[Cite as State v. Woods, 2014-Ohio-1722.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                       No. 99630




                                      STATE OF OHIO
                                                   PLAINTIFF-APPELLEE

                                             vs.

                                 NATHANIEL WOODS
                                                   DEFENDANT-APPELLANT



                      JUDGMENT:
           CONVICTION AFFIRMED AS MODIFIED;
     SENTENCE AFFIRMED IN PART AND VACATED IN PART;
              REMANDED FOR RESENTENCING


                                   Criminal Appeal from the
                            Cuyahoga County Court of Common Pleas
                                     Case No. CR-557749

        BEFORE: Keough, P.J., Kilbane, J., and E.T. Gallagher, J.

        RELEASED AND JOURNALIZED:                  April 24, 2014
ATTORNEY FOR APPELLANT

David H. Brown
David H. Brown, L.L.C.
The Gehring Building
1956 West 25th Street, Suite 302
Cleveland, Ohio 44113

ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor
By: Norman Schroth
      Kevin R. Filiatraut
Assistant Prosecuting Attorneys
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
KATHLEEN ANN KEOUGH, P.J.:

       {¶1} Defendant-appellant, Nathaniel Woods, appeals from the trial court’s

judgment, rendered after a jury trial, finding him guilty of aggravated murder, gross abuse

of a corpse, and tampering with evidence. Finding some merit to the appeal, we affirm

Woods’s conviction as modified herein, vacate the sentence for aggravated murder, and

remand for resentencing.

                                      I. Background

       {¶2} In December 2011, Woods was charged in a three-count indictment. Count

1 charged aggravated murder in violation of R.C. 2903.01(A); Count 2 charged gross

abuse of a corpse in violation of R.C. 2927.01(B); and Count 3 charged tampering with

evidence in violation of R.C. 2921.12(A)(1).        He pleaded not guilty, and the case

proceeded to a jury trial at which the following evidence was adduced.

       {¶3} On the morning of December 14, 2001, as he was walking through a

shortcut between Edna and Bayliss Avenues in Cleveland, Tyrone Ridley saw a badly

burned body on the ground behind the garage at 6725 Bayliss Avenue. Ridley said the

body had not been there the day before when he used the same shortcut. Ridley called a

friend who was a CMHA police officer, who in turn called a Cleveland police captain.

       {¶4} Cleveland police responded to the scene, where they took pictures and

collected evidence. Cleveland fire and arson investigators also inspected the scene and

determined that the fire that burned the body had been intentionally set.
         {¶5} Dr. Joseph Felo, deputy medical examiner for Cuyahoga County, testified

that the victim, identified as 23-year-old Kimberly Bolten, had been dead for less than

two days when she was found, and that she died of “homicidal violence, type

undetermined.”      Dr. Felo testified further that Bolten had suffered postmortem

fourth-degree burns to most of her body, and that the burning made it impossible to

determine the specific cause of death. He testified, however, that the most likely causes

of Bolten’s death were fatal stab or gunshot wounds to parts of her body that had been

burned away, or a “suffocation-type” death. He based these conclusions on non-fatal,

postmortem stab wounds to parts of the body that had not burned and a bruise on the

underside of Bolten’s tongue typical of those found on persons who have suffocated to

death.

         {¶6} Dr. Felo testified that Bolten had no medical history of seizures, and that

the autopsy did not reveal any seizure disorder in her brain. He testified further that she

“did not die because of a seizure,” although he noted that “she has violence on her that

may have resulted in a seizure.” He explained that a lack of oxygen to the brain, caused

by smothering, choking, or strangling, can cause a seizure and death. Dr. Felo also

testified that he found recent bruising and swelling around Bolten’s eyes that meant she

could have been punched, grabbed, or smothered, and that he was certain that Bolten had

suffered a violent death, although the exact cause of death could not be determined due to

the extensive burning of the body. He admitted on cross-examination, however, that

other than the burning, there was no trauma on Bolten’s body that caused him to opine
that she had been murdered, and the postmortem burning of her body was very important

to his conclusion that she had been murdered.

       {¶7} Krystal Johnson, Bolten’s sister, testified that she last saw Bolten at

approximately 7 p.m. on December 12, 2011, when Bolten left the house she shared with

Krystal to walk to the store. Krystal admitted that Bolten was a prostitute and used

drugs. She testified that Bolten was approximately 5’10” tall and weighed about 170

pounds, and would stand up for herself and fight back if she were assaulted. Krystal said

that Bolten was bipolar but denied that she had ever had a seizure.

