[Cite as State v. Roberts,
2024-Ohio-2957.]
IN THE COURT OF APPEALS OF OHIO
ELEVENTH APPELLATE DISTRICT
TRUMBULL COUNTY
STATE OF OHIO, CASE NO. 2023-T-0097
Plaintiff-Appellee,
Criminal Appeal from the
- vs - Court of Common Pleas
GAVIN ROBERTS,
Trial Court No. 2023 CR 00244
Defendant-Appellant.
OPINION
Decided: August 5, 2024
Judgment: Affirmed
Dennis Watkins, Trumbull County Prosecutor, and Ryan J. Sanders, Assistant
Prosecutor, Administration Building, Fourth Floor, 160 High Street, N.W., Warren, OH
44481 (For Plaintiff-Appellee).
Edward F. Borkowski, Jr., P.O. Box 609151, Cleveland, OH 44109 (For Defendant-Appellant).
EUGENE A. LUCCI, P.J.
{¶1} This appeal emanates from a jury trial after which appellant, Gavin Roberts
(“Roberts”), was convicted of one count of Aggravated Murder with a Firearm
Specification and one count of Aggravated Robbery with a Firearm Specification. Roberts
challenges the weight of the evidence, the trial court’s decision to allow prior testimony
from an unavailable witness, the trial court’s denial of Roberts’ motion for a mistrial, and
the trial court’s imposition of sentence. We affirm.
{¶2} On the evening of November 19, 2022, Blair Legg (“Ms. Legg”) along with
her live-in boyfriend, Brice Hilton (“the victim”) traveled in her Nissan Versa from Sharon,
Pennsylvania, to Warren, Ohio. The victim was interested in buying a used cell phone for
his son’s birthday from a seller located in Trumbull Homes, a “housing project.” En route
to Warren, the couple stopped at a Speedway gas station so Ms. Legg could withdraw
money for the purchase. She withdrew $140.00 and gave the money to the victim.
According to Ms. Legg, the victim had money on his person, but the withdrawal was to
cover the remaining cost of the phone.
{¶3} After leaving the gas station, the victim received a call, apparently from the
seller. According to Ms. Legg, the victim stated, “Yes, we’re coming. We’re on Market
Street.” At approximately 8:00 p.m., they arrived at Trumbull Homes. They observed a
vehicle parked next to the curb, and the couple parked behind the vehicle. The victim,
who was driving, exited from the driver’s side door of the Nissan, and two individuals
exited the other vehicle.
{¶4} Ms. Legg stated the victim met the two individuals, one of whom was later
identified as Mr. Roberts, in front of her Nissan and one of the individuals produced a box
and passed it to the victim. The victim returned the box, halfway open as it contained no
phone. The victim began to walk away towards the Nissan at which point Ms. Legg heard
“pop, pop, pop.” Ms. Legg heard the victim say “no,” which was followed by an additional
“pop.” Ms. Legg stated she did not observe a firearm being shot but saw Roberts with his
arm extended outward. She additionally stated she observed the second individual with
nothing in his hands.
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{¶5} Officer Lance Adkins of the Warren Police Department received a “shots
fired” call in the area of Trumbull Homes. Upon arrival, he found the victim lying near a
vehicle in the street with blood flowing from his head. A second officer administered CPR,
and Officer Adkins assisted Ms. Legg, who was soaked in blood. The officer indicated
Ms. Legg was “completely hysterical,” both crying and screaming. Officer Adkins
eventually transported Ms. Legg to the Warren Police Department.
{¶6} Officer Taylor Edwards of the Warren Police Department also responded to
the “shots fired” call. The officer stated she observed a gunshot wound to the victim’s
head. The victim was breathing shallowly, but was still alive. When the officer spoke with
Ms. Legg, the latter explained why the couple was at the scene. She further stated that
two light-skinned males wearing hoodies, one in black and one in gray, with face masks
exited the vehicle. Additionally, even though each individual wore hoodies and masks,
Ms. Legg stated she noticed a conspicuous “cross” tattoo near the eye area of the
individual wearing the gray hoodie. After the exchange of the purported phone failed and
the victim turned around, Ms. Legg stated the male in the black hoodie began to shoot
the victim.
{¶7} Sergeant Thad Stephenson responded to the shooting call. Once on the
scene, he commenced to secure the area. After the victim was taken to the hospital, the
sergeant went to the emergency room to determine the victim’s status. Sergeant
Stephenson learned the victim was declared deceased at 8:26 p.m.
{¶8} Shortly thereafter, the sergeant received a call reporting a male had entered
a residence on Oak Knoll in Warren, Ohio, with a weapon. The caller, the homeowner,
along with others had the individual detained. Officers responded and the male was taken
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into custody. The homeowner informed Sergeant Stephenson that he had taken a firearm
and a jacket from the suspect, each of which were collected as evidence.
{¶9} William Cole, Sr. (“Mr. Cole”), the caller, stated his son, William Cole, Jr.
