[Cite as State v. Sheppard,
2025-Ohio-4924.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellee, : No. 24AP-741
(C.P.C. No. 23CR-3934)
v. :
(REGULAR CALENDAR)
Marquise L. Sheppard, :
Defendant-Appellant. :
D E C I S I O N
Rendered on October 28, 2025
On brief: Shayla D. Favor, Prosecuting Attorney, and
Kimberly M. Bond, for appellee. Argued: Kimberly M. Bond.
On brief: Brian J. Rigg, for appellant.
APPEAL from the Franklin County Court of Common Pleas
JAMISON, P.J.
{¶ 1} Defendant-appellant, Marquise L. Sheppard, appeals from convictions by
jury trial in the Franklin County Court of Common Pleas. For the following reasons, we
affirm the judgment of the trial court.
I. FACTS AND PROCEDURAL HISTORY
{¶ 2} The incident that gave rise to this matter was the shooting deaths of D.M. and
C.W. on or about July 31, 2023.
{¶ 3} On August 10, 2023, a Franklin County Grand Jury indicted appellant on the
following charges: two counts of murder, violations of R.C. 2903.02(A), unclassified
felonies; two counts of felonious assault, violations of R.C. 2903.11, felonies of the second
degree; two counts of murder, violations of R.C. 2903.02(B), unclassified felonies;
tampering with evidence, a violation of R.C. 2921.12, a felony of the third degree; and
having weapons while under disability, a violation of R.C. 2923.13, a felony of the third
degree. All of the charges except for tampering with evidence were accompanied by 54-
No. 24AP-741 2
month firearm specifications pursuant to R.C. 2941.145(D). The charge of tampering with
evidence was accompanied by an 18-month firearm specification pursuant to R.C.
2941.141(D). Each of the murder and felonious assault charges included repeat violent
offender (“RVO”) specifications pursuant to R.C. 2941.149(A).
{¶ 4} Appellant entered not guilty pleas to all charges and specifications.
{¶ 5} A jury trial commenced on September 23, 2024.
{¶ 6} At the conclusion of voir dire, challenges for cause were exercised and
granted on Prospective Jurors Nos. 6, 14, and 20. For the purposes of clarity, throughout
our decision, we will be referring to individual jurors by their prospective juror numbers.
{¶ 7} Following challenges for cause, the plaintiff-appellee, State of Ohio, exercised
its first peremptory challenge on prospective Juror No. 7. Appellant excused Prospective
Juror No. 3.
{¶ 8} When the state attempted to exercise a peremptory challenge on Prospective
Juror No. 1, appellant raised a Batson challenge. In support of his challenge, appellant
stated that only 8 of the 34 individuals on the venire were African-American. After hearing
arguments from both sides, the trial court denied the state’s peremptory challenge. The
state then exercised its peremptory challenge on Prospective Juror No. 4, which was
granted.
{¶ 9} Prospective Jurors Nos. 5 and 9 were excused at the request of appellant. The
state exercised a peremptory challenge on Prospective Juror No. 19, who had slipped into
the spot vacated by Prospective Juror No. 9. Appellant again raised a Batson challenge:
[DEFENSE COUNSEL]: Judge, again, we have previously cited
the numbers here. And [appellant] is African-American.
[Prospective Juror No. 19] is of African-American descent . . .
The only question I had really propounded to her was the one
witness, if believed by you, by the State of Ohio. And I believe
she answered that . . . she could decide if the Judge instructed
her as such.
(Sept. 23, 2024 Tr. Vol. I at 234.) The trial court gave the state an opportunity to respond
before the court determined whether the defense had made a prima facie case. The state
responded as follows:
[PROSECUTOR]: Your Honor, for those statistics, 4 of the 12
right now are African-American or of African-American
descent. [Prospective Juror No. 19] would be 5 of 12. So I don’t
No. 24AP-741 3
know if just stating the statistics is enough to indicate that there
is a Batson [c]hallenge. It has to be more than that to make a
prima facie case. And in this situation statistics aren’t going to
help.
And then if we go back to my challenge for cause because, with
[Prospective Juror No. 19], she indicated using the State’s
estimation of her response was that she would have a very
difficult time following the Judge’s instruction that one
witness, if believed by you, would be enough. And the State has
concerns about her not being able to follow the law but apply
her own standards in this particular case. So based on that
information, Judge, we would ask the Court to uphold.