       {¶8} Natasha Frazier, a friend of Bolten’s for five years, testified that she saw

Bolten a few nights before her body was discovered. Frazier was driving her car and

honked the horn at Bolten, who was walking up Addison Avenue in Cleveland with a

man who was walking a bike. Frazier said that when she honked the horn, Bolten waved

and continued walking with the man, who put his head down. Frazier identified Woods

in court as the man she saw Bolten with that night.

       {¶9} Thomas Renfroe testified that in December 2011, he lived on the third floor

of a ten-room boarding house at 6722 Edna, Cleveland, Ohio. The south side of the

property at 6722 Edna abuts the north side of the property at 6725 Bayliss Avenue, where

Bolten’s burned body was found. Renfroe said that Woods lived in the room next to his,

and that his bed was against the wall that abutted Woods’s room.

       {¶10} Renfroe testified that on the evening of December 12, 2011, Woods came

up the stairs to the third floor of the boarding house. He told Renfroe that he had met a
woman, who was downstairs using the bathroom. Renfroe said the woman came up the

stairs, went into Woods’s room, and sat on his bed; Renfroe then went back into his room.

 For awhile, he heard Woods playing music and singing to the girl.

       {¶11} Renfroe testified that he eventually went to sleep but was awakened at

approximately 1:30 or 2:00 a.m. by sounds from Woods’s room of banging on the wall

and beer bottles hitting the floor. Renfroe said that he got up and knocked on Woods’s

door. Woods did not answer, so Renfroe knocked again. Woods said, “What, man?”

but did not open the door to his room. Renfroe said he asked, “You all right in there?”

and Woods said “yeah,” so he went back to bed.

       {¶12} Renfroe said that as he lay in his bed, he heard the woman gasping and

breathing hard, and Woods whispering to her, although Renfroe could not make out the

words. In state’s exhibit No. 294, Renfroe’s subsequent written statement to the police,

Renfroe stated that “it sounded like her mouth was covered up or her face was in a

blanket or something like that,” although Renfroe admitted that at the time, he just

assumed the woman and Woods were having sex.

       {¶13} Renfroe said that a few minutes later, Woods called him on his cell phone

and thanked Renfroe for checking on him. Renfroe said that when he asked Woods what

had happened, Woods told him that the girl tried to take his money, he twisted her arm,

the money flew everywhere, and “it don’t look too good.” Woods then told Renfroe that

he and the girl were going to sleep.
      {¶14} Renfroe testified that when he got home from work the next day around 5

p.m., Woods was sitting on the porch of the boarding house. He told Renfroe, “You

know that girl I was with the other day? She dead.” When Renfroe asked where the girl

was, Woods told him she was upstairs in his room. They went upstairs, and Woods

showed Renfroe the body, which was on a blanket on the floor. According to Renfroe,

the girl’s hair was “all over her head” and her pants were pulled down to her knees.

Renfroe testified that Woods told him that she tried to take his money and had a seizure

while they were “tussling.”

      {¶15} Renfroe testified that he did not see the girl again after that night, but said

he asked his girlfriend, Robin Whitsett, to stay with him the next two nights because he

was afraid to be in his room alone. Whitsett confirmed that Renfroe told her what had

happened, and that she stayed with him for two nights. Renfroe said that he moved out

of the boarding house several days after Woods showed him the body, and on Saturday,

December 17, 2011, he contacted the Cleveland police and gave them a video-recorded

statement regarding what he knew about Bolten’s death. Renfroe identified Bolten from

state’s exhibit No. 283 as the woman he saw lying on the floor of Woods’s room.

Cleveland police detective Wally Everett confirmed that until Renfroe came forward, the

police had no suspects in the case and were unaware of any connection between the house

on Edna Avenue and Bolten’s death.

      {¶16} Eddie Mae Greene testified that in December 2011, she lived next door to

the rooming house on Edna Avenue. She said that she knew Woods as “Tink,” and that
he would come visit with her at her house almost every day. Greene testified that she

never saw Woods with any females except for the night, which she thought was a

Monday, when she saw him walking on Edna Avenue with a woman. Greene stopped

and spoke with the woman and Woods, who told her he had to hurry because his friend

“got to pee.” Greene said the woman appeared to be disoriented. At trial, Greene

identified Bolten from a picture as the woman she saw Woods with that Monday night.

She also identified a black boot found close to Bolten’s burned body as one of the boots

Bolten was wearing when she saw her with Woods.

