         [Cite as State v. Frazier, 2015-Ohio-3116.]
                 IN THE COURT OF APPEALS
             FIRST APPELLATE DISTRICT OF OHIO
                  HAMILTON COUNTY, OHIO



STATE OF OHIO,                                     :   APPEAL NO. C-140369
                                                       TRIAL NO. B-1208535
        Plaintiff-Appellee,                        :

  vs.                                              :      O P I N I O N.

BYRON FRAZIER,                                     :

    Defendant-Appellant.                           :




Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed and Cause Remanded

Date of Judgment Entry on Appeal: August 5, 2015


Joseph T. Deters, Hamilton County Prosecuting Attorney, and Rachel Lipman
Curran, Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Raymond T. Faller, Hamilton County Public Defender, Christine Y. Jones, David
Hoffman and Josh Thompson, Assistant Public Defenders, for Defendant-Appellant.




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



M OCK , Judge.

       {¶1}     Defendant-appellant Byron Frazier was charged with the aggravated

murder, murder, and felonious assault of Kyila Shields, the attempted murder and

felonious assault of Adam Deters, and the attempted murder and felonious assault of

their two-month-old son, Adam Deters, Jr., (“AJ”) in connection with shootings on

Christmas Day in 2012. Each of the charges was accompanied by firearm specifications.

       {¶2}     The charges were tried to a jury. At the close of the state’s case-in-chief,

the trial court granted Frazier’s Crim.R. 29 motion for an acquittal on the attempted-

murder and felonious-assault charges regarding AJ.          The remaining charges were

submitted to the jury. The jury found Frazier not guilty of the aggravated murder of

Kyila, but guilty of the remaining charges and firearm specifications.

       {¶3}     At sentencing, the trial court merged the felonious assault and murder of

Kyila. It also merged the felonious assault and attempted murder of Deters, and it

merged the firearm specifications with respect to each of the victims. It sentenced

Frazier to 15 years to life for the murder of Kyila, and to three years for the

accompanying firearm specifications, to 11 years for the attempted murder of Deters,

and to three years on the merged firearm specifications relating to Deters. The trial

court ordered that the terms be served consecutively, for a total sentence of 32 years to

life in prison. Frazier now appeals.

       {¶4}     In this appeal, Frazier challenges the weight and sufficiency of the

evidence adduced to support his convictions, the trial court’s admission of evidence, the

trial court’s failure to grant a mistrial due to prosecutorial misconduct during closing

argument, the trial court’s complicity instruction, the trial court’s failure to journalize a

judgment entry discharging the jury following the first mistrial, and the trial court’s

failure to enter its sentencing findings on the judgment entry.        He also alleges that

cumulative error deprived him of a fair trial. Because the trial court failed to include the



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consecutive-sentence findings in the judgment entry, we remand the cause to the trial

court to issue a nunc pro tunc entry. We affirm the trial court’s judgment in all other

respects.

                              A Family Feud Turns Deadly

       {¶5}    The following evidence was presented at Frazier’s trial. Adam Deters

testified that on December 25, 2012, he, his fiancée Kyila Shields, AJ, and Adam’s

daughter, Jada, traveled to the home of Linda Shields, Kyila’s maternal grandmother.

Adam and Kyila had been dating two years. Adam knew Kyila’s mother, Regina Shields,

almost as long as he had known Kyila. He met Regina’s boyfriend, Byron Germany, in

2011 when Germany had been released from prison. Frazier is Germany’s son. Adam

had known Frazier for as long as he had known Germany. The two men had met

multiple times, and Frazier had even attended Adam’s 25th birthday party.

       {¶6}    Everyone got along well until a disagreement arose about a house that

Kyila and Adam had rented from Regina and Germany in the summer of 2012. Before

leaving, Adam and Kyila had caused significant damage to the rental home. This

angered Germany. Adam and Kyila refused to speak with Regina or Germany about the

matter. Frazier, however, inserted himself into the family dispute, arguing with both

Adam and Kyila on the phone about the damage. Frazier repeatedly told Adam to “meet

me and we can fight.” He also threatened to shoot Adam.

       {¶7}    Shortly after arriving at Linda’s home on Christmas Day, Adam left.

Kyila, who had stayed behind, became visibly upset when her mother arrived with

Frazier and Germany. Kyila yelled that Germany and Frazier had to leave. Frazier

threatened in response, “I’m having a very bad day; you don’t want to fuck with me.”

Frazier was only in the house for a few minutes before leaving. Germany, however,

stayed and began arguing with Kyila. Germany threatened Kyila, saying, “I ain’t going to

get you. I’m going to get your man.”



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         {¶8}    When Adam returned, Kyila and Regina were arguing. Adam went to

the back room where Germany approached him. They began arguing about the rental

house.     At some point later, Germany threatened, “I’m going to take care of all you

motherfuckers tonight, the both of you tonight.”       Eventually, Linda had Germany

escorted out of her home.