(Tr. Vol. I at 234-235.) The court responded that it recalled that Prospective Juror No. 19
“was pretty dug in on she would need more than one witness and essentially saying I need
more than what the jury instructions say, are going to say, are going to allow me to do.” Id.
at 235. Based on that, the court denied appellant’s Batson challenge and found that a prima
facie case was not made. Appellant objected to the ruling, which the court noted for the
record.
{¶ 10} Appellant exercised the final peremptory challenge on Prospective Juror
No. 11.
{¶ 11} The state’s first witness was officer Michael Keegan of the Columbus Police
Department (“CPD”). On the night of July 31, 2023, he was dispatched with his partner,
officer Alvarado Colon, to a shooting at an apartment complex on Plum Creek Drive in
Columbus, Franklin County, Ohio. Upon his arrival, he observed two victims, one by a
dumpster and another off to the right in a grassy area. A couple of the complex’s residents
were rendering aid to one of the victims. Officer Keegan attended to the victim by the
dumpster and officer Colon went to the victim in the grassy area. Officer Keegan did not
feel a pulse on the first victim, so he started chest compressions.
{¶ 12} Shortly after officers Keegan and Colon began administering aid, other CPD
units and medics arrived on scene. Officer Keegan continued chest compressions until the
medics took over, loaded the victim into the ambulance, and transported him from the
scene. Officer Keegan remained on scene to be interviewed by detectives and help canvas
for evidence.
{¶ 13} J.R. testified that on the night of July 31, 2023, he was returning home in the
area of Plum Creek Drive. As he was walking up to his first-floor apartment, he observed
No. 24AP-741 4
an SUV and people arguing. The SUV was not in a parking space and a group of people
were getting out of the vehicle, arguing, pushing, and shoving. The group continued
arguing as he got ready for the night. J.R. testified that there were five or six people in the
group. It included a “big guy,” a “small guy,” and a female. (Tr. Vol. II at 297.) J.R. testified
there may have been two other men behind the larger male.
{¶ 14} At one point, the larger male and smaller male were pushing and shoving,
and the female got between the two of them. A second female with long hair began pushing
and hitting the first female. The first female who was between the two males tried to calm
everybody down. The smaller male said, “You going to pull a gun out on me. You going to
wet me, wet me?” (Tr. Vol. II at 299.) At that point J.R. went to go check on his dinner and
he heard gunshots.
{¶ 15} When he heard the gunshots, J.R. went outside and grabbed his girlfriend,
who was smoking a cigarette at the time, and brought her inside. J.R. went back outside
and saw that the vehicle was gone. As he was walking back to his apartment, he heard a
faint cry for help. He rushed over and observed a deceased female on the ground. She was
the female who was trying to de-escalate the argument. Because he could not help her, he
went over to the male victim, who was the smaller male from the altercation. J.R. took his
shirt off and tried to plug the man’s wound. As he was rendering aid to the victim, the SUV
returned and left again. J.R. began performing chest compressions and mouth-to-mouth
on the male victim. At the conclusion of his direct examination, J.R. identified appellant as
the larger male involved in the altercation.
{¶ 16} Officer Jeffrey Ward of the CPD testified that on the night of the incident he
was on routine patrol. He received a “be on the lookout” for a gold Chevrolet Suburban that
was involved in a double shooting. (Tr. Vol. II at 326.) Officer Ward began searching one
of the major roads leading from the scene of the shooting and observed a gold SUV driving
towards him. He began following the vehicle and subsequently initiated a high-risk traffic
stop. There were four occupants in the vehicle: Appellant, G.H., M.C., and J.T. Officer
Ward identified appellant as the front seat passenger in the vehicle. No firearm was
recovered from the vehicle, but officer Ward advised other patrol officers to search a certain
area where the occupants may have ditched one.
No. 24AP-741 5
{¶ 17} Following the traffic stop, the four suspects were transported to CPD
headquarters for booking and to be interviewed by detectives. Officer Ward recalled that
while appellant was sitting in the booking area, he yelled at one of the other suspects
something to the effect of “[w]e don’t talk, we all walk.” (Tr. Vol. II at 336.)
{¶ 18} Officer Brian Schmiedebusch with the CPD testified that following the traffic
stop, he responded to the area of Cassady and 5th Avenues to search for a gun that may
have been discarded from the suspects’ vehicle. When he did so, he observed a firearm
laying in the street. He blocked off traffic to prevent traffic from driving through the area
of the evidence.
