         [Cite as State v. Williams, 2016-Ohio-5827.]
                 IN THE COURT OF APPEALS
             FIRST APPELLATE DISTRICT OF OHIO
                  HAMILTON COUNTY, OHIO



STATE OF OHIO,                                     :    APPEAL NO. C-150249
                                                        TRIAL NO. B-1303549
        Plaintiff-Appellee,                        :

  vs.                                              :       O P I N I O N.

WILLIAM WILLIAMS, JR.,                             :

    Defendant-Appellant.                           :




Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed in Part, Sentence Vacated in Part, and
                           Cause Remanded

Date of Judgment Entry on Appeal: September 16, 2016


Joseph T. Deters, Hamilton County Prosecuting Attorney, and Judith Anton
Lapp, Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Raymond T. Faller, Hamilton County Public Defender, and David Hoffman,
Assistant Public Defender, for Defendant-Appellant.
                     OHIO FIRST DISTRICT COURT OF APPEALS



S TAUTBERG , Judge.

       {¶1}   Defendant-appellant      William   Williams,    Jr.,   appeals   from   his

convictions for two counts of aggravated murder with firearm specifications, one

count of aggravated robbery with a firearm specification, and one count of having a

weapon while under a disability. We affirm Williams’s convictions, but remand this

cause for resentencing.

A Double Shooting

       {¶2}   Shortly after 1 a.m. on April 13, 2013, Cincinnati police officers

responded to reports of gunfire in the area of the Winton Terrace apartment

complex. A few minutes later, police received another call reporting that two people

appeared to have been shot in a car in the Winton Terrace parking lot. When police

arrived at the scene, they discovered victims John Martin and Brandi Fields, dead, in

Martin’s Jaguar sedan. The front driver’s side door was open. Martin, who was in

the driver’s seat, had been shot once in the back of his head. One of the pockets in

his pants had been turned inside out, and he had no personal items on him. Fields

was in the front passenger seat. Her body was facing Martin and leaning against the

passenger-side door, with her feet up on the passenger’s seat. She, too, had been

shot. Her personal effects were largely undisturbed. Neither victim had a cell phone

on them.

       {¶3}   Police collected evidence from inside of the car, including a gin bottle

and cigarette butts. A cigarette butt was also discovered outside of the car, as was

what appeared to be “fresh spit.” The saliva was found on the pavement outside of

the front driver’s side door. It was collected as evidence.

       {¶4}   Later ballistic testing revealed that the bullets found in each victim had

been fired from the same gun. The saliva collected at the scene matched Williams’s



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DNA profile, as did DNA lifted from cigarette butts found inside and outside of the

car. Williams’s DNA and fingerprints were found on the bottle of gin recovered from

the back seat of Martin’s car.

       {¶5}    Forensic pathologist Karen Looman, M.D., examined Martin’s and

Field’s bodies. According to Dr. Looman, Martin was killed by a single gunshot

wound to the back right side of his head. The location of his wound and the path that

the bullet had traveled was consistent with somebody in the rear passenger seat

shooting him. Dr. Looman testified that Fields, who had been facing Martin when

she was shot, had gunshot wounds in her right arm and left hand, and that these

wounds were consistent with Fields having thrown her arms up into a defensive

position. Fields was also shot above her right eyebrow, and at the tip of her nose.

The gunshot wounds to her face were fatal. The location of Fields’s wounds was

consistent with someone firing a gun from outside of the driver’s side door. Dr.

Looman believed that Fields and Martin had been shot where they were found.

Williams’s Statements to the Police and his Phone Calls to Bazel

       {¶6}    Even before the evidence at the scene had been processed, police

developed Williams as a suspect in the shooting deaths of Martin and Fields based on

the tracking of Martin’s cell phone. Within days after the shootings, police discovered

that on April 13, 2013, at 11:33 p.m., a SIM card had been put in and then quickly

taken out of a cell phone that had belonged to Martin. The SIM card belonged to a

cell phone registered in Skye Bazel’s name. Bazel was Williams’s fiancée. On April

16, 2013, police tracked the cell phone containing the SIM card in Bazel’s name to a

house where Williams and Bazel were staying, and they took Williams in for

questioning.




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       {¶7}   Williams told police that he had purchased Martin’s cell phone for $50

from an individual named Greg Summerland who was also known as “Joker.”

Williams gave police several stories concerning when he purchased the phone, before

finally settling on “probably before noon” on April 13, 2013.

       {¶8}   Police also questioned Williams in connection with the shootings.

Williams admitted that he was with Martin in the hours before Martin and Fields

were killed, but claimed that Fields was never in the car with them. He said that he

and Martin had driven around that day in Martin’s Jaguar and had “got a bottle,

drunk, chilled, whatever.” He said that he had been in both the front and the back

seats of the Jaguar. Around 11 p.m. on April 12, 2013, Williams, who did not have his

own cell phone, used Martin’s cell phone to call Bazel. Williams told police that after

he had spoken with Bazel at 11 p.m., Martin had driven him to meet Bazel at the

Winton Terrace apartments, where Bazel lived. According to Williams, after he met

with Bazel he did not return to Martin’s car and did not see Martin again that night.

Williams claimed that he tried to return home after speaking with Bazel, but that his

father would not let him in, so he picked up Bazel and went to his cousin Catherine

Williams’s house. He did not know what time they arrived.

