         [Cite as State v. Alexander, 2012-Ohio-460.]
                 IN THE COURT OF APPEALS
             FIRST APPELLATE DISTRICT OF OHIO
                  HAMILTON COUNTY, OHIO



STATE OF OHIO,                                     :    APPEAL NO. C-110035
                                                        TRIAL NO. B-0904637
        Plaintiff-Appellee,                        :

  vs.                                              :
                                                          OPINION
CHRISTOPHER ALEXANDER,                             :

    Defendant-Appellant.                           :




Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: February 10, 2012


Joseph T. Deters, Hamilton County Prosecuting Attorney, and Philip R. Cummings,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Rubenstein and Thurman, L.P.A., and Scott A. Rubenstein, for Defendant-Appellant.




Please note: This case has been removed from the accelerated calendar.
                     OHIO FIRST DISTRICT COURT OF APPEALS




H ILDEBRANDT , Presiding Judge.


       {¶1}       Defendant-appellant Christopher Alexander appeals the judgment

of the Hamilton County Court of Common Pleas convicting him of aggravated

murder, murder, attempted murder, and aggravated robbery, with firearm

specifications. He was convicted after a jury trial.

       {¶2}       This case involves shootings that caused the deaths of Mark

Davenport and Kenneth Gaines and that resulted in serious injuries to Ruben Willis.

The state alleged that the crimes were perpetrated by Alexander and his accomplice

Gerald Wilson.

                                  A Feud Over $200

       {¶3}       Alexander and Davenport had a simmering feud over $200 in drug

money. That dispute came to a head in July 2009.

       {¶4}       Johanna Sadler was Davenport’s live-in girlfriend. She testified

that on the night before the shootings, Davenport had received a telephone call.

After the telephone conversation had ended, Davenport told her that the caller was

Alexander and that Alexander had told him that he better enjoy his last day because

he was going to kill him.

       {¶5}       The next day, Ruben Willis was standing with Davenport in front of

Davenport’s house when a car approached. Willis testified that Alexander had been

driving the car and that he had pointed his finger at them as if he were firing a gun.

       {¶6}       Wilson testified that Alexander had called to enlist him in what

Alexander described as a robbery.        Wilson assented, and the two approached

Davenport’s house, with Alexander carrying a gun.

       {¶7}       Davenport, Gaines, and Willis were standing in front of

Davenport’s house. According to Wilson, Alexander opened fire in the direction of



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the three men. A bystander testified that he had seen Alexander and Wilson flee and

that Alexander had been carrying a gun.

       {¶8}        When police arrived, Davenport and Gaines had been fatally

wounded, and Willis had suffered serious leg injuries. The police observed that

Davenport’s pants pockets had been turned inside out as if someone had reached

into them to take the contents.

       {¶9}        Alexander turned himself in.       In response to interrogation,

Alexander confessed that he had been involved in the crimes. But according to

Alexander, he had intended to merely rob Davenport. He maintained that Wilson

had possessed the gun and that he had fired the shots despite Alexander’s attempts

to restrain him.

       {¶10}       Eric Kleinholz was incarcerated in the Hamilton County Justice

Center with Alexander. Kleinholz testified that Alexander had told him that he had

shot someone in a dispute over $200.

       {¶11}       Tamela Scott took the stand for the defense and stated that she had

dropped Alexander and Wilson off near the scene of the shootings and had picked

them up later in the day. She also testified about a confrontation between Alexander

and Davenport before the shootings. Scott did not witness the shootings and was

unable to remember details about what had happened after she had driven

Alexander and Wilson from the area.

       {¶12}       The jury found Alexander guilty, and the trial court sentenced him

to prison terms of life without the possibility of parole for aggravated murder, 15

years to life for murder, and two consecutive ten-year terms for attempted murder

and aggravated robbery, as well as two consecutive three-year terms for the firearm

specifications.




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                Admissibility of Alexander’s Statement to Police

       {¶13}     In his first assignment of error, Alexander argues that the trial

court erred in overruling his motion to suppress the confession he made to police

soon after the shootings. He argues that the confession was coerced and therefore

inadmissible.

