[Cite as State v. Crosby, 2016-Ohio-571.]


                                        COURT OF APPEALS
                                    GUERNSEY COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



STATE OF OHIO                                :       JUDGES:
                                             :       Hon. Sheila G. Farmer, P.J.
        Plaintiff-Appellee                   :       Hon. W. Scott Gwin, J.
                                             :       Hon. William B. Hoffman, J.
-vs-                                         :
                                             :
DEONDRE CROSBY                               :       Case No. 15 CA 000011
                                             :
        Defendant-Appellant                  :       OPINION




CHARACTER OF PROCEEDING:                             Appeal from the Court of Common
                                                     Pleas, Case No. 13CR000004




JUDGMENT:                                            Affirmed




DATE OF JUDGMENT:                                    February 16, 2016




APPEARANCES:

For Plaintiff-Appellee                               For Defendant-Appellant

JASON R. FARLEY                                      ERIC J. ALLEN
139 West 8th Street                                  713 South Front Street
P.O. Box 139                                         Columbus, OH 43206
Cambridge, OH 43725
Farmer, P.J.

       {¶1}    On January 3, 2013, the Guernsey County Grand Jury indicted appellant,

Deondre Crosby, on two counts of aggravated murder in violation of R.C. 2903.01, one

count of aggravated robbery in violation of R.C. 2911.01, and one count of aggravated

burglary in violation of R.C. 2911.11. All the counts carried firearm specifications in

violation of R.C. 2941.145. Said charges arose from a burglary and robbery of the

apartment of Christopher Morrison. During the incident, Mr. Morrison and his friend,

Justain Nelson, were shot and killed.         Two co-defendants were involved in the

commission of these offenses, Elgin Mitchell and James Whatley. It was alleged that

appellant shot Mr. Morrison and Mr. Whatley shot Mr. Nelson.

       {¶2}    A jury trial commenced on March 10, 2015. The jury found appellant guilty

of aggravated murder, complicity to commit aggravated murder, aggravated robbery, and

aggravated burglary, along with the attendant firearm specifications. By judgment entry

filed March 20, 2015, the trial court sentenced appellant to an aggregate term of life

imprisonment with the possibility of parole after thirty years.

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

consideration. Assignments of error are as follows:

                                              I

       {¶4}    "APPELLANT'S RIGHT TO A FAIR CROSS SECTION OF JURORS

GUARANTEED BY THE SIXTH AMENDMENT TO THE FEDERAL CONSTITUTION

MADE APPLICABLE TO THE STATES BY THE FOURTEENTH WAS VIOLATED WHEN

THE TRIAL COURT OVERRULED HIS MOTION REGARDING THE VENIRE"
                                               II

       {¶5}      "THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT OVVERULED

(SIC) APPELLANT'S TWO MOTIONS FOR DISCOVERY SANCTIONS."

                                               III

       {¶6}      "THE    TRIAL    COURT      ERRED      IN   GIVING    AN    ACCOMPLICE

INSTRUCTION WHEN THE STATE OF OHIO PROCEEDED AS IF THE DEFENDANT

WERE A PRINCIPAL OFFENDER."

                                                I

       {¶7}      Appellant claims the jury venire did not provide him a fair cross section of

jurors pursuant to State v. Fulton, 57 Ohio St.3d 120 (1991). We disagree.

       {¶8}      In Fulton at paragraph two of the syllabus, the Supreme Court of Ohio held

the following:



                 In order to establish a violation of the fair representative cross-

       section of the community requirement for a petit jury array under the Sixth

       and Fourteenth Amendments to the United States Constitution, a defendant

       must prove: (1) that the group alleged to be excluded is a "distinctive" group

       in the community; (2) that the representation of this group in venires from

       which juries are selected is not fair and reasonable in relation to the number

       of such persons in the community; and (3) that the representation is due to

       systematic exclusion of the group in the jury-selection process. (Duren v.