       {¶9}   After giving his statement to police, Williams was held in the Justice

Center on a receiving stolen property charge. While he was there, he made several

phone calls to Bazel. These telephone calls were recorded, and they were played at

trial. In the calls, Williams discussed with Bazel the story that he had told the police

about how he had acquired Martin’s cell phone. He often ended his sentences with

“you feel me?” In one call, Williams said to Bazel, “Yeah, I told them * * * that I

bought the phone off * * * Joker and that I gave it to you. You feel me?” After one

such statement, Bazel answered “that’s good.” At several points in these



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conversations, Bazel became angry over the fact that a woman had been killed.

During one of her outbursts, she stated “Oh no, you know you have to deal with it.”

       {¶10} Police interviewed Williams again on May 9, 2013, this time at

Williams’s request. Williams again claimed that after he had met with Bazel around

11 p.m. on April 12, 2103, he never returned to Martin’s car. Williams pointed out on

a diagram the place where Martin had parked his car when he had dropped Williams

off. The parking spot was the same parking spot where Martin’s car was found

following the shootings. Williams surmised that after Martin left him, he had picked

up Fields and later returned to the same parking spot.

The State Offers Evidence that Contradicts Williams’s Statements

       {¶11} The state presented evidence at trial that Williams was with both

Martin and Fields on the night of the shootings, and not just with Martin, as

Williams had claimed. Lisa Jones, Fields’s mother, testified at trial that she and

Fields were at home together on the evening of April 12, 2013. Jones knew Martin

well because he and Fields had a child together. Jones watched from her window as

Fields left for the night around 9:30 p.m. She saw Martin in the front seat of his

Jaguar. As Fields approached the car, Jones saw a man “with wild hair” get out of

the front seat and get into the back seat of Martin’s car. Jones later identified

Williams as the man “with wild hair” after she saw a story on the news about the

shootings.

       {¶12} In further support of the state’s theory that Williams had been with

Martin and Fields most of the evening, the state submitted cell phone text message

records into evidence at trial. According to these records, a text message, “bay,” was

sent from Martin’s cell phone to Field’s cell phone at 12:52 a.m. on April 13, 2013.

The response was “Yes, hun.” And the reply to that was “Love you.” The state argued



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that these text messages suggested that someone else was with Martin and Fields,

and that they were texting these messages to keep them private. Just minutes after

the texts were sent, the call came into police reporting that gunshots had been fired

in the area of the Winton Terrance apartments. The next activity on Martin’s phone

came at 11:33 p.m. on April 13, 2013, when Bazel’s SIM card was inserted into

Martin’s cell phone.

Bazel’s Story

       {¶13} At trial, Bazel testified that, a little after 11 p.m. on April 12, 2013, she

met Williams at the top of her street in the Winton Terrace apartment complex.

According to Bazel, Martin had driven Williams to meet her, she and Williams had

talked, and then had gone their separate ways. Bazel thought that Williams was

going back to Martin’s car, but did not know for certain whether he had. Williams

called Bazel a few hours later, and asked her to meet him at Catherine Williams’s

house. Bazel testified that she did not drive with Williams, but that she met him

there sometime between 4 a.m. and 6 a.m. on April 13, 2013.

       {¶14} On the afternoon of April 13, 2103, Bazel and Williams went shopping,

together. Williams spent hundreds of dollars on numerous items, including a $389

engagement ring for Bazel. Photographs of the smiling couple with shopping bags

were taken on a cell phone that police later discovered had belonged to Martin.

Two State’s Witnesses Change their Stories

       {¶15} Catherine Williams was called as a state’s witness. When she had

spoken with police following the shooting, she had told them that Williams had

arrived at her house between 12:30 a.m. and 2 a.m. on April 13, 2013. At trial,

Catherine Williams testified that Williams had arrived at her house between 11:30

p.m. on April 12 and 12:15 a.m. on April 13. Over defense counsel’s objection, the



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                    OHIO FIRST DISTRICT COURT OF APPEALS



state impeached Catherine Williams’s credibility with her prior inconsistent

statement to the police concerning the time that Williams had allegedly arrived at

her place.

       {¶16} State’s witness Andre Wilson also did not testify as the state had

expected. Wilson had been in jail with Williams while Williams was awaiting trial.

Prior to trial, Wilson had spoken with police detectives concerning a conversation he

had allegedly overheard in jail between Williams and another inmate. Wilson told

the detectives that Williams had said something along the lines of “it had to be done

like that,” or “we had to do him like that.” Wilson believed that Williams had been

referring to the Martin and Fields shootings because, in the same conversation,

Williams had said that the shootings had occurred in a Jaguar.

       {¶17} When Wilson took the stand at trial, he stated that he had never met

with police, had no idea who Williams was, and had no idea why he had been called

to testify. Wilson purportedly invoked his Fifth Amendment Right against self-

incrimination, and refused to answer further questions.

       {¶18} After Wilson refused to testify further, the state called one of the

detectives that Wilson had spoken with to the stand. The state asked the detective if

he had met with Wilson, and whether Wilson had given a statement. The detective

answered “yes” to both questions. The state then attempted to ask the detective

questions about the substance of Wilson’s statement. Defense counsel objected. The

trial court took the objection under submission.

A Substitute Judge is Designated

       {¶19} Before ruling on the objection, and roughly a week into trial, the trial

judge became ill and was unable to continue to preside over the case. A new judge

was designated, and the case was continued so that that judge could familiarize



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himself with the case. Defense counsel objected to the substitution, and asked for a

new trial.      The newly designated judge certified on the record that he had

familiarized himself with the case, felt that he could preside over the remainder of

the case, and overruled Williams’s objection to the substitution.         The newly

designated judge also overruled Williams’s objection concerning whether Wilson

could be impeached with his prior statement, and the court allowed Wilson’s entire

statement to be played for the jury.          The jury was instructed before Wilson’s

statement was played that it was to be considered for impeachment purposes, only.