{¶ 19} J.B., J.R.’s girlfriend at the time, testified that on the night in question, she
worked until 9:00 p.m. and got home around 9:30 p.m. She hung out with J.R. for a bit
and then went outside to smoke a cigarette around midnight. As she was smoking, she
heard loud music and saw a gold or light tan SUV. She could hear arguing over the music
and the vehicle stopped in front of the dumpsters. When the vehicle stopped, three men
and three women emerged and continued arguing. At that point, J.B. pulled out her phone
and began recording the argument.
{¶ 20} The argument began escalating. Two men were fighting near the back of the
SUV. One man was small and skinny, and the other was a bigger man with muscles. Two
women were fighting near the front of the SUV. One of the women had very long hair. The
women stopped fighting and tried to get the two men to stop fighting. As the two men
fought, the smaller man said, “Are you going to pull a gun on me?” (Tr. Vol. II at 379.) Then
the smaller guy said, “You’re going to wet me? Go ahead, wet me.” (Tr. Vol. II at 379.) The
men continued to curse at each other. Then she observed the bigger man raise his arm and
she heard gunshots.
{¶ 21} At this point, the car pulled off and J.R. physically pulled her into the
apartment for safety. When J.B. and J.R. went outside, they heard a man calling for help.
J.B. called 9-1-1. She checked on the female victim, while J.R. attended to the male victim.
The female victim had a gunshot wound to her head and appeared deceased. J.B. went over
to help J.R. with the male victim. At that time, J.B. observed the gold SUV return. J.R. and
J.B. ran and hid over an embankment. After the vehicle left, they returned to the male
victim and J.R. began performing CPR.
No. 24AP-741 6
{¶ 22} Richard Bair was a detective in the Crime Scene Search Unit (“CSSU”) for the
CPD. On the night in question, he was called out to the scene on Plum Creek Drive. He and
another CSSU detective photographed the scene and collected various items of evidence.
They also photographed and recovered the firearm that was located on 5th Avenue.
Detective Bair also responded to headquarters and photographed three of the suspects. He
collected blood that was found on one of the suspect’s hands. That individual was identified
as M.C. Bair also administered a gunshot residue (“GSR”) test on M.C.’s hands. He also
performed a GSR test on J.T.
{¶ 23} The state’s next witness was G.H. At the time of his testimony, G.H. was 15
years old. G.H. testified that on July 31, 2023, he was in a vehicle, similar to a Suburban,
with a number of individuals. He identified appellant as being one of the individuals in the
vehicle. Following his arrest, he agreed to talk to the state for a reduction in his juvenile
delinquency charge. Of the five other people in the vehicle, G.H. testified he only knew
appellant and J.T.
{¶ 24} G.H. testified that at some point that night they stopped at an apartment
complex to drop off somebody. When the vehicle stopped, an argument ensued. The
argument was between appellant and the other male. It began in the vehicle and escalated
outside of the vehicle. G.H. testified that shots were fired during the argument. Prior to
the shooting, there was a gun in the car and G.H. was in possession of it. He gave it to J.T.
{¶ 25} During the course of G.H.’s testimony, the state requested that G.H. be called
as a court witness. The trial court granted the request over appellant’s objection.
{¶ 26} Following the trial court’s ruling, the following exchange took place:
Q. Did you hear the argument between [appellant] and this
other dude?
A. No. I just heard yelling.
Q. No, what?
A. I just heard yelling.
Q. You heard yelling? Anything specific like --
A. I don’t remember no words that was said.
Q. Say that again.
A. I don’t remember no words that was said.
No. 24AP-741 7
Q. If you were shown or listened or had the opportunity to
listen to the proffer that you had with Detective Jude, would
that help refresh your recollection as to who had guns and what
was said specifically?
A. No.
Q. Well, I’m going to show you -- I guess I need to mark this as
an exhibit.
[DEFENSE COUNSEL]: Judge, can we approach?
THE COURT: Yes.
...
[DEFENSE COUNSEL]: Judge, I’m going to object to this. This
is a summary of a statement written by [d]etective Jude. This
is not this young man’s words. So you can’t refresh his
recollection based off of a report that was written by someone
else.
[PROSECUTOR]: I understand the concern about that, Judge.
We do have the audio recording. It’s just lengthy.
THE COURT: Was this signed by the witness?
