to statements about the bathtub incident made by Brandi’s co-

workers, we find that the record fails to demonstrate that the hearsay statements were

made under Evid.R. 803(2) or (3). The state has not identified any other hearsay

exception that would permit the statements, and this evidence should have been excluded.

       {¶ 80} Under a Crim.R. 52(A) analysis, we find that the errors referenced above

are harmless. Boaston was not prejudiced by the bathtub statements made by Brandi’s




27.
mother and co-workers as the statements referenced the same incident that W.B. had

described in detail. Accordingly, Boaston’s fourth assignment of error is not well-taken.

                                Fifth Assignment of Error

       {¶ 81} In his fifth assignment of error, appellant asserts that “the trial court erred

by allowing prosecutorial misconduct when the prosecutor stated facts not in evidence

during closing argument.” Boaston asserts that on five separate occasions during closing

argument, the prosecutor misrepresented the evidence or made improper, unfairly

prejudicial statements. Appellant did not object to the statements at trial.

       {¶ 82} “[W]hen a defendant fails to object to a prosecutor’s comments at trial, a

reviewing court cannot reverse the conviction unless the comments arise to the level of

plain error.” State v. Bettem, 7th Dist. Belmont No. 96-BA-39, 1999 Ohio App. LEXIS

142, 11 (Jan. 15, 1999). “Prosecutorial misconduct rises to the level of plain error if it is

clear that the defendant would not have been convicted in the absence of the improper

comments.” State v. Griffith, 12th Dist. Butler No. CA95-10-167, 1996 Ohio App.

LEXIS 4539, 29 (Oct. 14, 1996), citing State v. Johnson, 46 Ohio St.3d 96, 102, 545

N.E.2d 636 (1990), cert. denied, 494 U.S. 1039, 110 S.Ct. 1504, 108 L.Ed.2d 369 (1990).

“The closing argument must, however, be reviewed in its entirety to determine if the

prosecutor’s remarks were prejudicial.” State v. Moritz, 63 Ohio St.2d 150, 157, 407

N.E.2d 1268 (1980).

       {¶ 83} Upon review of the closing argument as a whole, we find that the

prosecutor’s remarks did not rise to the level of plain error. We cannot say that absent




28.
the prosecutor’s remarks, the jury would not have convicted Boaston. Accordingly,

appellant’s fifth assignment of error is not well-taken.

                                 Sixth Assignment of Error

       {¶ 84} In his sixth assignment of error, Boaston asserts that:

              The trial court erred by allowing an accumulation of errors that

       denied appellant’s due process right to a fair trial.

       {¶ 85} Separately, harmless error may violate a defendant’s right to a fair trial

when the errors are considered together. State v. Madrigal, 87 Ohio St.3d 378, 397, 721

N.E.2d 52 (2000). In order to find cumulative error present, we first must find that

multiple errors were committed at trial. Id. at 398. “Next, we must find that there is a

reasonable probability that the outcome of the trial would have been different but for the

combination of the separately harmless errors.” (Citations omitted.) State v Thomas, 2d

Dist. No. 2000-CA-43, 2001 Ohio App. LEXIS 4226 (Sept. 21, 2001) (citations omitted).

See also State v. Moreland, 50 Ohio St.3d 58, 69, 552 N.E.2d 894 (1990).

       {¶ 86} Based on our review of the entire record, we do not find that there is a

reasonable probability that the outcome of the trial would have been different but for the

combination of separately harmless errors. Accordingly, Boaston’s sixth assignment of

error is not well-taken.




29.
                              Seventh Assignment of Error

       {¶ 87} In his seventh assignment of error, appellant asserts that:

              The trial court erred by not granting an acquittal pursuant to

       Crim.R. 29.

       {¶ 88} Sufficiency of the evidence is a legal standard that tests whether the

evidence introduced at trial is legally adequate to support a jury verdict as to all elements

of the crime. State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). The

proper analysis under a sufficiency of the evidence standard 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. Williams, 74 Ohio St.3d 569, 576, 660 N.E.2d 724 (1996), quoting State v. Jenks,

61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus.