         {¶20} At the close of the state’s case and after the defense had rested,

Williams moved the trial court for an acquittal as to all charges pursuant to Crim.R.

29(A).    Both motions were overruled, and the case was sent to the jury for

deliberation.

The Jury’s Verdict and the Court’s Sentence

         {¶21} Following deliberations, the jury found Williams guilty of the

aggravated murders of Martin and Fields, each with a firearm specification, the

aggravated robbery of Martin with a firearm specification, and one count of having a

weapon while under a disability (“WUD”). In open court, the trial court sentenced

Williams on count one of his indictment, aggravated murder, to “a mandatory

sentence of life * * * without parole for thirty years in this instance.” The court

ordered a three-year sentence on the gun specification to count one. On count two,

aggravated murder, the court sentenced Williams to “life without parole for thirty

years.” The court sentenced Williams to eight years’ imprisonment on count three,

aggravated robbery, and to three years on count five, WUD.          During Williams’s

sentencing hearing, the trial court did not impose any sentence on the gun

specifications to counts two and three.



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       {¶22} The court later journalized a sentencing order.             There were

discrepancies between the court’s pronouncement of sentence and its judgment entry

imposing sentence.

       {¶23} This appeal followed.

State’s Impeachment of Andre Wilson

       {¶24} In his first assignment of error, Williams contends that the trial court

erred when it allowed the state to impeach Andre Wilson’s credibility by playing for

the jury the entire statement that Wilson had made to the police detective.

       {¶25} We will not reverse a case based on a trial court’s decision to admit or

exclude evidence absent an abuse of discretion in the admission of the evidence, and

a showing that the accused has suffered material prejudice as a result. State v.

Martin, 19 Ohio St.3d 122, 129, 483 N.E.2d 1157 (1985); see State v. Sage, 31 Ohio

St.3d 173, 510 N.E.2d 343 (1987), paragraph two of the syllabus.         An abuse of

discretion connotes that the trial court’s decision was unreasonable, arbitrary, or

unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 218, 450 N.E.2d 1140

(1983).

       {¶26} When a party seeks to impeach its own witness through use of a prior

inconsistent statement, the party calling the witness must first show surprise and

affirmative damage by the witness’s testimony. Evid.R. 607(A); State v. Hancock, 1st

Dist. Hamilton No. C-030459, 2004-Ohio-1492, ¶ 36. Provided both of these

requirements have been met, pursuant to Evid.R. 613(B), the witness must be given

the opportunity to explain or deny the statement, and the opposing party must be

given an opportunity to question the witness concerning the inconsistent statement.

Evid.R. 613(B). If all of these requirements have been met, the examining party may,




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at that party’s discretion, call another witness to impeach the recanting witness

through the prior statement, provided the witness is competent to do so.

       {¶27} In this case, Williams argues that the state should not have been

allowed to impeach Wilson by calling the detective to the stand to testify about

Wilson’s prior statement, because the state failed to first demonstrate “affirmative

damage” under Evid.R. 607(A). Williams is correct.

              Affirmative Damage not Shown by Neutral Answers

       {¶28} “Affirmative damage” under Evid.R. 607(A) occurs when a party’s own

witness testifies to facts that contradict, deny, or harm that party’s trial position.

State v. Thomas, 1st Dist. Hamilton No. C-120561, 2013-Ohio-5386, ¶ 27, citing

Hancock at ¶ 37, and State v. Seay, 1st Dist. Hamilton No. C-040763, 2005-Ohio-

5964, ¶ 43; see State v. Asher, 112 Ohio App.3d 646, 679 N.E.2d 1147 (1st Dist.1996).

The staff note to Evid.R. 607 provides that “Requiring a showing of affirmative

damage is intended to eliminate an ‘I don't remember’ answer or a neutral answer by

the witness as a basis for impeachment by a prior inconsistent statement.” And the

Ohio Supreme Court has held that the answer “I couldn’t really tell” constituted a

neutral statement because, in the context of the questioning at hand, the answer did

not contradict any fact in the witness’s prior statement. State v. Keenan, 66 Ohio

St.3d 402, 412, 613 N.E.2d 203 (1993); see State v. Armstrong, 11th Dist. Trumbell

Nos. 2001-T-0120 and 2002-T-0071, 2004-Ohio-5635, ¶ 103-104 (a nonharmful

neutral answer, such as “I don’t know” or “I can’t remember” did not show

affirmative damage, as such answers failed to contradict a prior statement); State v.

Martin, 8th Dist. Cuyahoga No. 73842, 1999 Ohio App. LEXIS 1830, *12 (April 22,

1999) (an answer “I don’t remember” did not cause affirmative damage to the

prosecution’s case); State v. Lewis, 75 Ohio App.3d 689, 696-697, 600 N.E.2d 764



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(4th Dist.1991) (denial of presence at a robbery scene considered a neutral answer

where witness was not contradicting facts relevant to the crime at issue).

       {¶29} When Wilson took the stand, he stated that he had never met with

police, had no idea who Williams was, and that he had no idea why he had been

called by the state to testify. After making several more statements to a similar

effect, Wilson refused to answer any other questions and purported to invoke his

Fifth Amendment right against self-incrimination.

