Court of Appeals of Ohio, Second District, Montgomery
Criminal Appeal from Common Pleas Court Trial Court Case No.
MATHIAS H. HECK, JR., by MICHAEL J. SCARPELLI, Atty. Reg. No.
0093662, Attorney for Plaintiff-Appellee
KANE, Atty. Reg. No. 0088191, Attorney for
1} Bryson Williams appeals from his conviction and
sentence on one count of murder (proximate result of
felonious assault) with a firearm specification and one count
of discharging a firearm on or near prohibited
2} Williams advances three assignments of error.
First, he challenges the weight of the evidence to sustain
his convictions. Second, he alleges ineffective assistance of
trial counsel. Third, he claims the trial court erred in
failing to merge the murder and discharging-a-firearm
offenses as allied offenses of similar import.
3} The charges against Williams stemmed from the
shooting death Terion Dixon on the afternoon of November 11,
2016. At trial, the State presented evidence that Williams
had fired shots across a road toward a store where numerous
people were standing outside. One of the shots struck and
killed Dixon. The State's evidence included eyewitness
testimony, statements Williams made in telephone calls after
the shooting, and other corroborating information obtained
during a police investigation. In his defense, Williams
called a witness who had been outside the store during the
shooting and who had identified someone else as the shooter
when reviewing a photospread. Williams also called a witness
who had been in the vicinity of the shooting but had not seen
who fired the shots. Based on the evidence presented, a jury
found Williams guilty of the charges against him. After
merging several counts as allied offenses, the trial court
imposed prison terms of fifteen years to life for murder,
three years for the firearm specification, and eight years
for discharging a firearm on or near prohibited premises. The
trial court ordered these sentences to be served
consecutively, resulting in an aggregate prison sentence of
twenty-six years to life.
4} In his first assignment of error, Williams
contends his convictions are against the manifest weight of
the evidence. In support, he challenges eyewitness Samuel
Barker's identification of him as the shooter. He notes
Barker's admission to drinking alcohol, smoking
marijuana, and not eating prior to the incident. Under these
circumstances, Williams claims Barker's identification
was not reliable. He also notes that eyewitness Colleen
Fallas identified someone other than him as the shooter when
viewing a photospread. Given that Barker was under the
influence and that Fallas picked someone else out of a
photospread, Williams asserts that the evidence does not
support his convictions.
5} When a conviction is challenged on appeal as
being against the weight of the evidence, an appellate court
must review the entire record, weigh the evidence and all
reasonable inferences, consider witness credibility, and
determine whether, in resolving conflicts in the evidence,
the trier of fact "clearly lost its way and created such
a manifest miscarriage of justice that the conviction must be
reversed and a new trial ordered." State v.
Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541
(1997). A judgment should be reversed as being against the
manifest weight of the evidence "only in the exceptional
case in which the evidence weighs heavily against the
conviction." State v. Martin, 20 Ohio App.3d
172, 175, 485 N.E.2d 717 (1st Dist.1983).
6} With the foregoing standards in mind, we conclude
that Williams' convictions are not against the weight of
the evidence. Although Barker had consumed alcohol, smoked
marijuana, and not eaten in the hours before the shooting,
the jury reasonably could have found his eyewitness
identification of Williams to be reliable. Barker testified
that Williams was a friend of his whom he had known for about
ten years. (Tr. at 146-147). On the day in question, Barker
was walking to meet his girlfriend when he encountered
Williams. (Id. at 152-155). Barker approached
Williams, and the two men engaged in face-to-face
conversation. (Id. at 156-158). Barker and Williams
shook hands as the conversation ended. Barker turned to
leave, took two or three steps away, and heard gunshots.
(Id. at 158-160). He then saw Williams firing a
black-handled handgun toward a store across the street.
(Id. at 161-162). There were "a lot of
people" outside the store, and Williams was the only
person firing a gun. (Id. at 162-163). Barker had
"[n]o doubt" that Williams was the shooter.
(Id. at 166, 202).
7} For her part, Fallas testified that she was
outside the store when the shooting occurred. (Tr. at 402).