       {¶14}     In a hearing on a motion to suppress a confession, the prosecution

must prove by a preponderance of the evidence that the confession was voluntary.

See Lego v. Twomey, 404 U.S. 477, 489, 92 S.Ct. 619, 30 L.Ed.2d 618 (1972). The

Supreme Court of Ohio has stated that in deciding whether a defendant’s confession

is involuntarily induced “the court should consider the totality of the circumstances,

including the age, mentality, and prior criminal experience of the accused; the

length, intensity, and frequency of interrogation; the existence of physical

deprivation or mistreatment; and the existence of threat or inducement.” State v.

Edwards, 49 Ohio St.2d 31, 358 N.E.2d 1051 (1976), paragraph two of the syllabus.

Coercive police activity is a necessary predicate to a finding that the admission of a

confession would violate the defendant’s due-process rights. State v. Cedeno, 192

Ohio App.3d 738, 2011-Ohio-674, 950 N.E.2d 582 (1st Dist.), ¶ 17, citing Colorado v.

Connelly, 479 U.S. 157, 167, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986), and State v.

Combs, 62 Ohio St.3d 278, 285, 581 N.E.2d 1071 (1991).

       {¶15}     In the case at bar, Alexander has failed to demonstrate any

coercion or other impropriety on the part of the investigating officers.          The

interrogation lasted no more than two hours. During the interrogation, Alexander

was permitted to take a break to smoke a cigarette, and he was provided with food.

Alexander expressed the desire to tell his version of the events, and there was no

indication that the officers placed undue pressure on him to talk. Under these




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circumstances, the trial court correctly denied the motion to suppress, and we

overrule the first assignment of error.

                       Admissibility of Davenport’s Statement

         {¶16}      In his second assignment of error, Alexander contends that the

trial court erred in admitting into evidence the statement that Davenport had made

to Johanna Sadler on the night before he was killed. Alexander argues that the

statement was inadmissible hearsay, while the state maintains that the statement

was admissible as a present sense impression.

         {¶17}      A trial court generally has broad discretion in admitting or

excluding evidence. State v. Stafford, 158 Ohio App.3d 509, 2004-Ohio-3893, 817

N.E.2d 411 (1st Dist.), ¶ 65, citing State v. Sage, 31 Ohio St.3d 173, 510 N.E.2d 343

(1987). Evid. R. 803 provides for the admissibility of certain statements, regardless

of the availability of the declarant. One such type of statement is a “present sense

impression,” defined as a “statement describing or explaining an event or condition

made while the declarant was perceiving the event or condition, or immediately

thereafter unless circumstances indicate lack of trustworthiness.” Evid. R. 803(1);

Stafford at ¶ 65.

         {¶18}      In this case, the trial court did not abuse its discretion in admitting

the statement.       Sadler’s testimony indicated that Davenport had repeated

Alexander’s threat from the telephone call immediately after the conversation had

ended.    Davenport had no time to reflect or to fabricate the substance of the

conversation, and there was no indication that his statement was otherwise

unreliable. Thus, the statement was properly admitted, and we overrule the second

assignment of error.




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                             Prosecutorial Misconduct

       {¶19}      In his third assignment of error, Alexander argues that he was

prejudiced by prosecutorial misconduct.

       {¶20}      He first argues that improper comments by the prosecutor during

closing arguments deprived him of a fair trial. He cites as improper the prosecutor’s

statement that the jury should not “let one of the killers walk away here.”

       {¶21}      To obtain a reversal on the ground of improper remarks made

during closing argument, the defendant must demonstrate not only that the

comments were improper, but also that they deprived the defendant of a fair trial.

State v. Seay, 1st Dist. No. C-090233, 2010-Ohio-896, ¶ 23.

       {¶22}      In the case at bar, we find no impropriety in the prosecutor’s

comment. In the context of the argument, the prosecutor simply emphasized that

Alexander could not overcome the overwhelming evidence of his guilt by merely

pointing the finger at Wilson. The prosecutor did not appeal to the passions of the

jury and did not misstate the law or the evidence. Accordingly, we cannot say that

the comment deprived Alexander of his right to due process.

