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State v. Ross

Court of Appeals of Ohio, Tenth District

July 31, 2018

State of Ohio, Plaintiff-Appellee,
Willie D. Ross, Defendant-Appellant.

          APPEAL from the Franklin County Court of Common Pleas No. 15CR-2957

          On brief: Ron O'Brien, Prosecuting Attorney, and Kimberly Bond, for appellee. Argued: Kimberly Bond.

          On brief: Kura, Wilford & Schregardus Co., L.PA., and Sarah M. Schregardus, for appellant. Argued: Sarah M. Schregardus.


          LUPER SCHUSTER, J.

         {¶ 1} Defendant-appellant, Willie D. Ross, appeals the January 25, 2017 judgment entry of the Franklin County Court of Common Pleas finding him guilty, pursuant to jury verdict, of one count of aggravated burglary and one count of felonious assault. For the following reasons, we affirm.

         I. Facts and Procedural History

         {¶ 2} This case arises out of an incident that occurred on June 8, 2015 in which Lamont Lake was stabbed while at home. On June 17, 2015, a Franklin County Grand Jury filed an indictment charging Ross with three criminal counts: aggravated burglary in violation of R.C. 2911.11, a felony of the first degree; felonious assault in violation of R.C. 2903.11, a felony of the second degree; and attempted murder in violation of R.C. 2903.02 and 2923.02, a felony of the first degree. All three charges also included repeat violent offender specifications pursuant to R.C. 2941.149(A). On July 16, 2015, plaintiff-appellee, State of Ohio, filed a document providing notice of its "intention to use a certified copy of the entry of judgment of conviction for one (1) count of Aggravated Robbery in The 264th District Court of Bell County, Texas on June 21, 2000 as proof of [appellant's] prior conviction for such offense." The same day, the state filed a document entitled "Identification of Discovery Provided," which stated that "[p]ursuant to Evidence Rule 609(B), the State hereby gives advance notice of its intent to seek admission under that rule of any conviction of a witness."

         {¶ 3} On December 13, 2016, the matter proceeded to trial. At trial, Lake testified that he operated several businesses from his home in Columbus including a tattoo business and music business. Before the incident in question, Lake arranged to give Ross a tattoo in exchange for a camera that Lake wanted for his music business. Lake completed half of Ross's tattoo on June 5, 2015, and planned to finish the tattoo on June 7. When Ross returned for the remaining work on his tattoo, Lake complained that the camera Ross traded for the tattoo was not worth as much as he claimed. Lake ultimately told Ross that he would need to find another artist to finish the tattoo because they were not getting along.

         {¶ 4} On June 8, 2015, Lake stated that he and Ross traded insults via text and Facebook after Ross posted a picture of the tattoo on Facebook and complained about the quality of Lake's work. According to Lake, Ross stated, "Don't go to this guy and get your tattoos done because this is what he'll do to you." (Tr. Vol. I at 196.) Lake stated in response he called Ross "the 'b' word and I called him a female because that's the type of stuff my babies' mother would do." (Tr. Vol. I at 196.)

         {¶ 5} Later that day, Lake was working with five other people in his recording studio in his upstairs bedroom. During the recording session, one of the men heard a knock on the door downstairs. Lake opened the door when he saw Ross standing outside. According to Lake, Ross walked up to the door and pulled out a knife. Lake attempted to shut the door, but Ross forced his way in and chased Lake upstairs. As Lake ran upstairs, he yelled and pleaded with Ross to not stab him. Ross kicked down Lake's bedroom door and the other men in the recording studio ran out of the house. Ross then stabbed Lake on the left side of his chest. Lake stated that he fell to the floor and was "kicking and trying to get him off me and trying to fight for my life." (Tr. Vol. I at 204.) According to Lake, Ross said, "I'm not a bitch now, am I? I'm not a bitch now, am I?" (Tr. Vol. I at 204.) In addition to the stab wound in his chest, Lake also had a cut on his right thigh and several other cuts and scrapes from trying to fight Ross. Ross then left the house and Lake called 911 to report he had been stabbed by Ross.

         {¶ 6} Ross testified at trial that he traded Lake a camera for a tattoo. Ross acknowledged that he was dissatisfied with the quality of the tattoo and posted a bad review on Facebook. According to Ross, Lake contacted him in response to his Facebook post and called him a bitch. Later, Lake texted Ross to say that he would fix the tattoo. Ross went over to Lake's house, knocked on the door, and followed Lake upstairs to a bedroom.

         {¶ 7} Lake told Ross to show his tattoo to the men who were upstairs. Ross complied. Lake told Ross that the tattoo looked fine and then punched him. Ross fell backward and Lake started stomping and kicking him. While he was on the ground, Ross noticed a knife lying on the floor, which he grabbed and used to stab Lake's leg. The other men in the bedroom surrounded Ross. Ross stood up and Lake continued trying to hit him. Ross put his head down and swung the knife one more time at Lake, who then fell backward. Ross swung the knife at the other men to make them move out of his way and then ran out of the house.

