[Cite as State v. Prather,
2023-Ohio-784.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-210585
TRIAL NO. B-1801872
Plaintiff-Appellee, :
vs. : O P I N I O N.
GEVON PRATHER, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: March 15, 2023
Melissa A. Powers, Hamilton County Prosecuting Attorney, and Sean M. Donovan,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Raymond T. Faller, Hamilton County Public Defender, and David Hoffmann,
Assistant Public Defender, for Defendant-Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS
ZAYAS, Judge.
{¶1} Gevon Prather appeals his convictions and sentences, after a jury trial,
for two counts of aggravated robbery, two counts of felonious assault, all with firearm
specifications, and three counts of having weapons while under disability. Raising six
assignments of error, Prather contends the trial court erred in relying on a three-
month-old competency report, prohibiting Prather from calling a witness at trial,
admitting hearsay testimony, and imposing multiple sentences on allied offenses.
Prather further contends the convictions are based on insufficient evidence and
contrary to the manifest weight of the evidence, and that he was deprived of his right
to the effective assistance of counsel. For the following reasons, we affirm the trial
court’s judgment.
Factual Background
{¶2} In April 2018, Gevon Prather was charged with the armed robberies of
Elizabeth Colter, Jason Smith, Cameron Hurley, and Joshua Meadows, and the
shooting of Smith and Hurley. After a jury trial, Prather was acquitted of all of the
charges related to Colter and the shooting and robbery charges related to Hurley.
{¶3} Prior to trial, four different lawyers represented Prather, and each
requested a competency evaluation. All of the evaluations concluded Prather was
competent. The final suggestion of incompetency was filed on April 19, 2021. A
competency report was filed on May 12, 2021, that also concluded Prather was
competent. Prather requested continuances for the report and waived time on May
12, May 19, and June 15.
{¶4} The competency hearing was held on August 23. Prather declined to
stipulate to the report, and Dr. Emily Davis, who prepared the competency report,
testified. Davis testified that Prather had low to low-average intellectual skills. When
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OHIO FIRST DISTRICT COURT OF APPEALS
asked about the case and charges, Prather refused to participate and ended his
communications with her. Davis testified that she was concerned Prather was
exaggerating and malingering. Based on these concerns, she tested Prather, and the
results confirmed her concerns. Both of the doctors who previously evaluated Prather
also believed he was exaggerating and malingering. Prather did not submit any
evidence to refute Davis’s competency finding. Prather raised no objection to the
scheduling or timing of the competency hearing. The trial court found Prather to be
competent, and the case proceeded to trial.
{¶5} Jason Smith testified that he was shot after riding a Metro bus home
from work. During Smith’s testimony, the state played a Metro bus video. Smith
identified himself and Prather riding the bus. After Smith got off of the bus and began
walking, Prather approached him from behind and pointed a gun at him. When Smith
told him that he only had a bus card, Prather shot him.
{¶6} Joshua Meadows testified that he gave two men a ride at the request of
his friend. During the ride, the person in the front seat pointed a gun at him and told
him to get out of the car. Meadows got out of the car, and the men drove away.
Meadows described the gun as a .22 revolver with a wooden handle that looked like
the gun recovered from Prather’s home. When shown a photo lineup, Meadows
identified a photograph of Prather as the man who had pointed a gun at him. After
Meadows identified Prather, he was shown a Facebook photo of Prather and another
individual that he had previously identified. Meadows did not identify who showed
him the Facebook photo.
{¶7} Officer James Adams, an investigator for the Cincinnati Police
Department, testified that he administered a photo lineup to Joshua Meadows.
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OHIO FIRST DISTRICT COURT OF APPEALS
Meadows identified Prather as the person who pointed a gun at him. Adams also
participated in a search of Prather’s home. As Adams was searching a sleeping area in
the home, he found a shoebox that contained a Heritage Rough Rider revolver.
{¶8} Detective Joseph Coombs testified that he was assigned to investigate
the string of robberies. Coombs interviewed Cameron Hurley, who suffered a gunshot
wound to his leg during a robbery attempt. Although Hurley did not testify at trial,
Coombs testified over objection that Cameron Hurley provided a description of
Prather as his assailant.
{¶9} After Prather was arrested, Coombs interviewed him, and the recorded
interview was played at trial. During the interview, Prather admitted that he was the
person shown on the Metro recording and admitted that he shot Smith with the
revolver found in his closet. Prather told Coombs that he did not shoot Hurley, but he
gave the gun to the person who shot him. Prather also admitted that he was a
passenger in the back seat of Meadows’s car but denied any involvement in the
robbery.
