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State v. Teets

Court of Appeals of Ohio, Fourth District, Pickaway

August 8, 2017

State of Ohio, Plaintiff-Appellee,
v.
Trevor A. Teets, Defendant-Appellant.

          Kort Gatterdam and Erik P. Henry, Carpenter Lipps & Leland LLP, Columbus, Ohio, for appellant.

          Judy C. Wolford, Pickaway County Prosecuting Attorney, Circleville, Ohio, for appellee.

          DECISION AND JUDGMENT ENTRY

          LISA L. SADLER, JUDGE [*]

         {¶1} Defendant-appellant, Trevor A. Teets, appeals from the judgment entry of the Pickaway County Court of Common Pleas finding appellant guilty of murder with specification, involuntary manslaughter with specification, and domestic violence arising from the death of his ex-girlfriend. For the following reasons, we affirm the decision of the trial court.

         I. FACTS AND PROCEDURAL HISTORY

         {¶2} On February 6, 2015, a Pickaway County Grand Jury indicted appellant on one count of murder, in violation of R.C. 2903.02(A), with a firearm specification, one count of voluntary manslaughter, in violation of R.C. 2903.03(A), with a firearm specification, one count of involuntary manslaughter, in violation of R.C. 2903.04(B), with a firearm specification, and one count of domestic violence, in violation of R.C. 2919.25(A). Appellant entered pleas of not guilty.

         {¶3} Prior to trial, appellant filed a motion to determine whether he was competent to stand trial and a motion for leave to plead not guilty by way of insanity. The trial court ordered an evaluation of competency and sanity through Netcare Forensic Center ("Netcare"), and a hearing was held on the matter. At the hearing, defense counsel indicated that appellant did not agree with the results of the Netcare evaluation and would not stipulate to the report, and requested another opinion. The trial court asked defense counsel to "specifically, in writing, indicate to [the court] what it is that you have issues with with respect to the [Netcare] report" and stated that the trial court would take it under advisement. (Tr. at 13.) Appellant filed a motion for a second examination, asserting that appellant is entitled to a hearing, pursuant to R.C. 2925.371, and that an examination and testimony by an "independent expert" is necessary for that hearing. (Mot. for Examination by Independent Expert at 1.) The trial court held a second hearing on competency during which the Netcare expert testified regarding his report. By decision and entry dated August 28, 2015, the trial court found appellant competent to stand trial and denied appellant's request for a second evaluation of competency. In doing so, the trial court noted that, under Ohio case law, a defendant's dissatisfaction with the result of an examination of competency does not automatically give him the right to an independent evaluation by the examiner of his choice and that appellant is not indigent and could have presented testimony from another examiner but elected not to do so.

         {¶4} On November 16, 2015, plaintiff-appellee, State of Ohio, believing the evidence did not support a sufficient reason to instruct the jury on voluntary manslaughter, moved to dismiss that count of the indictment. The trial court granted the motion, and the remainder of the case proceeded to a jury trial that same day.

         {¶5} Appellee commenced its case-in-chief by calling Ariana Smith as an eyewitness. Smith testified that she knew appellant through work and that appellant had indicated in some text messages to her that he had issues with his ex-girlfriend, Alicia Salyers, who had moved out of their apartment but remained on the lease. Smith had met Salyers once while at work. Smith was in the apartment with appellant at about 1:45 p.m. on Sunday, February 1, 2015, when Salyers arrived to drop off some rent money and give a key back to appellant. Salyers and appellant had a conversation about rent, in which Smith heard appellant say he wanted money and Salyers reply she did not have all of it, and appellant ask for the key. After about two to three minutes, Smith exited the apartment to address problems with her car, which was about four or five vehicles away from the entrance to the apartment. Smith opened her hood to check her car's oil and otherwise tended to her car for approximately ten minutes. At that point, according to Smith, she saw appellant walk out of the apartment, head to Salyers' car, and proceed to hit the driver's side window of Salyers' car with a shotgun. Salyers came out of the apartment and walked around appellant. Within a few seconds of appellant banging the shotgun against Salyers' car window, Smith walked toward appellant but did not make it past her own driver's side door before she heard the shotgun go off and saw Salyers fall to the ground. Smith testified that from where she was standing she saw more of Salyers, who was taller than appellant, and she did not see appellant lift the shotgun to shoot. After the shot, appellant backed up a little bit, dropped the gun, and went into the apartment. Smith walked over to Salyers and called 911. The 911 call recording was played for the jury. In the call, Smith states that a girl has just been shot, and, in response to the question "[w]ho shot who, " Smith names appellant as the shooter and states "[t]hey were fighting and he shot her." (Tr. at 122.)