       {¶30} The state contends that Wilson’s trial testimony harmed the state’s

position, because without it the state could not present direct evidence of Williams’s

knowledge of details of the murders. This argument has no merit. The fact that a

witness does not testify as expected does not, in and of itself, constitute “affirmative

damage” as contemplated by Evid.R. 607.         If this were the case, the “surprise”

requirement of Evid.R. 607(A) would suffice to lay the first step of the necessary

foundation for impeachment of one’s own witness with a prior inconsistent

statement.

       {¶31} The state next argues that it demonstrated “affirmative damage”

because Wilson’s testimony could have led the jury to believe that the state was

fabricating evidence against Williams. There were several comments from Wilson

that the state presumably relies on in support of this argument. The first was

Wilson’s statement at the beginning of questioning that “[t]hey called me back from

Blackburn [prison] and told me something that I was—I had to testify against

somebody. I do not know this man. In no kind of way have we had any kind of

dealings do [sic] I know him at all.” After repeated questioning from the state, and

after Wilson consistently denied having any knowledge about the case, Wilson




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stated, “But I’m not going to sit here and say something that you want me to admit

up to that I don’t know nothing about. I’m not going to do that.”

       {¶32} Assuming only for the sake of argument that these comments caused

some harm to the state’s case, this harm does not constitute “affirmative damage” as

that term is used in Evid.R. 607(A). Wilson did not testify to any facts that

contradicted, denied, or harmed the state’s position that Williams was guilty of the

crimes charged. Instead, the bulk of Wilson’s testimony was that he knew nothing

about the case. Wilson gave answers such as “I don’t recall speaking to no [sic]

Detective * * *,” and “I don’t know that man [Williams] or know nothing about what

I’m sitting down here for,” and “I don’t know nothing [sic] about this case or nothing

[sic].” The trial court therefore erred by finding “affirmative damage” in this case.

       {¶33} Because the “affirmative damage” requirement of Evid.R. 607(A) was

not met, the trial court abused its discretion when it allowed the state to impeach

Wilson by calling the detective to the stand and playing Wilson’s entire taped

statement for the jury.

                      Williams was not Materially Prejudiced

       {¶34} We must next determine whether Williams was materially prejudiced

by the admission of Wilson’s prior statement, warranting a reversal on appeal.

       {¶35} Williams contends that he was prejudiced and that this case should be

reversed because Wilson’s statement constituted inadmissible hearsay that could not

be cured by the court’s limiting instruction. Williams cites State v. Huff, 1st Dist.

Hamilton No. C-930861, 1995 Ohio App. LEXIS 294 (Jan.31, 1995), in support of

this argument. In Huff, the trial court allowed the state to impeach its own witness

with a prior inconsistent statement without the requisite showing of surprise and

affirmative damage. Before the prior statement was played, the trial court refused—



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over defense counsel’s objection—to give the jury a limiting instruction concerning

the nature of impeachment evidence. Instead, the court allowed the state to present

the statement as if it were being offered for its truth. A day later, after the defense

moved for a mistrial, the court gave the jury a curative instruction, explaining that

the statement could only be used for impeachment purposes. During deliberations,

the jury asked the court to clarify what “impeachment” meant. Based on these

factors, we held that the limiting instruction was of no effect. See Huff.

       {¶36} The present case is distinguishable. Most significantly, here the state

never purported to present Wilson’s statement for its truth. And the jury was

instructed before Wilson’s statement was played that it was to be considered for

impeachment purposes, only. Further, there was no indication that the jury was

confused by the court’s instruction. It is well-settled that a jury is presumed to follow

the court’s instructions. State v. Loza, 71 Ohio St.3d 61, 75, 641 N.E.2d 1082 (1994).

We find no indication to the contrary. Consequently, we find that Huff does not

apply in this case.

       {¶37} Williams next contends that playing Wilson’s statement is grounds for

a reversal because it violated his right to confront his accusers as guaranteed by the

Sixth Amendment to the United States Constitution. This argument is premised on

Williams’s position that Wilson’s prior statement was hearsay. See Crawford v.

Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). We have already

determined that it was not. This argument therefore has no merit.

       {¶38} Williams’s first assignment of error is overruled

State’s Impeachment of Catherine Williams

       {¶39} We next address, out of order, Williams’s fifth assignment of error. In

it, he argues that the trial court erred when it allowed the state to impeach its own



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witness, Catherine Williams, with her prior statement to police, because the state

failed to first demonstrate “surprise” under Evid.R. 607(A).

          {¶40} Surprise can be shown where a witness’s testimony is materially

inconsistent with a prior written or oral statement and counsel did not have reason

to believe that the witness would recant when called to testify. State v. Holmes, 30

Ohio St.3d 20, 23, 506 N.E.2d 204 (1987); Hancock, 1st Dist. Hamilton No. C-

030459, 2004-Ohio-1492, at ¶ 37. “The determination of surprise is left to the sound

discretion of the trial court.” Hancock at ¶ 37, citing State v. Diehl, 67 Ohio St.2d

389, 423 N.E.2d 1112 (1981).

          {¶41} In this case, Catherine Williams had been interviewed by police during

their investigation into Martin’s and Field’s deaths. At that time, she stated that

Williams had arrived at her home between 12:30 a.m. and 2 a.m. on Saturday April

13. At trial, Catherine Williams testified that Williams arrived at her house between

11:30 p.m. on April 12 and 12:15 a.m. on April 13. The timing of Williams’s arrival

was important to the state’s case because the state was attempting to place Williams

at the murder scene at approximately 1 a.m. on April 13—the time that gunshots had

been reported in the area. When Catherine Williams did not testify consistently with

her statement to the police, the state indicated to the court that it “was expecting her

to give her statement in accordance with the statement that she had previously

given.”