(a.k.a. “Deuce”) was acquainted with Roberts (who Mr. Cole knew only as “Zo”) as well
as a third individual named Carter Hall (“Mr. Hall”). Mr. Cole asserted he had been
introduced to Roberts by his son, but asserted he did not know Roberts well. As such, he
expressly stated Roberts was not freely welcome in his house, especially if he did not
knock before entering.
{¶10} On the evening of the incident, Deuce and Mr. Hall arrived at Mr. Cole’s
home. Mr. Cole indicated the young men were “scared” and “petrified.” The men retreated
to the basement where they related the events to Mr. Cole, explaining that Roberts had
shot someone. And after the shooting, they both fled the scene. Mr. Cole advised the
young men they must go to the police. While speaking with them, Mr. Cole called a
neighbor and friend, “Joey,” and asked the man to come to the house to assist with the
situation.
{¶11} Subsequently, Mr. Cole’s wife was heard screaming that someone had
entered the house unannounced. Mr. Cole hastened up the steps and found Roberts.
Roberts asked where Deuce and Mr. Hall were. Mr. Cole pulled out his firearm and
disarmed Roberts. Mr. Cole stated he took Roberts to the basement and advised Joey to
watch him. Mr. Cole returned upstairs and placed Roberts’ firearm and jacket in his gun
safe. Mr. Cole called police and, while waiting for officers, Roberts asserted he acted in
self-defense because “the man took a step.”
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{¶12} Later, Mr. Cole found “like $200.00” in the basement where Roberts was
seated. He collected the money and acknowledged it was not his. He subsequently turned
it over to police.
{¶13} Deuce stated that the three young men drove to Trumbull Homes on the
night of the incident so Roberts could sell a phone. Mr. Hall was the driver, Deuce was
the passenger, and Roberts was in the back seat. When a vehicle pulled up, Roberts and
Mr. Hall exited the vehicle, while Deuce stayed in the passenger seat. While on his
phone, Deuce heard a “bang.” He looked over towards the scene and observed Roberts
shoot the victim. Mr. Hall ran back to the car and the two drove away leaving Roberts
behind. The young men eventually stopped the car, left it, and ran to Mr. Cole’s residence.
{¶14} Prior juvenile-court testimony of Mr. Hall was read into the record based
upon his unavailability as a witness. Mr. Hall stated he was familiar with Roberts but had
not met him in person until the day of the incident. Roberts told Mr. Hall he had a cell
phone he needed to sell, and the young men drove to the area where the incident took
place. Roberts asked Mr. Hall to get out of the vehicle with him because he had apparently
been robbed before. Roberts explained that an African American male was coming from
Pennsylvania to buy the phone.
{¶15} Upon the arrival of Ms. Legg and the victim, both young men exited the
vehicle. Mr. Hall unboxed the phone and gave the phone box back to Roberts before it
was passed to the victim. When the victim realized there was nothing in the box, Roberts
shot him. Mr. Hall stated that it looked like he was shot “in the chest from how he was
holding himself when he hit the ground.” Mr. Hall recounted that he and Roberts were on
the sidewalk, and when Roberts shot the victim, he fell “[b]ackwards into the road.” Mr.
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Hall was unequivocal that Roberts shot the victim and after the first shot, approached him
and shot the fallen man two more times. According to Mr. Hall, Roberts then searched
the victim’s wallet.
{¶16} Mr. Hall retreated to his car and drove away with Deuce. Mr. Hall asserted
he was looking for guidance from an adult. They returned to Mr. Cole’s house where
Roberts eventually appeared and was arrested.
{¶17} Kevin Kramer (“Mr. Kramer”), a forensic scientist in the firearm section of
BCI, conducted various firearm examinations with the firearm allegedly used in the
murder. Mr. Kramer conducted an operability test and found it fully operable. Mr. Kramer
compared the projectiles recovered from the victim’s body and the round he had test fired.
He concluded that each of the projectiles recovered from the victim were fired from the
firearm in question.
{¶18} Detective Michael Altiere (“Detective Altiere”) of the Warren Police
Department conducted an analysis of Roberts’ recovered cell phone. The detective
explained his process of examining the cell phone to the jury. Detective Altiere stated he
pulled photos from Roberts’ phone depicting a .38 special revolver-style pistol. The
photos were “very similar” to the firearm allegedly used in the homicide and were taken
in late July 2022. Additionally, other photos extracted from “metadata” on the phone
depicted Roberts “posing” with the firearm on November 14, 2022, five days before the
homicide.
{¶19} The matter proceeded to the Trumbull County Court of Common Pleas,
Juvenile Division. A probable cause hearing was held. Roberts was advised that, based
upon the charged offenses, if the court found probable cause, he was subject to a
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mandatory transfer of the case. The juvenile court found probable cause for each of the
charged offenses, and Roberts’ case was transferred to the Trumbull County Court of
Common Pleas, General Division, to prosecute him as an adult.