         {¶6} On cross-examination, Smith testified that she was aware appellant had guns in the apartment upstairs, and to the best of her knowledge, he had not moved the guns downstairs prior to Salyers coming over. Smith added that appellant's brother was also in the living room when Salyers arrived at the apartment. She described the conversation between Salyers and appellant as starting out calmly but that Salyers indicated she was not going to give the key to the apartment back to appellant, and, at some point, Smith felt uncomfortable enough with the conversation to leave the apartment. Smith said she was checking her car and text messaging when she saw appellant come out of the apartment with the shotgun in his hands and Salyers follow "[r]ight after" him. (Tr. at 135.) Smith testified that she did not hear any yelling or fighting at that point in time but agreed with the defense attorney's characterization that "they were pretty damn mad at each other" when appellant was hitting Salyers' car window with the butt of the shotgun. (Tr. at 136.) Smith clarified that Salyers walked past appellant between the two cars and turned back toward appellant, facing the apartment. Smith believed Salyers was approximately a couple feet away from appellant when they were standing between the two cars. Smith confirmed that appellant had the shotgun but that she did not see his hands, did not see him transfer the weapon's position, and did not see Salyers reach for the gun.

         {¶7} On redirect, when asked whether she tried to walk over and stop appellant, Smith testified that she did not get very far and instead only took a few steps toward appellant. Smith testified that on the same day as the shooting, she provided a written statement to police about what had happened, and she did recall that in the written statement she said she walked over to try to stop appellant. Smith read the written statement to police out loud in front of the jury.

         {¶8} Appellee then called Sara Hempstead, a police officer for the Village of Ashville Police Department. Hempstead testified that she was dispatched to appellant's apartment at approximately 2:00 p.m. on February 1, 2015, on a report of shots fired and was the first officer to arrive at the scene. When she got out of her cruiser, appellant was standing at the front door of the apartment. According to Hempstead, appellant walked directly and calmly toward Hempstead and "[b]efore [she] could say anything to him he held his hands straight out in front of him, put his wrists together and stated, 'take me to prison, I killed her.' " (Tr. at 151-52.) Hempstead put appellant in handcuffs, passed him to another officer who had arrived at the scene, and proceeded to where Salyers' body was located between the cars. She observed a shotgun lying on the ground a couple feet from Salyers. Hempstead checked Salyers for signs of life and then secured the crime scene. About 20 minutes after her arrival, it started to drizzle rain, which turned to steady rain throughout the remainder of her time there. On cross-examination, Hempstead testified that about 3:30 p.m., Detective Phil Roar, an investigator for the city of Circleville Police Department, arrived at the scene and stated that he was instructed to place tarps over the firearm and the body.

         {¶9} Dr. John Ellis, Pickaway County Coroner, testified to being called to the scene and finding a deceased female, Salyers, lying in the parking lot with what appeared to be a gunshot wound to her head. At some point, Dr. Ellis rolled Salyers to get a better look at her injuries. Dr. Ellis was concerned about the weather but testified that he did not think evidence had been compromised. He requested an autopsy at a nearby county coroner's office with expertise to conduct a complete autopsy and received a copy of that report. Based on his observations at the scene and the autopsy report, Dr. Ellis completed a coroner's report, which determined, based on a reasonable degree of certainty, the cause of death in Salyers' case was a gunshot wound to the head.