[PROSECUTOR]: It was not, no. I don’t know if [G.H.’s
attorney] -- how he responds with his client testifying in this
matter.
THE COURT: All right.
[DEFENSE COUNSEL]: You can’t cross him -- basically what
they’re trying to do is based off evidence outside of 609.
[PROSECUTOR]: So based on the information, I can ask him
questions.
THE COURT: So here’s -- here’s what we’re going to do. You
can ask this witness did you tell [d]etective so-and-so, whoever
is in this --
[PROSECUTOR]: Thank you.
THE COURT: He can say yes or no. But I agree, I don’t think
that a report not written by him can refresh his recollection.
But you can certainly have this report. You met with [d]etective
so-and-so? Yes. Did you tell him, this, this, and see where he
goes. And if he continues to answer questions in a way that’s
contradictory to the way he answered them before, our next
move would be to bring [G.H.’s attorney] up here and see if he
can advise his client of the importance of abiding by his
agreement. And if that doesn’t help, then we might have to play
the video.
No. 24AP-741 8
[PROSECUTOR]: Yes, sir.
THE COURT: Thank you, gentlemen.
(Tr. Vol. III at 497-499.)
{¶ 27} Following the trial court’s ruling, G.H. testified that he told detective James
Jude of CPD that he heard appellant “say he was going to wet [D.M.] up.” (Tr. Vol. III at
500.) He also told detective Jude that appellant asked J.T. for the handgun and that
appellant took the handgun from her. G.H. testified that he told detective Jude that when
appellant got back into the SUV, he said, “Just take me to see my kids. I just threw my life
away[.]” (Tr. Vol. III at 501.) He told detective Jude that C.W. was trying to keep appellant
and D.M. away from each other.
{¶ 28} G.H. testified that he saw appellant shoot at least one time. After the
shooting, G.H. grabbed the firearm from appellant and threw it out of the window of the
SUV.
{¶ 29} On cross-examination, G.H. agreed that his statement to police on the night
of the incident was materially different than his testimony.
{¶ 30} Following G.H.’s testimony, stipulations of certain facts and evidence were
read to the jury. One of the stipulations was the contents of the testimony of Dr. Erica
Armstong, a forensic pathologist at the Franklin County Forensic Science Center.
Dr. Armstrong performed the autopsy on D.M. D.M. had a total of three gunshot wounds.
In Dr. Armstrong’s opinion, to a reasonable degree of scientific certainty, D.M.’s death was
caused by gunshot wounds of the “neck, trunk and right lower extremity with spinal,
visceral, skeletal and soft tissue injuries.” (Tr. Vol. III at 528.)
{¶ 31} Dr. Armstrong also performed the autopsy on C.W. C.W. had one gunshot
wound. In Armstrong’s opinion, to a reasonable degree of scientific certainty, C.W.’s death
was caused by a gunshot wound of the “neck, vascular, skeletal and soft tissue injuries.”
(Tr. Vol. III at 531.)
{¶ 32} The parties stipulated to the contents of the testimony of Erica Pattie, a
forensic scientist with the Columbus Police Crime Laboratory. Pattie examined the firearm
recovered in this case and determined that it was operable. In Pattie’s opinion, within a
reasonable degree of scientific certainty, the spent cartridge case found at the scene was
fired from the recovered firearm.
No. 24AP-741 9
{¶ 33} The parties stipulated to the contents of the testimony of Michelle Snyder, a
forensic scientist with the Ohio Bureau of Criminal Investigation. Snyder performed GSR
analyses in this case. Snyder determined that the GSR kits associated with G.H., J.T., and
appellant did not have particles characteristic of gunshot primer residue in their samples.
Snyder determined that the GSR kit associated with M.C. was positive for particle
characteristics of gunshot primer residue in her sample. Snyder opined that a positive GSR
test “means that individual either discharged a firearm, was in the vicinity of a firearm when
it was discharged, or handled an item with gunshot primer residue on it.” (Tr. Vol. III at
534.) Furthermore, a negative GSR test “does not preclude the possibility that an individual
either discharged a firearm, was in the vicinity of a firearm when it was discharged, or
handled a firearm with gunshot primer residue on it.” (Tr. Vol. III at 534.)
{¶ 34} Following the presentation of the parties’ stipulations, detective Jude
testified. On the night in question, detective Jude responded to the scene. Once it was
determined that suspects were detained, detectives Jude and Gregory L. Stevens left the
scene to interview those individuals at headquarters. In addition to interviewing the
suspects, detective Jude obtained and reviewed cellphone video taken by J.B. In that video
detective Jude could identify several of the suspects.