         {¶9}    Before Kyila and Adam left, Kyila told everyone that they were going to

the home of her paternal grandmother, Doris Lawrence. When Adam and Kyila arrived

at Lawrence’s home, it was dark outside. They parked Kyila’s car on the right side of the

street facing the turnaround. Adam testified that he, Kyila, and Jada stood at the back of

the car unloading presents, while AJ remained in his car seat. A black SUV drove by

very slowly. The SUV’s windows were so darkly tinted that Adam could not see inside it,

and no one else was outside. The SUV drove to the end of the street, and turned around.

Adam testified that he felt uneasy, so he told Jada to go inside Lawrence’s home. Kyila,

however, was confrontational, asking, “What the fuck is this? Who’s this?”

         {¶10}   The black SUV then drove back past Kyila’s car before parking 20 feet

away. Adam testified that Frazier and another man jumped out of the SUV. Frazier

exited from the back passenger door on the driver’s side of the SUV with a two-feet-long,

black gun in his hand, and started walking toward them. He told Adam and Kyila, “This

is what you get.” Kyila told Adam to leave. Adam jumped into Kyila’s car and drove

away. As soon as he got in the vehicle, Frazier and the other man fired at least ten shots

at Kyila’s car. Adam was shot in the top of his head. He was later treated with eight

staples.

         {¶11}   Adam testified that Kyila had remained standing behind the car. Adam

drove Kyila’s car to the end of the cul-de-sac and stopped there, waiting. When he

looked back, no one was there. The black SUV had gone. As Adam came back, he found

Kyila’s purse in the middle of the street, and thought that she had been abducted. He



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ran with AJ into Lawrence’s home. Panicked, he asked if Kyila had come inside.

Lawrence called 911.     Because Adam thought Bryron Frazier was named Byron

Germany, Jr., he indicated that to the police. He said the shooter was 26 years old, and

the vehicle involved was a black Honda SUV. As he was going into unconsciousness,

Adam said Frazier took Kyila. He told how Frazier had “said that he was going to kill

us.”

        {¶12}   Belinda Griffin, Kyila’s great aunt, had answered the door when Jada

knocked. Griffin testified that from the porch, she had seen three people dressed in

black hoodies and one person in white clothing down the street. Kyila, who was wearing

a white shirt, was arguing with them, and they pushed and shoved her to the ground.

Griffin saw Kyila get up and run toward the back of her car, which had been facing the

street, when someone grabbed her from behind and dragged her towards a black SUV.

According to Griffin, the black SUV had been facing the dead end of the street. Griffin

then heard at least ten shots being fired at Kyila’s car. She ran into the house. Five or

ten minutes later, Adam came into the house with AJ. Griffin testified that Adam was

hysterical. He was crying and covered in blood.       Adam said that Kyila had been

kidnapped, and he kept talking about “Little B,” which was Frazier’s nickname.

                                   Police Investigation

        {¶13}   Cincinnati Bell records showed that someone had sent Frazier a text

message at 7:40 p.m. and 7:42 p.m. Christmas night. At that time, Frazier’s phone

utilized the two cell phone towers closest to Lawrence’s home to receive the messages.

Roughly three hours later, Frazier had sent a text message saying, “Nothin I took care of

it.”   When police apprehended Frazier at his grandmother’s home the following

morning, they found a single knit glove in his pocket and he was wearing a dark-colored

shirt. Both items were tested for gun-shot residue. The glove had five particles of gun-

shot residue and the shirt had 11 particles of gun-shot residue. Police also found a cell



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phone in the same room where they arrested Frazier. Frazier had a hooded black mink

coat. After executing a search warrant on Frazier’s residence, police found no weapons,

but they did find three empty Glock firearm boxes, two magazines to hold bullets, three

test-fire bullets, and a shoulder holster. They also found another cell phone belonging

to Frazier. The police obtained a search warrant to look in Frazier’s cell phones.

       {¶14}     Police, who had responded to the scene of the shooting, found several

shell casings in the middle of the street. Eventually, they found Kyila’s lifeless body lying

in the grass. An autopsy revealed that Kyila had been shot four times, three times in the

back and once in the right buttock. The deputy coroner testified that Kyila had died

from internal bleeding due to the gunshot wounds.

       {¶15}     Criminalists Denise Burns and Don Werling processed the scene. Burns

photographed the scene.      She testified that it was dark, but that porch lights on the

house were lit. Some artificial light was obvious in the photographs. Burns testified she

could see Werling’s facial features and clothing without a flashlight, even when he was

more than 20 feet away. She further testified that there was one street light on the street

where the shooting had occurred, as well as lights on the houses lining the street. Burns

and Werling created a diagram of the scene highlighting the evidence that had been

recovered. A laser scanner was used to measure the distance between different objects

and to ensure the diagram was made to scale.

       {¶16}     On cross-examination, Burns admitted that prior to her testimony she

had discussed with the prosecutor that she had seen Werling’s face from at least 20 feet

away as she processed the scene the night of the shootings.      She admitted that since it

was dark outside at the time they processed the crime scene, artificial lighting had been

used in some of the photographs and they did not depict how someone would naturally

see the scene.