         {¶10} Todd Fortner, a special agent with the Ohio Attorney General's Office, Bureau of Investigation ("BCI"), testified to assisting the city police department with investigating a suspected homicide. According to Fortner, he advised Roar on the phone that it was best to cover some of the evidence to protect them from the elements. Fortner arrived at the scene around 4:15 p.m. Once there, he conducted an initial assessment, including completing a schematic of the area, and began processing and photographing the scene. Fortner identified the weapon involved as a Mossberg, Model 935 semiautomatic 12-gauge shotgun, which holds three shells. Fortner collected two shells from the shotgun and located one fired-shot shell casing on the ground in the parking lot to the right of the shotgun. Fortner observed a key fob and keys lying next to Salyers and testified that detectives were able to ascertain the keys belonged to Salyers. Fortner additionally executed a search warrant for appellant's apartment.

         {¶11} On cross-examination, Fortner testified that he could not tell the direction of blood splatter from the shotgun wound impact and did not observe any obvious defensive injuries such as wounds to the hands or arms. Fortner agreed that the shotgun was wet, which possibly could wash away any fingerprints or DNA evidence that might be on the weapon and preclude testing. Defense counsel asked what testing was done as a part of the investigation, focusing in particular on gunshot residue and blood splatter, including whether blood tests were conducted on appellant's clothing. Fortner testified that tests were done on the weapon but was not sure whether he swabbed the weapon for potential touch DNA and testified that appellant's clothing tested positive for Salyers' blood.

         {¶12} On redirect, Fortner testified that although he was not able to determine directionality based on blood splatter, he formed an opinion of the direction of the shot based on the location of Salyers, the gun, the fired-shot shell casing, and pellets. Appellee then asked Fortner to identify for the record a report from the DNA section of the BCI laboratory ("BCI report") regarding several items of appellant's clothing and the shotgun. Fortner read the conclusion of the BCI report and noted that Salyers' blood was present on appellant's shirt and that no DNA profile was found on the trigger or inside the barrel of the shotgun, which he stated is not unusual. On cross-examination, defense counsel asked Fortner more about the BCI report. Fortner testified that he is not a forensic scientist and did not do any of the testing but stated, based on the report, he could say with certainty that presumption, as well as conclusionary, testing was conducted.

         {¶13} Detective Phil Roar of the Circleville Police Department testified to receiving a call that a shooting occurred and responding to the scene. Roar called in BCI and the coroner, spoke to Hempstead, and helped to further secure the area. When asked whether he had ever made any contact with appellant, Roar responded that in the Pickaway County Sheriff's Office he sat down with appellant and read him his rights. Appellant indicated that he wanted an attorney, and, therefore, the interview stopped. Roar confirmed that no statement was gained from appellant. On cross-examination, Roar testified that he did not believe they ever covered the gun. Roar noted that Salyers had some black powder marks and possible bruising in the neck and on her fingers on her left hand.

         {¶14} Dispatcher Travis Adkins, a corporal with the Pickaway County Communications Center, testified that on February 1, 2015 at about 2:00 p.m., he answered a phone call from appellant on the regular, non-emergency line. A recording of that call was played for the jury. In it, appellant states: "Hi! I live at * * * and I just killed somebody." (Tr. at 212.) When asked what he meant by that statement, appellant responded, "I shot 'em, " then identifies the victim as Salyers and states "she's my ex-girlfriend and we got in a fight, you know. So I have mental issues and she pushed me to the edge and I snapped. * * * There's a lot of people here. I'm going crazy. I killed her. I'm getting close to my breaking point, nobody would help me." (Tr. at 213-14.) Appellant explains on the call that Salyers lived with him until they got in a fight and she moved out, and again repeats "[s]he's dead. I shot her in the head." (Tr. at 215.)

         {¶15} Thereafter, appellee introduced exhibits, including the recording of Smith's 911 call, the recording of appellant's call to police, the coroner's report, the lab report from BCI, a photograph of the shotgun with Salyers' covered body visible between the cars, a photograph of Salyers' entire body between the cars, a close up of Salyers between the cars, a front view of Salyers, and several photographs of the shotgun and shells. Appellee agreed that it would not seek to admit Smith's written statement to police. Appellee then rested its case. Appellant moved for a Crim.R. 29 judgment of acquittal, which the trial court denied. Appellant then called Dr. Ellis back to the stand.