{¶20} The Trumbull County Grand Jury subsequently returned a four-count
indictment charging Roberts with Count 1: Aggravated Murder with a Firearm
Specification, an unclassified felony, in violation of R.C. 2903.01(B) and (G) and R.C.
2941.145; Count 2: Aggravated Robbery with a Firearm Specification, a felony of the first
degree, in violation of R.C. 2911.01(A)(1) and (C) and R.C. 2941.145; Count 3:
Aggravated Burglary with a Firearm Specification, a felony of the first degree, in violation
of R.C. 2911.11(A)(2) and (B) and R.C. 2941.145; and Count 4: Aggravated Murder with
a Firearm Specification, an unclassified felony, in violation of R.C. 2903.01(A) and (G)
and R.C. 2941.145.
{¶21} A jury trial commenced, and the jury returned verdicts of guilty on Counts 1
and 2 of the indictment, as well as the accompanying firearm specifications. The jury,
however, acquitted Roberts of the offenses charged in Counts 3 and 4 of the indictment.
{¶22} At sentencing, the trial court ordered Roberts to serve a minimum of 25
years to life in prison, with a mandatory additional three years for the Firearm Specification
to be served prior to and consecutively with the underlying offense, on Count 1. On Count
2, the court ordered Roberts to serve a minimum term of 11 years up to a maximum of 16
and one-half years, with a mandatory additional three years on the Firearm Specification
to be served prior to and consecutively with the underlying offense. The trial court ordered
the prison terms to be served consecutively with each other for a total term of 42 years to
47 and one-half years up to a maximum of life in prison.
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{¶23} Roberts now appeals and assigns four errors for our review. His first
asserts:
{¶24} “Appellant’s convictions were against the manifest weight of the evidence.”
{¶25} “[W]eight of the evidence addresses the evidence’s effect of inducing
belief.” State v. Wilson, 2007-Ohio-2202, ¶ 25. “In other words, a reviewing court asks
whose evidence is more persuasive—the state’s or the defendant’s?”
Id. “‘The court,
reviewing the entire record, weighs the evidence and all reasonable inferences, considers
the credibility of witnesses and determines whether in resolving conflicts in the evidence,
the [factfinder] clearly lost its way and created such a manifest miscarriage of justice that
the conviction must be reversed, and a new trial ordered.’” State v. Thompkins, 1997-
Ohio-52, 387, quoting State v. Martin,
20 Ohio App.3d 172, 175 (1st Dist. 1983). “[A]
manifest-weight-of-the-evidence standard of review applies to the
state's burden of persuasion.” (Citations omitted.) State v. Messenger,
2022-Ohio-4562,
at ¶ 26.
{¶26} Roberts was found guilty of aggravated felony murder, in violation of R.C.
2903.01(B), which provides, in relevant part, that Roberts “purposely cause[d] the death
of another . . . while committing or attempting to commit, or while fleeing immediately after
committing or attempting to commit . . . aggravated robbery . . . .” He was also found
guilty of aggravated robbery, which provides Roberts, “in attempting or committing a theft
offense, as defined in section 2913.01 of the Revised Code, or in fleeing immediately
after the attempt or offense, shall do any of the following . . . [had] a deadly weapon on
or about the [his] person or under the [his] control and either display[ed] the weapon,
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brandish[ed] it, indicate[d] that the offender possesses it, or use[d] it[.]” R.C.
2911.01(A)(1).
{¶27} Roberts makes various arguments challenging the credibility of the State’s
evidence. We shall structure our analysis by setting forth the arguments in turn. He initially
challenges the credibility of the eye-witness evidence.
{¶28} Roberts first contends that Ms. Legg never met him and could not identify
him as the shooter on the night in question. Roberts also asserts that although Ms. Legg
observed the shooter extend his arm, she did not observe a firearm. Moreover, Roberts
emphasizes Ms. Legg testified that, after the shooting, she did not know “where everyone
went.” She explained, however, to Officer Adkins that, at the scene, both suspects got
back into their vehicle and drove toward Hazelwood Avenue. He maintains these versions
of events cannot be reconciled.
{¶29} We fail to see how Ms. Legg’s version of events lacks credibility. While it is
true she admitted she was unfamiliar with Roberts as well as the area, this does not
necessarily imply she was unable to provide a sound rendition of what she witnessed.
She observed the person in the black hoodie, i.e., Roberts, with his arm extended.
Although this is not tantamount to seeing a firearm, it provides unique circumstantial
evidence, given the surrounding circumstances, that Roberts was the gunman who
murdered the victim. She testified:
As we pulled up, there was a vehicle already parked basically
on the curb pulled up to, like the sidewalk curb area. And I
asked [the victim] was that them and he said, yeah, I’m pretty
sure. So then he proceeded to say I’ll be right back. Two
people got out of the parked vehicle in front of us. I asked [the
victim] why are two people getting out and he said he wasn’t
sure. So I said okay. They proceeded - - [the victim]
proceeded to walk in front of my car and they moved off from
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this - - the front of my car onto the sidewalk on my right side
so I could still see from my driver’s side view through the
passenger seat and through the driver window. They
presented him with the phone box and after a few minutes of
going back and forth passing the phone box around, [Roberts]
handed [the victim] the box halfway open and [the victim]
looked at it and there was no phone in there so he proceeded
to give the box back to them and walk away.
