Court of Appeals of Ohio, Eighth District, Cuyahoga
Criminal Appeal from the Cuyahoga County Court of Common
Pleas Case No. CR-17-621593-A
Michael C. O'Malley, Cuyahoga County Prosecuting
Attorney, and Maxwell M. Martin and Joanna Lopez-Inman,
Assistant Prosecuting Attorneys, for appellee.
P. Parker, for appellant
JOURNAL ENTRY AND OPINION
RAYMOND C. HEADEN, JUDGE
1} Defendant-appellant Carlos Garcia-Toro
("Garcia-Toro") appeals from his convictions and
sentence for aggravated murder and attempted murder. For the
reasons that follow, we affirm.
and Substantive History
2} On March 9, 2016, 22-year-old victim Jose Reyes
("Jose") was shot and killed upon leaving work
shortly after 6 p.m. Jose and his 15-year-old nephew, Efrain
Garcia, Jr. ("Efrain") worked at an auto shop on
West 43rd Street in Cleveland, Ohio. Jose and Efrain left
work together on the date of the incident because Jose was
going to give Efrain a ride home. When Jose's car would
not start, Efrain got out of the car to check its battery
while Jose remained in the driver's seat. As Efrain
started to get back into the vehicle on the passenger side,
he noticed a man wearing black clothing and a ski mask
approach the car. The man fired multiple shots into the car,
killing Jose and shooting Efrain in the leg. The shooter fled
on foot southbound on West 43rd and then turned east onto
Newark Avenue, running into the yard located at 4221 Newark
Avenue, Garcia-Toro's grandmother's house.
3} Efrain's father, Efrain Garcia, Sr.
("Efrain, Sr.") also worked at the auto shop with
Jose and was still there when Jose and Efrain left that day.
He heard gunshots and screams and saw Jose start to run and
then collapse to the ground.
4} Officers responded to the scene and observed one
deceased victim, Jose. Officers proceeded to talk to Efrain
and other people at the scene in an attempt to identify a
possible suspect. Detective Timothy Entenok ("Detective
Entenok") was the detective assigned to the case. He
spoke with various people at the scene and eventually
obtained cell phone video footage of the presumed shooter
fleeing the scene after the shooting, as well as video
surveillance footage from two nearby houses.
5} Jadiris DeJesus ("Jadiris") is
Efrain's mother and Jose's sister. Shortly after
Jose's murder, Garcia-Toro's sister, Noemi Garcia
("Noemi") reached out to one of Jadiris's other
brothers, Edwin Reyes, via Facebook Messenger. Jadiris then
reached out Noemi within a week of Jose's murder. Noemi
claimed to know the name of the person who killed Jose, and
Jadiris made plans over Facebook Messenger to meet Noemi in
person. Jadiris and Noemi met in the parking lot of a Walmart
store. Jadiris recorded the half-hour conversation and
subsequently sent the recording to the Cleveland Police
6} Subsequently, Garcia-Toro reached out to Jadiris
himself. On one occasion, Garcia-Toro called Jadiris, and the
rest of their communications took place through Facebook.
Garcia-Toro sent Jadiris photos of himself, and subsequently
the two video chatted on Facebook messenger. Garcia-Toro used
a Facebook account under the name Gabriel Ruiz. At one point,
police arrested Garcia-Toro's brother for Jose's
murder; during a call with Jadiris, Garcia-Toro said police
"had the wrong guy." Police subsequently secured an
arrest warrant for Garcia-Toro, and he was arrested on
September 14, 2017, in Columbus, Ohio. At the time,
Garcia-Toro was using the alias Edwin Sayan.
7} On September 25, 2017, the Cuyahoga County Grand
Jury indicted Garcia-Toro on one count of aggravated murder,
one count of murder, four counts of felonious assault, one
count of attempted murder, and one count of having weapons
while under disability. With the exception of having weapons
while under disability, each of the counts carried one- and
three-year firearm specifications.
8} On July 23, 2018, the state filed a motion in
limine to exclude expert testimony from Amanda Hubbard
("Hubbard"). Hubbard was a private investigator
hired by Garcia-Toro to review all of the social media and
digital evidence collected by the state in connection with
his case. On August 2, 2018, the court held a hearing on the
state's motion in limine to exclude Hubbard's expert
testimony. The court granted the motion in part, finding that
Hubbard was precluded from testifying with respect to her
opinions as to circumstantial evidence linking Garcia-Toro to
social media accounts, but she would be permitted to testify
as to the facts of her investigation.