          {¶42} Williams claims that because Catherine Williams was the defendant’s

cousin, the state should have automatically anticipated that she would change her

story, and that the state therefore was not “surprised.” Williams cites no case law to

support this argument.       And we find none.    Here, the state met its burden of

demonstrating “surprise” by informing the court that it had expected Catherine



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Williams to testify in accordance with her prior statement concerning the time of

Williams’s arrival at her home. There is nothing in the record to indicate that the

state should have anticipated that Catherine Williams would change her story. The

trial court therefore did not abuse its discretion in determining that the state had

demonstrated “surprise” under Evid.R. 607(A). Williams’s fifth assignment of error

is overruled.

Designation of a Substitute Trial Judge

       {¶43} In his second assignment of error, Williams argues that his Fifth, Sixth

and Fourteenth Amendment rights to due process of law and to a jury trial were

violated when, after a different judge was designated to preside over his trial, the

trial court failed to grant him a new trial under Crim.R. 25(A).

       {¶44} Under Crim.R. 25(A), when the judge presiding over a jury trial is

unable to proceed, a new trial judge may be designated. The new judge may preside

over the remainder of the trial provided he certifies that he has sufficiently

familiarized himself with the record of the trial. Crim.R. 25(A). Where the newly

designated judge cannot adequately familiarize himself with the record, that judge

has the discretion to grant a new trial. Id.

       {¶45} In this case, the original trial judge became ill after five days of trial

and was unable to continuing presiding over Williams’s trial. The newly designated

judge indicated on the record that he had read the trial transcript, reviewed the

evidence, and felt that he had complied with the requirements of Crim.R. 25(A).

Williams objected to the substitution. He moved for a new trial on due process

grounds. More specifically, Williams argued that the newly designated judge would

be unable to properly rule on a Crim.R. 29 motion because he would be unable to

assess the credibility of the witnesses. His motion was denied.



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       {¶46} Williams now claims that his Sixth Amendment right to a jury trial was

violated when the same judge did not preside over his entire jury trial. He also claims

that his Fifth Amendment right to due process of law was violated because the

substitute judge was unable to make credibility determinations when (1) ruling on

Williams’s Crim.R. 29 motions, (2) ruling on Williams’s objection to the admissibility

of Wilson’s prior inconsistent statement, and (3) when sentencing Williams.

                            No Sixth Amendment Violation

       {¶47} We first address Williams’s contention that the substitution violated

his right to a jury trial. Since Williams did not raise this objection in the trial court,

he has forfeited all but plain error on appeal. See Crim.R. 52(B); State v. Rogers, 143

Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, ¶ 22-23; State v. Lewis, 1st Dist.

Hamilton Nos. C-050989 and C-060010, 2007-Ohio-1485, ¶ 39.

       {¶48} Williams claims that the Sixth Amendment right to a jury trial as

applied to the states through the Fourteenth Amendment encompasses a defendant’s

right to have the same trial judge preside over the entire trial. He cites Freeman v.

United States, 227 F. 732 (2d Cir.1915) in support of this argument. In that case,

over 100 years ago, the Second Circuit held that “in a criminal case, trial by jury

means trial by a tribunal consisting of at least one judge and twelve jurors, all of

whom must remain identical from the beginning [of the trial] to the end.” Id. at 759.

But the Second Circuit later repudiated this holding as being based on the faulty

premise that a defendant could not waive his right to a jury trial. United State v. La

Sorsa, 480 F.2d 522, 531 (2d Cir.1973), citing Patton v. United States, 281 U.S. 276,

50 S.Ct. 253, 74 L.Ed. 854 (1930). Further, neither the plain text of the Sixth

Amendment, nor any controlling case law provides that a criminal defendant has the




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right to the same trial judge throughout trial. Because Williams has failed to

demonstrate error, let alone plain error, we hold that this argument has no merit.

                            No Fifth Amendment Violation

       {¶49} Williams next claims that his Fifth Amendment right to due process of

law was violated when the substitute judge (1) ruled on his Crim.R. 29(A) motions,

(2) ruled on his objection to the admissibility of Wilson’s prior inconsistent

statement, and (3) sentenced Williams.

       {¶50} The Fifth Amendment, applicable to the states through the Fourteenth

Amendment, prohibits the state from depriving any person “of life, liberty, or

property, without due process of law.” See State v. Williams, 6 Ohio St.3d 281, 286,

452 N.E.2d 1323 (1983). We first address Williams’s argument that his right to a fair

trial was violated when the substitute judge ruled on Williams’s Crim.R. 29(A)

motions for an acquittal.

       {¶51} In pertinent part, Crim.R. 29(A) provides that “[t]he 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.” Williams claims that because the substitute

judge was unable to assess the demeanor of all of the state’s witnesses and make

credibility determinations, he could not properly rule on Williams’s Crim.R. 29(A)

motions that were made at the close of the state’s case, and also after the defense had

rested. Williams is incorrect. A Crim.R. 29(A) motion tests the sufficiency of the

state’s case. State v. Thompkins, 78 Ohio St.3d 380, 386, 78 N.E.2d 541 (1997);

State v. Bridgeman, 55 Ohio St.2d 261, 381 N.E.2d 184 (1978), syllabus.              A

sufficiency inquiry presents a question of law. Thompkins at 386. It does not involve



                                      17
                     OHIO FIRST DISTRICT COURT OF APPEALS



credibility determinations as argued by Williams, and instead is a test of adequacy.