      {¶17} Greene testified that she next saw Woods on either Thursday or Friday of

that week, after Bolten’s burned body had been discovered several days earlier. Greene

said that as she and her son came out of their house, she saw Woods coming up the street

on his bike.   When Woods stopped, she told him that she wanted to ask him to

accompany them to the store because it was getting dark out and “you know, it’s a crazy

psycho murderer out here.” Greene said that Woods told her, “you’re right; there is a

crazy psycho murderer out here.” Greene gave a statement to police detectives in March

2012. She testified that shortly after giving her statement, she received a letter from

“Tink,” in which Woods advised her that the “crazy things” people were saying about him

were not true, and that he “could never ever do anything as horrible as that.” He told

Greene “I think it was the guy name [sic] Thomas Renfro [sic],” and also told her that she

and her son had seen him and the woman on Sunday, December 11, not Monday,

December 12.
       {¶18} Sandra Guzay, a production foreman at Springco Metal Coating, testified

that Woods worked the 7 a.m. to 3 p.m. shift at Springco under her supervision for

approximately five years. She said that in December 2011, Woods was a tool man, a

physically demanding job that involved repeatedly lifting and placing heavy racks onto

conveyor belts. Guzay reviewed Woods’s attendance records for October and November

2011, which indicated that he was at work on time every day. For the week of December

12 through December 16, 2011, however, the attendance records showed that Woods

worked Monday, December 12, called off on Tuesday and Wednesday, and then came to

work on Thursday, December 15, 2011. Guzay said that when she saw Woods in the

cafeteria on December 15 and confronted him about missing two days in a row, she

noticed that his hands were swollen. Guzay said that she had never seen Woods’s hands

swollen like that before.

       {¶19} Cleveland police detective Michael Smith testified that Woods was arrested

at Springco on December 19, 2011. Three days later, the police executed a search

warrant in his room, and found a mop, a bottle of bleach, a partially-empty bottle of paint

thinner, and stacks of newspapers.        Eric Burchak, a Cleveland police fire-arson

investigator who examined the scene where Bolten’s burned body was found and

investigated the fire, testified that whoever set the fire used two accelerants — newspaper

and a medium petroleum distillate such as paint thinner.

       {¶20} Finally, Dr. Nasir Butt, a supervisor in the DNA section of the Cuyahoga

County forensic science laboratory of the Cuyahoga County medical examiner’s office,
testified that Woods’s DNA was found in swabs taken from under the fingernails of

Bolten’s right hand. He conceded, however, that DNA can be transferred to someone’s

fingernails during sex.

       {¶21} The trial court denied Woods’s Crim.R. 29 motion for acquittal regarding

the aggravated murder count, but granted defense counsel’s request for a jury instruction

regarding murder and voluntary manslaughter. The jury subsequently found Woods

guilty of all counts, and this appeal followed.

                                        II. Analysis

A.     Sufficiency of the Evidence

       {¶22} Woods was convicted of aggravated murder in violation of R.C.

2903.01(A), which provides that “[n]o person shall purposely, and with prior calculation

and design, cause the death of another * * *.” A person acts purposely when it is his

specific intent to cause a certain result. R.C. 2901.22(A). In his first assignment of

error, Woods contends that the trial court erred in denying his Crim.R. 29 motion for

acquittal regarding Count 1 because there was no evidence of prior calculation and

design.

       {¶23} Crim.R. 29(A) provides for a judgment of acquittal if the evidence is

insufficient to sustain the conviction. An appellate court’s function when reviewing the

sufficiency of the evidence to support a criminal conviction is to examine the evidence

admitted at trial to determine whether such evidence, if believed, would convince the

average mind of the defendant’s guilt beyond a reasonable doubt. The relevant inquiry is
whether, after viewing the evidence in a light most favorable to the prosecution, any

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

reasonable doubt. State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492, paragraph two of

the syllabus.

       {¶24}    Prior calculation and design “indicates studied care in planning or

analyzing the means of the crime as well as a scheme encompassing the death of the

victim.” State v. Taylor, 78 Ohio St.3d 15, 19, 1997-Ohio-243, 676 N.E.2d 82. The

Revised Code does not define “prior calculation and design,” but the Ohio Supreme Court

       has interpreted the phrase to require evidence of “more than the few
       moments of deliberation permitted in common law interpretations of the
       former murder statute, and to require a scheme designed to implement the
       calculated decision to kill.” State v. Cotton, 56 Ohio St.2d 8, 11, 1978
       Ohio LEXIS 644, 381 N.E.2d 190. While “[n]either the degree of care nor
       the length of time the offender takes to ponder the crime beforehand are
       critical factors in themselves,” “momentary deliberation is insufficient.”
       State v. D’Ambrosio, 67 Ohio St.3d 185, 196, 1993-Ohio-170, 616 N.E.2d
       909, quoting the 1973 Legislative Service Commission Comment to R.C.
       2903.01.