{¶10} After the state rested, defense counsel attempted to call Randez Collins
as a witness. Two days after the jury was impaneled and sworn, Prather filed a
discovery response adding Collins as a witness. The state objected to the late witness
disclosure and asked that the witness be stricken because Prather was first made aware
of the witness in 2018. Defense counsel acknowledged that the state had previously
provided the defense with a statement of over 120 pages made by Collins detailing
Prather’s criminal involvement.
{¶11} Counsel also represented that Collins was previously unavailable
because he was incarcerated. Collins had recently been released from prison and had
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OHIO FIRST DISTRICT COURT OF APPEALS
contacted Prather and expressed his willingness to testify on Prather’s behalf. Counsel
had learned about Collins’s availability a few days prior to filing the discovery
response.
{¶12} The trial court excluded Collins’s testimony due to the late witness
disclosure. Collins’s whereabouts had been known for the past three-and-a-half years,
so the court found that the delay in disclosing Collins as a witness was unwarranted.
Prather did not proffer Collins’s expected testimony or articulate whether his
testimony would differ from his statement.
{¶13} Prather testified on his own behalf. Prather again denied shooting
Hurley, but admitted that he had given the gun to the shooter. Prather testified that
he was in Meadows’s car during the robbery, but denied participating in the robbery.
{¶14} The jury found Prather guilty of two counts of aggravated robbery, two
counts of felonious assault, and two counts of having a weapon while under a disability
for the offenses against Smith and Meadows. The jury found him not guilty of shooting
and robbing Hurley but found him guilty of having a weapon under a disability.
The Competency Report
{¶15} In his first assignment of error, Prather contends that the trial court
committed plain error under R.C. 2945.37 by admitting a competency report when the
report was prepared three months prior to the competency hearing. To prevail on a
claim of plain error, an accused must show that an error occurred, that the error was
plain, and that the error affected the outcome of the trial. See Crim.R. 52(B).
{¶16} R.C. 2945.37(B) provides that “the court, prosecutor, or defense may
raise the issue of the defendant’s competence to stand trial” and, “[i]f the issue is raised
before the trial has commenced, the court shall hold a hearing on the issue as provided
in this section.” Under R.C. 2945.37(C), a court is required to conduct a competency
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OHIO FIRST DISTRICT COURT OF APPEALS
hearing within ten days after the filing of a competency report unless the hearing is
continued for good cause.
{¶17} Prather contends that the report was inadmissible because the hearing
was not conducted within ten days of the filing of the report as required by R.C.
2945.37(C). However, the statute allows for the hearing to be delayed for good cause.
In this case, the hearing was continued beyond the ten-day time period at Prather’s
request.
{¶18} Even if the court erred in continuing the hearing beyond the ten-day
time period, Prather cannot establish that the court committed plain error. The record
demonstrates that Prather requested four competency evaluations prior to trial. All of
the reports concluded that Prather was competent. At the competency hearing, Dr.
Emily Davis, the psychologist who prepared the report, concluded that Prather was
competent. Davis testified that Prather refused to discuss the case and charges with
her during the most recent evaluation and ended his communications with her. Davis
suspected that Prather was exaggerating and malingering, and her test results
confirmed her concerns. Prather was provided with an opportunity to present
evidence and challenge the evaluator’s testimony and written report and did not
submit any evidence to refute Davis’s competency finding. Based on this record, we
cannot conclude that Prather established that the outcome of the competency hearing
was affected by the delay. We overrule the first assignment of error.
The Exclusion of the Witness
{¶19} Next, Prather claims that the trial court abused its discretion in refusing
to allow the defense to call Randez Collins as a defense witness in violation of his Sixth
Amendment right to compulsory process.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶20} Crim.R. 16 controls the discovery process and requires each party to
provide the name and address of any witness it intends to call and a continuing duty
to disclose witnesses as they are discovered. See Crim.R. 16(I); Crim.R. 16(A). A trial
court has the discretion to impose sanctions when a party violates the rule. See
Crim.R. 16(L). “Before imposing the sanction of exclusion, the trial court must find
that no lesser sanction would accomplish the purpose of the discovery rules and that
the state would be prejudiced if the witnesses were permitted to testify.” City of
Lakewood v. Papadelis, 32 Ohio St.3d 1, 5,
511 N.E.2d 1138 (1987). The factors to be
considered when making this inquiry are: (1) the extent of surprise or prejudice to the
state; (2) the impact exclusion of the witness would have on the evidence and the
outcome; (3) whether the violation was in bad faith; and (4) the effectiveness of less
severe sanctions.
