Court of Appeals of Ohio, First District, Hamilton
Appeal From: Hamilton County Court of Common Pleas TRIAL NO.
T. Deters, Hamilton County Prosecuting Attorney, and Paula E.
Adams, Assistant Prosecuting Attorney, for
Raymond T. Faller, Hamilton County Public Defender, and
Joshua A. Thompson and Demetra Stamatakos, Assistant Public
Defenders, for Defendant-Appellant.
Defendant-appellant Trashon McCray appeals the judgment of
the Hamilton County Common Pleas Court convicting him, after
a jury trial, of murder, felonious assault, and two counts of
having a weapon while under a disability. Finding no merit to
his assignments of error, we affirm the trial court's
On March 21, 2014, at the end of the school day, students
walked from Dohn Community School on Essex Place to the bus
stops on William Howard Taft Road. A large crowd gathered to
watch a fight that had broken out at the intersection of
Essex and Taft. McCray's younger brother, D.M., and other
Dohn students were involved in the fight. Fourteen-year-old
J.M. and 17-year-old D.L. were standing in the crowd when
19-year-old McCray, a Dohn student at the time, drove up and
fired a gun at them. J.M. died as a result of his gunshot
wounds. D.L. was shot multiple times in the legs, sustaining
serious permanent injuries. Video cameras on a nearby city
bus recorded the shooting.
The vehicle that McCray was driving belonged to a family
friend, Lakeisha Hicks. Hicks's teenaged son D.W. was the
front-seat passenger. After the shooting, McCray drove around
the block to McMillan Street and picked up Hicks's other
son, 20-year-old Miniko, who got in the back seat. McCray
drove back around the block to drop Miniko off near Essex and
Taft, where J.M. and D.L. were still lying on the ground.
Before Miniko got out of the car, he took the gun from
McCray. And McCray told him, "I did what I had to
do." Then McCray and D.W. drove off. As Miniko stood on
Essex, he fired the gun into the remaining crowd, striking
and injuring two people. Miniko ran away toward Taft Road,
where he met up with his other brother, 18-year-old Donyell
Walker. Their aunt, Carletta Hayes, was driving by when she
and her teenaged daughter spotted them. Hayes stopped to pick
them up, and Miniko and Walker got into the back seat. As
Hayes started to drive away, she was stopped by police.
Police recovered the gun that McCray and Miniko had fired, a
Kel-Tec semi-automatic pistol, from the back seat of
Hayes's vehicle. Miniko and Walker were arrested.
Shortly after the shooting, Janet Thomas, Hicks's
coworker, saw Hicks and several carloads of teenagers in the
parking lot of their workplace, two blocks away from Essex
and Taft. Thomas recognized Hicks's vehicle. She saw one
of the young men with Hicks enter the office building and go
into the men's bathroom. He had been wearing a gray
hoodie before he went into the bathroom, but was no longer
wearing it when he exited.
Five days later, police seized Hicks's vehicle. The
following day, they photographed the vehicle and took lifts
from it, attempting to obtain prints and gunshot residue.
Testing revealed gunshot residue on the interior surface of
the driver's door and D.W.'s palm print on the
exterior surface of the left rear door. Lifts taken from the
steering wheel and from the interior surface of the left rear
door tested negative for gunshot residue.
An arrest warrant was issued for McCray. McCray did not
return to attend Dohn school, and police did not find him
until ten months later. McCray was arrested at his
girlfriend's apartment, where police recovered a Bryco
firearm from a bedroom dresser.
In an interview with police detectives about the events of
March 21, 2014, McCray said that someone had called to tell
him that his younger brother, D.M., was in a fight. McCray
told the police that he had been walking near the fight when
he heard gunshots and then ran the other way.
The detectives told McCray that they knew he was driving
Hicks's vehicle and that they had him "on
video." McCray asked if he could see the video, but the
detectives refused. McCray then admitted that he had been in
Hicks's vehicle, but denied that he had fired a gun.
Later in the interview, McCray admitted that he had been
driving Hicks's vehicle and that he had fired two or
three shots near the crowd before driving away. McCray said
that he stopped to pick up Miniko and then drove back around
the block. He said Miniko took the gun and got out of the
car. According to McCray, he heard four or five shots as he
drove away, and he figured that Miniko had fired them.
At some point, Hicks entered the car. And, according to
McCray, they went with Hicks to her workplace to drop off her
car. When asked if he had entered a building there to use the
bathroom, McCray said he had. He said that he was so scared
by firing a gun for the first time that he used the bathroom
there to relieve his bowels.
