[Cite as State v. Steele,
2025-Ohio-5133.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 114554
v. :
JERMELLE STEELE, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: November 13, 2025
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-22-674731-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Jeffrey M. Maver and Eben O. McNair,
Assistant Prosecuting Attorneys, for appellee.
Jaye M. Schlachet and Eric M. Levy, for appellant.
EMANUELLA D. GROVES, J.:
Defendant-appellant Jermelle Steele (“Steele”) appeals his
convictions for murder and other charges. For the foregoing reasons, we affirm the
convictions.
Factual and Procedural History
In October 2022, a grand jury convened and issued a five-count
indictment against Steele with respect to the death of 18-year-old Alan M. Warner
(“Warner”) on May 10, 2022, for aggravated murder, pursuant to R.C. 2903.01(A)
(Count 1); murder, pursuant to R.C. 2903.02(A) (Count 2); murder, pursuant to
R.C. 2903.02(B) (Count 3); felonious assault, pursuant to R.C. 2903.11(A)(1)
(Count 4); and felonious assault, pursuant to R.C. 2903.11(A)(2) (Count 5). In
addition, each count included one-year and three-year firearm specifications.
Trial commenced in October 2024. Myracle Taylor (“Taylor”), who
shared a daughter with Steele, testified on behalf of the State. On May 10, 2022,
Taylor drove Steele around town in her car, while they both drank alcohol. At some
point, Taylor took Steele to a family member’s home. When she returned to get him
five minutes later, he was accompanied by three individuals: “Ranbo” a.k.a. Jamir
Steele (“Jamir”) – Steele’s cousin, “Zoo,” and an unknown person. The four entered
her car and asked her to take them to the rear of a Save-a-Lot Plaza.
When she retrieved them later, Steele sat in the front passenger seat
and the three young men sat in the rear. Shortly thereafter they noticed a young
man riding a bicycle. Jamir told Steele, “[T]here he goes.” Taylor testified that
Steele exited her vehicle and started chasing the young man on the bicycle while
shooting at him. Taylor followed him in her car and turned the headlights off
because she did not want to be seen. Taylor denied having knowledge of what Steele
planned to do.
A neighbor testified that she went out on her porch that night to
smoke a cigarette. She saw a neighbor was also outside smoking and walked over to
greet her. From that neighbor’s porch, she saw a boy peddling a bicycle really
quickly down the street. She then saw a gray or silver Chevrolet turn the corner
quickly and witnessed two individuals jump out of the car and chase after the boy
on the bicycle. One of them was shooting while the other was not. When the
shooting started the two neighbors dropped down to the floor of the porch. The
neighbor saw someone get back into the Chevrolet as the car drove towards a nearby
cemetery. She described the two people who exited the car as having similar features
and builds, both were African-American men, around their mid-20s or early 30s,
approximately 5'9″ to 5'-10″ tall, and between 120 and 135 pounds. The neighbor
called 9-1-1 to report the incident.
Taylor testified that after the shooting, Steele reentered her car. She
took the three young men to Steele’s sister’s house and took Steele to his mother’s
house. Later, Taylor learned that the incident was reported on the Cleveland
Remembrance Instagram page and that a description of her car was shown on
another app discussing the crime. She testified that Steele helped her alter her car’s
appearance by removing a decal on the front windshield. She later repaired a
taillight and replaced the hubcaps. She also testified that she and Steele hid in a
hotel for a period of time to avoid the police.
Cleveland Police Detective Richard Tusing (“Det. Tusing”) testified
that Taylor was identified as a person of interest rather quickly after the homicide
when a family member reported Taylor’s involvement to the police. Taylor was
brought in for questioning a couple of months after the homicide. She testified that
during her first interview, she lied to the police, telling them that Steele stole her car
but identifying him as the shooter. However, she denied any involvement. When
confronted with evidence that placed her at the scene driving her car, Taylor gave a
second statement admitting her involvement yet still implicating Steele as the
shooter.
During the course of the investigation, police acquired cell phone
records from Taylor and Steele. Taylor identified the records, which included
several text messages discussing the homicide. While Steele never admitted to being
the shooter, he advised Taylor that he would help her obtain an attorney and advised
her to lie to the police about what occurred that night. Taylor repeatedly raised
concerns regarding the fact that police were on to her, while Steele continually
advised her how to proceed. In a text message in June, Steele complained that
Taylor kept threatening to “snitch” and told her there was no evidence against him
unless she spoke. In September 2022, Taylor sent a text message to Steele that she
had had enough and advised him that she had reported him to the police. The
following day, Steele sent a text message to a female friend who lived out of town
and asked if he could come stay with her.