At that time, I heard pop, pop, pop as [Roberts] was walking
in front of my car towards the area that [the victim] was at. I
looked at the other gentleman that was out with [Roberts] and
he was huddled down with his arms over his head . . . . As I
leaned over, I heard [the victim] say, no, and then I heard a
pop. And at that time, the only thing I thought to do was blow
my horn to try to stop anything further going on. At that point,
I tried to get out of my vehicle to get to [the victim] but my
safety lock was on so it took a few minutes. By the time I got
to [the victim], he was unresponsive. I called 911 and tried to
perform CPR in efforts to save him.
{¶30} Even though Ms. Legg had never met Roberts or Mr. Hall, she testified she
noticed a distinctive marking on the face of one of the individuals, namely a cross tattoo
by his eye on his face. She testified that the individual with the cross tattoo was not the
person who she perceived shot the victim. Mr. Hall testified at the juvenile hearing that,
at the time of the incident, he had (and still has) the cross tattoo under his eye.
{¶31} Under the stress and terror of the incident, Ms. Legg’s observations were
not so vague or far-fetched as to render her testimony unpersuasive.
{¶32} Additionally, although Roberts deems Ms. Legg’s description of how the
suspects left the scene irreconcilable, she could easily not know “where everyone went,”
and still believe she saw the suspects re-enter the vehicle. She would have no reason to
know the next destination of the suspects. And it is not unreasonable for her to mistakenly
report that the suspects retreated to the vehicle. Mr. Hall and Deuce did drive away. While,
according to Mr. Hall, Roberts remained at the scene, Ms. Legg may have believed, under
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the pressure and distress of being present and observing the homicide, that he fled with
the others. The evidence Ms. Legg presented in this respect is not irreconcilable.
{¶33} Next, Roberts takes issue with Deuce’s rendition of events. Deuce testified
that on the evening of the incident, Mr. Hall’s girlfriend picked him up. He did not, however,
mention until cross-examination that Roberts was also with him. Deuce also explained to
the juvenile court judge that he did not remember when he first met Roberts; at trial,
however, Deuce testified that he had known Roberts for a couple/three months. Roberts
contends Deuce’s testimony demonstrates an implicit interest in distancing himself from
Roberts and accordingly could not be deemed credible. He makes a similar argument as
it relates to Mr. Cole’s testimony.
{¶34} Roberts also points out that Deuce’s testimony reflects that he was in the
passenger seat of the vehicle driven by Mr. Hall. And the incident took place at night with
Ms. Legg’s headlights on such that, Roberts contends, it would be difficult for him to see
the shooting. Deuce nevertheless testified that, upon hearing gunshots, he first ducked,
then he turned around and was able to see Roberts continue shooting the victim. Roberts
submits the testimony is not believable.
{¶35} While the testimony may reflect certain minor details or omissions, e.g.,
failure to mention Roberts was with him when Deuce’s girlfriend picked them up, such
details do not fundamentally undermine the remaining, consistent features of his
statement of events. This is equally true for his testimony at trial and at the juvenile
probable cause hearing. Even if he could not remember specifically at trial when he met
Roberts, this does not weaken the great balance of his testimony relating to his
observations of the substantive crimes.
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{¶36} Moreover, we fail to see how Deuce would be in any way precluded from
observing Roberts fire the final shot or shots. Simply because Ms. Legg’s headlights were
activated does not necessarily mean an observer of an event was being entirely blinded.
We discern no meaningful issue with the credibility of Deuce’s overall testimony.
{¶37} Furthermore, Robert’s challenge to Mr. Cole’s version of events is also
unavailing. Mr. Cole claimed that he had only known Roberts for a week or two. Roberts
argues, however, that he was hanging out at Mr. Cole’s house on the date of the incident
and was adequately familiar with the residence to find it on foot after the incident. We do
not view Mr. Cole’s statement regarding the length of time he knew Roberts as strange
or inconsistent with Roberts’ presence in the home or Mr. Cole’s unfamiliarity with
Roberts. It is reasonable to conclude that a homeowner may not be familiar with each of
his or her children’s friends or associates. That Mr. Cole did not know Roberts well does
not affect the credibility of his testimony when viewed in its totality.
{¶38} Next, Roberts’ challenges Mr. Hall’s credibility. At the juvenile court
probable cause hearing, Mr. Hall testified that, after the homicide, he and Deuce drove
down the road to speak with a friend because he was in shock and did not know what to
do. Roberts asserts the mention of the anonymous friend renders Mr. Hall’s version not
credible. Roberts further cites Mr. Hall’s testimony that he and Deuce drove to Mr. Cole’s
house after the incident. Roberts maintains this is different from Deuce’s version that
describes the young men running back to Mr. Cole’s house.
