[Cite as State v. Carter, 2017-Ohio-1233.]

IN THE COURT OF APPEALS OF OHIO 

THIRD APPELLATE DISTRICT 

ALLEN COUNTY 

 

STATE OF OHIO, 

 PLAINTIFF-APPELLEE, CASE NO. 1-15-62 

 v. 

MARKELUS Q. CARTER, O P I N I O N 

 DEFENDANT-APPELLANT. 

 

Appeal from Allen County Common Pleas Court 

Trial Court No. CR2014 0139 

Judgment Affirmed 

Date of Decision: April 3, 2017 

 

APPEARANCES: 

 

F. Stephen Chamberlain for Appellant 

 Jana E. Emerick for Appellee 
Case No. 1-15-62 

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SHAW, J.

{¶1} Defendant-appellant, Markelus Q. Carter (“Carter”), brings this appeal 

from the September 22, 2015, judgment of the Allen County Common Pleas Court 

sentencing Carter after he was found guilty in a jury trial of Aggravated Murder 

with a firearm specification in violation of R.C. 2903.01(A) and R.C. 2941.145(A), 

and Having Weapons While Under Disability in violation of R.C. 2923.13(A)(3), a 

felony of the third degree. On appeal, Carter argues that there was insufficient 

evidence presented to convict him, that his convictions were against the manifest 

weight of the evidence, that the trial court erred by denying his request for a mistrial 

based upon an altercation that occurred in a holding cell between Carter and a State’s 

witness, that the trial court improperly allowed evidence of the altercation to be 

introduced during the trial, that the State committed discovery violations, that the 

State committed prosecutorial misconduct in closing arguments, and that Carter 

received ineffective assistance of counsel. 

Facts and Procedural History

{¶2} On April 17, 2014, Carter was indicted for Aggravated Murder with a 

firearm specification in violation of R.C. 2903.01(A) and R.C. 2941.145(A) 

respectively, and Having Weapons While Under Disability in violation of R.C. 

2923.13(A)(3), a felony of the third degree. It was alleged that Carter shot and killed 

Kenneth Warrington shortly after 5 a.m. on February 23, 2009. Warrington had a 
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relationship with Carter’s ex/the mother of Carter’s children, Sonya Burkholder 

(nka “Hughes”). Warrington was shot six times just outside of Sonya’s residence 

in Lima, Ohio. Carter pled not guilty to the charges. 

{¶3} After a lengthy pre-trial process that included, inter alia, multiple 

suppression hearings and a competency evaluation, Carter’s case proceeded to a jury 

trial, which was held September 8-22, 2015. At trial the State presented the 

testimony of 30 witnesses and over 150 exhibits, then rested its case. Carter 

presented the testimony of 8 witnesses and in excess of 30 exhibits, then rested his 

case. Ultimately the jury found Carter guilty of Aggravated Murder with a firearm 

specification and Having Weapons While Under Disability, all as indicted. 

{¶4} Carter was sentenced to life in prison without parole on the Aggravated 

Murder charge, a three-year consecutive prison term on the firearm specification, 

and a three-year concurrent prison term on the Having Weapons While Under 

Disability charge. A judgment entry memorializing Carter’s sentence was filed 

September 22, 2015. It is from this judgment that Carter appeals, asserting the 

following assignments of error for our review. 

ASSIGNMENT OF ERROR 1 

THE TRIAL COURT COMMITTED ERROR PREJUDICIAL 

TO THE DEFENDANT BY FAILING TO EXCLUDE 

EVIDENCE OF AN ALTERCATION BETWEEN THE 

DEFENDANT AND A GOVERNMENT WITNESS IN A 

HOLDING CELL OF THE COURT DURING TRIAL AND 

ALLOWING A VIDEO OF THAT ALTERCATION TO BE 
Case No. 1-15-62 

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PLAYED FOR THE JURY DURING THE GOVERNMENT’S 

CASE IN CHIEF. 

ASSIGNMENT OF ERROR 2 

THE TRIAL COURT COMMITTED ERROR PREJUDICIAL 

TO THE DEFENDANT BY OVERRULING DEFENDANT’S 

MOTION FOR MISTRIAL FILED ON SEPTEMBER 16, 2016, 

BASED UPON RULE 16 DISCOVERY VIOLATIONS AND 

BRADY DISCOVERY VIOLATIONS RELATED TO 

TESTIMONY OF A GOVERNMENT WITNESS ON 

FIREARMS. 

ASSIGNMENT OF ERROR 3 

THAT THE CONVICTION OF THE DEFENDANT WAS 

AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE 

AND, IN THE ALTERNATIVE, WAS BASED UPON 

INSUFFICIENT EVIDENCE. 

ASSIGNMENT OF ERROR 4 

THAT THE PROSECUTION STATEMENTS IN CLOSING 

ARGUMENT MISSTATE THE EVIDENCE AND RISE TO 

THE LEVEL OF PROSECUTORIAL MISCONDUCT AND 

REQUIRE A REVERSAL. 

ASSIGNMENT OF ERROR 5 

THAT THE DEFENDANT WAS DEPRIVED OF A FAIR 

TRIAL DUE TO INEFFECTIVE ASSISTANCE OF COUNSEL.

{¶5} For ease of discussion, we elect to address the assignments of error out 

of the order in which they were raised. 