Id. at 10. “It is only when exclusion acts to completely deny
defendant his or her constitutional right to present a defense that the sanction is
impermissible.”
Id. at 11-12.
{¶21} The record indicates that the trial court did not balance the state’s
interests against Prather’s Sixth Amendment right to present a defense. The state was
aware of the witness and had provided Collins’s police interview to Prather. Prather
explained that Collins was previously unavailable because he was incarcerated. But,
defense counsel did not proffer Collins’s testimony to enable the trial court to
determine whether the state would be surprised or prejudiced by the testimony or the
impact the exclusion would have on the evidence or outcome.
{¶22} We can discern from the record that Collins’s statement to the police
concerned the charges of aggravated robbery and having weapons while under a
disability related to Colter. Notably, the jury acquitted Prather of these two charges.
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OHIO FIRST DISTRICT COURT OF APPEALS
However, without the proferred testimony, we cannot determine whether the trial
court abused its discretion in excluding the testimony of Collins, and we presume the
regularity of the proceedings. See Ellinger v. Ho, 10th Dist. Franklin No. 08AP-1079,
2010-Ohio-553, ¶ 34.
{¶23} Accordingly, we overrule the second assignment of error.
Ineffective Assistance of Counsel
{¶24} In the third assignment of error, Prather argues that his trial counsel
was ineffective for failing to object to the photo lineup, failing to challenge the
administration of the lineup, failing to timely disclose a witness, and failing to move
to suppress Prather’s interrogation.
{¶25} To establish ineffective assistance of counsel, an accused must
demonstrate that counsel’s performance was deficient and that the deficient
performance prejudiced the accused. Strickland v. Washington, 466 U.S. 668, 687,
104 S.Ct. 2052,
80 L.Ed.2d 674 (1984). The failure to make either showing is fatal to
the claim.
Id. at 697. A defendant is prejudiced by counsel’s performance if there is a
reasonable probability that the outcome of the proceedings would have been different
but for the complained-of conduct.
Id. at 694. “A reasonable probability is a
probability sufficient to undermine confidence in the outcome.”
Id.
{¶26} When a claim of ineffective assistance of counsel is based on counsel’s
failure to file a motion, the appellant must demonstrate that the motion had a
reasonable probability of success. State v. Rosemond, 1st Dist. Hamilton No. C-
180221, 2022-Ohio-111, ¶ 42. If the motion would not have been successful, then the
appellant cannot prevail on the ineffective-assistance-of-counsel claim. State v.
Adkins,
161 Ohio App.3d 114,
2005-Ohio-2577,
829 N.E.2d 729, ¶ 14 (4th Dist.).
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OHIO FIRST DISTRICT COURT OF APPEALS
A. Failing to object to the photo-lineup exhibit
{¶27} Prather argues that the photo lineup administered to Meadows was not
disclosed by the state, and therefore, counsel was ineffective for not seeking to
suppress the lineup as a discovery sanction.
{¶28} Trial counsel objected to the admission of the photo lineup because
counsel had not seen it prior to trial. Counsel acknowledged that she may not have
received it from Prather’s prior counsel. The state provided defense counsel with the
photo array and disclosed that Joshua Meadows identified Prather from a lineup in its
discovery response dated June 28, 2018.
{¶29} The record reflects that the state provided the lineup in its discovery
disclosure, and any objection on that basis would not have been successful.
B. Failing to challenge the administration of the photo lineup
{¶30} Next, Prather contends that trial counsel should have challenged the
administration of the photo lineup because showing Meadows a Facebook photo after
he identified Prather in a lineup was noncompliant with R.C. 2933.83.
{¶31} However, R.C. 2933.83 governs the administration of a police photo
lineup. Prather does not allege or argue that the police photo-lineup procedures
violated the statute. Moreover, Officer Adams testified about the procedures he used
when administering the lineup. Based on his testimony, Adams complied with the
statutory procedures. Prather has not demonstrated that challenging the
administration of the lineup would have been successful.
C. Failing to timely disclose a witness
{¶32} Prather alleges that his counsel was deficient for failing to timely
disclose Collins as a defense witness.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶33} The record reflects that Prather did not timely inform counsel of his
communications with the witness. Moreover, even if counsel erred in timely disclosing
the witness, Prather was not prejudiced by the late disclosure because the jury
acquitted him of the charges relevant to Collins’s testimony.