At trial, the State presented evidence that Steele and Taylor
exchanged approximately 2,000 phone calls while Steele was in jail. In one of the
calls played for the jury, Steele admonishes Taylor not to come down “here,”
presumably to the authorities because she was the only evidence against him. In a
subsequent call, Steele told her he would admit to the charges but warned her that
the media would be present in court. Taylor believed he mentioned the media
because he knew she had a fear of being on camera.
The State presented evidence establishing that Steele’s DNA was
found in the front passenger seat and the rear passenger area of Taylor’s car.
However, testimony and video established that Steele was in Taylor’s car several
times before and after the homicide. No other forensic evidence linked Steele to the
crime.
The jury ultimately found Steele not guilty of Counts 1 and 2, but
guilty of all the remaining charges and associated firearm specifications. At the
sentencing hearing, the trial court imposed a sentence of 21 years to life on Count 3.
The court found that Counts 4 and 5 merged. The court further imposed the three-
year firearm specification on Count 5 to run consecutively, for an aggregate term of
24 years to life. On October 30, 2024, the court issued a corrected journal entry
regarding the verdict, which deleted the firearm specifications on Count 3.
Simultaneously, the trial court issued a sentencing journal entry, which imposed a
sentence of 21 years to life on Count 3. Therein the court found that Counts 4 and 5
merged and imposed a sentence on the three-year firearm specification to run
consecutively to the base charge on Count 3.
Steele filed a notice of appeal on November 15, 2024. Steele also filed
for a limited remand to the trial court for resentencing to address or correct the
merger of offenses. The State agreed, and this court remanded the case for
resentencing. The trial court held a sentencing hearing and found that Counts 3, 4,
and 5 merge for purposes of sentencing and that the State elected to proceed with
Count 3. The court then imposed a sentence of 15 years to life on the underlying
offense and three years on the firearm specification. The court further imposed a
three-year sentence on each of the firearm specifications associated with Counts 4
and 5 to be served prior to and consecutive to the firearm specification on Count 3
and consecutive to the underlying term, for an aggregate sentence of 24 years to life.
The journal entry noted that although the defendant was found guilty of the one-
year firearm specifications, no sentence was imposed. A nunc pro tunc entry was
subsequently filed noting that Steele was acquitted of the remaining charges.
Steele appeals raising the following assignment of error for our
review.
Assignment of Error No. 1
The trial court committed plain error when it entered a conviction
against appellant for felony murder (B) in count three of the indictment
after the jury entered a guilty verdict where the court failed to instruct
it on the definition of proximate result, an essential element of the
offense, prejudicing appellant and violating his constitutional right to
due process of law.
Assignment of Error No. 2
Appellant was denied his constitutional right to effective trial counsel
where counsel failed to seek dismissal of the charge of felonious assault
in violation of R.C. 2903.11(A)(1) charged in count four of the
indictment, a general statute, when appellant was charged with
felonious assault in violation of R.C. 2903.11(A)(2) in count five of the
indictment, a specific statute, for the same act in violation of R.C. 1.51
and appellant was prejudiced where he was subject to the imposition of
an additional three-year firearm specification at sentencing pursuant
to count four which should have been dismissed prior to trial.
Assignment of Error No. 3
The trial court erred and abused its discretion where, over objection of
appellant, it permitted the State to comment in closing argument that
appellant failed to call a witness to prove his innocence improperly
vouching for the credibility of its own witness and shifting the burden
of proof to appellant.
Assignment of Error No. 4
Appellant was convicted of felony murder (B) and two counts of
felonious assault for the same act against the manifest weight of the
evidence.
Law and Analysis
Jury Instructions
In the first assignment of error, Steele argues that the trial court
plainly erred when it failed to instruct the jury on the definition of “proximate result”
in Count 3, murder pursuant to R.C. 2903.02(B). Steele argues that he was
prejudiced by this omission because “proximate result” was a disputed issue and the
failure to instruct on a disputed issue demonstrates prejudice. Further, Steele
argues that even if this court disagrees and fails to find plain error, he received
ineffective assistance of counsel when his lawyers failed to object to the absence of
the jury instruction. Steele’s arguments are not well taken.