       Missouri [1979], 439 U.S. 357, 364, 99 S.Ct. 664, 668, 58 L.Ed.2d 579, applied

       and followed.)
       {¶9}   After the completion of voir dire, defense counsel engaged in the following

colloquy with the trial court (T. at 186-188):



              THE COURT: All right. And for the challenges, the challenge to the

       array requires a showing that they were not drawn in the ordinary course or

       proper manner and the jury should be set aside. Now, the fact that there

       isn't a - - you said there weren't any African Americans in the array, counsel?

       I don't have any basis for making that determination. We don't have any

       basis for making that determination. We don't use race in Guernsey County

       on the jury form. How would you make that determination?

              MR. JONES: Well, from stereotypes and looking at the jurors, sir, I

       didn't see any black people.

              THE COURT: Well, you might not have looked carefully enough,

       counsel. We might have had one that's in that category.

              MR. JONES: Okay. I didn't see anybody in the people that came in.

              THE COURT: Well, I respectfully disagree with you. You had one in

       the array.

              MR. JONES: I must have missed it.

              THE COURT: Well, that's fine. But, now, can you allege in good faith

       as an officer of the court that there's any irregularity in the manner or - - of

       summonsing the jurors other than alleged - - not having a black on the jury?

              MR. JONES: I have no offense to that.
             THE COURT: Now, the standard of law, as you're aware, is that they

      are proportionate to the representative population from which they are

      drawn. They are drawn from the electorate of Guernsey County. Have you

      researched the - - the statistics of the census of Guernsey County for those

      that are shown to be black?

             MR. JONES: Not recently, sir. It was back in October, maybe even

      September of last year when I last looked at those items.

             ***

             THE COURT: All right. I believe the census shows between one and

      one-half percent of the population. So it would not be the exclusion of

      blacks from the jury from showing of one array where you may, in fact, have

      had a person of color if you wish to use that term.           So there's no

      discrimination, counsel. And if you don't have any evidence, it's a very

      serious matter to raise.



      {¶10} The trial court overruled the challenge to the array. T. at 189.

      {¶11} First, appellant is an African American and meets the first prong of the test

as a "distinctive" group within the community. Secondly, apart from defense counsel's

claims, evidence was not produced demonstrating a lack of African Americans on the

venire in relation to their percentage in the community. State v. McNeill, 83 Ohio St.3d

438, 1998-Ohio-293. Further, the trial court noted defense counsel's observations were

inaccurate. Lastly, with an African American population of 1.5% and the fact that 41 jurors

were given the oath of voir dire, appellant did not produce any evidence of a systematic
exclusion in Guernsey County. The use of the voter registration database for jurors does

not demonstrate a systematic exclusion, and appellant did not submit any evidence that

the use of voter lists in Guernsey County caused any underrepresentation on the jury

venire and is suspect as appellant would imply. State v. Yarbrough, 95 Ohio St.3d 227,

2002-Ohio-2126, ¶ 103-106.

       {¶12} Assignment of Error I is denied.

                                            II

       {¶13} Appellant claims the trial court erred in denying his motions for Crim.R. 16

sanctions as the state did not disclose its expert's report and therefore the expert's

testimony should have been excluded. We disagree.

       {¶14} A trial court's decision on discovery violations is reviewed under an abuse

of discretion standard. State v. Darmond, 135 Ohio St.3d 343, 2013-Ohio-966; State v. Opp,

3rd Dist. Seneca No. 13-13-33, 2014-Ohio-1138. In order to find an abuse of discretion,

we must determine the trial court's decision was unreasonable, arbitrary or

unconscionable and not merely an error of law or judgment. State v. Adams, 62 Ohio St.2d

151 (1980).

       {¶15} Crim.R. 16 governs discovery and inspection. Subsection (K) governs

expert witnesses and reports and states the following:



              An expert witness for either side shall prepare a written report

       summarizing the expert witness's testimony, findings, analysis, conclusions,

       or opinion, and shall include a summary of the expert's qualifications. The

       written report and summary of qualifications shall be subject to disclosure
       under this rule no later than twenty-one days prior to trial, which period may

       be modified by the court for good cause shown, which does not prejudice

       any other party. Failure to disclose the written report to opposing counsel

       shall preclude the expert's testimony at trial.