{¶ 35} At the close of the state’s case-in-chief, appellant made a Crim.R. 29 motion
for acquittal. The trial court denied that motion.
{¶ 36} Appellant requested that the following language be included in the jury
instructions: “Testimony of [G.H.], should be viewed with grave suspicion and weighed
with great caution.” (Tr. Vol. IV at 634.) The trial court declined to include the language.
{¶ 37} Ultimately, appellant was found guilty of all charges and specifications except
for Count 7, tampering with evidence. The trial court sentenced appellant to a total prison
term of life imprisonment, with parole eligibility after 46 and one-half years.
{¶ 38} Appellant now brings this appeal.
II. ASSIGNMENTS OF ERROR
{¶ 39} Appellant assigns the following as trial court errors:
1. THE COURT VIOLATED THE DEFENDANT’S RIGHT TO
A FAIR TRIAL WHEN IT DENIED THE BATSON
CHALLENGE RAISED BY COUNSEL.
No. 24AP-741 10
2. THE TRIAL COURT ERRED BY PERMITTING THE
STATE TO IMPEACH ITS OWN WITNESS WITHOUT A
PROPER SHOWING OF SURPRISE AND AFFIRMATIVE
DAMAGE AS REQUIRED BY EVIDENCE RULE 607(A).
3. THE COURT COMMITTED REVERSIBLE ERROR WHEN
IT REFUSED TO GIVE THE APPROPRIATE JURY
INSTRUCTIONS CONCERNING THE TESTIMONY OF AN
ACCOMPLICE.
III. STANDARD OF REVIEW
{¶ 40} In challenging a peremptory strike under Batson v. Kentucky, 476 U.S. 79
(1986), “ ‘[t]he ultimate burden of persuasion regarding racial motivation rests with, and
never shifts from, the opponent of the strike.’ ” State v. Jennings,
2009-Ohio-6840, ¶ 22
(10th Dist.), quoting Purkett v. Elem,
514 U.S. 765, 768 (1995). Discriminatory intent
behind a peremptory challenge frequently depends on the prosecutor’s credibility and is a
finding of fact afforded great deference on appeal.
Id. A trial court’s determination that
there was no discriminatory intent behind a peremptory challenge will not be reversed
unless clearly erroneous. State v. Thompson,
2014-Ohio-4751, ¶ 53. “Where an appellant
questions the trial court’s proper analysis of a Batson challenge, no clear error occurs where
the appellate court can determine from the record that ‘the trial judge’s analysis of the
contested peremptory strike was sufficient to preserve a constitutionally permissible juryselection process.’ ” State v. Massalay,
2016-Ohio-779, ¶ 47 (10th Dist.), quoting Hicks v.
Westinghouse Materials Co.,
1997-Ohio-227, ¶ 16.
{¶ 41} A trial court’s decision to call a witness as its own and to permit both parties
to cross-examine that witness is reviewed for an abuse of discretion. State v. Menefee, 1995
Ohio App. LEXIS 4300, *13 (10th Dist. Sept. 29, 1995). An abuse of discretion exists when
the trial court has an unreasonable, arbitrary, or unconscionable attitude in reaching its
decision. Blakemore v. Blakemore,
5 Ohio St.3d 217, 219 (1983).
{¶ 42} A trial court’s decision on whether to give a requested jury instruction will
also not be reversed absent an abuse of discretion under the facts and circumstances of the
case. State v. A.W.P., 2020-Ohio-4707, ¶ 49 (10th Dist.). “ ‘An appellate court will not
reverse a conviction in a criminal case due to jury instructions unless the jury instructions
amount to prejudicial error.’ ” State v. Carter,
2024-Ohio-444, ¶ 15 (10th Dist.), quoting
State v. Munye,
2015-Ohio-3362, ¶ 15 (10th Dist.).
No. 24AP-741 11
IV. LEGAL ANALYSIS
{¶ 43} In his first assignment of error, appellant alleges that the trial court violated
his right to a fair trial by denying his challenge to one of the state’s peremptory challenges
pursuant to Batson, 476 U.S. 79. Ordinarily, a prosecutor may exercise a peremptory
challenge “for any reason, or no reason at all.” Hernandez v. New York,
500 U.S. 352, 374
(1991). However, based on the principle of equal protection, such a challenge “may not be
used purposefully to exclude members of a cognizable racial group from jury service solely
on the basis of their race.” State v. Powers,
92 Ohio App.3d 400, 405 (10th Dist. 1993),
citing Powers v. Ohio,
499 U.S. 400 (1991).
{¶ 44} Pursuant to Batson, courts use a three-prong analysis for evaluating claims
that a prosecutor used peremptory challenges in violation of the Equal Protection Clause.