In recorded telephone calls from jail, McCray told his
mother, "They got me." When she asked him for what,
he responded, "What do you think?" He told her that
the police told him that they had pictures of him at the
scene and witness statements. When in one of the jail calls a
friend warned McCray that police would lie to get him to
incriminate himself, McCray claimed that the police had shown
him pictures of him and the car at the scene, and pictures
from a video recording.
McCray was charged with murder and felony murder for the
death of J.M., two felonious-assault offenses for the
injuries to D.L., and having a weapon while under a
disability. McCray was charged with a second
weapon-under-disability offense for his possession of the
firearm on the date of his arrest. The predicate disability
for both weapons offenses was a 2012 juvenile adjudication
At trial, the parties stipulated to the predicate disability
for the weapons offenses.
In his defense, McCray testified at trial that on the day of
the shootings, D.W. drove up in Hicks's vehicle. McCray
told D.W. to scoot over, so that he could drive. As D.W.
scooted over to the passenger's seat, McCray noticed a
Kel-Tec handgun in the middle of the driver's seat.
McCray said that D.W. grabbed the gun and set it in his lap.
After receiving a call that his brother, D.M., was
"getting jumped, " McCray drove to the fight.
I had pulled up next to the fight. And then as I was trying
to maneuver to pull up to Essex, I just heard gunshots from
behind my head. So then I started to drive off.
I guess, like, [D.W.], maneuvered, like - - I don't know
how he maneuvered to get behind me to shoot out the window. I
just know he maneuvered behind me and he was sitting back
down as we pulled away.
McCray said that he did not ask D.W. why he had fired the
gun. McCray said that when he drove around the block, he
stopped to pick up Miniko. Miniko jumped into the back seat
and asked for the gun. According to McCray, Miniko grabbed
the gun from D.W. McCray said that when they drove back
around the block, he did not see anyone who had been shot,
and he assumed that D.W. had fired the gun into the air.
McCray testified that then he saw Hicks, so he pulled over.
McCray got into the backseat, and Hicks drove to her
workplace. McCray said that he had asked to use the bathroom
there, but was told that he was not allowed to be in the
McCray acknowledged that his trial testimony differed from
what he had told the detectives. He said that in his
interview with police, he had been trying to be loyal to
Hicks and D.W., and not implicate them. McCray admitted that,
despite what he told his friend in the recorded jail call,
the police had not shown him witness statements, photographs
or video recordings. He admitted that the Bryco gun recovered
from the apartment was his.
At the conclusion of the trial, the jury found McCray guilty
of all the offenses. For sentencing purposes, the trial court
merged the felony-murder count with the murder count, and
merged the second felonious-assault count with the first
felonious-assault count. The trial court imposed an aggregate
term of 38 years to life. McCray now appeals.
Assignment of Error: McCray's Prior Juvenile
In his first assignment of error, McCray argues that the use
of a prior juvenile adjudication to establish the disability
element of his weapon-under-disability convictions under R.C.
2923.13(A)(2) violated his right to due process. He contends
that, pursuant to State v. Hand, __Ohio St.3d__,
2016-Ohio-5504, __N.E.3d__, "it was unconstitutional to
use his juvenile adjudication as the basis" for his
weapon-under-disability convictions. He argues that this
due-process violation was further compounded because evidence
of his prior juvenile adjudication would not otherwise have
been admissible at trial.
In State v. Carnes, 1st Dist. Hamilton No. C-150752,
2016-Ohio-8019, we recently declined to extend the
application of Hand to bar the use of a juvenile
adjudication to prove the disability element of a
weapon-under-disability charge under R.C. 2923.13(A)(2).
Therefore, we hold that McCray's right to due process was
not violated by the use of his prior juvenile adjudication to
prove the disability element of his weapon-under-disability
convictions. See Carnes; see also State v. Hudson,
7th Dist. Mahoning No. 15 MA 0134, 2017-Ohio-645. And, as
McCray implicitly concedes, the disposition of the
due-process issue renders moot his argument that without the
weapon-under-disability offenses, evidence relating to his
adjudication would be inadmissible other-acts evidence under
Evid.R. 404(B). We overrule the first assignment of error.
Assignment of Error: Voir Dire
In his second assignment of error, McCray argues that he was
denied his constitutional right to an impartial jury because,
during voir dire, "the state excessively detailed the
facts and evidence, and asked prospective jurors if they
could agree with the theory of prosecution." During voir
dire, McCray objected only one time, to the prosecutor's
phrasing of a question, and he did not renew his objection
upon the prosecutor's restatement of the question.