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       {¶17}     Werling also admitted that it was very dark while they were processing

the scene. He testified that multiple vehicles in the area had been damaged by the

gunshots and that Kylie’s car had sustained significant damage.        The passenger side

mirror was broken. Three indentations showed where bullets had hit the driver’s door.

The rear driver’s side window was broken, and the sun screen covering it from the inside

was ripped. A bullet had damaged the rearview mirror inside the car and the center

console located above it. The windshield was damaged, too. Werling found copper

jacketing from a bullet on the rear right-side passenger seat. The lead core of a bullet

was found in the floorboard area of the driver’s door.

       {¶18}     The criminalists testified that they recovered two different brands of 9

mm shell casings at the scene. A total of 17 casings were examined. No fingerprints or

DNA was found on the casings. After evaluating the autopsy bullet and pieces of other

bullets, Kevin Lattyak, a firearm examiner, determined that two different guns had been

used; one gun had fired two of the casings and another gun had fired 15 of the

casings. The 9 mm casings recovered from Frazier’s apartment did not match those at

the scene.     One of the boxes of ammunition recovered from Frazier’s apartment

contained cartridges that were consistent with a Hi-Point firearm. Lattyak testified that

a shorter rifle, such as a carbine, could fire 9 mm cartridges. A carbine would be about

two feet long.

                                     Regina’s Testimony

       {¶19}     Regina testified at trial before she was to serve a sentence in the federal

penitentiary for tax fraud. She had gone to prison for committing robbery while Kyila

was a child. During that time, Kyila had lived with Linda Shields, Kyila’s father, and

Lawrence. Regina testified that she had been in a relationship with Germany for 13

years, and was still living with him at the time of trial. They had a nine-year-old

daughter. Regina testified that she had known Frazier for years, since he was 18 or 19



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years old, and that he and Germany were very close. Anytime Germany asked Frazier to

do something, he did it.

       {¶20}    Regina’s description of the Christmas party at Linda’s house was similar

to Linda Shields’s and Adam’s descriptions. She acknowledged that Kyila and Frazier

had a very heated argument. Frazier was so upset when he was being forced out of the

house that he said, “I ain’t got to do shit to you. I’ll fuck your man up, bitch ass white

boy.” Frazier continued, “I’ll mirk (kill) that bitch ass white boy. I’ll do it tonight. Yeah,

I’ll do it tonight. You know, go on out the door.” Regina testified that Germany had then

left with Frazier after this initial confrontation. When Germany came back inside a half

hour later, she was arguing with Kyila.

       {¶21}    According to Regina, Kyila and Germany had started arguing when Kyila

learned that Germany had said something to Adam. Regina heard Germany tell Kyila, “I

ain’t got to do nothing to you. If I want to do something, I’ll get your man.” Regina

testified that Germany told their nine-year-old daughter that she could not go with Kyila

when she left the house.     Regina testified that she had seen Frazier, who had driven

separately to the party, standing outside his car, which had been parked up the street

from Linda’s house. She also saw him walking up the street to a carwash. Regina

testified that Lawrence lived less than five minutes away. Germany and Frazier both

knew the address. When Regina later left Linda’s house with Germany, she warned him

that she would tell on him if he did anything to Kyila or Adam.

       {¶22}    Upon learning that Adam had been shot, Regina immediately suspected

Frazier’s involvement. When she returned to Linda’s house and heard that Kyila had

been killed, Regina gave the police Frazier’s name, his phone number, and the addresses

where he stayed. Regina knew Frazier carried guns, including a sawed-off shotgun that

was about two feet long. She said the firearm looked like a rifle without a long neck.

Regina denied that she had been upset with Kyila and Adam for damaging the rental



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property, and testified that when Kyila and Adam had left the Christmas party at Linda’s

home, she had promised them things would be better.

                                     Bryant’s Testimony

       {¶23}    Michael Bryant testified that he had known Frazier and Germany for

years. Bryant and Germany had been in a “business relationship” since 2006. Bryant

testified that Frazier was part of the business. Bryant acknowledged that he had a

horrible criminal record, and that he expected some leniency in regard to his own

criminal charges in exchange for testifying against Frazier. But he admitted that the

prosecutors and police had not made any promises to him. Bryant stated his testimony

was truthful.

       {¶24}    Bryant testified that shortly after Christmas 2012, he was incarcerated in

the Hamilton County Justice Center with Frazier. On Christmas night, Frazier had

called him and had said “his daddy gave him permission to handle that.” Frazier said he

had “taken care of” Adam. Frazier told Bryant how he had watched as Adam and Kyila

were leaving Linda’s home and then followed them around the corner, where he had

shot them.

       {¶25}    According to Bryant, Frazier said that Germany had suggested that

Frazier do it because Adam owed Germany money for some property. Adam was the

target of the “hit.” When Bryant had spoken with Frazier, Frazier had thought that

he had killed Adam because he had shot Adam in the head. Bryant met with police in

February 2013, and told them that Frazier had said Kyila had been shot six times in the

stomach. Bryant further testified that Frazier’s nickname was “Little B.”