D. Failing to move to suppress Prather’s interrogation
{¶34} Prather contends that his counsel was ineffective for failing to file a
motion to suppress his interrogation because it was coercive.
{¶35} At the trial, Prather testified that he was at the police station for a few
hours and the officer repeatedly asked him the same questions. Prather claims that he
eventually got tired and made incriminating statements. Prather acknowledged that
the interview lasted 38 minutes, and while at the station, he was allowed to use the
restroom and was given food and a drink.
{¶36} “To support a determination that a confession was coerced, the evidence
must establish that: (1) the police activity was objectively coercive; (2) the coercion in
question was sufficient to overbear defendant’s will; and (3) defendant’s will was, in
fact, overborne as a result of the coercive police activity.” State v. Humphrey, 4th Dist.
Ross No. 10CA3150, 2010-Ohio-5950, ¶ 18, vacated on other grounds,
128 Ohio St.3d
397,
2011-Ohio-1426,
944 N.E.2d 1172, quoting United States v. Rigsby,
943 F.2d 631,
635 (6th Cir.1991).
{¶37} Prather does not allege or explain how the police conduct was so
objectively coercive that his will was overcome. His testimony and the video of the
interrogation do not reveal any coercive tactics employed by the police that overcame
his will. Accordingly, Prather has not established that a motion to suppress the
interrogation had a reasonable probability of success.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶38} We overrule the third assignment of error.
Inadmissible Hearsay
{¶39} Prather’s fourth assignment of error contends that the trial court erred
when it allowed the hearsay testimony, over objection, of Coombs recounting Cameron
Hurley’s description of Prather.
{¶40} The state concedes that the testimony was inadmissible under Evid.R.
801(D)(1)(c), which prohibits identification testimony unless the declarant testifies.
The erroneous admission of hearsay statements, however, does not necessarily
provide grounds for reversal if the error was harmless. State v. Brown, 65 Ohio St.3d
483, 485,
605 N.E.2d 46 (1992). Crim.R. 52(A) describes a harmless error as one that
“does not affect substantial rights (and therefore) shall be disregarded.” Whether the
defendant’s substantial rights were affected depends on whether the error affected the
outcome of the trial. State v. Jones,
160 Ohio St.3d 314,
2020-Ohio-3051,
156 N.E.3d
872, ¶ 18.
{¶41} Hurley, who did not testify at trial, was the victim of a robbery attempt
and suffered a gunshot wound to his leg allegedly committed by Prather. Prather was
charged with aggravated robbery, felonious assault and having a weapon while under
a disability. However, the jury acquitted Prather of all of the charges concerning
Hurley except the having-a-weapon-while-under-a-disability charge. In his statement
to police, Prather denied shooting Hurley but admitted to handing the gun to his
friend. Prather was ultimately acquitted of the robbery and felonious assault of
Hurley. Accordingly, the error did not affect the outcome of the trial. Therefore, we
overrule the assignment of error.
Insufficiency and Manifest Weight
{¶42} In his fifth assignment of error, Prather asserts that the convictions are
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OHIO FIRST DISTRICT COURT OF APPEALS
based on insufficient evidence and contrary to the manifest weight of the evidence.
{¶43} A challenge to the sufficiency of the evidence presents this court with a
question of law that we review de novo. State v. Thompkins, 78 Ohio St.3d 380, 386,
678 N.E.2d 541 (1997). The test for determining the sufficiency of the evidence is
whether “after viewing the probative evidence and inferences reasonably drawn
therefrom in the light most favorable to the prosecution, any rational trier of fact could
have found all the essential elements of the offense beyond a reasonable doubt.” State
v. MacDonald, 1st Dist. Hamilton No. C-180310,
2019-Ohio-3595, ¶ 12, quoting State
v. Martin,
20 Ohio App.3d 172,
485 N.E.2d 717 (1st Dist.1983).
{¶44} In reviewing a weight-of-the-evidence claim, we review “ ‘the entire
record, weigh the evidence and all reasonable inferences, 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
conviction must be reversed and a new trial ordered.’ ” State v. Bailey, 1st Dist.
Hamilton No. C-140129, 2015-Ohio-2997, ¶ 59, quoting State v. Thompkins,
78 Ohio
St.3d 380,
678 N.E.2d 541 (1997). This court will not substitute its judgment for that
of the trier of fact on the issue of witness credibility unless it is patently apparent that
the trier of fact lost its way in arriving at its verdict. Id. at ¶ 63.