{¶39} We do not view the minor inconsistencies between Mr. Hall’s and Deuce’s
testimony, let alone the lack of attention he gave to the friend with whom he wished to
speak, inherently problematic. The testimony demonstrates that the event the young men
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witnessed was emotionally taxing. Under circumstances such as the case at bar, slight
differences in recollection of certain events is reasonably understandable. The primary
features of each individual’s testimony were consistent and, as a result, we decline to
conclude the evidence was not credible.
{¶40} Next, Roberts challenges the physical evidence supporting the convictions.
He argues that even though the bullets that killed the victim came from the firearm that
Mr. Cole confiscated from Roberts and was the same firearm Roberts took photos with
on his phone, this does not necessarily imply he fired the fatal shots. While Roberts ’ claim
is technically correct, the manifest weight of the eyewitness evidence, the physical
evidence, and circumstantial evidence, taken together, supports the jury’s verdict beyond
a reasonable doubt.
{¶41} Roberts’ first assignment of error lacks merit.
{¶42} His second assignment of error provides:
{¶43} “The trial court erred by permitting the state to present hearsay evidence in
the form of prior testimony of a witness pursuant to Evid.R. 804(B).”
{¶44} Under this assignment of error, Roberts contends the trial court erred by
permitting the prior testimony of Mr. Hall. In particular, Roberts claims the trial court
committed reversible error by declaring Mr. Hall to be unavailable so that the State could
introduce his prior testimony before the juvenile court. Roberts asserts the State’s
attempts at locating and serving a subpoena on Mr. Hall in order to secure his testimony
in person fell short of reasonable and good faith efforts. We disagree.
{¶45} Evid.R. 804(B)(1) provides:
(B) Hearsay Exceptions. The following are not excluded by
the hearsay rule if the declarant is unavailable as a witness:
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(1) Former Testimony. Testimony given as a witness at
another hearing of the same or a different proceeding, or in a
deposition taken in compliance with law in the course of the
same or another proceeding, if the party against whom the
testimony is now offered, or, in a civil action or proceeding, a
predecessor in interest, had an opportunity and similar motive
to develop the testimony by direct, cross, or redirect
examination. Testimony given at a preliminary hearing must
satisfy the right to confrontation and exhibit indicia of
reliability.
{¶46} Evid.R. 804(A)(5) states that a witness is unavailable if he or she “is absent
from the hearing and the proponent of the declarant’s statement has been unable to
procure the declarant’s attendance . . . by process or other reasonable means.”
{¶47} Further, the Supreme Court of Ohio has held:
As a predicate to the introduction of hearsay against a
defendant in a criminal prosecution, the Confrontation Clause
of the Sixth Amendment normally requires a showing that the
hearsay declarant is unavailable despite reasonable effort
made in good faith to secure his presence at trial.
Evid.R. 804(B)(1) permits the admissibility at trial of former
testimony taken at a previous trial upon a showing that the
witness is unavailable despite reasonable efforts made in
good faith to secure his presence at trial.
A showing of unavailability under Evid.R. 804 must be based
on testimony of witnesses rather than hearsay not under oath
unless unavailability is conceded by the party against whom
the statement is being offered.
State v. Keairns, 9 Ohio St.3d 228 (1984), paragraphs one through three of the syllabus.
{¶48} The prosecution, as the proponent of the evidence, bears the burden of
establishing it engaged in a reasonable effort to procure the testimony of the proposed
unavailable declarant. Id. at 232; see also State v. Durst,
1997 WL 799539, *3 (11th Dist.
Dec. 26, 1997). Reasonable efforts do not imply the State must take “‘every conceivable
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step’” to procure the declarant’s presence. State v. Leigh, 2023-Ohio-91, ¶ 77 (2d Dist.),
quoting State v. Mitchell,
2012-Ohio-3722, ¶ 14, (2d Dist.).
{¶49} While Roberts challenges the efforts and measures the State endeavored
to take to procure the live testimony of Mr. Hall, he does not expressly take issue with
whether the prior testimony met the requirements of Evid.R. 804(B)(1). We shall therefore
limit our analysis of Roberts’ specific contention and assume he concedes the juvenile
court proceedings were sufficient to develop the testimony at issue in a manner that
subjected Mr. Hall to adequate and vigorous cross-examination.
{¶50} During a hearing on the State’s notice of intention to use the prior testimony,
Detective Nicole Smith of the Warren Police Department testified to the efforts that were
made to secure Mr. Hall’s appearance. Detective Smith stated that, prior to trial, she had
personally appeared at Mr. Hall’s last known residence, as well as his mother’s residence,
in order to serve the subpoena. Hall was no longer living at either residence.
{¶51} The detective also testified to her awareness that the Trumbull County
Sheriff’s Department had previously attempted to locate Mr. Hall at his mother’s residence
and was also unsuccessful. Detective Smith stated she was informed that Mr. Hall had
outstanding municipal court warrants for aggravated burglary and domestic violence.