       {¶26}    On cross-examination, Bryant admitted that he had been convicted of

receiving stolen property, trafficking in cocaine, and falsification, and that he was out on

bail even though he was currently facing charges for aggravated burglary, aggravated

robbery, robbery, and felonious assault.



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                                      Defense Testimony

       {¶27}    Frazier testified in his defense and also presented testimony from Officer

Jeff Zucker. Officer Zucker testified that he was one of the first officers to arrive at the

scene of the shooting. He stated that when he entered Lawrence’s home, Deters was

bleeding and upset. Although he did not question Deters directly, he heard Deters say

that Kyila had been kidnapped by her ex-boyfriend.

       {¶28}    Frazier testified that he went to Linda Shields’s home on Christmas Day.

He drove separately from his father, Regina Shields, and their daughter.                He

acknowledged that he had previously called Kyila for his father about the damage to the

house, and that these phone calls had caused “bad blood” between them. When he

entered Linda’s home on Christmas Day, he stayed near the front door. Kyila had

approached him. She was angry and confrontational, and asked him why he was there.

He told her, “Today is not the day to ‘F’ with me. It’s Christmas and I’m having a bad day

already.” Frazier testified that he left shortly thereafter.

       {¶29}    He waited outside in his car for five minutes. At that point, his father

came outside and he drove them to his grandmother’s home in Bond Hill. They stayed

for 30 minutes, and then left to go to his other grandmother’s home. As they neared her

home in Forest Park, his father called Linda Shields, who informed him that Kyila and

Regina were arguing in the bathroom. Germany told Frazier to turn around and take

him back to Linda’s house.

       {¶30}    Frazier took Germany back to Linda’s house around 6:20 or 6:30 p.m.

Frazier pulled his car up to the curb, let Germany out, and immediately headed back to

his grandmother’s home in Forest Park. He left shortly thereafter to pick up his mom

and take her home. When he called his mother to let her know he was coming, she

changed her mind and decided to stay at the party.




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                      OHIO FIRST DISTRICT COURT OF APPEALS



       {¶31}    Frazier decided to go home. On the way there, he stopped at a gas

station. When he got home, he went to the restroom. He set a few movies to record on

his DVR and then left to go back to his grandmother’s home in Forest Park. On his way

there, he realized he had forgotten to set his security alarm, so he returned home to set

it. After setting his alarm, he went to his grandmother’s home in Forest Park. He fell

asleep watching television. He was awakened by the police, who had come to arrest him

as a suspect in the shooting death of Kyila.

       {¶32}    On cross-examination, Frazier testified that if Germany asked him to

help him, he would. He testified, however, that Germany had said he would kill Adam.

Frazier claimed that he was not a violent person, but admitted that he owned three

firearms.   Frazier also admitted that he knew Kyila drove a white SUV.          Frazier

acknowledged he had sent a text message earlier on Christmas Day to Michael Bryant,

saying “K, you got everything you need.”       Bryant had responded, “Need car.” Bryant

then texted, “Hold on. Let me get my guys on deck.” Frazier and Bryant also talked on

the phone twice after the shooting. But Frazier denied telling Bryant that he had shot

Kyila or Adam. Frazier stated that no one had called to tell him that Kyila had been

killed and that he had learned of her death by watching the news.

                        Weight and Sufficiency of the Evidence

       {¶33}    In his first assignment of error, Frazier challenges the sufficiency and

weight of the evidence adduced to support his convictions.

       {¶34}    In reviewing a challenge to the sufficiency of the evidence, this court

must determine whether after viewing the evidence in the 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. Thompkins, 78 Ohio St.3d 380, 386,

678 N.E.2d 541 (1997). In addressing a manifest-weight-of-the-evidence challenge, this

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



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consider the credibility of the witnesses, and determine whether, in resolving conflicts in

the evidence, the trier of fact clearly lost its way and created such a manifest miscarriage

of justice that the convictions must be reversed and a new trial ordered. Id. at 387.

       {¶35}    The state presented sufficient evidence to support Frazier’s

convictions.    Linda and Regina testified that Kyila and Frazier had a heated

argument at a Christmas party at Linda’s home. Frazier was asked to leave. Before

leaving, he threatened to kill Adam. Regina testified that Frazier had initially left the

area, but then returned, and was outside near Linda’s house at the time that Adam

and Kyila had left.

       {¶36}    Adam and Kyila then drove to Lawrence’s home.            While Adam and

Kyila were unloading Christmas packages from the back of their car, a black SUV

with tinted windows drove down the street and turned around. Adam testified that it

drove past them again slowly, and then stopped behind their vehicle. Frazier jumped

out of the black SUV with a gun, along with another man. Adam, felt uneasy and

jumped into the car, while Kyila stood behind it. As Adam drove away, Frazier began

shooting at Kyila and him.

       {¶37}    Adam was shot in the head, but managed to escape to Lawrence’s

home. Once Adam was inside, Lawrence called for emergency assistance, reporting

that Adam had been shot and that Kyila was believed to have been abducted by the

men in the SUV. During the 911 call, Adam can be heard saying that Byron Germany,

Jr., and “Little B” had shot him.