Massalay, 2016-Ohio-779, at ¶ 45 (10th Dist.). Under the first prong, a defendant must
establish a prima facie case showing that the state engaged in racial discrimination with its
peremptory challenge. Ohio v. Williams,
2021-Ohio-3491, ¶ 25 (10th Dist.). This is done
by demonstrating (1) the state peremptorily challenged members of a cognizable racial
group, and (2) the facts and any other circumstances raise an inference that the state used
its challenges to exclude jurors on the basis of race. State v. Berry,
2019-Ohio-3902, ¶ 12
(10th Dist.).
{¶ 45} If the defendant establishes a prima facie case under the first prong, the state
must present a racially neutral explanation for the challenge. In order to sustain its burden,
the state must provide a “ ‘clear and reasonably specific explanation’ ” of its valid reason for
exercising its challenge. Berry at ¶ 26, quoting
Batson at 98, fn. 20. “Unless a
discriminatory intent is inherent in the prosecutor’s explanation, the reason offered will be
deemed race neutral.”
Hernandez at 360. Discriminatory intent is present if the
explanation is a pretext for exclusion on the basis of race. Hicks,
78 Ohio St.3d at 99.
{¶ 46} Under the third prong, “the court must decide, based on all the
circumstances, whether the defendant has proved purposeful racial discrimination.” State
v. Johnson, 2015-Ohio-4903, ¶ 21. The court’s analysis must focus on the circumstances
surrounding the challenge and it must assess the credibility of the state’s explanation in
order to determine whether it is pretextual.
Massalay at ¶ 45.
No. 24AP-741 12
{¶ 47} In this case, although the trial court sought a race-neutral explanation from
the state, it ultimately determined that appellant had not established a prima facie case
under the first prong of the Batson test. At the trial court level, appellant’s Batson
argument focused on the fact that the venire was only 23.5 percent (8 of 34 prospective
jurors) African-American. On appeal, appellant’s argument focuses on the state’s alleged
different treatment of similarly situated white prospective jurors. Appellant asserts that
the state used its peremptory challenge on Prospective Juror No. 19, but did not strike
Prospective Jurors Nos. 4, 7, and 20. (Appellant’s Brief at 15.) He alleges that despite all 4
of these jurors having similar doubts as to whether they could convict based on one
witness’s testimony, the only individual struck by the state was Prospective Juror No. 19,
an African-American.
{¶ 48} First, as to appellant’s argument regarding the makeup of the venire, that is
not relevant to a Batson challenge. A Batson challenge focuses on the state’s use of its
peremptory challenge(s). A challenge to the makeup of the venire is based on the United
States Supreme Court’s decision in Taylor v. Louisiana, 419 U.S. 522 (1975), which held
that “[a]n essential component of the Sixth Amendment right to a jury trial includes the
selection of a petit jury from a representative cross-section of the community.” State v.
Orlandi,
2006-Ohio-6039, ¶ 14 (10th Dist.). Even if this factor was considered in assessing
appellant’s Batson challenge, the actual jury in this case had a higher percentage of AfricanAmericans than the venire. The record reflects that 4 out of the 12 jurors (33 percent) who
made it on to the jury were African-American. (Tr. Vol. I 234-235.) This fact weighs heavily
against a finding that the state was using its peremptory challenges in a racially
discriminatory manner.
{¶ 49} As to appellant’s argument that the state treated Prospective Juror No. 19
differently than similarly situated jurors, that contention is belied by the record. Appellant
asserts that the state did not strike Prospective Jurors Nos. 4, 7, and 20 despite them also
expressing concerns about convicting someone based on one witness’s testimony. That is
inaccurate. The state exercised peremptory challenges on both Prospective Jurors Nos. 4
and 7. (Tr. Vol. I at 227, 232.) A peremptory challenge was unnecessary for Prospective
Juror No. 20 because she was excused for cause. (Tr. Vol. I at 226.) Thus, there is no
No. 24AP-741 13
evidence that the state treated similarly situated prospective white jurors differently than
Prospective Juror No. 19. In fact, the record reflects the opposite.