Given these charges, one of which is a felony, the Detective stated she received
information that Mr. Hall may have left the State of Ohio.
{¶52} Detective Smith testified she left “cards and information” at the residences
so Mr. Hall could contact her regarding the subpoena if he returned. The detective also
utilized the phone numbers of Mr. Hall’s mother and the mother of Mr. Hall’s children, to
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no avail. The detective found out that Mr. Hall did not have a phone. Despite the foregoing
efforts, Mr. Hall could not be located.
{¶53} It also bears noting that, during the hearing, Roberts’ counsel represented
that he also attempted to serve Mr. Hall to appear on Roberts’ behalf by performing
residential service at his mother’s residence. Roberts’ counsel did not hear from Mr. Hall.
The court, at the hearing, advised the State to similarly complete residential service in an
effort to procure Mr. Hall’s presence. The prosecutor agreed.
{¶54} At the hearing, the trial court reserved its final ruling upon the witness’s
unavailability until after he failed to appear on both the date contained in the State’s
subpoena as well as the date Roberts subpoenaed him. When Mr. Hall did not appear,
the trial court declared him unavailable and allowed his prior testimony of his rendition of
events from the juvenile court probable cause hearing, where he was subjected to both
direct and cross-examinations.
{¶55} We conclude the record demonstrates that the State underwent reasonable,
good-faith efforts to secure the witness’s appearance at trial; this is underscored by
Roberts’ own inability to obtain the witness’s live testimony. Therefore, the trial court did
not err in permitting Mr. Hall’s prior testimony to be admitted based upon his unavailability.
{¶56} Roberts’ second assignment of error lacks merit.
{¶57} Roberts’ third assignment of error contends:
{¶58} “The trial court erred by denying appellant’s motion for a mistrial.”
{¶59} Under this assigned error, Roberts argues the trial court erred in denying
his motion for a mistrial after a “violent physical attack” occurred against him by a family
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member of the victim during trial. Given the extent to which the trial court addressed the
in-court physical outburst, we find this argument meritless.
{¶60} “‘A mistrial should only be declared when justice so requires and a fair trial
is no longer possible.’” State v. O’Neil, 2024-Ohio-512, ¶ 48 (11th Dist.), quoting State v.
Jayrga,
2005-Ohio-352, ¶ 76 (11th Dist.). The decision to grant or deny a motion for a
mistrial is a matter within the sound discretion of the trial court.
O’Neil at ¶ 48. The mere
existence of an irregularity does not warrant a mistrial. State v. Treesh,
2001-Ohio-4, 480,
citing State v. Franklin,
62 Ohio St.3d 118, 127 (1991) (“Mistrials need be declared only
when the ends of justice so require and a fair trial is no longer possible.”). Moreover, we
presume that the jury followed the court’s instructions to disregard the outburst.
Treesh
at 480.
{¶61} “When an emotional outburst takes place in court, the issue is whether
the outburst ‘deprived the defendant of a fair trial by improperly influencing the
jury.’” State v. Trimble, 2009-Ohio-2961, ¶ 126, quoting State v. Scott,
2004-Ohio-10, ¶
44. The question of whether an emotional outburst in a murder trial improperly influences
the jury is a factual question to be resolved by the trial court. State v. Benge, 1999-Ohio-
227, 144; see also
Trimble at ¶ 126.
{¶62} “Absent clear evidence in the record that the outburst improperly affected
the jury, only the trial judge can authoritatively determine whether the jury was disturbed,
alarmed, shocked[,] or moved by the demonstration or whether the incident was of such
a nature that it necessarily influenced the ultimate verdict of conviction.” (Citation omitted.)
State v. Morales, 32 Ohio St.3d 252, 255 (1987). Answering such questions “invariably
depend upon facts and circumstances which a reviewing court cannot ordinarily glean
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from the record.” Id. Accordingly, the trial court determines, as a question of fact, whether
the eruption deprived the defendant of a fair trial by inappropriately influencing the jury.
Id. Without clear, affirmative evidence of such a deprivation, the trial court’s ruling will not
be disturbed.
Id.
{¶63} Here, appellant offers no specific argument of improper influence and thus,
we cannot conclude the outburst affected his right to a fair trial. Subsequent to the
outburst, the trial court heard arguments regarding Roberts’ motion for a mistrial. During
the in-court hearing, the following occurred:
[Defense Counsel]: Thank you, Judge. First of all, Judge, I’m
not sure how the record actually reflects the events that
recently occurred in the courtroom. But to summarize, during
the testimony of Officer Adkins, a spectator from the gallery,
who I believe is a relative of the victim, leapt over the railing
and attacked my client, Gavin Roberts. There was a
significant scuffle that occurred in front of the bench in the
courtroom. The deputies and Officer Adkins were involved in
subduing the suspect or assailant. My client was punched in
the head. A taser was out, I don’t know if it was deployed.
