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State v. Weaver

Court of Appeals of Ohio, Second District, Montgomery

June 15, 2018

STATE OF OHIO Plaintiff-Appellee
v.
TORACE D. WEAVER Defendant-Appellant

          Trial Court Case No. 2016-CR-2127/1 (Criminal Appeal from Common Pleas Court)

          MATHIAS H. HECK, JR., BY MICHAEL J. SCARPELLI, ATTY. REG. NO. 0093662, ASSISTANT PROSECUTING ATTORNEY, MONTGOMERY COUNTY PROSECUTOR'S OFFICE, APPELLATE DIVISION, MONTGOMERY COUNTY COURTS BUILDING, 301 WEST THIRD STREET, DAYTON, OHIO 45422 ATTORNEY FOR PLAINTIFF-APPELLEE

          GLENDA A. SMITH, ATTY. REG. NO. 0070738, P.O. BOX 15353, WYOMING, OHIO 45215 ATTORNEY FOR DEFENDANT-APPELLANT

          OPINION

          TUCKER, J.

         {¶ 1} Defendant-appellant, Torace D. Weaver, appeals from his convictions on one count of murder, one count of endangering children and one count of obstructing official business. Raising six assignments of error, Weaver argues that the trial court erred by admitting certain evidence over his objections; that the evidence was cumulatively insufficient to support his convictions; that the jury's verdicts were against the manifest weight of the evidence; that certain remarks made by the prosecutor during opening and closing statements constituted misconduct; that the trial court improperly restricted his own closing statement; that he and his co-defendant should have been tried separately; and that he received ineffective assistance of counsel. We find that the trial court did not err, whether by admitting the challenged evidence or by trying Weaver and his co-defendant jointly; that the jury did not clearly lose its way; that the prosecutor's remarks did not unfairly prejudice Weaver; that the trial court did not improperly restrict Weaver's closing statement; and that Weaver's counsel provided adequate representation. Therefore, we affirm the judgment of the trial court.

         I. Facts and Procedural History

         {¶ 2} The Children Services Division of the Montgomery County Department of Job and Family Services placed ST. and his brother T.W. with Weaver and his wife for foster care on September 24, 2015. [1] Tr. of Proceedings 404:21-406:13. ST. was approximately two years old at the time, and his brother was approximately three. Id. at 395:21-396:8.

          {¶ 3} At or around 6:48 p.m. on November 18, 2015, personnel with the Dayton Fire Department and the Dayton Police Department were dispatched to the King of Glory Church at 5001 Genesee Avenue in response to a 911 call. Id. at 340:11-341:24, 343:10-344:14, 453:21-454:4, 484:1-485:13 and 506:11-507:13. The first emergency personnel to arrive found ST. lying on the floor of the chancel with Weaver administering cardiopulmonary resuscitation. Id. at 484:1-487:4.

         {¶ 4} While Weaver was being interviewed, paramedics and emergency medical technicians attempted to revive ST. Id. at 454:25-455:15, 457:4-459:16, 487:5-489:24. Their efforts, however, proved unsuccessful, so they transported ST. by ambulance to Good Samaritan Hospital. Id. at 463:20-465:25. Less than an hour afterward, ST. was pronounced dead. See id. at 454:16-454:18, 464:23-464:25, 467:9-467:13, 468:1-468:9, 484:19-484:24 and 489:1-489:8.

         {¶ 5} On August 26, 2016, a Montgomery County grand jury indicted Weaver on the following charges: Count 1, murder pursuant to R.C. 2903.02(B) and 2903.11(A)(1); Count 2, murder pursuant to R.C. 2903.02(B) and 2919.22(B)(1); Count 3, involuntary manslaughter pursuant to R.C. 2903.04(A) and 2919.22(A); Count 4, felonious assault pursuant to R.C. 2903.11(A)(1); Count 5, endangering a child pursuant to R.C. 2919.22(B)(1); Count 6, endangering a child pursuant to R.C. 2919.22(A); Count 7, reckless homicide pursuant to R.C. 2903.041; and Count 8, obstructing official business pursuant to R.C. 2921.31(A). Weaver and his wife, Shureka, were tried jointly as co-defendants, and the jury found Weaver guilty as charged after a four-day trial.[2]

          {¶ 6} At Weaver's sentencing hearing on May 5, 2017, the court merged Count 1 with Counts 2, 3, 4, 5 and 7, and the State elected to proceed on Count 1. The court sentenced Weaver to prison for a term of 15 years to life on Count 1; to 36 months in prison on Count 6, consecutive to the sentence for Count 1; and to 90 days in jail on Count 8. On May 9, 2017, the court filed its termination entry, and Weaver timely filed his notice of appeal on May 10, 2017.

         II. Analysis

         {¶ 7} For his first assignment of error, Weaver contends that:

         THE TRIAL COURT COMMITTED ERROR BY ADMITTING EVIDENCE AT TRIAL.

         {¶ 8} Specifically, Weaver challenges the trial court's admission of certain parts of the testimony of one of the State's witnesses, Shaton Smith, along with the admission of a video recording, captured by an automatic camera in a police cruiser, that the State purportedly failed to authenticate.[3] Appellant's Br. 14 and 17. Weaver argues that Smith's testimony should have been excluded because its probative value was outweighed by the danger of unfair prejudice. Id. at 15-16. With respect to the authentication of the video, Weaver argues that the State relied on a witness who lacked knowledge sufficient to fulfill the requirements of Evid.R. 901. See id. at 17-18.