See id. Williams’s argument therefore has no merit.

       {¶52} We next address Williams’s argument that the substitute judge

violated his rights by ruling on the admissibility of Wilson’s prior inconsistent

statement. Because Williams did not object on these grounds, he has forfeited all but

plain error on appeal. See Crim.R. 52(B); Rogers, 143 Ohio St.3d 385, 2015-Ohio-

2459, 38 N.E.3d 860, at ¶ 22-23; Lewis, 1st Dist. Hamilton Nos. C-050989 and C-

060010, 2007-Ohio-1485, at ¶ 39.

       {¶53} Williams contends that “the question of whether impeachment is

proper is a factual determination.” Williams seems to suggest that this “factual

determination” included a credibility assessment that the substitute judge was

unable to properly perform. But the question of whether the state was surprised and

whether the state had been affirmatively damaged under Evid.R. 607 had nothing to

do with Wilson’s credibility as a witness. This is because the substitute judge did not

have to determine whether Wilson was testifying truthfully to determine whether the

state could demonstrate “surprise” and “affirmative damage” under Evid.R. 607.

Here, the substitute judge read the transcript of Wilson’s testimony and heard

arguments from the state and the defense before ruling on the admissibility of

Wilson’s prior inconsistent statement. We fail to find error, let alone plain error.

       {¶54} Finally, Williams argues that the substitute judge violated his right to

due process of law by sentencing him without presiding over his entire trial.

Williams failed to object on this basis in the trial court. We therefore review his

argument for plain error. See Crim.R. 52(B); Rogers, 143 Ohio St.3d 385, 2015-

Ohio-2459, 38 N.E.3d 860 at ¶ 22-23; Lewis, 1st Dist. Hamilton Nos. C-050989 and

C-060010, 2007-Ohio-1485, at ¶ 39.



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                      OHIO FIRST DISTRICT COURT OF APPEALS



       {¶55} Williams seems to argue that a per se due process violation results

whenever there is a substitution of judges prior to sentencing. We find no basis in

law for this argument, and Williams cites none. And we find no indication in the

record that the trial court was unable to sentence Williams simply because the he did

not personally view the entire trial. Further, we note that the criminal rules allow for

the substitution of a trial judge for the sole purpose of sentencing even if the

substitution does not occur until after a verdict is rendered. See Crim.R. 25(B). In

sum, we find no plain error amounting to a due process violation.

       {¶56} Williams’ second assignment of error is overruled.

Williams’s Interview with the Police

       {¶57} In his third assignment of error, Williams argues that the trial court

violated Evid.R. 403 when it allowed the state to play certain portions of Williams’s

first interview with police.

       {¶58} Under Evid.R. 403(A), relevant evidence is not admissible “if its

probative value is substantially outweighed by the danger of unfair prejudice, of

confusion of the issues, or of misleading the jury.” The decision whether to admit or

exclude relevant evidence under Evid.R. 403(A) rests within the discretion of the

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

two of the syllabus. We will not disturb the trial court’s decision to admit or exclude

evidence unless the court has abused its discretion in admitting the evidence, and

unless the accused has suffered material prejudice as a result. See Martin, 19 Ohio

St.3d at 129, 483 N.E.2d 1157; see also Blakemore, 5 Ohio St.3d at 218, 450 N.E.2d

1140 (an abuse of discretion connotes that the trial court’s judgment was

unreasonable, arbitrary, or unconscionable).




                                       19
                      OHIO FIRST DISTRICT COURT OF APPEALS



       {¶59} Williams argues that the court should have ordered the following

statements from police to Williams to be redacted: (1) “I’m telling you right now,

your girl thinks you did this,” (2) “It does not look very good for you right now,” (3)

“the weight of this case is on you,” and (4) “it looks really bad for you.” Williams also

contends that comments by police concerning Williams’s possible sentence and

statements that Williams had to prove something to the police should have been

redacted.

       {¶60} Upon a review of the entire taped statement, portions of which had

been redacted by the state, we hold that the statements complained of were not so

unfairly prejudicial as to outweigh their probative value.           The police officer’s

comments and questions were necessary to put Williams’s answers or lack of

answers into context, and were therefore beneficial to the jury’s overall

understanding of Williams’s statement. See State v. Daniel, 146 Ohio Misc.2d 9,

2008-Ohio-2050, 886 N.E.2d 295, ¶ 20-28 (C.P.). Further, the jury was properly

instructed as to its role as the sole arbiters of Williams’s guilt, and also that the state

carried the burden of proof at trial. Juries are presumed to follow the trial court’s

instructions. Loza, 71 Ohio St.3d at 75, 641 N.E.2d 1082. We therefore hold that

Williams has failed to demonstrate that the trial court abused its discretion in

admitting these statements, or that he was materially prejudiced by their admission.

This assignment of error is overruled.

Motion for a New Trial

       {¶61} In his fourth assignment of error, Williams claims that the trial court

erred by failing to grant his motion for a new trial under Crim.R. 33(A)(1). That rule

provides that the trial court may grant a defendant a new trial for an irregularity in

the proceedings, or in any order or ruling of the court, or abuse of discretion by the



                                         20
                     OHIO FIRST DISTRICT COURT OF APPEALS



court, because of which the defendant was prevented from having a fair trial.

Crim.R. 33(A)(1). The decision to grant a new trial under Crim.R. 33(A)(1) is within

the trial court’s discretion. State v. Davis, 1st Dist. Hamilton No. C-090220, 2010-

Ohio-5125, ¶ 41, citing State v. Schiebel, 55 Ohio St.3d 71, 564 N.E.2d 54 (1990).