       {¶23}      Alexander also argues that the prosecutor engaged in misconduct

by misstating the testimony of a witness. But Alexander does not specifically identify

the testimony that was allegedly mischaracterized, and we find nothing in the record

to indicate that the state improperly commented on the evidence.

       {¶24}      Finally, Alexander argues that the state violated Crim.R. 16 in

failing to provide the defense with photographs of spent shell casings. We find no

merit in this argument. At trial, the state contended that it had in fact provided the

photographs to Alexander, and there is nothing in the record other than the

assertions of counsel to indicate that the state had withheld any evidence.    In any

event, the trial court permitted defense counsel to review the photographs before



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                     OHIO FIRST DISTRICT COURT OF APPEALS



cross-examining the state’s witness, and Alexander has thus demonstrated no

prejudice that resulted from the state’s alleged discovery violation. We overrule the

third assignment of error.

                              Weight of the Evidence

          {¶25} In his fourth assignment of error, Alexander argues that his

convictions were against the manifest weight of the evidence.

       {¶26}      To reverse a conviction on the manifest weight of the evidence, a

reviewing court must review the entire record, weigh the evidence and all reasonable

inferences, consider the credibility of the witnesses, and conclude that, in resolving

the conflicts in the evidence, the trier of fact clearly lost its way and created a

manifest miscarriage of justice in finding the defendant guilty. State v. Thompkins,

78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997).

       {¶27}      R.C. 2903.01(A), governing aggravated murder, provides that “[n]o

person shall purposely, and with prior calculation and design, cause the death of

another * * *. The murder statute, R.C. 2903.02(B), provides that “[n]o person shall

cause the death of another as the proximate result of the offender’s committing or

attempting to commit an offense of violence that is a felony of the first or second

degree * * *.”    The attempt statute, R.C. 2923.02(A), states that “no person,

purposely or knowingly, and when purpose or knowledge is sufficient culpability for

the commission of an offense, shall engage in conduct that, if successful, would

constitute or result in the offense.”         The aggravated-robbery statute, R.C.

2911.01(A)(1), states that “[n]o person, in attempting or committing a theft offense *

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

deadly weapon on or about the offender’s person or under the offender’s control and

either display the weapon, brandish it, indicate that the offender possesses it, or use

it.”



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                     OHIO FIRST DISTRICT COURT OF APPEALS



       {¶28}      In this case, the convictions were in accordance with the evidence.

The state presented evidence that Alexander had shot Davenport, Gaines, and Willis

and that the first two had died from their injuries. With respect to Davenport, the

state demonstrated that Alexander had killed him with prior calculation and design

and that he had gone through Davenport’s pockets in an attempt to steal from him.

       {¶29}      Alexander contends that he had merely intended to rob Davenport

and that Wilson had caused the confrontation to escalate. But that contention was

refuted by the witnesses who testified about threats that Alexander had made and by

the testimony of the bystander who had seen Alexander fleeing with a gun in his

hand. We cannot say that the jury lost its way in finding Alexander guilty, and we

overrule the fourth assignment of error.

                          Jury Instruction on Complicity

       {¶30}      In the fifth assignment of error, Alexander argues that the trial

court erred in instructing the jury on complicity. He maintains that because the state

tried the case on the theory that he was the principal offender, the evidence did not

support an instruction on complicity.

       {¶31}      A person who violates R.C. 2923.03 by aiding and abetting

another, conspiring with another, or soliciting another to commit an offense, “is

guilty of complicity in the commission of an offense, and shall be prosecuted and

punished as if he were a principal offender. A charge of complicity may be stated in

terms of this section, or in terms of the principal offense.” R.C. 2923.03(F). Thus, if

the evidence permits, a defendant is deemed to be on notice that he can be convicted

as a principal offender or as an accomplice under R.C. 2923.03(F).            State v.

Harrington, 1st Dist. Nos. C-080547 and C-080548, 2009-Ohio-5576, ¶ 12. And

where the state presents evidence that the defendant had acted in concert with




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                      OHIO FIRST DISTRICT COURT OF APPEALS



another to commit a crime, a jury instruction on complicity is proper. See State v.

Smith, 1st Dist. Nos. C-080712 and C-090505, 2009-Ohio-6932, ¶ 33.