       {¶38}    The police officers who had arrived on the scene found shell casings

in the middle of the street, and damage to the driver’s side of Kyila’s vehicle

consistent with Adam’s version of events. They located Adam inside Lawrence’s

home and rendered medical treatment to him. Adam was transported to the hospital

where he received eight staples in his head.



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        {¶39}   During their search of the scene, police found Kyila lying dead on the

side of the street.   Criminalists testified that 17 9 mm shell casings had been

recovered. Lattyak, the firearms examiner, testified that two different guns had been

used and that one gun had fired two of the casings and another gun had fired 15 of

the casings. The deputy coroner testified that Kyila had been shot four times and

that she had died from internal bleeding due to the gunshot wounds.

        {¶40}   The following day, when Frazier was arrested, gunshot residue was

found on a glove in his pocket and on his shirt. Frazier’s cell phone records placed

him in the vicinity of the shootings at the time they had occurred. Moreover, Bryant

testified that Frazier had called him the night of the murder to say that he had shot

Deters and that Kyila had also been shot multiple times. When viewed in the light

most favorable to the prosecution, this evidence, if believed, was sufficient for the

jury to conclude that Frazier, with the use of a firearm, had committed the felonious

assault and murder of Kyila and the felonious assault and attempted murder of

Adam.

        {¶41}   Moreover, the jury, as the trier of fact, was in the best position to

judge the credibility of the witnesses. During cross-examination, defense counsel

highlighted the inconsistencies in the testimony of the state’s witnesses and argued

the limits of the physical evidence against Frazier. And while Frazier testified that he

had left the party to go his grandmother’s home, and that he had then driven home,

where he had been at the time of shooting, maintaining that his father had

committed the offenses, the jury was free to reject his version of the events. See State

v. Antill, 176 Ohio St. 61, 67, 197 N.E.2d 548 (1964). Based upon our review of the

record, we cannot conclude that the inconsistencies in the testimony of the state’s

witnesses rendered their testimony so unreliable or unworthy of belief that the jury

lost its way and created a manifest miscarriage of justice in finding Frazier guilty of



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the offenses. See Thompkins, 78 Ohio St.3d at 387, 678 N.E.2d 541. We, therefore,

overrule the first assignment of error.

                 Admission of Evidence from Frazier’s Apartment

       {¶42}   In his second assignment of error, Frazier argues that the trial court

erred in admitting three empty carrying cases for Glock handguns, two empty

magazines, a gun holster, three test-fire bullets, which police had recovered during a

search of his apartment, and photographs of those items. Frazier argues that this

evidence was irrelevant and prejudicial, and therefore, was inadmissible pursuant to

Evid.R. 401, 402, 403 and 404.

       {¶43}   Generally, all relevant evidence is admissible. Evid.R. 402. “‘Relevant

evidence’ means evidence having any tendency to make the existence of any fact that

is of consequence to the determination of the action more probable or less probable

than it would be without the evidence.” Evid.R. 401. Even though evidence might be

relevant, it must be excluded if “its probative value is substantially outweighed by the

degree of unfair prejudice of confusion of the issues, or of misleading the jury.”

Evid.R. 403(A). Evid.R. 404(B) prohibits the introduction of evidence of “other

crimes, wrongs, or acts” to prove the character of a person and that he acted in

conformity with that character. See State v. Cotton, 118 Ohio App.3d 125, 131, 680

N.E.2d 657 (1st Dist.1996).

       {¶44}   It is up to the trial court to decide initial questions of admissibility.

Evid.R. 104(A). We will not disturb those rulings unless the trial court abused its

discretion by admitting the evidence. See State v. Davis, 116 Ohio St.3d 404, 2008-

Ohio-2, 880 N.E.2d 31, ¶ 172.

       {¶45}   We cannot say the trial court abused its discretion in determining the

challenged evidence was relevant and more probative than prejudicial. The items

proved Frazier had access to 9 mm ammunition, which was used in the crime, and



                                          14
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tended to show Frazier knew how to use firearms and carried them on his person.

And because two guns had been fired during the incident, any one of Frazier’s three

missing guns could have been used in the shootings by his unidentified accomplice.

Therefore, the probative value of this evidence was not outweighed by its danger of

unfair prejudice. In any event, the evidence of Frazier’s guilt was overwhelming.

Thus, we are convinced that error, if any, in the admission of the evidence was

harmless. We, therefore, overrule his second assignment of error.

                       Admission of the Cell-Phone-Tower Maps

       {¶46}   In his third assignment of error, Frazier contends the trial court erred

in admitting cell-tower maps as business records, in violation of his Sixth

Amendment right to confront witnesses.

       {¶47}   At trial, Paula Papke, manager of the security office at Cincinnati Bell,

testified that she manages the subpoena-compliance center and is the custodian for

the Cincinnati Bell records. Exhibit M-1 listed all the cell phone towers and exhibit 2

listed the cellular activity for Frazier’s phone, which had been provided to police

pursuant to a search warrant. Frazier did not object to these two exhibits.