{¶ 50} Based on the foregoing, the trial court’s determination that appellant failed
to establish a prima facie case under the first prong of the Batson test was not clearly
erroneous. Appellant’s first assignment of error is overruled.
{¶ 51} In his second assignment of error, appellant alleges that the trial court erred
by permitting the state to impeach G.H. in violation of Evid.R. 607(A). However, a review
of the record reveals that the court did not permit the state to impeach G.H with extrinsic
evidence. (Tr. Vol. III at 499.) When the state attempted to confront G.H. with the
recording of his proffer, the court instructed the state to lay a foundation before using his
recorded statement to CPD. When the state resumed its direct examination of G.H., his
answers were seemingly consistent with his statements during the proffer, and it became
unnecessary to impeach him with extrinsic evidence.
{¶ 52} In his argument on appeal, appellant likens this case to State v. Debord,
2023-Ohio-4204 (2d Dist.). In that case, the Second District Court of Appeals summarized
what happened at the trial court level as follows:
After Wilson’s response, the State began to ask Wilson if
watching the video of his police interview would help refresh
his memory as to what he had told the police Debord said to
him. The trial court, however, interrupted the [s]tate and stated
the following:
If you’re going to impeach, then I wish you would just impeach.
By that, I mean lay a foundation of who he talked to, when he
talked to them. If he doesn’t remember, that’s a basis to
impeach. But I don’t know that I’m going to go with refreshing
at this juncture[.]
...
Following the trial court’s statement, the State attempted to lay
a foundation to impeach Wilson. In doing so, the [s]tate asked
Wilson if he remembered being interviewed by the police and
Wilson responded that he did. Wilson also confirmed that he
had watched a portion of the video-recorded interview in the
prosecutor’s office. Despite this, Wilson testified that he did not
remember what the police had asked him during the interview.
The State then directly asked Wilson if, during the interview,
he remembered telling the police that Debord had told him that
he had shot someone. In response, Wilson said: ‘No.’. . . After
No. 24AP-741 14
Wilson’s response, the trial court permitted the State to
impeach Wilson by playing a portion of his video-recorded
police interview that showed Wilson telling the police that
Debord had told him he (Debord) had shot someone.
(Emphasis and brackets in original.) (Internal citations omitted.) Debord at ¶ 66-67. In
finding that the trial court committed obvious error in permitting the state to impeach the
witness, the Second District Court of Appeals noted that the witness not remembering
certain details does not rise to the level of affirmative damage required by Evid.R. 607(A).
Id. at ¶ 68.
{¶ 53} A review of the record reveals that this case is distinguishable from Debord.
In Debord, after a foundation was laid, the state’s witness continued to answer questions
inconsistently with his prior statement to police. Debord at ¶ 67. This caused the state to
impeach him with the recording of his police interview.
Id. It should also be noted that the
trial court in Debord, unlike here, did not call the witness as its own. The obvious error in
Debord was the trial court allowing the state to use that recording to impeach the witness.
Id. at ¶ 68. Here, after the state laid a foundation for the statements made by G.H. during
his proffer, G.H. began to answer questions consistently with his prior statements. The
state never had to impeach him with the recording of his police interview. As such, Debord
is not applicable here.
{¶ 54} Even assuming, arguendo, that the state impeached G.H. during his
testimony, Evid.R. 607 “ ‘does not apply when the trial court calls the witness pursuant to
Evid.R. 614.’ ” State v. Peterson, 2008-Ohio-2838, ¶ 48 (10th Dist.), quoting State v.
Kraus,
2007-Ohio-6027, ¶ 19 (12th Dist.). In Peterson, this court determined that the trial
court properly allowed the state to introduce prior inconsistent statements made by the
witness during a proffer to impeach the witness’s trial testimony. This was so because the
court called the witness as its own pursuant to Evid.R. 614(A). Thus, even if G.H. continued
to testify contrary to his statements made during his proffer, the state would have been
permitted to impeach him with his recorded statement because the court called G.H. as its
own witness.
{¶ 55} Based on the foregoing, the trial court did not err in its handling of the state’s
direct examination of G.H. Appellant’s second assignment of error is overruled.