       {¶16} In a motion for discovery sanctions filed March 2, 2015, appellant conceded

that the state disclosed the identity of its expert, Robert Moledor, his curriculum vitae, and

his PowerPoint presentation; however, a report was never submitted. Appellant argued

a written report of Mr. Moledor's opinion was necessary:



                 Foreknowledge of Mr. Moledor's process and analysis would permit

       collaboration with the defense's expert witness. Without knowledge of the

       calculations and process of Mr. Moledor, it is impossible to know if his

       summaries and opinions are correct. Without knowledge of the analytical

       process he used, the defense expert cannot say whether the process is

       accepted in the scientific community. Without a detailed report of the

       processes, it becomes impossible for the defense to subpoena records to

       support or refute the expert's opinions and conclusions.         Mr. Crosby's

       defense is prejudiced by the State's willful failure to disclose an expert

       report.



       {¶17} On March 4, 2015, the state filed a memorandum contra and argued the

following:
       Subsequently, on or about September 16, 2014 the State notified

prior counsel, Attorney Stone, of its intention to call Agent Moledor as a

witness in this matter rather than Mr. Vallee. Agent Moledor's CV and his

expert report consisting of a power point presentation and his conclusion

was provided to counsel at that time. At no time between September 16,

2014 and March 2, 2015 did defense counsel make any request of the State

of Ohio for a more detailed report. At no time between September 16, 2014

and March 2, 2015 did defense counsel file a motion to compel discovery

of a more specific report from the proposed expert of the State of Ohio.

       ***

       Here, there is no question but that the State of Ohio provided the

proposed report and qualification of the expert well prior to twenty-one days

prior to trial. That report includes the conclusion and opinion to be rendered

by this witness.     Defendant's motion acknowledges this.          However,

Defendant argues that the report provided does not satisfy the requirements

of Rule 16(K) as it does not include the "calculations and processes of Mr.

Moldor". However, Rule 16(K) does not require inclusion of such in a report

rendered by the proposed expert witness. Instead, the rule requires a

summary of the expert witness's "testimony, findings, analysis, conclusions

or opinions". First, all of these items are not required as the sentence

contains the word "OR" not "AND". Here, the report provided includes a

summary of the witness's testimony, findings, conclusion and opinion. It is
       only the analysis that is not present. As the drafters of Criminal Rule 16 did

       not use the word AND in this provision it is abundantly clear that Rule 16(K)

       is not an absolute requirement for inclusion of all of those items listed

       therein. Instead, the requirement of production of a report was to put both

       parties on notice of the witness, his/her name and qualifications and a

       summary of what he/she would testify to.



       {¶18} The trial court property concluded the fundamental argument about what

constitutes a "report" could be resolved by a Daubert hearing.1 A hearing was held on

March 9, 2015. During the hearing, both experts for appellant and the state were present

and were given the opportunity to testify and be cross-examined, and to listen to each

other's testimony. March 9, 2015 T. at 46. The state argued the PowerPoint presentation

was a summary of Mr. Moledor's testimony, with findings and conclusions, and constituted

a report. Id. at 28, 41; State's Exhibit A. Appellant argued the PowerPoint presentation,

titled "CAST Historical Cell Site Analysis" was not a report, but merely an exhibit with a

one-time conclusion/opinion, and did not include any analysis leading up to the

conclusion. Id. at 33, 35-36, 38.

       {¶19} The state's expert witness, Mr. Moledor, was employed by the Columbus

Division of Police and was "assigned to the FBI violent crime task force in the FBI cellular

analysis team out of Washington D.C." Id. at 49. He was a CAST team member, which

stands for "Cellular Analysis Survey Team," analyzing cellular call detail records. Id. at

52-53. He explained the process as follows (Id. at 55-56):



See Daubert v. Merrell Dow Pharmaceuticals, Inc. 509 U.S. 579 (1993).
1
              And in the absence of realtime technology, we will look at historical

       call detail records, look at the first call in the morning, the last call at night,

       we'll look at the most frequently used towers, and we will analyze that

       information to make determinations as to where the most likely area that a

       person may be found at, even with a given period of time. Then we will go

       out with our search teams and attempt to locate those people.