State v. Conway, 108 Ohio St.3d 214, 2006-Ohio-791, 842 N.E.2d 996, ¶ 38.

       {¶25} The existence of prior calculation and design is determined on a

case-by-case basis analysis of the facts and evidence. State v. Jones, 91 Ohio St.3d 335,

345, 2001-Ohio-57, 744 N.E.2d 1163.          Although there is no bright-line test for

determining prior calculation and design, the Ohio Supreme Court has found that several

factors, including whether the accused and the victim knew each other, whether there was

thought or preparation in choosing the murder weapon or murder site, and whether the act

was “drawn out” or “an almost instantaneous eruption of events” should be weighed with
the totality of the circumstances surrounding the murder to determine whether there was

prior calculation and design. Taylor; State v. Jenkins, 48 Ohio App.2d 99, 102, 355

N.E.2d 825 (8th Dist.1976). In this case, considering these factors and the totality of the

circumstances, we find that even construing the evidence in a light most favorable to the

prosecution, there was insufficient evidence of prior calculation and design.

       {¶26} First, as the state concedes, Woods found Bolten, a known prostitute, “on

the street.” They did not know each other before the day of the murder and did not have

a strained relationship that would cause Woods to plan her murder. Moreover, there is

no evidence that Woods gave thought and preparation to choosing the murder site.

Common sense dictates that if Woods had actually given thought to choosing the murder

site, he would not have taken Bolten to his room in a boarding house that he shared with

at least eight other people and where there would likely be witnesses. See State v. Hill,

8th Dist. Cuyahoga No. 98366, 2013-Ohio-578, ¶ 24.

       {¶27} With respect to the third factor, the state contends that although the murder

act itself was not necessarily drawn out, the murder occurred over time because Woods

lured Bolten to his room to kill her. The state asserts that the evidence indicates that

Woods planned to murder Bolten because he dropped his head when Frazier honked the

horn at Bolten as they were walking on the street, and he “shuffled” Bolten past Greene

when he saw her outside the boarding house as he and Bolten were going to his room.

But these actions are consistent with those of someone who does not want others to know
that he plans to have sex with a prostitute; they are insufficient, without more, to

demonstrate that Woods planned to kill Bolten.

      {¶28} The state also contends that Woods planned to kill Bolten because she was

able to wave at Frazier when Frazier honked her horn at her, but some time later when

Greene saw her, she seemed disoriented or intoxicated, thereby suggesting that Woods

must have given her something to make her disoriented and facilitate his plan to kill her.

This is pure speculation by the state; there is no evidence that Woods forced or even

offered Bolten, a known drug user, anything to cause her to be disoriented.

      {¶29} Likewise, despite the state’s assertion otherwise, Renfroe’s testimony that

Woods would not open the door when he knocked and that he heard Bolten gasping while

Woods whispered to her is similarly insufficient to demonstrate that Woods planned to

kill Bolten in his room. Renfroe admitted that the noises and the whispering could have

been because Woods and Bolten were having sex, and it is not unlikely that Woods would

not open the door if he and Bolten were in the midst of sex.

      {¶30} The state also argues that there was sufficient evidence of prior calculation

and design because Woods tried to conceal the murder by burning Bolten’s body. But

burning the body after the murder does not necessarily indicate prior calculation and

design.

      {¶31} The state contends that this case is similar to State v. Williams, 8th Dist.

Cuyahoga No. 82364, 2003-Ohio-6342, in which this court affirmed a conviction for

aggravated murder. In Williams, the defendant told the police that he found the body of a
15-year-old girl in the woods. He said he met the victim at a gas station, had sex with

her behind the station, left, and then several hours later, discovered her body in the

woods. After talking to the police, the defendant contacted his friend and his father and

asked them to give him an alibi for that night. When the police interviewed him several

days later, the defendant admitted that he actually had sex with the victim in the woods,

refused to give her money after she threatened him, and then blacked out and killed her.