Consequently, we will not reverse a decision granting or denying a new trial absent

an abuse of discretion. See Blakemore, 5 Ohio St.3d at 218, 450 N.E.2d 1140.

       {¶62} Williams contends that the trial court should have granted his motion

for a new trial because of the alleged errors that he raised in his first, second, and

third assignments of error.        Because we have already determined that these

assignments of error have no merit, we hold that the trial court did not abuse its

discretion by failing to grant Williams a new trial on these grounds.

       {¶63} Williams’s fourth assignment of error is overruled.

Weight and Sufficiency of the Evidence

       {¶64} In his sixth assignment of error, Williams contends that his

convictions were not supported by sufficient evidence and were also against the

manifest weight of the evidence.

       {¶65} In a challenge to the sufficiency of the evidence, the question is

whether after viewing the evidence in the light most favorable to the prosecution, any

rational trier of fact could have found all the essential elements of the crime beyond a

reasonable doubt.    State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991),

paragraph two of the syllabus; see State v. Conway, 108 Ohio St.3d 214, 2006-Ohio-

791, 842 N.E.2d 996, ¶ 36. In regard to the weight of the evidence, we review the

entire record, weigh the evidence, consider the credibility of the witnesses, and

determine whether the trier of fact clearly lost its way and created a manifest

miscarriage of justice. Thompkins, 78 Ohio St.3d at 387, 678 N.E.2d 541.



                                       21
                     OHIO FIRST DISTRICT COURT OF APPEALS



       {¶66} In his challenge to the sufficiency of the evidence, Williams contends

that “there was no direct substantive evidence that Mr. Williams was the shooter in

the homicides, and there was no substantive evidence that he was complicit in the

criminal activities of another.” Because Williams is only contesting that the state did

not prove that Williams was the shooter or was complicit in the shooting, we limit

our analysis accordingly.

       {¶67} It is well-settled that the state need not present direct evidence of a

crime in order to sustain a conviction. Circumstantial evidence and direct evidence

inherently possess the same probative value. Jenks at paragraph one of the syllabus.

And in this case there was overwhelming circumstantial evidence that Williams was

“the shooter” in the shooting deaths of Martin and Fields. Jones, Fields’s mother,

placed Williams in the car with Martin and Fields hours before the shootings.

Williams himself admitted that he had been in the back seat of Martin’s car in the

hours preceding the murders. Dr. Looman testified that both Martin and Fields had

been shot in Martin’s Jaguar where they were found. Martin’s gunshot wound was

consistent with having been shot from the back seat of his car. The bullets that killed

Martin and Fields had been fired from the same gun.            Minutes before the call

reporting that gunshots had been heard in the area, Martin and Fields had texted

each other intimate messages, suggesting that someone else had been present at that

time. Upon arriving at the scene of the crime, police discovered Williams’s “fresh

spit” outside of Martin’s driver’s side door, as well as a cigarette butt with Williams’s

DNA on it. Police did not find any cash or personal effects on Martin. A SIM card

assigned to Bazel’s cell phone had been put into Martin’s missing cell phone just

hours after the shootings. And the state presented evidence that Williams and Bazel

went on a shopping spree the afternoon following the shooting, and that Williams



                                       22
                      OHIO FIRST DISTRICT COURT OF APPEALS



spent hundreds of dollars. The taped telephone calls between Bazel and Williams

from jail suggested that Williams was attempting to get his story straight concerning

how he came to be in possession of Martin’s cell phone. Finally, the state presented

evidence that Bazel and Williams gave contradictory stories concerning when and

how each had arrived at Catherine Williams’s house following the shootings.

         {¶68} This was sufficient evidence to show beyond a reasonable doubt that

Williams was the individual who shot both Martin and Fields.

         {¶69} We also find that Williams’s convictions were not against the weight of

the evidence. Williams claims that there was credible evidence presented that

“Joker,” otherwise known as Greg Summerland, had sold Martin’s phone to

Williams, and that there was credible evidence that Williams never returned to

Martin’s car after meeting Bazel at 11 p.m. on April 12, 2013. Presumably, Williams

argues that the jury should have afforded more weight to this version of events.

However, there is no indication that, in weighing all of the evidence presented, the

jury lost its way in so as to create a manifest miscarriage of justice warranting a new

trial.

         {¶70} Williams’s sixth assignment of error is overruled.

Williams’s Crimes were not Allied Offenses of Similar Import

         {¶71} In his seventh assignment of error, Williams seems to claim that all of

his offenses were allied offenses of similar import, and that the trial court therefore

should have merged them into one charge for sentencing pursuant to R.C. 2941.25.

         {¶72} Under R.C. 2941.25(A), a defendant may be convicted of only one of

two or more allied offenses of similar import. But if the offenses are of dissimilar

import or are committed separately or with a separate animus, the defendant may be

convicted of all of them. R.C. 2941.25(B). We review a trial court’s merger ruling de



                                       23
                    OHIO FIRST DISTRICT COURT OF APPEALS



novo. State v. Williams, 134 Ohio St.3d 482, 2012-Ohio-5699, 983 N.E.2d 1245, ¶

28. Here, Williams did not object at the sentencing hearing to the imposition of

multiple sentences for his offenses. He has therefore forfeited this issue absent a

showing of plain error. See Crim.R. 52(B); Rogers, 143 Ohio St.3d 385, 2015-Ohio-

2459, 38 N.E.3d 860, at ¶ 22-23; Lewis, 1st Dist. Hamilton Nos. C-050989 and C-

060010, 2007-Ohio-1485, at ¶ 39.