A party is required to raise any objections to the jury instructions
“before the jury retires to consider its verdict.” Crim.R. 30(A); State v. Ruediger,
2024-Ohio-1975, ¶ 91 (8th Dist.). Absent a timely objection, the party “‘waives all
but plain error.’”
Id., quoting State v. Owens,
2020-Ohio-4616, ¶ 7. Additionally,
the mere failure of a court to “‘separately and specifically instruct the jury on every
essential element of each crime with, which an accused is charged does not per se
constitute plain error under Crim.R. 52(B).’” (Emphasis in original.) State v.
Blackburn,
2003-Ohio-605, ¶ 14 (11th Dist.), quoting State v. Adams,
62 Ohio St.2d
151 (1980), paragraph two of the syllabus. An appellant establishes that they were
prejudiced by a trial court’s plain error by demonstrating that but for the trial court’s
error, the outcome of the trial would have been different. Id. at ¶ 13, citing State v.
Underwood,
3 Ohio St.3d 12 (1983), syllabus.
In order to prove murder under R.C. 2903.02(B), the State must
establish that the defendant caused “the death of another as a proximate result of
the offender’s committing or attempting to commit an offense of violence that is a
felony of the first or second degree. . . .” In the instant case, the trial court did not
include a definition of “proximate result” in its jury instruction for Count 3, murder.
The Ohio Supreme Court has recognized that “proximate result” is the same as
“proximate cause.” State v. Crawford, 2022-Ohio-1509, ¶ 15, citing State v.
Carpenter,
2019-Ohio-58, ¶ 51 (3d Dist.); see also
Owens at ¶ 9. Proximate cause
requires a determination of whether “‘“the harm alleged [has] a sufficiently close
connection to the conduct” at issue.’”
Id., quoting Robers v. United States,
572 U.S.
639, 645 (2014), quoting Lexmark Internatl., Inc. v. Static Control Components,
Inc.,
572 U.S. 118, 133 (2014). That is,
“‘[i]n order for a criminal defendant’s conduct to be the proximate
cause of a fatal result in a felony murder case, the court must first
determine whether the killings would not have occurred “but for” the
defendant’s conduct. The court must then determine whether the
result varied greatly from the intended outcome or foreseeable result of
the underlying crime . . . .’”
State v. Williams, 2020-Ohio-4430, ¶ 36 (7th Dist.), quoting State v. Franklin,
2008-Ohio-2264, ¶ 120-121 (7th Dist.), quoting State v. Franklin,
2008-Ohio-462,
¶ 25 (10th Dist.).
Steele argues that the failure to define “proximate result” caused
prejudicial error where the court referred the jury to a previous definition of “cause”
where “cause” was defined twice and the court did not provide guidance on which
definition to use. Further, Steele contends prejudice ensued because “proximate
result” was a disputed issue and the failure to instruct was per se prejudicial.
With respect to the two definitions of “cause,” the trial court defined
the word relative to aggravated murder and relative to murder pursuant to
R.C. 2903.02(A). Contrary to Steele’s assertion, the trial court’s instructions were
similar. For aggravated murder, the trial court defined “cause” as “an act, which
directly produces the death of another and without, which it would not have
occurred.” For murder, the court defined “cause” as “an act, which in a natural and
continuous sequence directly produces the death of [Warner] and without which it
could not have occurred.” The trial court further stated:
The defendant’s responsibility is not limited to the immediate or most
obvious result of the defendant’s act or failure to act. Defendant is also
responsible for the natural and foreseeable consequences or the results
that follow in the ordinary course of events from the act or failure to
action.
Nevertheless, Steele does not point to any evidence in the record to
support his argument that the jury was confused by the two definitions, such that
they erred in finding Steele guilty. Moreover, the facts in this case were
straightforward and, contrary to Steele’s assertion, proximate result was not a
contested issue. Steele’s argument at trial was that Taylor lied and implicated him
as the shooter to protect someone else, potentially a family member or friend. The
undisputed evidence at trial was that someone chased Warner down and shot him.
Warner’s death was the proximate result of the shots fired. Ultimately, the jury
determined Steele was the shooter. Because Steele has failed to establish how he
was prejudiced by the trial court’s omission, he has failed to establish plain error.