       {¶32} This court found “substantial evidence of prior calculation and design,”

finding that although the defendant and the victim were strangers to each other until the

night of the murder, they spent the evening together riding in a car with the defendant’s

friend, who dropped them off at the defendant’s house. This court reasoned:

       The victim was found in a secluded area of woods near the appellant’s
       home; clearly, he gave thought to choosing an out-of-the-way murder site.
       Though the actual killing of the victim may have taken a mere moment or
       two, the events of that night can not be considered “an instantaneous act,”
       but instead consisted of a plan that took hours, first to lure the victim to his
       home and then to proceed to the crime scene. Therefore, we find that there
       is sufficient evidence to show prior calculation and design.

Id. at ¶ 37.

       {¶33} But Williams is distinguishable from this case. There is no evidence that

Woods lured Bolten to his room; she was a known prostitute and Frazier testified that

when she saw Bolten with Woods, she presumed that Bolten was “tricking” as usual.

Moreover, Woods did not take Bolten to a secluded place to murder her; he took her to

his room in a ten-room boarding house. And Woods’s 2012 letter to Greene, in which he
told her that she saw him with Bolten on Sunday, December 11, and not Monday,

December 12, is not indicative of prior calculation and design.

       {¶34} In short, the evidence in this case was insufficient to support a finding of

prior calculation and design and, accordingly, there was insufficient evidence to support

Woods’s conviction for aggravated murder. There was, however, sufficient evidence

that Woods committed murder in violation of R.C. 2903.02, which provides that “[n]o

person shall purposefully cause the death of another.” Accordingly, Woods’s conviction

for aggravated murder is modified to the lesser included offense of murder. See State v.

Reddy, 192 Ohio App.3d 108, 2010-Ohio-5759, 948 N.E.2d 454, ¶ 35 (8th Dist.),

(appellate court has authority to modify a conviction to a lesser included offense

supported by the record, rather than ordering an acquittal or a new trial).

       {¶35} The first assignment of error is sustained.

B.     Manifest Weight of the Evidence

       {¶36} In his second assignment of error, Woods contends that his conviction for

aggravated murder was against the manifest weight of the evidence. In light of our

resolution of the first assignment of error, we will consider Woods’s arguments as they

relate to his conviction for murder.

       {¶37} In contrast to a sufficiency argument, a manifest weight challenge questions

whether the state met its burden of persuasion. State v. Bowden, 8th Dist. Cuyahoga No.

92266, 2009-Ohio-3598, ¶ 12. A reviewing court weighs the evidence and all reasonable

inferences, considers the credibility of witnesses and determines whether in resolving
conflicts in the evidence, the jury clearly lost its way and created such a manifest

miscarriage of justice that the conviction must be reversed and a new trial ordered. State

v. Thompkins, 78 Ohio St.3d 380, 388, 1997-Ohio-52, 678 N.E.2d 541. A conviction

should be reversed as against the manifest weight of the evidence only in the most

exceptional case in which the evidence weighs heavily against the conviction. Id.

       {¶38} We find that Woods’s conviction for murder was not against the manifest

weight of the evidence. The evidence was clear that Woods was the last person seen

with Bolten before her burned body was discovered on property close to the boarding

house where Woods lived. The evidence was also clear that Renfroe heard Bolten

gasping for air while Woods whispered to her, and that it sounded like her head was

covered or in a pillow or blanket. The medical examiner testified that he was confident

that Bolten was murdered, and testified further that although he could not state the

specific cause of death, in light of the bruise found under Bolten’s tongue, one of the

most likely causes of death was suffocation. And, despite Woods’s assertion to Renfroe

that Bolten died of a seizure while they were “tussling,” the medical examiner was

unequivocal that Bolten did not die of a seizure. Finally, there was no evidence that

Woods called 911 to report Bolten’s alleged seizure and, in fact, the evidence was clear

that he tried to burn the body after the murder. In light of this evidence, the jury did not

lose its way in finding that Woods purposefully caused Bolten’s death.            Woods’s

conviction for murder is not against the manifest weight of the evidence, and, therefore,

the second assignment of error is overruled.
      {¶39} Woods’s convictions and sentence for gross abuse of a corpse and tampering

with evidence are affirmed.     Woods’s aggravated murder conviction is modified to

murder in violation of R.C. 2903.02, the conviction is affirmed as modified, the sentence

for aggravated murder is vacated, and the matter is remanded for resentencing on the

murder conviction.

      It is ordered that the parties share costs herein taxed.

      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution. The defendant’s conviction having

been affirmed as modified herein, any bail pending appeal is terminated.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.




KATHLEEN ANN KEOUGH, PRESIDING JUDGE

MARY EILEEN KILBANE, J., and
EILEEN T. GALLAGHER, J., CONCUR