       {¶32}      In this case, the trial court did not err in providing an instruction

on complicity. The evidence presented by the state demonstrated that Alexander had

acted in concert with Wilson in committing the crimes. Moreover, in Alexander’s

own statement to police, he admitted that he and Wilson had acted in concert,

maintaining that Wilson had been the principal offender.                 Under these

circumstances, the instruction on complicity was warranted, and we overrule the

fifth assignment of error.

                         Allied Offenses of Similar Import

       {¶33}      In his sixth assignment of error, Alexander argues that the trial

court erred in imposing sentences for both aggravated murder and aggravated

robbery. Specifically, he argues that the offenses were allied offenses of similar

import because the aggravated murder was committed merely to effectuate the

aggravated robbery.

       {¶34}      Under R.C. 2941.25, a trial court may sentence a defendant for two

or more offenses arising from the same criminal conduct or transaction if the

offenses (1) were not allied offenses of similar import, (2) were committed

separately, or (3) were committed with a separate animus as to each offense. See

State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061, ¶ 51; State

v. Baron, 1st Dist. No. C-100474, 2011-Ohio-3204, ¶ 17.

       {¶35}      In this case, the trial court did not err in sentencing Alexander for

both offenses, as the state demonstrated a separate animus for each. Alexander had

planned to kill Davenport well in advance of the aggravated robbery, as reflected by

the threats he had made on the telephone and by the threatening gesture he had

made toward Davenport. The intent to kill was thus separate from the motive for the



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                     OHIO FIRST DISTRICT COURT OF APPEALS



aggravated robbery. Accordingly, multiple sentences were proper, and we overrule

the sixth assignment of error.

                           Removal of Prospective Juror

       {¶36}      In the seventh assignment of error, Alexander argues that the trial

court erred in removing a prospective juror for cause.

       {¶37}      A prospective juror who indicates that she cannot be fair and

impartial or that she will not follow the law may be removed for cause.           R.C.

2313.42(J).    The decision to remove a prospective juror for cause is within the

discretion of the trial court. State v. McGlothin, 1st Dist. No. C-060145, 2007-Ohio-

4707, ¶ 10, citing Berk v. Matthews, 53 Ohio St.3d 161, 559 N.E.2d 1301 (1990),

syllabus.

       {¶38}      In the case at bar, the trial court did not abuse its discretion. The

prospective juror in question stated that she did not feel comfortable sitting in

judgment of others and that she therefore could not render a verdict in accordance

with the law. Although the juror vacillated somewhat in her answers to the court, her

final response indicated that she could not faithfully discharge the duties of a juror.

The trial court was correct in removing her from the jury for cause, and we overrule

the seventh assignment of error.

                          Denial of Motion for a New Trial

       {¶39}      In his eighth and final assignment of error, Alexander argues that

the trial court erred in overruling his motion for a new trial based on alleged

misconduct of a defense witness.      In support of his argument, Alexander cites

evidence in the record that a spectator at the trial had violated the court’s order

requiring separation of witnesses by revealing to Tamela Scott the testimony of other

witnesses.




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       {¶40}      The decision to grant or deny a new trial under Crim.R. 33 is within

the discretion of the trial court and will not be reversed absent an abuse of discretion.

State v. Gaines, 1st Dist. No. C-110145, 2011-Ohio-6719, ¶ 34.

       {¶41}      Here, there was no abuse of discretion.         Alexander bases his

argument on R.C. 2945.79(B), which provides that “[a] new trial, after a verdict of

conviction, may be granted on the application of the defendant for any of the

following causes affecting materially his substantial rights: * * * [m]isconduct of the

jury, prosecuting attorney, or the witnesses for the state.” (Emphasis added.) See

also Crim.R. 33(A)(2).

       {¶42}      In the instant case, Alexander argues that a defense witness had

engaged in misconduct. Such misconduct is not one of the statutory bases for the

granting of a new trial, and Alexander has failed to show that he was prejudiced by

the alleged impropriety. Accordingly, we overrule the eighth assignment of error.

                                      Conclusion

       {¶43}      The judgment of the trial court is affirmed.

                                                                    Judgment affirmed.



DINKELACKER and FISCHER, JJ., concur.


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




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