       {¶48}   Papke testified regarding three other exhibits, M-3, M-4, and M-5.

Papke testified that the engineering office had built all the cell phone towers into the

Google Earth program and that Cincinnati Bell used the program for creating maps

for various reasons.

       {¶49}   Papke testified that at the prosecutor’s request, she had mapped on

M-3 the distance between cell tower 26 and the address of the shootings and the

distance was .9 mile. On M-4 she mapped the distance of .8 mile between cell tower

38 and the address of the shootings.       Papke further testified that the distance

between the cell towers and the address of the shootings was accurate in both maps.




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       {¶50}    Papke testified that M-5 depicted the location of cell tower 48 in

relation to an address in Forest Park, where Frazier had been apprehended hours

after the shooting.    She testified that she generated the map, which reflected a

distance of .9 mile from the location of the cell tower to the Forest Park address.

Papke further testified that the three maps were generated by and kept in the

ordinary course of business with Cincinnati Bell.

       {¶51}   Frazier’s counsel objected to exhibits M-3, M-4, and M-5, but only on

the basis that the maps lacked a scale. Counsel argued that absent such a scale there

was not enough of a foundation to see what the distances on the maps were. Counsel

did not object to the exhibits on the basis that they were inadmissible hearsay, which

violated his constitutional right to confrontation, the only ground raised in this

appeal.   Following defense counsel’s objection, the trial court required further

questioning of Papke, but overruled the objection.

       {¶52}   Frazier’s failure to object at trial on the specific grounds raised has

forfeited the issue, limiting us to a plain-error analysis. Evid.R. 103(A)(1); State v.

Barnes, 94 Ohio St.3d 21, 27, 2002-Ohio-68, 759 N.E.2d 1240; see Crim.R. 52. Plain

error is recognized only in exceptional circumstances to avoid a miscarriage of

justice. State v. Long, 53 Ohio St.2d 91, 94-95, 372 N.E.2d 804 (1978).

       {¶53}   Given our review of the record, we cannot conclude that the trial

court’s admission of the three exhibits rose to the level of plain error. The exhibits

were demonstrative aids that were merely cumulative to Papke’s testimony and to

the properly admitted cell phone records. See State v. Hood, 135 Ohio St.3d 137,

2012-Ohio-6208, 984 N.E.2d 1057. State’s exhibit M-2, which was admitted at trial

without objection, listed all the phone calls, including those made on Frazier’s phone

over the course of Christmas Day and the day following the shooting. That exhibit

contained the date and time of the calls, the numbers involved in the calls, the type of



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call, such as text message, phone call, or social data download, and the cell phone

tower utilized for each particular call or message. State’s exhibit M-1 contained all

the addresses for Cincinnati Bell’s cell phone towers.

       {¶54}    There is also no confrontation-clause problem. Papke testified as to

the exhibits and was subjected to extensive cross-examination about the maps,

including their lack of a scale, and how the signal from a person’s cell phone is

typically, but not always, transmitted to the tower closest to the person receiving the

communication. As a result, we overrule the third assignment of error.

                             Jury Instruction on Complicity

       {¶55}    In his fourth assignment of error, Frazier argues the trial court erred in

instructing the jury on complicity, which violated his right to due process under the Fifth

and Fourteenth Amendments to the United States Constitution and Article I, Sections 10

and 16 of the Ohio Constitution when the state’s evidence at trial only supported the

theory that he had acted as a principal offender.

       {¶56}    A jury instruction on complicity is warranted where the evidence

demonstrates that an individual “acting with the kind of culpability required for the

commission of an offense,” aids or abets another in committing the offense. R.C.

2923.02(A)(2); State v. Alexander, 1st Dist. Hamilton No. C-110035, 2012-Ohio-460, ¶

31. Complicity requires a showing “that the defendant supported, assisted, encouraged,

cooperated with, advised, or incited the principal in the commission of the crime, and

that the defendant shared the criminal intent of the principal.” State v. Johnson, 93

Ohio St.3d 240, 754 N.E.2d 766 (2001), syllabus. Evidence of aiding and abetting may

be demonstrated by both direct and circumstantial evidence. State v. Cartellone, 3 Ohio

App.3d 145, 150, 444 N.E.2d 68 (8th Dist.1981).

       {¶57}    Here, there was ample evidence before the jury to warrant the

complicity instruction.    Deters testified that Frazier had exited from the back



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passenger door of the driver’s side of the SUV, and that Frazier and at least one other

person had fired shots at Kyila and him. Griffin testified that she saw three men,

who had jumped out of the SUV and had begun shooting at Kyila and Deters, and

that the men had drug Kyila. Multiple gunshots were fired. Criminalists testified that

17 9 mm casings had been recovered. The firearms examiner testified that two of the

casings had been fired from one weapon and 15 casings had been fired from another

weapon. Deters had seen Frazier firing shots at the Touareg. Testimony revealed

that Kyila, who had been standing at the back of the Touareg before Deters had

driven off, had been shot four times. The coroner testified that all four shots had

contributed to her death.