         {¶16} Dr. Ellis confirmed that Salyers was 57" and 220 pounds. Dr. Ellis testified that the stippling on Salyers' face was consistent with a gunshot from a very close proximity but not touching the skin. He explained that the shot entrance was located on the right side of Salyers' face. Specifically, "the shotgun charge pellets went from the front of her face out the back, and then [from her] left to right" in an upward, instead of straight, direction. (Tr. at 230.) Dr. Ellis agreed that his findings would be consistent with a shot from "somewhere below." (Tr. at 230.) Dr. Ellis further confirmed that Salyers had an injury to her left hand consistent with shotgun pellet damage. She also had suet on her hand.

         {¶17} Thereafter, the defense rested. Appellant requested a voluntary manslaughter instruction. The trial court denied appellant's request, finding that no evidence showed Salyers did anything to cause sufficient serious provocation to justify the use of deadly force. Neither party lodged objections to the jury instructions.

         {¶18} The jury found appellant guilty of all charges. The trial court merged the involuntary manslaughter and domestic violence counts with the murder count and sentenced appellant to prison for 15 years to life on the murder count with a mandatory 3 additional consecutive years on the gun specification, for a total of 18 years to life. Appellant filed a timely appeal to this court.

         II. ASSIGNMENTS OF ERROR

         {¶19} Appellant presents five assignments of error:

[1] APPELLANT'S RIGHTS GUARANTEED BY THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND MIRANDA V. ARIZONA, 384 U.S. 436 (1966) WERE VIOLATED WHEN EVIDENCE OF APPELLANT'S POST-MIRANDA SILENCE WAS ADMITTED INTO EVIDENCE DURING THE STATE'S CASE-IN-CHIEF.
[2] THE ERRONEOUS ADMISSION OF EVIDENCE DEPRIVED APPELLANT OF DUE PROCESS AND OF A FAIR TRIAL CONTRARY TO THE UNITED STATES AND OHIO CONSTITUTIONS.
[3] THE TRIAL COURT ERRED AND DEPRIVED APPELLANT OF DUE PROCESS AND OF A FAIR TRIAL CONTRARY TO THE U.S. AND OHIO CONSTITUTIONS BY FAILING TO CHARGE THE JURY ON VOLUNTARY MANSLAUGHTER.
[4] TRIAL COUNSEL RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION OF APPELLANT'S RIGHTS UNDER THE FIFTH, SIXTH, AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION, AND SECTION 10 AND 16, ARTICLE I OF THE OHIO CONSTITUTION.
[5] THE TRIAL COURT VIOLATED APPELLANT'S RIGHTS TO DUE PROCESS AND A FAIR TRIAL WHEN IT ENTERED A JUDGMENT OF CONVICTION BASED ON INSUFFICIENT EVIDENCE AND AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE IN VIOLATION OF APPELLANT'S RIGHTS UNDER THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND SECTION 16, ARTICLE I OF THE OHIO CONSTITUTION.

         III. DISCUSSION

         {¶20} For clarity of discussion, we will consider appellant's assignments of error out of order. We begin by reviewing appellant's second assignment of error.

         A. Admission of Evidence and Confrontation Clause Issue (Second Assignment of Error)

         {¶21} Under the second assignment of error, appellant contends the trial court erred in admitting: (1) cumulative, repetitious, and prejudicial photographs of the deceased; (2) permitting Smith to read her written statement without any proper foundation; and (3) in admitting and permitting testimony regarding a DNA lab report offered through a non-expert witness who did not conduct the testing and did not author the report.

