Wilson Miller, Jupiter, Florida, for appellant.
K. Stanley, Meigs County Prosecuting Attorney, and Jeremy L.
Fisher, Meigs County Assistant Prosecuting Attorney, Pomeroy,
Ohio, for appellee.
DECISION AND JUDGMENT ENTRY
William H. Harsha, Judge
After his conviction for kidnapping, Gabriel Oldaker's
first assignment of error asserts that the trial court erred
by denying his motion for a new trial. He claims that he
should have received a new trial because: (1) the trial court
erred by excluding the admission of an exhibit containing the
victim's Facebook posts; and (2) the state failed to
provide an unrelated inventory sheet of items seized from
Oldaker's residence; that inventory did not include a
gun, a fact Oldaker contends was important to his defense.
However, even if the trial court's rationale for
excluding the victim's Facebook posts was incorrect, the
statements would not have been admissible because they
constituted hearsay and were not necessarily inconsistent
with the victim's trial testimony. More importantly, the
trial court allowed the substance of the post into evidence
during the cross-examination of the victim; and the
victim's testimony was corroborated by his cousin, as
well as the testimony of a Meigs County Deputy Sheriff, and
was never directly controverted. We conclude that any error
Despite Oldaker's claim that it was relevant, the police
inventory of the items it seized from Oldaker's residence
nearly three months after the kidnapping occurred was not
materially exculpatory. The fact that there was no gun in his
home three months later could not disprove that Oldaker had a
gun in his possession on the date of the kidnapping.
Therefore, there was no Brady error. We overrule
Oldaker's first assignment of error.
Next Oldaker contends that his convictions for kidnapping are
not supported by sufficient evidence and are against the
manifest weight of the evidence. But the victim and Michael
Cremeans both testified that Oldaker held the victim at
gunpoint and forced him to ride from Fisher's residence
to the garage so that they could retrieve the car that Fisher
sold to the victim. And a Deputy Sheriff testified that on
the date that the offenses occurred, Oldaker called him and
told him he had the victim and asked whether there were any
outstanding warrants for him. After viewing this evidence in
a light most favorable to the prosecution, any rational trier
of fact could have found the state presented sufficient
evidence of kidnapping.
Moreover, because the jury was free to credit this same
evidence, it did not clearly lose its way or create a
manifest miscarriage of justice by finding that the state had
proven the essential elements of kidnapping beyond a
reasonable doubt. We reject Oldaker's claim contesting
the sufficiency and manifest weight of the evidence, overrule
his second assignment of error, and affirm his convictions.
The Meigs County Grand Jury returned an indictment charging
Oldaker with two counts of kidnapping. Oldaker pleaded not
guilty to the charges, and the case proceeded to a jury trial
that produced the following evidence.
The victim, Brandon Cremeans, purchased a car from Dewayne
Fisher, but a dispute arose between them concerning the sale.
Brandon's cousin, Michael, deceived Brandon into getting
into a vehicle and drove him to Fisher's residence, where
Fisher and Fisher's ex-wife blocked the vehicle in the
driveway. Fisher and his ex-wife then approached the vehicle,
and Fisher, who was armed with a rifle, demanded money that
Brandon still owed him for the car, or the return of the car.
Fisher took his rifle and slammed the muzzle into
Brandon's eye, causing him severe injury that ultimately
cost him his eye.
According to the testimony of both Brandon and Michael,
Oldaker, who was armed with a gun, arrived at Fisher's
residence after Brandon had been assaulted. They testified
that Oldaker forced Brandon into the front passenger seat of
a vehicle. Oldaker sat right behind Brandon and pointed a gun
at Brandon's head as they drove to JTS Automotive, a
car-repair shop where Brandon was storing the car. After they
let Brandon out in the garage, they hooked up the car and
took it away.
Ohio Bureau of Criminal Investigation ("BCI") Agent
Michael Trout testified that he retrieved the videotape
surveillance from the car-repair shop and identified Oldaker
wearing gym shorts in the footage, but could not see Oldaker
holding anything he could identify as a gun. Meigs County
Deputy Sheriff Michael Hupp testified that he was an old
family friend of Oldaker and that on the date in question,
Oldaker called him and told him that "he had Brandon
Cremeans" and asked him whether there were any
outstanding warrants for him. Deputy Sheriff Hupp told
Oldaker that Hupp would meet him at Oldaker's house; once
there Hupp informed Oldaker that there were no warrants for
Brandon and that there was nothing he could do at the time.
According to Hupp, he did not believe that a crime had
occurred at that point.
After Oldaker took the car away, Michael drove Brandon to get
gas and then dropped him off outside a radio station, where
he was picked up and taken to a hospital. Brandon lost his
eye as a result of Fisher's assault.
Michael conceded on cross-examination that he never advised
the police that Oldaker was involved in the crimes against
Brandon. He also acknowledged that he only agreed to testify
against Oldaker on the day before trial as part of a plea
bargain, which allowed him to plead guilty to possession of
criminal tools, with kidnapping charges being dismissed. He
testified that he did not previously tell the police about
Oldaker because he was scared of him.
During cross-examination Brandon Cremeans admitted that he
had a Facebook page, which he created on his sister's
ex-husband's cellular telephone when he lived with them
in January or February of 2015. But he initially denied
making a post about Oldaker:
Q: * * * [D]id you ever make any posts or anything on
facebook [sic] since this incident happened?
A: I'm hardly ever on Facebook. I had some lady contact
me, something about dating with my phone number and never
talked to her a day in my life.
BY ATTORNEY SAUNDERS: May I approach Your Honor?
BY THE JUDGE: Sure. Has it been marked for identification.
Q: Yeah. Marked as Defendant's Exhibit 'A'. Can I
show you, well I'll show you this um, I don't know if
you recognize this first page?
A: Yeah, that's Gabe.
Q: Okay. Um, who's, who's that?
A: That's my facebook [sic].
Q: So that's your Facebook?
A: Yes sir.
Q: Cool. Um, so you wrote that?
A: No, I didn't.
Q: You didn't write it?
However, on further cross-examination, Brandon testified that
the Facebook post stating that "if he didn't do it
he still was with the guy who did" sounded familiar to
him and came from his Facebook account:
Q: Well if it's your Facebook, who wrote it?
A: The only other person my phones logged in is Joe Walters,
who is my sister's ex-husband.
Q: I thought you said you hadn't been with Joe since-
A: I haven't.
Q: How, how are you talking to people on Facebook and