Finally, Steele argues that if this court finds that the trial court did not
plainly err, he received ineffective assistance of counsel when his attorney failed to
object to the omitted instruction. However, in order to establish ineffective
assistance of counsel, as discussed further below, a defendant must establish both
that his lawyer’s performance was deficient and that, but for the lawyer’s
performance, the outcome of the trial would have been different, i.e., that he was
prejudiced by the performance. State v. Farraj, 2025-Ohio-2778, ¶ 22 (8th Dist.).
We need not address Steele’s lawyer’s performance because Steele has failed to
establish he was prejudiced; thus his ineffective assistance claim fails.
Accordingly, the first assignment of error is overruled.
Ineffective Assistance of Counsel
In the second assignment of error, Steele argues that he received
ineffective assistance of counsel when his lawyer failed to move to dismiss the
felonious assault serious physical harm charge in Count 4, which Steele claims is a
general statute. Steele argues that the State was only permitted to proceed on the
specific, i.e., special statute under Count 5, felonious assault deadly weapon,
pursuant to R.C. 1.51. In the alternative, Steele argues that if counsel was not
ineffective, it was plain error to proceed on Count 4 of the indictment.
When reviewing a claim of ineffective assistance of counsel, this court
must determine whether counsel’s performance has “‘“fallen below an objective
standard of reasonable representation and [that] prejudice arises from counsel’s
performance.”’” State v. Gilmer, 2022-Ohio-821, ¶ 11 (8th Dist.), quoting State v.
Sims,
2021-Ohio-4009, ¶ 21, quoting State v. Bradley,
42 Ohio St. 3d 136 (1989),
paragraph two of the syllabus. Both elements must be proven to prevail on a claim
of ineffective assistance of counsel. See State v. Harris,
2022-Ohio-4630, ¶ 48 (8th
Dist.). In the context of a motion, a defendant establishes prejudice when he
demonstrates that the trial court would have granted the motion if appropriately
raised. See State v. Wilson,
2019-Ohio-2741, ¶ 9 (8th Dist.) (addressing a motion to
dismiss for a speedy-trial violation); State v. Conkright,
2007-Ohio-5315, ¶ 50 (6th
Dist.) (finding that a defendant demonstrates prejudice when his counsel fails to file
a motion to suppress if the record establishes the motion would have been granted
if filed).
“Licensed attorneys enjoy a strong presumption that they are
competent.” Harris at ¶ 49, citing State v. Scarton,
2020-Ohio-2952, ¶ 89 (8th
Dist.), citing State v. Black,
2019-Ohio-4977, ¶ 35 (8th Dist.), citing State v. Smith,
17 Ohio St.3d 98, 100 (1985). Accordingly, an appellate court gives “‘great deference
to counsel’s performance and “[indulges] a strong presumption” that counsel’s
performance “falls within the wide range of reasonable professional assistance.”’”
Id., quoting Scarton, quoting Strickland v. Washington,
466 U.S. 668, 689 (1984).
Having set out the standard for an ineffective assistance claim, we
turn to whether a motion to dismiss Count 4 pursuant to R.C. 1.51 would have been
successful. “It is a well-established principle of statutory construction that specific
statutory provisions prevail over conflicting general statutes.” State v. Chippendale,
52 Ohio St.3d 118, 120 (1990), citing State v. Volpe,
38 Ohio St.3d 191, 193 (1988).
This principle is codified in R.C. 1.51, which states:
If a general provision conflicts with a special or local provision, they
shall be construed, if possible, so that effect is given to both. If the
conflict between the provisions is irreconcilable, the special or local
provision prevails as an exception to the general provision, unless the
general provision is the later adoption and the manifest intent is that
the general provision prevail.
First we must determine whether the statutes in question are general,
specific, or local. Chippendale at 120. If both statutes are general and “do not
involve the same or similar offense, then R.C. 1.51 is inapplicable.”
Id. In contrast,
if one statute is general and the other is specific, and “they involve the same or
similar offenses, we then look to see if the offenses are allied offenses of similar
import.” Id.1 We determine whether offenses are allied offenses of similar import
by looking at the import, conduct, and animus. State v. Collier,
2020-Ohio-3033,
¶ 34 (8th Dist.), citing Ruff at ¶ 25. The offenses are not allied offenses of similar
import and do not merge
if any of the following are 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.
Id., citing
id.
The tenets of R.C. 1.51 do not come into play unless “a general and a
[specific] provision constitute allied offenses of similar import and additionally do
not constitute crimes committed separately or with a separate animus for each
crime.” Chippendale at 120.