       {¶ 89} The crux of Boaston’s argument is that the state generally failed to present

sufficient admissible evidence from which the jury could have found the essential

elements proven beyond a reasonable doubt. Boaston was charged with murder in

violation of R.C. 2903.02(A). Pursuant to R.C. 2903.02(A), “[n]o person shall purposely

cause the death of another.” The admissible evidence in this case indicates that Boaston

was in his apartment with Brandi on the morning of her death. He is the last known

person to see Brandi alive.

       {¶ 90} Two weeks before her death, Boaston and Brandi had a disagreement in the

bathroom in her apartment that left her feeling as though he wanted to drown her. Brandi




30.
suffered physical injuries during the incident. In the days leading up to her death, it

appeared that Brandi had little interest in reconciling her relationship with the father of

her children. She moved in with her mother. She made plans to spend Valentine’s Day

evening with a female coworker and sent text messages of a mildly sexual nature to a

male coworker.

       {¶ 91} In the early morning hours of February 14, 2014, Boaston was “out with

friends” looking for a gun or someone to “take care of business.” He withdrew cash from

his checking account. Brandi arrived at Boaston’s apartment a few hours later. At 8:30

a.m., the children left the apartment to catch the bus for school. By Boaston’s own

admission, Brandi was alone with him at the apartment until 10:40 or 10:45 a.m. on

February 14, 2014. Boaston was the last known person to see Brandi alive. Her body

was found 20 miles north and west of Boaston’s apartment.

       {¶ 92} Boaston called 911 to report Brandi’s disappearance at 11:45 p.m. on

February 14, 2014. He was calm when an officer arrived at the apartment to fill out the

missing person report. Boaston offered no information beyond the questions asked by the

investigating officer.

       {¶ 93} According to Boaston, Brandi ate a breakfast sandwich around 7:30 a.m.

Brandi’s children did not leave for school until 8:30. According to the coroner, Brandi

died one to two hours after eating a breakfast sandwich. Thus, Brandi died sometime 8:30

and 9:30 a.m. Boaston indicated that Brandi was at the apartment until 10:40 or 10:45

a.m.




31.
         {¶ 94} While there is no direct evidence that Boaston was in Fulton County on the

morning of Brandi’s death, there was no cell phone activity on Boaston’s cell phone

during the period of time Brandi’s phone was traveling to Fulton County.

         {¶ 95} While there is no direct physical evidence that Boaston strangled Brandi,

the day after Brandi died, Boaston had a tear in his coat and scratches on his cheek and

neck. Brandi’s hair was found embedded in the Velcro of Boaston’s glove. There was a

mark under Brandi’s chin that was similar in size and shape to Boaston’s glove buckle.

         {¶ 96} Prior to her death, Brandi had engaged in a flirtatious relationship with a

co-worker and ended her relationship with Boaston. Boaston had a hard time “let[ting]

her go” and “mov[ing] on” with his life.

         {¶ 97} In the months prior to her death, Boaston was utilizing spyware to track

Brandi’s location and communications, yet after Brandi’s disappearance, he appeared

either unable or unwilling to share relevant data with family members and authorities.

         {¶ 98} Boaston’s friend, Derek Wood, testified that prior to Brandi’s death,

Boaston expressed concerns that Brandi was having a relationship with Daron. Derek

testified that Boaston appeared depressed and saddened by the situation.

         {¶ 99} In light of this evidence, taken together with the other evidence presented

by the state, we conclude that the state presented sufficient evidence that Boaston

purposely caused Brandi’s death. Boaston’s seventh assignment of error is not well-

taken.




32.
                                       Conclusion

       {¶ 100} Based on the foregoing, the judgment of the Lucas County Court of

Common Pleas is affirmed. Appellant is ordered to pay the costs of this appeal pursuant

to App.R. 24(A).


                                                                       Judgment affirmed.




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




Mark L. Pietrykowski, J.                       _______________________________
                                                           JUDGE
James D. Jensen, P.J.
                                               _______________________________
Christine E. Mayle, J.                                     JUDGE
CONCUR.
                                               _______________________________
                                                           JUDGE




33.