       {¶58}   Additionally, testimony from Regina and Bryant supported the theory

that Frazier had acted with Germany in committing the offenses. Bryant testified

that Frazier had told him that Germany had planned the hit, and that Frazier had

merely followed his orders in carrying it out. Frazier admitted that following the

confrontation with Kyila, he had left Linda’s house with his father. Regina testified

that after 30 minutes, Frazier had dropped Germany back at Linda Shield’s home

and had remained nearby. Thus, the state produced evidence from which a jury

could have concluded that Frazier had acted in concert with Germany and others to

commit the offenses. Thus, the trial court did not abuse its discretion in giving the

complicity instruction. We, therefore, overrule the fourth assignment of error.

                                    Motion for Mistrial

       {¶59}   In his fifth assignment of error, Frazier alleges “the trial court erred by

denying his motion for mistrial based upon prosecutorial misconduct in closing

argument, which denied him his rights bestowed by the Fifth, Sixth, and Fourteenth

Amendments to the U.S. Constitution, resulting in the denial of a fair trial.”




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                     OHIO FIRST DISTRICT COURT OF APPEALS



       {¶60}   “Mistrials need be declared only when the ends of justice so require

and when a fair trial is no longer possible.” State v. Franklin, 62 Ohio St.3d 118, 127,

580 N.E.2d 1 (1991). A trial court’s decision to grant or deny a mistrial lies within its

sound discretion and will not be disturbed on appeal absent an abuse of discretion.

State v. Brown, 100 Ohio St.3d 51, 2003-Ohio-5059, 796 N.E.2d 506, ¶ 42. An

abuse of discretion connotes more than an error of law or an error in judgment;

instead it implies that the trial court’s attitude is arbitrary, unreasonable, or

unconscionable. State v. Adams, 62 Ohio St.2d 151, 157, 404 N.E.2d 144 (1980).

       {¶61}   During closing argument, defense counsel implied that Officer

Burns’s testimony about crime-scene visibility was coached. Counsel then pointed to

a placard that set forth a quote from the American Bar Association Standards for

Criminal Justice 3-1.1(c), which provided, “the duty of the prosecutor is to seek

justice not merely to convict.”     At the conclusion of closing argument, defense

counsel left the placard on an easel.

       {¶62}   During the rebuttal portion of closing argument, the assistant

prosecutor, when discussing the credibility of Frazier’s testimony, wrote on the

placard, “Liars do not seek justice, but seek to avoid confrontation.” Defense counsel

objected to the assistant prosecutor’s writing on the placard. The trial court stated,

“It’s too late.” Continuing with his argument, the assistant prosecutor then threw the

placard across the room and onto the floor. Defense counsel again objected. The

trial court instructed the jury to disregard the prosecutor’s conduct. The assistant

prosecutor apologized for his conduct and immediately concluded his argument.

       {¶63}   After the trial court had instructed the jury, but before it had retired

to deliberate, defense counsel moved for a mistrial at a sidebar conference, arguing

the trial court’s instruction had not cured the prejudice from the prosecutor’s

conduct. Defense counsel also asked the trial court to voir dire the jury. Following



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                     OHIO FIRST DISTRICT COURT OF APPEALS



argument by defense counsel and the state, the trial court denied both motions

stating:

       Okay. Well, I think it was a little bit over the top, but not in a way that

       I think it prejudices the jury. I think we have citizens that are going to

       be capable of putting the evidence in context. They’ve heard a lot of

       evidence and I think that by the time there was an objection to writing

       on it he had already done it, and I don’t think there was any prejudice.

       * * * Well the placard itself is argument. I think that the assistant

       prosecutor is correct that it is a fair statement. The only thing that I

       think is objectionable is perhaps you wanted to use that in your next

       case and now you can’t. But as far as it being improper for him to

       write on it, I don’t believe it was improper. * * * I don’t think it is

       necessary to voir dire the jury. I gave them a cautionary instruction. I

       don’t think any snickering came from the jury. We’ve got a lot of

       people in the gallery here. I don’t think that it was inflammatory. I

       mean, I observed it, and I think it was in the passion of the moment

       that Mr. Leon did that, and I don’t think that it’s going to be taken by

       the jury as being something that indicates that the defendant is guilty

       if they see that the evidence doesn’t support it.

       {¶64}   We find and the state agrees that while the assistant prosecutor’s

conduct was arguably inappropriate, his written comment on the placard was a fair

statement about the evidence, and the trial court’s instruction to the jury was

sufficient to cure any prejudice that may have arisen as a result of the prosecutor’s

conduct. Frazier, moreover, has not demonstrated that the prosecutor’s conduct

denied him a fair trial such that the trial court abused its discretion in denying the

motion for a mistrial where the jury actually acquitted Frazier of the aggravated-



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                       OHIO FIRST DISTRICT COURT OF APPEALS



murder count relating to Kyila, and the trial court’s decision to deny the mistrial

motion exhibited a sound reasoning process.