9} Garcia-Toro waived his right to a jury trial as
to the having weapons while under disability count, and the
case proceeded to a jury trial on the remaining seven counts
on September 24, 2018. The state called 12 witnesses.
Responding Officer Dymphna O'Neill and paramedic Michael
Bank testified as to their response to the crime scene.
Detective Darren Robinson testified as to his documentation
of the crime scene and collection of evidence from the scene.
Efrain and Efrain, Sr. both testified as to their accounts of
the murder. Jadiris testified that she received a call about
the murder and came to the scene. Jadiris also testified at
length about her communications with an individual she
believed to be Garcia-Toro following Jose's murder. One
of Jadiris's brothers, Jonathan "J.D." DeJesus
("J.D."), testified as to his communications with
this individual as well. Cuyahoga County Medical Examiner Dr.
Joseph Felo ("Felo") testified as to Jose's
manner and cause of death, and Cuyahoga County Forensic
Scientist Lisa Przepyszny testified as to the trace evidence
report that was prepared in this case.
10} Ron Mansour ("Mansour") testified that
he was at a friend's house near the scene of the murder
on March 9, 2016, when he heard gunshots. Shortly thereafter,
Mansour heard emergency vehicles arrive at the scene, and he
observed a Hispanic male who appeared to be in his early
twenties running down the street. Mansour testified that from
where he was on his friend's porch, he heard this young
man tell someone that he had to stop and "get rid of the
gun." Edwin Rivera testified that he was friends with
Jose and used to work at the auto shop. On the date of the
murder, shortly after Jose and Efrain left the shop, Rivera
stopped by to talk to Efrain, Sr. He was at the shop when he
heard gunshots and witnessed Efrain running back to the shop
saying that Jose had been shot. Finally, Detective Entenok
testified as to his investigation in this case, including his
investigation of communications between Jadiris, J.D., and
the individual they believed to be Garcia-Toro.
11} Garcia-Toro called Hubbard and Brian Juzman
("Juzman"), a pastor at a church in Connecticut, as
witnesses. The state made an oral motion to dismiss the
charge of having weapons while under disability, and the
court granted that motion.
12} On October 4, 2018, the jury returned a guilty
verdict on all seven counts and corresponding specifications.
The court held a sentencing hearing on November 1, 2018. The
court stated that it had reviewed the presentence
investigation report and heard from the prosecutor, defense
counsel, Garcia-Toro, and several members of the victims'
family. Counts 1, 2, 3, and 4 merged for sentencing, and
Garcia-Toro received a sentence of 33 years to life on Count
1 (aggravated murder). Counts 5, 6, and 7 merged for
sentencing, and Garcia-Toro received a sentence of 14 years
on Count 5 (attempted murder). The court ordered the
sentences to be served consecutively for an aggregate term of
47 years to life.
13} Garcia-Toro appeals, presenting the following
assignments of error for our review:
I. The appellant was denied conflict-free counsel under the
Sixth, Eighth, and Fourteenth amendments of the federal
Constitution and Art. I Section 10 of the Ohio Constitution.
II. The prosecutor improperly elicited testimony about the
timing of the Notice of Alibi in violation of the [Sixth,
Eighth, and Fourteenth] Amendments of the U.S. Constitution
and Article I, Section 10 of the Ohio Constitution.
III. The State failed to authenticate the Facebook account of
Gabriel Ruiz as belonging to or being utilized by the
appellant in violation of the Sixth, Eighth, and Fourteenth
Amendments of the U.S. Constitution and State v.
Gordon, 2018-Ohio-2292 (par. 69-72) and it otherwise
contained improper other acts evidence contrary to Evid.R.
404(B) and the Fourteenth Amendment.
IV. Hearsay testimony and improper argument about a meeting
between Jadiris DeJesus and alleged sister of appellant
deprived appellant of Due Process and a fair trial under the
Fourteenth Amendment of the U.S. Constitution.
V. The admission of gruesome photos of the decedent violated
the Fourteenth Amendment and Evidence Rules 401-403.
VI. Defense counsel were ineffective under the Sixth and
Fourteenth Amendments of the U.S. Constitution.
VII. Consecutive sentences were improper under Ohio law.
VIII. The evidence supporting the identity of the shooter
violates the Fourteenth Amendment.
IX. The convictions are against the weight of the evidence.
X. The cumulative errors in the trial denied appellant due
process under the Ohio and ...