         {¶22} Generally, an appellate court reviews a trial court's admission or exclusion of evidence for an abuse of discretion. State v. Boyd, 4th Dist. No. 09CA14, 2010-Ohio-1605, ¶ 27. However, because at trial appellant did not object to the admission of evidence challenged here, he has waived all but plain error review on appeal. State v. Hall, 4th Dist. No. 13CA3391, 2014-Ohio-2959, ¶ 32. See also State v. Smith, 4th Dist. No. 15CA3686, 2016-Ohio-5062, ¶ 74 (applying plain error analysis to confrontation clause issue that defendant did not object to at trial). "An alleged error is plain error only if the error is 'obvious, ' and 'but for the error, the outcome of the trial clearly would have been otherwise.' " State v. Lang, 129 Ohio St.3d 512, 2011-Ohio-4215, ¶ 108, quoting State v. Barnes, 94 Ohio St.3d 21, 27 (2002), and State v. Long, 53 Ohio St.2d 91 (1978), paragraph two of the syllabus. Notice of plain error "is to be taken with the utmost caution, under exceptional circumstances and only to prevent a manifest miscarriage of justice." Id. at paragraph three of the syllabus.

         1. Admitting Photographs of the Deceased

         {¶23} "When considering the admissibility of photographic evidence under Evid.R. 403, the question is whether the probative value of the photographic evidence is substantially outweighed by the danger of unfair prejudice to the defendant." State v. Morales, 32 Ohio St.3d 252, 257 (1987); State v. White, 4th Dist. No. 03CA2926, 2004-Ohio-6005, ¶ 51. Thus, "a trial court may reject an otherwise admissible photograph which, because of its inflammatory nature, creates a danger of prejudicial impact that substantially outweighs the probative value of the photograph as evidence. Absent such danger, the photograph is admissible." Morales at 257.

         {¶24} A trial court does not commit plain error in admitting a gruesome crime scene photograph if, for example, the photograph is probative of intent or helps to illustrate the manner and circumstances of the victim's death, including providing a perspective of the victim's wounds. Lang at ¶ 140, 142. See, e.g., State v. Gross, 97 Ohio St.3d 121');">97 Ohio St.3d 121, 2002-Ohio-5524, ¶ 52 (finding trial court did not commit plain error in admitting nine photographs depicting a deceased victim, including showing the same wounds from different angles or distances, because the photographs helped the jury appreciate the nature of the crimes, illustrated testimony, and by portraying the wounds helped to prove the defendant's intent and the lack of accident or mistake); White at ¶ 52 (finding trial court did not err in admitting photographs of the victim at the crime scene that showed pieces of human tissue and other matter where the photographs displayed how her body was positioned and helped the jury to understand how the victim's head must have been oriented at the time the gun fired). Furthermore, a trial court does not err by allowing the prosecutor to publish certain images multiple times, where the prosecution is "reasonably employing the images to illustrate its argument and facilitate witness testimony." State v. Johnson, 144 Ohio St.3d 518, 2015-Ohio-4903, ¶ 60.

         {¶25} Here, during its case-in-chief, appellee presented a total of ten photographs from the scene of the crime. Appellant takes issues with four of those photographs: Exhibits 1, 2, 5, and 6. Exhibit 1 is a photograph depicting a shotgun lying partially on a sidewalk in front of two parked cars and a white sheet presumably covering a body located between the cars. Aside from a corner of what appears to be jeans, a body is not discernable underneath the sheet. The ground and cars appear wet. Appellee presented Exhibit 1 to Smith, Hempstead, Fortner, and Roar. Exhibit 2 is a photograph depicting the top half of Salyers' body without a sheet, lying on her right side in a pool of blood next to a dark car with keys on the ground next to her hands. Her left arm is wrapped across her body toward the ground, and her ring finger on her left hand appears partially grey. Appellee presented Exhibit 2 to Smith. Exhibit 5 is a photograph depicting the full view of Salyers' body without a sheet lying in a pool of blood between the two cars. The grey marking on her hand is visible in the photograph, as well as a police evidence marker located beyond her legs at what appears to be the base of the curb. Appellee presented Exhibit 5 to Hempstead, Dr. Ellis, and Fortner. Exhibit 6 is a photograph depicting a view of the top half of Salyers' body, apparently still at ...


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