She "hit the ground" and saw two people across the
street, one of whom was doing the shooting. (Id. at
402-405, 408). Fallas described the shooter as being
"slender" whereas the person with him was
"heavyset." (Id. at 403-404, 408). The
record reflects that Williams weighed about 150 pounds,
whereas Barker weighed around 315 pounds. (Id. at
163, 372). Approximately one month after the shooting, Fallas
reviewed a photospread and identified someone other than
Williams as the person she had seen shooting. (Id.
at 414-415). The record reflects, however, that Williams and
the person Fallas identified in the photospread were nearly
the same weight and height. (Id. at 416-417). Fallas
acknowledged that the two men looked so much alike that they
could be brothers. (Id. at 416). Even when seeing
Williams in person at trial, she had trouble determining
which picture in the photospread was his. (Id. at
415-416). In addition, Fallas was approximately eighty-eight
feet away from the shooter, and she was wearing her reading
glasses at the time of the incident, not her "regular
glasses." (Id. at 375, 417). Fallas conceded at
trial that she may have been mistaken in her photo
identification. (Id. at 417). A police investigation
found no evidence that the person Fallas identified in the
photospread had been involved in the shooting. (Id.
8} The record also contains evidence that Williams
made telephone calls after the shooting in which he
essentially admitted his guilt. Marcquietta Hunter testified
that she was the girlfriend of Terion Dixon, the victim.
(Id. at 204). Hunter knew Williams, had gone to
school with him, and was able to recognize his voice.
(Id. at 207-208). The day after the shooting, she
was with a friend of hers, Isaiah Tucker, when Tucker
received a telephone call from Williams. Tucker put the call
on speakerphone, and Hunter overheard the conversation.
Specifically, she heard Williams apologize and say that
"[i]t wasn't meant for Terion, " but was
"meant for Dae-Dae." (Id. at 208). The
next day, Williams called Hunter's phone. After
identifying himself, he again apologized and said
"[t]hat it wasn't meant for Terion, " but was
"meant for Dae-Dae." (Id.). Tucker also
testified about the telephone call he received from Williams.
According to Tucker, Williams said that he was sorry, that he
had hesitated "to squeeze, " and that he had seen
Terion Dixon but that did not stop him from "shooting at
Dae-Dae." (Id. at 248, 253). During their
investigation, police obtained Williams' cell phone and
confirmed the existence of outgoing calls from his phone to
Tucker's phone at the time claimed. (Id. at
338-344). Police also investigated Williams' claim that
he was out of the area at a particular residence in Trotwood
at the time of the shooting. (Id. at 357-358). A
detective spoke with the individuals Williams claimed to have
been with and refuted his claim. (Id. at 360).
Finally, police discovered during a post-arrest interview of
Williams that Davion Clark, who went by the nickname
"Dae-Dae, " had beaten and robbed Williams several
weeks before the shooting. (Id. at 360-363).
9} Having reviewed the record, we do not find that
the jury clearly lost its way and created a manifest
miscarriage of justice when it convicted Williams of murder
and discharging a firearm on or near prohibited premises.
This is not an exceptional case in which the evidence weighs
heavily against his convictions. To the contrary, the
evidence strongly points to his guilt. Accordingly, the first
assignment of error is overruled.
10} In his second assignment of error, Williams
asserts that he received ineffective assistance of counsel at
trial. Specifically, he contends his attorney provided
ineffective assistance by failing to object when the State
asked the trial court to certify two witnesses as experts in
the presence of the jury. Williams does not suggest the
witnesses-forensic pathologist Susan Allen and forensic
firearm examiner Christopher Monturo-are not experts. We note
that the record unquestionably supports that they are both
eminently qualified in their respective fields. Rather, he
contends they should not have been certified as experts in
front of the jury because doing so enhanced their stature and
gave the appearance of judicial approval of their testimony.
11} Upon review, we find Williams' argument to
be unpersuasive. A defendant is deprived of effective
assistance of counsel when counsel's performance is
deficient and the deficiency prejudices the defendant.
Strickland v. Washington, 466 U.S. 668, 104 S.Ct.
2052, 80 L.Ed.2d 674 (1984). The prejudice prong of
ineffective assistance of counsel has been equated by the
Ohio Supreme Court to the same deferential standard that is
required for finding plain error wherein the proponent must
demonstrate "that the trial court's error must have
affected the outcome of the trial." State v.
Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d
860, ¶ 22, quoting State v. Barnes, 94 Ohio
St.3d 21, 27, 759 N.E.2d 1240 (2002).
12} Williams primarily relies on United States
v. Johnson,488 F.3d 690 (6th Cir.2007) and cases cited
therein for the argument that it was error for the trial
court to recognize Dr. Allen and Chris Montouro to be experts
in front of the jury. Therefore, he contends, the failure to
object constitutes ineffective assistance of counsel. In
Johnson, based on his training and experience
Cincinnati police officer Richard Dews was ...