         {¶ 8} On cross-examination, the state asked Ross about his Facebook profile and pictures of comments allegedly made by him on Facebook. Ross confirmed that his name as it appeared on his Facebook profile was "Will Science Class Ross" from the time of the creation of his Facebook profile until the date of the incident. Ross agreed that the state's exhibit accurately reflected his profile on Facebook, including his name and photo. Ross agreed that his name and photo associated with his Facebook account would appear next to any post or comment he made on Facebook.

         {¶ 9} Ross testified that, at the time of the incident, he was friends on Facebook with a person whose name appeared as "Halley Jordan," but did not know her personally. When presented with a copy of an exchange on Facebook between "Halley Jordan" and another Facebook user with his same name and picture, Ross denied that he made the posts in question or spoke to "Halley Jordan" on the day of the incident. Ross, however, did admit that the "Halley Jordan" in the conversation did appear to be the same Facebook user with whom he was friends. When asked how the posts were made with his name and picture attached, Ross claimed that either someone else used his Facebook profile to make the posts in question or that someone made a fake profile with his name and picture.

         {¶ 10} At the conclusion of Ross's testimony, the state noted it had located the person identified as "Halley Jordan" on Facebook and asked to present her as a rebuttal witness. Ross's counsel objected to allowing the witness to testify. The trial court allowed voir dire of the witness to determine whether to permit the state to call her as a rebuttal witness. On voir dire, Halley Lyons confirmed that her middle name was Jordan, and that she identified herself on Facebook as "Halley Jordan." Lyons admitted that she had been contacted by Lake about the case. Lyons stated that after she engaged Ross in a conversation on Facebook about the incident, he blocked her from accessing his Facebook page. Lyons stated that she personally saw and took the pictures of the Facebook conversations as presented in the state's exhibits. Following voir dire, the trial court overruled Ross's objection and allowed the state to present Lyons as a rebuttal witness.

         {¶ 11} On rebuttal, Lyons testified she was friends on Facebook with both Lake and Ross. Lyons stated that she knew Ross through a mutual friend and that she was only friends on Facebook with one person matching Ross's Facebook profile name. Around the time of the incident, Lyons observed Lake and Ross arguing on Facebook about a tattoo. She posted a comment telling them to calm down. Ross responded "something about sending [Lake] to the [emergency room]." (Tr. Vol III at 48.) Lyons took a picture of Ross's comment and sent it to Lake, who later posted a picture of himself in the hospital.

         {¶ 12} Officer Patrick Daugherty of the Columbus Division of Police was the first to arrive at Lake's house on the night of the incident. Upon arriving, Officer Daugherty encountered Lake, who said he had been stabbed by a man in a blue shirt who he "knew as Will Science Class Ross, and that he knew that information because of his Facebook -- that was his name on the Facebook profile page." (Tr. Vol. II at 8.) Officer Daugherty used his personal cell phone to search Facebook and found a page matching the name provided by Lake. After being informed by another officer that there was a "Willie Ross" in the police ID system, Officer Daugherty found that the picture on the Facebook profile matched the profile in the police system.

          {¶ 13} Officer Daugherty went to the address listed for the person in the police ID system and when he arrived, he observed a person walking out of the house who matched the picture. Officer Daugherty arrested Ross before entering the house to make sure there were no other victims and to secure the house. While inside, he found a knife on the bathroom sink that appeared to have been washed and saw a blue shirt on the bathroom floor.

         {¶ 14} On December 16, 2016, the jury returned a verdict of guilty on the counts of aggravated burglary and felonious assault, and not guilty on the count of attempted murder. The trial court subsequently found that Ross was a repeat violent offender as to the counts of aggravated burglary and felonious assault. On January 25, 2017, the trial court filed a judgment entry. On February 2, 2017, the trial court filed an amended judgment entry reflecting Ross's convictions and imposing the following sentence: seven years on the count of aggravated burglary to be served concurrently with two years on the count of felonious assault.

         II. Assignments of Error

         {¶ 15} Ross appeals and assigns the following four assignments of error for our review:

[1.] The trial court violated Ohio Evid.R. 609 when it found the State could use evidence of the Defendant's prior record to impeach him.
[2.] The trial court erred when it admitted unauthenticated Facebook posts.
[3.] The trial court violated Willie Ross' rights to due process and a fair trial when it allowed Halley Jordan's testimony.
[4.] The trial court erred when it provided additional jury instructions, after the jury began deliberations.

         {¶ 16} For ease of discussion, we address Ross's assignments of error out of order.

         III. First Assignment of Error-Prior Conviction

         {¶ 17} In his first assignment of error, Ross argues that the trial court erred in allowing testimony regarding Ross's conviction for robbery from 2000. In support of his assertion, Ross first argues that the state failed to give him sufficient notice of its intention to use the conviction as impeachment evidence as required by the rule. As previously noted, the state specifically provided Ross notice of its intention to use his prior conviction for robbery and provided notice of its intention to use any prior conviction of a witness pursuant to Evid.R. 609. As a result, we find Ross's argument that the state failed to provide adequate notice to be without merit.

         {¶ 18} Next, Ross contends that the trial court erred by failing to "make a specific finding that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect." (Emphasis sic.) (Appellant's Brief at 10.) Evid.R. 609 governs the admission of prior ...

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