         {¶ 9} The "admission of evidence is generally within the sound discretion of the trial court, and a reviewing court may reverse only upon the showing of an abuse of that discretion." Peters v. Ohio State Lottery Comm., 63 Ohio St.3d 296, 299, 587 N.E.2d 290 (1992); State v. Williamson, 2d Dist. Montgomery No. 19832, 2003-Ohio-6541, ¶ 26. In this context, the term "abuse of discretion" refers to "an arbitrary, unreasonable, [or] unconscionable attitude on the part of the trial court." Williamson at ¶ 26; see also State v. Hancock, 108 Ohio St.3d 57, 2006-Ohio-160, 840 N.E.2d 1032, ¶ 130.

         {¶ 10} During Weaver's trial, Smith testified that S.T.'s previous foster parent, an acquaintance of hers, called her at work to inform her that ST. had died. Tr. of Proceedings 375:4-375:13, 386:20-387:3 and 394:1-394:6. According to Weaver, the jury would likely have felt an especially high degree of sympathy for ST. "[b]ecause [he] [was] a child victim, " and by implication, a high degree of antipathy for Weaver himself, meaning that the probative value of this testimony was outweighed by the danger of unfair prejudice. See Appellant's Br. 16. Weaver maintains that the trial court abused its discretion by overruling his objection to the testimony, describing the way in which Smith learned of S.T.'s death as irrelevant, and the mention of S.T.'s death as cumulative by that point in the trial.[4] See id. at 15-16. Weaver further criticizes the ruling because Smith's testimony included "hearsay and double hearsay." Id. at 16.

         {¶ 11} The trial court overruled an objection based on hearsay the moment Weaver's counsel asked for permission to approach the bench, finding that the statements attributed by Smith to S.T.'s previous foster parent were "not [offered] for the truth of the matter" asserted. Tr. of Proceedings at 387:4-387:7. After counsel clarified that Weaver objected to the testimony on the basis of relevance, rather than hearsay, the State explained that it merely wanted to establish, through Smith's testimony, that S.T.'s previous foster parent had suffered a stroke and was unable to testify as a result. Id. at 387:9-387:24. The court overruled Weaver's objection in reliance on the State's explanation. See id. at 387:13-388:18.

         {¶ 12} Relative to explaining the absence of S.T.'s previous foster parent at Weaver's trial, the bulk of Smith's testimony would seem to have been superfluous. Tr. of Proceedings 375:21-386:19. Even so, Smith knew ST. personally, and her testimony was relevant inasmuch as it provided the jury with insight into S.T.'s health before he was placed for foster care with Weaver. Id. at 377:3-378:18 and 384:3-386:12. As well, though the jury had already heard the parties make many references to S.T.'s death before Smith testified, the repetition was all but unavoidable-of the eight charges on which Weaver was being tried, four pertained exclusively to S.T.'s death.

         {¶ 13} The content of Smith's testimony, moreover, seems unlikely to have unfairly prejudiced Weaver's case. Smith did not testify regarding S.T.'s injuries or cause of death, Weaver's treatment of him, or Weaver himself. See id. at 374:8-386:7. Instead, Smith described how she came to know S.T.'s previous foster parent, her acquaintance with ST. and his brother, and aspects of S.T.'s health and personality. See id. Notwithstanding that Smith's description of ST. might have aroused sympathy for him in the minds of the jurors, Smith denied that she knew Weaver, or Weaver's wife, and indicated that she had had no contact with ST. after the Children Services Division placed him in the Weavers' care. Id. at 385:21-386:19. The jury, in other words, learned nothing about Weaver through Smith's testimony, which all but eliminates the possibility that her testimony unfairly prejudiced him. Additionally, we concur with the trial court's determination that the third-party statements incorporated into Smith's testimony did not satisfy the definition of hearsay set forth in Evid.R. 801(C). We find, therefore, that the trial court did not abuse its discretion by overruling Weaver's objection to Smith's testimony.

         {¶ 14} Weaver also challenges the trial court's decision to overrule his objection to the introduction of State's Exhibit 63, a compact disc containing the cruiser camera video recording. Appellant's Br. 17; Tr. of Proceedings 521:19-522:13. On the evening of November 18, 2015, an officer with the Dayton Police Department interviewed Weaver and obtained an initial statement from him regarding S.T.'s injuries. Tr. of Proceedings 505:5-505:9 and 512:11-513:10. Afterward, the officer asked Weaver to wait in the back of his police cruiser to speak to a detective. Id. at 513:24-514:11. Weaver complied, and having been permitted to keep his cellular telephone, he made several calls while seated in the cruiser. See id. at 522:3-523:10. The cruiser's automatic camera system recorded Weaver making the calls, including audio of his remarks. Id. at 515:6-516:9 and 522:3-523:10; see also Appellee's Br. 4.

         {¶ 15} At trial, the State questioned the officer about the cruiser camera, establishing that it was working properly at the relevant time; that it activated automatically when the officer opened his cruiser's rear door; and that the disc marked as State's Exhibit 63, which the officer had initialed, was the same disc that contained the recording of Weaver captured by the cruiser camera. Tr. of Proceedings 515:9-517:6 and 522:10-523:10. The officer, however, stated that he had not actually watched the recording itself. Id. at 516:10-516:13. Weaver objected to the admission of the exhibit on that basis. Id. at 519:10-519:18.

          {¶ 16} In response to Weaver's objection, counsel for the State represented to the court that the officer had seen the recording, adding "that's why we had him initial [the disc], " though counsel could not explain why the officer indicated otherwise on the stand. Id. The court accepted the State's explanation and overruled the objection. After ...


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