{¶ 56} In his third assignment of error, appellant alleges that the trial court
committed reversible error when it refused to give his requested jury instruction regarding
No. 24AP-741 15
G.H.’s testimony. More specifically, appellant asserts that the court was required to give a
jury instruction regarding accomplice testimony pursuant to R.C. 2923.03(D). Appellant
asserts that “it can be concluded without a doubt” that G.H. was an accomplice because he
was in possession of the firearm while the fighting was going on, provided the firearm to
appellant, and threw the firearm out of the window after the incident. (Appellant’s Brief at
35.)
{¶ 57} Initially, it should be noted that appellant did not request a R.C. 2923.03(D)
jury instruction based on G.H.’s status as an accomplice. In fact, appellant readily admitted
that G.H. was not an accomplice. The instruction was requested simply because G.H.
proffered in exchange for a reduction of a juvenile delinquency charge that arose out of this
incident. Specific arguments not raised below are forfeited and plain error applies to those
arguments. State v. Barnes, 2025-Ohio-1967, ¶ 58 (12th Dist.); State v. Ammons, 2022-
Ohio-1902, ¶ 42 (9th Dist.). This is so even if the party objected on a different basis or
objected with no explanation.
Id.
{¶ 58} Because appellant, for the first time on appeal, argues that the court erred
because G.H. was an accomplice, he has waived all but plain error. Crim.R. 52(B) states
that “[p]lain errors or defects affecting substantial rights may be noticed although they were
not brought to the attention of the court.” Plain error is one that “ ‘rises to the level of
challenging the legitimacy of the underlying judicial process itself.’ ” State v. Santiago,
2003-Ohio-2877, ¶ 11 (10th Dist.), quoting Goldfuss v. Davidson,
79 Ohio St.3d 116, 122
(1997). “[T]he plain error rule should not be invoked unless, but for the error, the outcome
would clearly have been otherwise.”
Id.
{¶ 59} This court has previously held that “[a]n instruction under R.C. 2923.03(D)
‘is not required when the witness is not charged with complicity as a result of involvement
with the defendant’s criminal activities.’ ” State v. Olverson, 2003-Ohio-1274, ¶ 54 (10th
Dist.), quoting State v. Sillett,
2002-Ohio-2596, ¶ 14 (12th Dist.); Jennings, 2009-Ohio-
6840 at ¶ 63 (10th Dist.). “Moreover, the possibility that a witness ‘could’ have been
indicted as an accomplice does not require the court to instruct on accomplice testimony.”
Jennings at ¶ 66, citing
Sillett at ¶ 19. Although G.H. was charged in juvenile court with
tampering with evidence, G.H. was not accused to be a juvenile delinquent or indicted as
No. 24AP-741 16
an accomplice to appellant. Thus, the trial court did not error, let alone plainly error, in
refusing to give the requested jury instruction.
{¶ 60} Even if it could be said that the trial court erred in failing to give the requested
instruction, the court’s denial did not clearly affect the outcome of the trial. The jury was
made well aware of the benefit G.H. received through his cooperation, both via G.H’s
testimony and the introduction of his proffer agreement into evidence. G.H. also admitted
that he was less than truthful during his testimony. However, the jury found him to be
credible, likely based on the fact that the other evidence tended to support his version of
events. In fact, appellant benefitted from G.H.’s testimony because the jury acquitted him
of the tampering with evidence charge.
{¶ 61} Furthermore, the jury instructions were not silent in regard to G.H.’s
testimony. In its charge to the jury, the trial court stated:
You have heard testimony from [G.H.], another person who
has been adjudicated a delinquent minor of a similar crime
charged in this case. The weight of [G.H.]’s testimony is for you
to determine.
It is for you, as jurors, in the light of all the facts presented to
you from the witness stand, to evaluate such testimony and to
determine its quality and worth or its lack of quality and worth.
(Tr. Vol. V at 715-716.) The court specifically mentioned that G.H. was charged and
adjudicated delinquent based on his involvement in this case. It indicated that the jury may
find his testimony to be not credible. Thus, the jury was well aware that there might be
credibility issues with G.H.’s testimony. It follows that the court’s refusal to use the
instruction requested by appellant did not affect the outcome of the case.
{¶ 62} Based on the foregoing, we find that the trial court did not plainly error in
refusing to give an accomplice testimony instruction to the jury. Appellant’s third
assignment of error is overruled.
V. CONCLUSION
{¶ 63} Having overruled each of appellant’s three assignments of error, we affirm
the judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
BOGGS and DINGUS, JJ., concur.
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