       {¶73} “In determining whether offenses are allied offenses of similar import

within the meaning of R.C. 2941.25, courts must evaluate three separate factors—the

conduct, the animus, and the import.” State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-

995, 34 N.E.3d 892, paragraph one of the syllabus; see State v. Sanders, 1st Dist.

Hamilton Nos. C-140579 and C-140580, 2015-Ohio-5232, ¶ 46.

       {¶74} Turning first to the “conduct” factor, two or more offenses of dissimilar

import exist when the defendant’s conduct constitutes offenses involving separate

victims. Ruff at paragraph two of the syllabus. Because Williams’s aggravated

murder convictions involved separate victims, they clearly are not allied offenses of

similar import.

       {¶75} Nor do we find Williams’s aggravated murder and aggravated robbery

convictions to be allied offenses of similar import. Williams was found guilty of the

aggravated robbery of Martin, but not of Fields. Presumably, Williams contends that

the aggravated murder and aggravated robbery of Martin should have merged for

sentencing. Williams is incorrect. In Sanders, we held that an aggravated murder

and aggravated robbery charge did not merge where the manner in which the

defendant killed his victims—by shooting them at close range in the back of their

heads—evidenced a specific intent to kill, separate and apart from the motive to rob

them. Sanders at ¶ 49; see State v. Tibbs, 1st Dist. Hamilton No. C-100378, 2011-



                                      24
                    OHIO FIRST DISTRICT COURT OF APPEALS



Ohio-6716 (a shooting at close range in a victim’s face and head during the course of

a robbery showed a specific intent to kill separate and apart from defendant’s motive

in committing robbery).

       {¶76} Likewise, in this case, the evidence showed that Williams committed

the crimes at issue with a separate animus. Williams shot Martin in the back of his

head and at close range. This conduct demonstrated a specific intent to kill, separate

from his motive in robbing Martin.         These offenses are therefore dissimilar in

import.

       {¶77} Finally, we turn to Williams’s WUD charge. We have previously held

that the WUD statute “manifests a legislative purpose to punish the act of possessing

a firearm while under a disability separately from any offense committed with the

firearm.” State v. Bates, 1st Dist. Hamilton No. C-140033, 2015-Ohio-116, ¶ 30.

Thus, Williams’s WUD count is dissimilar in import to his aggravated murder and

aggravated robbery charges.

       {¶78} In sum, the trial court did not commit plain error—and did not err at

all—in not merging any of Williams’s crimes for sentencing. We therefore overrule

Williams’s seventh assignment of error.

Sentencing Error

       {¶79} In his eighth and final assignment of error, Williams asserts that the

trial court erred when it sentenced him because the court’s sentencing entry reflects

a sentence different from the one announced in court. Williams is correct.

       {¶80} At William’s sentencing hearing, the trial court stated that Williams

was sentenced to life without parole for 30 years on each aggravated murder charge.

It imposed a three-year sentence on the gun specification to count one, aggravated

murder. The trial court did not impose a sentence on the gun specifications to count



                                      25
                    OHIO FIRST DISTRICT COURT OF APPEALS



two, aggravated murder, or count five, aggravated robbery. The court’s sentencing

entry, however, reflects that Williams was sentenced to life without parole on each

aggravated murder charge, and to three-year gun specification sentences on each of

counts one, two, and three.

       {¶81} Crim.R. 43(A) provides that, “the defendant shall be present at the

arraignment and every stage of the trial, including * * * the imposition of sentence.”

Crim.R. 43(A) embodies a defendant’s due process right to be present when the court

imposes sentence. State v. Railey, 1st Dist. Hamilton No. C-120029, 2012-Ohio-

4233, ¶ 20.

       {¶82} Williams was not physically present when the trial court imposed the

harsher prison sentence reflected in the court’s judgment entry. When a sentence

pronounced in open court is later modified and the judgment entry reflects the

modification, the modification must have been made in open court in the defendant’s

presence. Railey at ¶ 21, citing State v. Carpenter, 1st Dist. Hamilton No. C-950889,

1996 Ohio App. LEXIS 4434, *4 (Oct. 9, 1996); State v. Todd, 1st Dist. Hamilton No.

C-020559, 2003-Ohio-3056, ¶ 17; State v. Hodges, 1st Dist. Hamilton No. C-990516,

2001 Ohio App. LEXIS 2729, *4-5 (June 22, 2001); State v. Coach, 1st Dist.

Hamilton No. C-990349, 2000 Ohio App. LEXIS 1901 *4-8 (May 5, 2000); State v.

Griffin, 131 Ohio App.3d 696, 699, 723 N.E.2d 606 (1st Dist.1998).

       {¶83} Because Williams was not present when the trial court effectively

modified his sentence, the sentence was imposed in violation of Williams’s due

process right to be present at sentencing embodied in Crim.R. 43(A). We sustain

Williams’s eighth assignment of error, vacate the sentences on counts one, two, and

three, and remand this cause for resentencing on those counts.




                                      26
                     OHIO FIRST DISTRICT COURT OF APPEALS



Conclusion

       {¶84} In sum, we affirm the findings of guilt on all charges, but vacate

Williams’s sentence on counts one, two, and three, and remand this cause for

resentencing on those counts.

           Judgment affirmed in part, sentence vacated in part, and cause remanded.


FISCHER, P.J., and HENDON, J., concur.


Please note:
       The court has recorded its own entry this date.




                                       27