The Court: It was not.
[Defense Counsel]: Okay. Ultimately, the assailant was
handcuffed and taken from the courtroom. Papers and files
were strewn about and it was general chaos for a few
moments. The jury was escorted out of the courtroom and
now here we are. [Prosecutor], would you agree to that?
{¶64} The prosecutor agreed with the foregoing recitation of events and defense
counsel moved for a mistrial, arguing:
I believe that the events that transpired in the courtroom were
at the extreme end of the emotional outburst type of events
that are referred to in the Ohio caselaw. This is more than just
someone yelling something, shouting something, being
disruptive in the courtroom, this was a violent attack that
required police officers and deputies to wrestle the assailant
to the ground. My client was punched. The jury was,
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understandably, shocked and appalled and I don’t - - Judge, I
don’t know what effect that is going to have on the jury,
whether that will be negative or positive toward my client, but
it is going to have some effect on the jury. I think it will have
an effect on everyone that was in the room. Certainly, jurors
who are not used to being in this environment and dealing with
these types of situations. I think that it is going to weigh on
their minds. I think it will have a definite impact on the way
they view the evidence, the weight they view these allegations
and the way they view my client. We are not far into this trial.
We picked a jury very quickly and we are only essentially less
than a day into this trial because we didn’t start until the
afternoon yesterday. So I don’t think that from a judicial
economy standpoint it’s not like we’re at the end of the road
on a week long trial or anything like that. I believe that the
prudent course of action and, frankly, Judge, I’m, you know
I’m trying to make a record. I think these events were
dramatic. They’re going to have an impact and my client is
entitled to a fair trial unimpeded by these types of events.
{¶65} The court proceeded to provide a curative instruction to the jury and then
polled the jury to determine if each one could set the outburst aside and determine the
case based on the facts and evidence. The trial court voir dired each individual juror in
chambers. After polling each member of the panel, the trial court dismissed the only juror
who expressed distress, anxiety, and who could not say whether she could decide the
case on the evidence and follow the legal instructions of the court. An alternate juror was
seated, and the court again provided a curative instruction.
{¶66} This case is similar to State v. Solomon, 2021-Ohio-940 (8th Dist.), a matter
upon which the State relied in opposing Roberts’ motion for a mistrial. In Solomon, after
a witness testified, he stepped down from the witness stand and attempted to physically
attack the defendant at the defense table in front of the jury. Id. at ¶ 79. As the witness
was escorted out, he shouted obscenities, also in front of the jury. Id. The trial court
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ordered the jury to exit the courtroom. Id. at ¶ 80. After hearing arguments regarding
defense counsel’s motion for a mistrial, the court denied the motion. Id. at ¶ 80-83.
{¶67} On appeal, the defendant argued the incident was “‘highly traumatic’” and
that it was “‘highly probable that many of the jurors never have experienced an act of
violence in person and were negatively affected.’” Id. at ¶ 84. The Eighth District
disagreed, finding that the trial court’s ruling was not an abuse of discretion. Id. at ¶ 89.
It noted it was unlikely that the witness’s attempt to attack the defendant would elicit any
sympathy for the victim or the witness. The court aptly observed: “In fact, the argument
can be made that the incident benefitted appellant rather than prejudiced him.” Id. It
continued:
[The witness’s] outburst and attempt to attack appellant was
more likely to have a negative impact on the jury’s perception
of [the witness] and his testimony than on the jury’s perception
of appellant. [The witness’s] outburst may have even elicited
sympathy for appellant, as [the witness] was the perpetrator
of the attempted attack, and the appellant was the victim.
Id at ¶ 90.
{¶68} Finally, the Eighth District pointed out there was no indication that the jury
was inappropriately influenced by the witness’s outburst to the detriment of the defendant.
Nor was there a suggestion that the verdict was a result of passion or prejudice resulting
from the episode. Further, like this matter, the jury in Solomon did not find the defendant
guilty on all counts charged in the indictment. This point underscored the jury was capable
of weighing the evidence in an unbiased fashion towards the end of reaching a guilty
verdict only on the evidence adduced at the trial.
{¶69} In this case, the trial court’s polling of the jury demonstrated each juror (but
for the juror who was dismissed) was capable of rendering his or her decision on the
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evidence. Further, the trial court’s curative instruction provided, in part that, “It is
important, ladies and gentlemen, that you set everything aside and that you decide this
case based upon the facts that come from this witness stand and the evidence that is
introduced.” Curative jury instructions are recognized as an effective means of remedying
errors or irregularities that transpire during trial. See State v. Zuern, 32 Ohio St.3d 56, 61
(1987). And, as observed above, a jury is presumed to follow the instructions provided by
the trial court. Franklin,
62 Ohio St.3d at 127.
{¶70} Given the dearth of evidence and argumentation that Roberts was
prejudiced or suffered some form of unfairness in the trial court’s ruling, we conclude the
court did not abuse its discretion in denying Roberts’ motion for a mistrial.