When R.C. 1.51 applies, the first step is determining whether the
statutes of concern present an irreconcilable conflict. State v. Hardy, 2017-Ohio-
7635, ¶ 49, (2d Dist.). An irreconcilable conflict exists “when the same conduct
receives different penalties under two different statutes.” Id., citing Chippendale,
52 Ohio St.3d at 120. If the statutes are irreconcilable, the specific provision prevails
over the general one, unless it is clear that the general provision applies
coextensively with the specific provision.
Chippendale at 120-121. Where the
general provision applies coextensively with the specific provision, the State may
1 Chippendale utilized a test for allied offenses of similar import that has since been
overruled by the Ohio Supreme Court in favor of the test utilized in State v. Ruff, 2015-
Ohio-995.
charge the offender with both crimes. Id. at 121. Where it does not, then the State
may only charge the offender with the specific provision.
Id.
Applying the foregoing analysis to this case, we must determine
whether the statutes are general, specific, or local. “‘The common meaning of
“general” is that which is “‘universal, not particularized as opposed to special.”’”
State v. Poupard, 2018-Ohio-777, ¶ 26 (6th Dist.), quoting State v. Conyers,
87 Ohio
St.3d 246, 250 (1999), quoting Black’s Law Dictionary (6th Ed. 1990). Here,
R.C. 2903.11(A)(1) provides that a person commits felonious assault when they
knowingly cause serious physical harm to another person or another’s unborn. The
language is broad and can encompass multiple ways to cause serious physical harm,
including the use of a deadly weapon or dangerous ordnance. See Conyers, at 250
(finding that the escape statute in former R.C. 2921.34(A)(1) was general because it
broadly defined the crime and did not, by its own language, limit its application).
R.C. 2903.11(A)(2), in contrast, requires that the person knowingly cause or attempt
to cause physical harm to another or to another’s unborn using a deadly weapon or
dangerous ordnance. By its language, R.C. 2903.11(A)(2) only applies when a deadly
weapon or dangerous ordnance is used and does not require evidence of serious
physical harm. In this context, R.C. 2903.11(A)(1) is general while
R.C. 2903.11(A)(2) is specific.
Next we determine whether the offenses are allied offenses of similar
import. Here, the trial court found that they were and merged the two with the
murder charge in Count 3. We agree that the actions held the same import and were
committed with the same animus and the same conduct.
Based on the foregoing, R.C. 1.51 applies and we must consider
whether the two statutes are irreconcilable, i.e., whether they impose different
sentences for the same conduct. The penalty for the two statutes are virtually the
same; accordingly they are not irreconcilable. See R.C. 2903.11(D). 2 Therefore, the
State was permitted to charge Steele with both offenses. See R.C. 2941.25 (“Where
the same conduct by defendant can be construed to constitute two or more allied
offenses of similar import, the indictment or information may contain counts for all
such offenses, but the defendant may be convicted of only one.”).
Based on the foregoing, Steele’s lawyer would not have prevailed if he
filed a motion to dismiss Count 4 of the indictment prior to trial. Steele was not
entitled to dismissal under R.C. 1.51. Accordingly, the claim of ineffective assistance
of counsel fails and the second assignment of error is overruled.
Commentary on a Party’s Failure to Call a Witness
In the third assignment of error, Steele argues that the trial court
abused its discretion when it allowed, over objection, the prosecution to comment
on Steele’s failure to present a witness at trial. Steele argues that the State’s action
improperly shifted the burden of proof to him and implied that he was required to
prove his innocence. We disagree.
2 The only difference in penalties is that the court may impose a driver’s license
suspension if a person convicted under R.C. 2903.11(A)(2) uses a motor vehicle as a
deadly weapon or dangerous ordnance. R.C. 2903.11(D)(4).
It is well settled that a party may “‘comment that a witness other than
the accused did not testify, since the prosecution may comment upon the failure of
the defense to offer evidence in support of its case.’” State v. Tate, 2011-Ohio-69,
¶ 22 (8th Dist.), quoting State v. Clemons,
82 Ohio St.3d 438 (1998), citing State v.
D’Ambrosio,
67 Ohio St.3d 185, 193 (1993); State v. Williams,
23 Ohio St.3d 16, 19-
20 (1986); and State v. Bies,
74 Ohio St.3d 320, 326 (1996). “‘The fact that one of
the parties fails to call a witness who has some knowledge of the matter under
investigation may be commented upon.’”