A. Convictions related to Jason Smith
{¶45} Prather argues that Smith’s identification was unreliable and failed to
establish that Prather committed the offenses against him.
{¶46} Prather was convicted of having weapons while under a disability and
shooting Jason Smith while attempting to rob him. The offenses occurred when Smith
disembarked from a Metro bus and was walking home. During Smith’s testimony, the
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OHIO FIRST DISTRICT COURT OF APPEALS
state played a Metro bus video. Smith identified himself and Prather riding the bus.
After Smith began walking, Prather approached him from behind, pointed a gun at
him, and demanded money. When Smith told him that he only had a bus card, Prather
shot him. During the March 30, 2018 interrogation, Prather admitted that he was the
person shown on the Metro recording and admitted that he shot Smith. The jury heard
all of the testimony and found the identification testimony to be credible.
B. Conviction related to Cameron Hurley
{¶47} The jury found Prather not guilty of the aggravated robbery and
felonious assault of Hurley, and guilty of having a weapon while under a disability.
While Prather testified that he did not participate in the robbery or shooting of Hurley,
he admitted giving the gun to the person who shot Hurley. Prather’s admission to
possessing the gun was sufficient to support the conviction.
C. Convictions related to Joshua Meadows
{¶48} Prather contends that Meadows’s identification of him as the robber
was unreliable and insufficient to prove identity.
{¶49} Prather was convicted of the aggravated robbery of Meadows and of
having a weapon while under a disability. Meadows testified that he gave two men a
ride, and the person in the front seat pointed a gun at him and told him to get out of
the car. Meadows identified Prather as the man who had pointed a gun at him and
testified that the gun found in Prather’s home looked like the gun that was pointed at
him. Prather admitted to possessing the gun. This evidence was sufficient to establish
all of the elements of aggravated robbery and having a weapon while under a disability.
{¶50} Prather challenges the credibility of Meadows’s identification of him
and the gun, and further argues that the jury should have believed his testimony.
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OHIO FIRST DISTRICT COURT OF APPEALS
Prather testified that although he was present in the vehicle, he did not rob Meadows.
The jury was in the best position to weigh the credibility of Meadows’s and Prather’s
testimony. This court will not substitute its judgment for that of the trier of fact on the
issue of witness credibility.
{¶51} The state presented sufficient evidence of each offense for which Prather
was convicted, and the jury did not lose its way in finding him guilty. This is not the
exceptional case that warrants reversal. We overrule the fifth assignment of error.
Allied Offenses
{¶52} In his sixth assignment of error, Prather contends the trial court
committed plain error under R.C. 2941.25 by imposing multiple sentences on allied
offenses of similar import that were not committed separately or with a separate
animus. Specifically, Prather argues that his convictions for aggravated robbery and
felonious assault of Smith were of the same import and committed with the same
animus.
{¶53} An appellate court reviews a trial court’s merger determination de
novo. State v. Kennedy, 1st Dist. Hamilton No. C-120337, 2013-Ohio-4221, ¶ 108,
citing State v. Williams,
134 Ohio St.3d 482,
2012-Ohio-5699,
983 N.E.2d 1245. To
establish plain error, Prather must show that an error occurred, that the error was
obvious, and that there is “a reasonable probability that the error resulted in
prejudice.” State v. Rogers,
143 Ohio St.3d 385,
2015-Ohio-2459,
38 N.E.3d 860, ¶
22.
{¶54} A defendant may be convicted of multiple offenses if any one of the
following is true: “(1) the conduct constitutes offenses of dissimilar import, (2) the
conduct shows that the offenses were committed separately, or (3) the conduct shows
that the offenses were committed with separate animus.” State v. Ruff, 143 Ohio St.3d
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114, 2015-Ohio-995,
34 N.E.3d 892, paragraph three of the syllabus.
{¶55} Here, the trial court determined that Prather’s pointing the gun at Smith
to rob him was a separate offense from Prather shooting him after Smith informed
Prather that he had nothing of value to steal. The aggravated robbery was completed
when Prather pointed the gun and demanded money. After Smith told him that he
had no money, Prather shot him.
{¶56} Prather has not established that the trial court committed an obvious
error by failing to merge the offenses of aggravated burglary and felonious assault.
Accordingly, we overrule the assignment of error.
Conclusion
{¶57} Having overruled all of Prather’s assignments of error, we affirm the
trial court’s judgment.
Judgment affirmed.
CROUSE, P.J., and BERGERON, J., concur.
Please note:
The court has recorded its own entry this date.
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