{¶71} Roberts’ third assignment of error lacks merit.
{¶72} Roberts’ fourth assignment of error asserts:
{¶73} “Appellant’s sentence is contrary to law because the record does not clearly
and convincingly support consecutive sentences.”
{¶74} Under Roberts’ fourth assignment of error, he asserts the trial court
committed error by imposing consecutive sentences. He concedes the trial court made
the required findings under R.C. 2929.14(C)(4) but claims the record fails to support the
trial court’s conclusion. In particular, Roberts argues he was merely 17 years old at the
time of the incident and his prior juvenile record did not result in incarceration. As such,
the trial court should not have relied “so heavily” on his past record. We do not agree.
{¶75} This court reviews felony sentences pursuant to R.C. 2953.08(G)(2). That
subsection provides, in pertinent part:
The court hearing an appeal under division (A), (B), or (C) of
this section shall review the record, including the findings
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underlying the sentence or modification given by the
sentencing court.
The appellate court may increase, reduce, or otherwise
modify a sentence that is appealed under this section or may
vacate the sentence and remand the matter to the sentencing
court for resentencing. The appellate court’s standard for
review is not whether the sentencing court abused its
discretion. The appellate court may take any action authorized
by this division if it clearly and convincingly finds either of the
following:
(a) That the record does not support the sentencing court’s
findings under division . . . (C)(4) of section 2929.14
[(regarding consecutive sentences)] . . . ;
(b) That the sentence is otherwise contrary to law.
{¶76} Pursuant to R.C. 2929.14(C)(4), separate prison terms for multiple offenses
may be ordered to be served consecutively if the court finds it is necessary to protect the
public from future crime or to punish the offender; that consecutive sentences are not
disproportionate to the seriousness of the offender’s conduct and to the danger the
offender poses to the public; and if the court also finds any of the factors in R.C.
2929.14(C)(4)(a)-(c) are present. Those factors include the following:
(a) The offender committed one or more of the multiple
offenses while the offender was awaiting trial or sentencing,
was under a sanction imposed pursuant to section
2929.16, 2929.17, or 2929.18 of the Revised Code, or was
under post-release control for a prior offense.
(b) At least two of the multiple offenses were committed as
part of one or more courses of conduct, and the harm caused
by two or more of the multiple offenses so committed was so
great or unusual that no single prison term for any of the
offenses committed as part of any of the courses of conduct
adequately reflects the seriousness of the offender’s conduct.
(c) The offender’s history of criminal conduct demonstrates
that consecutive sentences are necessary to protect the
public from future crime by the offender.
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{¶77} Because appellant concedes the trial court met its obligation to make the
requisite R.C. 2929.14(C)(4) findings, and a review of the record supports this
concession, we need not consider this component of the sentence. Instead, he claims the
findings in support of the sentence were unsupported by the record. At sentencing, the
trial court made the following statements on record:
The court has considered the overriding principles and
purposes of felony sentencing pursuant to 2929.11, which are
to protect the public from future crime by this offender and to
punish this offender and to promote the effective rehabilitation
of the offender using the minimum sanctions that the Court
determines accomplishes those purposes without imposing
an unnecessary burden on the state of local government
resources.
I have reasonably calculated a sentence to achieve the two
overriding purposes of felony sentencing and to be
commensurate with and not demeaning to the seriousness of
this offender’s conduct and have further considered all
relevant seriousness and recidivism factors. The sentence is
proportional and consistent with sentences imposed for
similar crimes committed by similar offenders.
The court has considered the age of the defendant in arriving
at this sentence. The court makes the following findings as
they relate to this charge:
That the offender’s conduct is more serious than conduct
normally constituting the offense.
The court finds that the victim of the offense suffered the
ultimate physical harm of death.
The court finds the defendant is likely to commit future crimes
and has a very high risk to re-offend.
The defendant has a juvenile adjudication for committing an
armed robbery in Florida at the age of 15.
The defendant has shown no genuine remorse for the
offense.
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The defendant has shown no acceptance of responsibility.
The defendant’s crime was cruel and unnecessary.
The trial testimony in this case demonstrates the defendant’s
callous disregard for human life. After shooting and
incapacitating [the victim], the defendant walked up to [him]
and shot him again, guaranteeing his death. The family of [the
victim] needlessly suffered the loss of their loved one.
{¶78} The Ohio Supreme Court has made it clear that “an appellate court is
directed that it must have a firm belief or conviction that the record does not support the
trial court’s findings before it may increase, reduce, or otherwise modify consecutive
sentences.” State v. Gwynne, 2023-Ohio-3851, ¶ 15 (plurality). The trial court made the
appropriate considerations, and we cannot say the record creates a firm belief or
conviction that the trial court’s findings are not so supported.
{¶79} Roberts’ final assignment of error is without merit.
{¶80} The judgment of the trial court is affirmed.
MARY JANE TRAPP, J.,
MATT LYNCH, J.,
concur.
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