D’Ambrosio at 193, quoting State v. Petro,
148 Ohio St. 473, 498 (1948); State v. Champion,
109 Ohio St. 281, 289-290 (1924).
In the instant case, Taylor alleged that Steele’s cousin, Jamir, was in
the backseat of her car throughout the incident. During Det. Tusing’s cross-
examination, the defense specifically asked him whether he had information on the
three young men in the backseat of Taylor’s car and whether he attempted to talk to
them. With respect to Jamir, Det. Tusing testified that he had attempted to talk to
him, but Jamir had a pending case and his lawyer advised the detective that he was
unwilling to give a statement. Nevertheless, it was clear that the defense’s strategy
was to call into question the investigation and why certain avenues were not
explored. During its questioning, the defense highlighted that during the course of
the investigation police obtained the names of several potential suspects and
discussed what, if anything, the police did to investigate. As a result of the defense’s
strategy, the State requested permission to argue that the defense failed to call Jamir
as a witness to support their case. The defense objected. After listening to the
argument of counsel and reviewing case law, the trial court overruled the objection.
In closing argument, the defense challenged Taylor’s credibility and
argued that the police ignored promising leads because they chose to believe Taylor.
They argued that the State obtained three names from Taylor; people close to
Warner named two potential suspects; and someone called the police and claimed
someone named “Rayshawn” was the shooter; and yet the police failed to investigate
any of those leads. The defense pointed out that Jamir a.k.a. “Ranbo” was in the car
and the police learned his real name and where he lived, but Det. Tusing decided not
to talk to him because he was a suspect. In challenging Taylor’s credibility, the
defense argued that Taylor said Jamir was in her car and yet Jamir’s DNA was not
found in Taylor’s car.
In the rebuttal close, the State remarked:
State: And I want to be very careful and clear of what I’m saying next.
I do not in any way want to shift the burden on the defense. They have
no burden at all in this case. The entire burden of production of
evidence and persuasion only sits at these tables.
But I do find it terribly interesting that [Taylor] gave this supposed
series of lies. And what they will have you believe is a series of lies she
inserted into the fact that his blood relative, Jamir Steele, was also
present in the car. Now Jamir did not want to talk to Detective Tusing
because the detective had to get a search warrant just to run a Q-tip on
the inside of his cheeks.
Jamir obviously saw fit to come and observe these proceedings —
Defense: Objection.
Court: Ladies and gentlemen, I remind you that counsel have a broad
latitude to offer the arguments that they believe will be persuasive to
you and to help you interpret the case. It is entirely up to you what the
facts in this case are.
State: If she’s telling you a lie, why is she inserting into that lie a person
who could very clearly exonerate Mr. Steele if what she said was not the
truth right? Jamir could come in at any moment and say, that’s not
what happened, she did not pick us up that night. Or [Steele] wasn’t
the one that got out of the car, it was one of the other people who she
picked up with me.
If she’s fabricating a lie, why is she including into that lie at the very
core someone who could completely unravel this entire case with just a
few words. Because what she told you is not a lie, what she told you is
the absolute truth.
The prosecution only highlighted the fact that a witness existed who
could refute Taylor’s narrative, that that witness was related to Steele, and that
Steele failed to call him to testify. Furthermore, to the extent that the defense argues
the prosecutor vouched for Taylor’s testimony, we disagree. A prosecutor vouches
for a witness at trial when he “‘implies knowledge of facts outside the record or
places his or her personal credibility in issue.’” State v. Walker, 2022-Ohio-1238,
¶ 41 (8th Dist.), quoting State v. Myers,
2018-Ohio-1903, ¶ 145. Accordingly, “‘[a]n
attorney may not express a personal belief or opinion as to the credibility of a
witness.’”
Id., citing
id. A prosecutor may, however, comment on the credibility of
a witness based on their in-court testimony.
Id., citing State v. Price,
60 Ohio St.2d
136, 140 (1979). Here, the prosecutor pointed out that it would be odd for Taylor to
tell a lie that included one of Steele’s family members, who, if called as a witness
could refute her testimony. Given this context, the State argued Taylor’s testimony
was truthful.
Based on our review of the record, we find that the trial court did not
err when it allowed the prosecutor to remark on the defense’s failure to call a witness
with knowledge of the incident. Further, the prosecutor did not vouch for Taylor,
rather he pointed out that her testimony was truthful because it was unlikely she
would randomly include someone who could expose a lie if called to the stand by the
defense.