The scope of voir dire lies within the sound discretion of
the trial court. State v. Jackson, 107 Ohio St.3d
53, 2005-Ohio-5981, 836 N.E.2d 1173, ¶ 28. Voir dire may
constitute reversible error only upon a showing that the
trial court abused its discretion. State v.
Williams, 79 Ohio St.3d 1, 6, 679 N.E.2d 646 (1997). In
this case, we apply the even more deferential plain-error
standard because McCray did not object to the questioning by
the state. See State v. Thompson, 141 Ohio St.3d
254, 2014-Ohio-4751, 23 N.E.3d 1096, ¶ 73.
The appellant bears the burden of demonstrating that a plain
error affected his substantial rights. State v.
Perry, 101 Ohio St.3d 118, 2004-Ohio-297, 802 N.E.2d
643, ¶ 14. The appellant must show that an error
occurred, that the error was an obvious defect in the trial
proceedings, and that the error affected the outcome of the
trial. State v. Payne, 114 Ohio St.3d 502,
2007-Ohio-4642, 873 N.E.2d 306, ¶ 16. "Notice of
plain error under Crim.R. 52(B) is to be taken with the
utmost caution, under exceptional circumstances and only to
prevent a manifest miscarriage of justice." State v.
Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978), paragraph
three of the syllabus.
A. Outline of the facts. First, McCray claims that,
during voir dire, the prosecutor excessively described the
facts and evidence of the case. He points to the following
remarks by the prosecutor:
The school had let out a short time before. There was a large
number of people around. It developed into a fistfight, with
some of the people, and the allegation is that the defendant,
this man right here, Trashon McCray, shot and killed a
14-year-old person and shot and injured another teenager at
He then left the scene, and he wasn't arrested until
January of 2015, around nine, ten months after the incident.
Have any of you heard of the incident other than what I just
told you? I think it got some attention just because it was a
14-year-old that was shot and killed, basically, at or near a
A prosecutor has a right to give an overview of the facts of
the case and of those involved in order to ascertain whether
prospective jurors know anything about the offense. State
v. Tyler, 50 Ohio St.3d 24, 32, 553 N.E.2d 576 (1990).
While jurors must be impartial, they need not be completely
ignorant of the facts and issues involved in a case to be
qualified as jurors. State v. Gross, 97 Ohio St.3d
121, 2002-Ohio-5524, 776 N.E.2d 1061, ¶ 38. In this
case, the prosecutor explained that the case had gotten media
attention, so he reasonably attempted to learn what, if
anything, prospective jurors knew about the case. His
statements and questions were designed to do so. The trial
court did not err by allowing the prosecutor to outline the
case's facts and evidence.
B. Plea bargains with state witnesses. McCray also
asserts that the trial court erred by allowing the prosecutor
to explain the state's reasons for giving plea deals to
some witnesses. The prosecutor told prospective jurors that
Miniko shot two people with the same gun that McCray had
used, and that Miniko's brother, Donyell Walker, had
assisted in Miniko's getaway. The prosecutor said that
the state had offered plea deals to Miniko and Walker in
exchange for their "truthful testimony" so the
state could make its case against McCray, "who we feel
is the most serious offender" and the "hands-on
A prosecutor may not express his or her personal belief or
opinion as to the defendant's guilt. State v.
Lott, 51 Ohio St.3d 160, 166, 555 N.E.2d 293 (1990). So
it was improper for the prosecutor to refer to the
prosecution team's belief that McCray was guilty and that
he was the worst offender. Even though the prosecutor's
remarks were improper, McCray has failed to demonstrate plain
error because the evidence of his guilt was overwhelming.
See Payne, 114 Ohio St.3d 502, 2007-Ohio-4642, 873
N.E.2d 306, at ¶ 16.
A prosecutor may validly explore the possibility that
prospective jurors might be predisposed to discount the
testimony of inmate witnesses. State v. LaMar, 95
Ohio St.3d 181, 2002-Ohio-2128, 767 N.E.2d 166, ¶ 124.
In other words, a prosecutor may try to " 'draw the
sting' from the unfavorable fact that [some of] the state
witnesses were accomplices and had plea-bargained to minimize
their criminal exposure." State v. Lundgren, 73
Ohio St.3d 474, 484, 653 N.E.2d 304 (1995), quoting
Tyler, 50 Ohio St.3d at 34, 553 N.E.2d 576. In this
case, the prosecutor ...