       {¶65}    Although Frazier argues this court should view the assistant

prosecutor’s conduct in writing on and throwing the placard together with a number

of statements the assistant prosecutor made during closing argument, we decline to

do so because Frazier did not object to any of those statements, and they did not

form the basis of his motion for a mistrial.         We, therefore, overrule the fifth

assignment of error.

                                      Cumulative Error

       {¶66}    In his sixth assignment of error, Frazier argues the alleged errors

assigned on appeal, even if individually harmless, had the cumulative effect of denying

him a fair trial. In State v. DeMarco, 31 Ohio St.3d 191, 197, 509 N.E.2d 1256 (1987),

paragraph two of the syllabus, the Ohio Supreme Court held that “[a]lthough violations

of the Rules of Evidence during trial, singularly, may not rise to the level of prejudicial

error, a conviction will be reversed where the cumulative effect of the errors deprives a

defendant of the constitutional right to a fair trial.” Given that we have not found

multiple instances of harmless error that denied Frazier a fair trial, we find the doctrine

inapplicable. We, therefore, overrule the sixth assignment of error.

                                       Journal Entries

       {¶67}    In his seventh assignment of error, Frazier argues the trial court erred

by failing to journalize an entry discharging the jury, following the first mistrial, and

by failing to incorporate its statutory sentencing findings for consecutive sentences

in the sentencing entry.

       {¶68}    We first address Frazier’s argument that the trial court erred by

failing to note the discharge of the jury, following the first mistrial, on the journal as

required by R.C. 2945.36.



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                      OHIO FIRST DISTRICT COURT OF APPEALS



       {¶69}    Frazier cites to State v. Syslo, 11th Dist. Portage No. 658, 1976 Ohio

App. LEXIS 6718, *3 (Apr. 19, 1976), where the Eleventh District Court of Appeals

held that the trial court’s failure to comply with R.C. 2945.36, by “fil[ing] a journal

entry setting forth one of the statutory grounds for discharging a jury” exonerated

the defendant “from the liability of further answering to the indictment and it was

prejudicial error for the trial court to overrule the defendant’s motion for discharge

on the grounds of double jeopardy.”

       {¶70}    But as the state points out, the Syslo case has not been cited by the

Eleventh District, or any other appellate district, for this proposition. Instead, other

appellate districts have applied a harmless-error analysis, where the trial court’s reasons

for ordering the mistrial, although not contained within a judgment entry of the court,

are apparent from the record. See State v. Morgan, 129 Ohio App.3d 838, 842, 719

N.E.2d 102 (8th Dist.1998); State v. Workman, 60 Ohio App.2d 204, 209, 396 N.E.2d

777 (3d Dist.1977); State v. Bell, 12th Dist. Butler No. CA99-07-122, 2001 Ohio App.

LEXIS 1915, *52-55 (Apr. 30, 2001).

       {¶71}    Here, the record reflects that Frazier was injured during the first trial

when a female spectator stomped on Frazier’s head with a high-heeled boot. Frazier

sustained a concussion, and suffered dizziness, headache and memory loss. Shortly

thereafter, defense counsel moved for a mistrial, stating that Frazier’s medical condition

impeded his ability to assist them in his defense. They also asked the court to order a

competency evaluation. The state agreed that under the circumstances, a mistrial was

warranted. The trial court granted the motion for a mistrial and ordered that Frazier’s

competency be evaluated.      The trial court told Frazier’s counsel and the assistant

prosecuting attorney that once it had obtained the competency evaluation, it would

schedule a court appearance to set another trial date.




                                            22
                      OHIO FIRST DISTRICT COURT OF APPEALS



       {¶72}    Here, any error in the trial court’s failure to journalize an entry stating its

reasons for discharging the jury is harmless. The record reflects that Frazier’s first trial

ended with a mistrial, which was declared at the request of defense counsel and with the

concurrence of the state, and that Frazier was retried without objection. Thus, Frazier

cannot demonstrate any prejudice from the trial court’s failure to comply with R.C.

2945.36. See Bell at *52-54. As a result, we find his first argument meritless.

       {¶73}    We do find merit, however, in Frazier’s next argument, regarding the

trial court’s failure to include the consecutive-sentencing findings in the sentencing

entry. In State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659,

syllabus, the Ohio Supreme Court held that if a trial court imposes consecutive

sentences, it must not only announce the requisite consecutive-sentencing findings

at the sentencing hearing, but it must also incorporate those findings into the

sentencing entry.

       {¶74}    The record reflects that the trial court stated the required findings for

consecutive sentences during the sentencing hearing and it journalized a sentencing-

findings worksheet that included these findings.             But the trial court did not

incorporate its consecutive-sentencing findings into the sentencing entry.                We,

therefore, remand the matter, so that the trial court can correct this clerical mistake

by a nunc pro tunc entry. See Bonnell at ¶ 30; State v. Davis, 1st Dist. Hamilton No.

C-140351, 2015-Ohio-775, ¶ 7-10. We sustain in part and overrule in part the seventh

assignment of error, and we affirm the trial court’s judgment in all other respects.

                                                  Judgment affirmed and cause remanded.

HENDON, P.J., and STAUTBERG, J., concur.


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




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