Accordingly, the third assignment of error is overruled.
The Weight of the Evidence
In his fourth assignment of error, Steele argues that his convictions
were not supported by the greater weight of the evidence. In this argument, Steele
focuses on Taylor’s credibility, as well as the failure of the police to sufficiently
investigate leads that arose during the course of the investigation. We find Steele’s
argument unpersuasive.
The weight of the evidence relates to “‘the evidence’s effect of
inducing belief.’” State v. Harris, 2021-Ohio-856, ¶ 32 (8th Dist.), quoting State v.
Wilson,
2007-Ohio-2202, ¶ 25, citing State v. Thompkins,
78 Ohio St. 3d 380, 386-
387 (1997). An appellate court reviewing the weight of the evidence must consider
all of the evidence in the record, the reasonable inferences to be made from it, and
the credibility of the witnesses to determine “‘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.’”
Thompkins
at 387, quoting State v. Martin,
20 Ohio App.3d 172 (1st Dist. 1983).
The undisputed evidence in this case is that someone chased down
and killed Warner. The main question for the jury was whether Steele was the
perpetrator, and Taylor was the only witness to provide direct evidence of Steele’s
involvement. Nevertheless, the defense argued and the trial court agreed that the
jury should be instructed on accomplice testimony. Therefore, the court instructed
the jury that it was up to them to determine whether Taylor was an accomplice and
that if she was, they should view her testimony with great caution and grave
suspicion. A jury is presumed to follow the instructions given to it by a trial judge.
State v. Gray, 2020-Ohio-1402, ¶ 16 (2d Dist.), citing State v. Jones,
90 Ohio St.3d
403, 414 (2000). Regardless of whether the jury found that Taylor was an
accomplice, the trial court’s instruction put the jurors on notice that the credibility
of her testimony should be given heightened scrutiny.
Looking to Taylor’s testimony, Taylor admitted at the outset that she
lied to police. However, she consistently maintained that Steele was the shooter.
Steele points to the fact that Taylor never mentioned that her uncle was in the car
that night. However, the evidence establishes that her uncle was in the car two-three
hours before the incident and there was no evidence that he was in the car at the
time of the shooting. Steele also points to the failure of the police to investigate
suspects that were identified the night of the incident. However, the record shows
the police did follow up on these leads. Det. Tusing attempted to speak to Jamir.
Another detective followed up on a statement that someone had shot at Warner
several months prior to the incident and noted it in his report. Rather than
displaying a lack of investigation on the part of the police, the record displayed their
investigation of leads ultimately led to Taylor and identified Steele as the
perpetrator.
Furthermore, there was evidence that Steele participated in acts to
cover up the crime after it occurred. Taylor testified that Steele told her to remove
the decal on the front of her car after they both learned that her car appeared in a
video surrounding the homicide. When Taylor’s vehicle was found, the decal had
been removed. Taylor hid at a hotel with Steele for two days after the murder, then
she hid at her aunt’s house because the police were looking for her. The police
eventually found Taylor in July and brought her in for an interview. She sent text
messages to Steele from the back of the police cruiser upset because she was going
to be charged with a crime for someone he killed. Taylor deleted the text messages
but the police were able to recover them. At first, Steele promised that he would take
responsibility for the crime. Then Steele complained that Taylor was trying to take
him from his little girl by implicating him. In subsequent texts, Steele complained
that Taylor was constantly threatening to “snitch” on him and mentioned that she
was the only evidence against him.
In addition to Taylor’s testimony, there were jail calls where the two
discussed the crime. Steele never admitted his involvement but he and Taylor
engaged in multiple conversations discussing the homicide. During one
conversation, he told her not to come down “here” because she was the only evidence
against him. During another, Steele, from Taylor’s perspective, raised issues that
would frighten her and prevent her from appearing in court, i.e., the presence of the
media.
Based on the foregoing, we do not find that the convictions were
against the manifest weight of the evidence. The jury did not lose its way or create
a manifest miscarriage of justice. Accordingly, the fourth assignment of error is
overruled.
Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
Cuyahoga County Court of Common Pleas to carry this judgment into execution.
The defendant’s conviction having been affirmed, any bail pending appeal is
terminated.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
EMANUELLA D. GROVES, JUDGE
MICHELLE J. SHEEHAN, P.J., and
MARY J. BOYLE, J., CONCUR