       {¶20} Mr. Moledor conducted an analysis of cellular phone records on a number

of phones involved in the case. Id. at 58. He prepared a report and presentation of his

findings via a PowerPoint presentation. Id. at 59; State's Exhibit A. The exhibit was

disclosed in discovery.       Mr. Moledor described each screen of his PowerPoint

presentation and his accompanying analysis, and was cross-examined by defense

counsel.   Appellant's expert, Manfred Schenk, reviewed Mr. Moledor's PowerPoint

presentation prior to preparing his contra opinion as to the scientific reliability of Mr.

Moledor's report and conclusion. State's Exhibits Exhibits B and C.

       {¶21} After some two hundred pages of testimony, the trial court permitted the

testimony of Mr. Moledor and his report in part pursuant to Evid.R. 704. T. at 207-209.

       {¶22} In reviewing the trial court's precise analysis of the testimony and excluding

some parts of the report, coupled with defense counsel's cross-examination and Mr.

Schenk's contra report, we find the trial court properly handled the issue of a Crim.R.

16(K) violation.
       {¶23} Upon review, we find the trial court did not abuse its discretion in denying

the motions for sanctions.

       {¶24} Assignment of Error II is denied.

                                             III

       {¶25} Appellant claims the trial court erred in giving a jury instruction on complicity

as there was insufficient evidence to establish complicity and in fact, the state's theory of

the case was that appellant was the shooter. We disagree.

       {¶26} The giving of jury instructions is within the sound discretion of the trial court

and will not be disturbed on appeal absent an abuse of discretion. State v. Martens, 90

Ohio App.3d 338 (3rd Dist.1993); Adams, supra. Jury instructions must be reviewed as a

whole. State v. Coleman, 37 Ohio St.3d 286 (1988).

       {¶27} Complicity is set forth in R.C. 2923.03 as follows:



              (A) No person, acting with the kind of culpability required for the

       commission of an offense, shall do any of the following:

              (1) Solicit or procure another to commit the offense;

              (2) Aid or abet another in committing the offense;

              (3) Conspire with another to commit the offense in violation of section

       2923.01 of the Revised Code;

              (4) Cause an innocent or irresponsible person to commit the offense.
       {¶28} The state argues appellant was aware that it had requested the complicity

instruction via an October 14, 2014 filing. The filing was a supplemental trial brief wherein

the state put forth its request for a jury instruction on complicity.

       {¶29} The trial court granted the request at the conclusion of the case (T. at 1682):



              The Court finds the theory of complicity is broad enough here to

       apply. The Court finds, however, that the bill of particulars only refers to it

       as along with co-defendants did plan and enter, and with the co-defendants

       did discharge multiple rounds. The Court finds that that is broad enough for

       a complicity instruction.

              The Court finds, however, the jurors will clearly be advised by the

       Judge and no argument of counsel beyond that point would be permitted.

       Complicity will be given as an instruction of law, as I find it is appropriate

       and broad enough to cover the facts and theories that have been argued.



       {¶30} From the record, it is clear that three persons were involved in the incident:

appellant, Mr. Whatley, and Mr. Mitchell. All three arrived near Mr. Morrison's apartment

complex and exited the vehicle together. T. at 1212-1213. Mr. Whatley "rammed the

door open" to Mr. Morrison's apartment and all three entered to rob him. T. at 1215-1216.

In the course of the robbery, Mr. Morrison and Mr. Nelson were shot and killed by

appellant and Mr. Whatley. T. at 1216-1221.
      {¶31} Upon review, we do not find any abuse of discretion by the trial court in

issuing the limited jury instruction on complicity and prohibiting additional argument on

the issue.

      {¶32} Assignment of Error III is denied.

      {¶33} The judgment of the Court of Common Pleas of Guernsey County, Ohio is

hereby affirmed.

By Farmer, P.J.

Gwin, J. and

Hoffman, J. concur.




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