Third Assignment of Error

{¶6} In Carter’s third assignment of error, he argues that there was 

insufficient evidence presented to convict him of Aggravated Murder with a firearm 
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specification and Having Weapons While Under Disability. Carter also argues that 

his convictions were against the manifest weight of the evidence. 

Standard of Review 

{¶7} Whether there is legally sufficient evidence to sustain a verdict is a 

question of law. State v. Thompkins, 78 Ohio St.3d 380, 386 (1997). Sufficiency is 

a test of adequacy. Id. When an appellate court reviews a record upon 

a sufficiency challenge, “ ‘the relevant inquiry is whether, after viewing the 

evidence in a light most favorable to the prosecution, any rational trier of fact could 

have found the essential elements of the crime proven beyond a reasonable doubt.’ 

” State v. Leonard, 104 Ohio St.3d 54, 2004–Ohio–6235, ¶ 77, quoting State v. 

Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the syllabus. 

{¶8} By contrast, in reviewing whether the trial court’s judgment was against 

the manifest weight of the evidence, the appellate court sits as a “thirteenth juror” 

and examines the conflicting testimony. State v. Thompkins, 78 Ohio St.3d 380, 

387 (1997). In doing so, this Court must review the entire record, weigh the 

evidence and all of the reasonable inferences, consider the credibility of witnesses, 

and determine whether in resolving conflicts in the evidence, the factfinder “clearly 

lost its way and created such a manifest miscarriage of justice that the conviction 

must be reversed and a new trial ordered.” Thompkins at 387. Furthermore, “[t]o 

reverse a judgment of a trial court on the weight of the evidence, when the judgment 
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results from a trial by jury, a unanimous concurrence of all three judges on the court 

of appeals panel reviewing the case is required.” Thompkins at paragraph 4 of the 

syllabus, citing Ohio Constitution, Article IV, Section 3(B)(3). 

Relevant Statutes 

{¶9} Carter was convicted of Aggravated Murder, which is codified in R.C. 

2903.01(A), and reads, “No person shall purposely, and with prior calculation and 

design, cause the death of another or the unlawful termination of another’s 

pregnancy.” 

{¶10} A firearm specification was attached to the Aggravated Murder, which 

is codified in R.C. 2941.145. It requires that “the offender had a firearm on or about 

the offender’s person or under the offender’s control while committing the offense 

and displayed the firearm, brandished the firearm, indicated that the offender 

possessed the firearm, or used it to facilitate the offense.” 

{¶11} Carter was also convicted of Having Weapons While Under Disability 

for possessing the weapon he used in the murder of Kenneth Warrington. Having 

Weapons While Under Disability is codified in R.C. 2923.13(A)(3), and reads “ * * 

*[N]o person shall knowingly acquire, have, carry, or use any firearm or dangerous 

ordnance, if * * * [t]he person * * * has been convicted of any felony offense 

involving the illegal possession, use, sale, administration, distribution, or trafficking 

in any drug of abuse[.] 
Case No. 1-15-62 

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Evidence Presented 

a. Testimony Regarding Events Prior to the 

February 23, 2009 Murder 

{¶12} Carter and Sonya Burkholder had two children together, Tarah and 

Markelus. The children and Sonya lived with Carter until 2004 when Sonya’s 

mother became “gravely ill,” so Sonya moved in with her. After Sonya’s mother 

died, Sonya stayed in her mother’s former residence until Sonya lost the house in 

2007. At that time, Sonya moved back in with Carter; however, it was not to 

rekindle a romantic relationship. Rather, according to Sonya the relationship was 

platonic and she and Carter lived more as “roommates.” While staying at Carter’s 

residence, Sonya slept in her daughter Tarah’s room with her. 

{¶13} Despite the fact that Sonya indicated she and Carter did not have a 

romantic relationship in 2007, Sonya testified that Carter was very controlling. 

Sonya indicated that Carter had been that way during their relationship when they 

were previously together, not allowing Sonya to socialize on her own. Additionally, 

Sonya stated that Carter did not give her a key to his home when she moved in 

during 2007 and that Carter had to let her in the house or she would get locked out. 

{¶14} While living with Carter in late 2007, Sonya was working as a security 

shift supervisor for Allied Barton Security Services, which did security for the 

Husky Refinery in Lima. Through her job, Sonya developed a friendship with 
Case No. 1-15-62 

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Kenneth Warrington, who worked at the refinery. Sonya indicated that she did not 

tell Carter about her friendship with Warrington. 

{¶15} On December 15-16, 2007, Sonya and Warrington exchanged 

flirtatious emails, which were included in the record at trial. Sonya testified that 

Carter was good with computers and got into her email and found her exchanges 

with Warrington. The day after the email exchange, December 17, 2007, Sonya 

worked second shift at her security job and returned to Carter’s home, showered and 

went to bed in Tarah’s room. According to Sonya, Carter woke her up that night, 

extremely angry, and told her to pack her bags and get out.1

 

{¶16} Sonya stated that Carter had a gun in his hand, that he followed her 

down the stairs, and that Carter struck her across the jaw with the gun.2

 Sonya stated 

that she went outside and flagged down a police officer who happened to be in the 

area and told the officer what happened. The officer then approached Carter’s 

residence but Carter would not come outside or let the officers see the children. As 

a result of being informed that Carter had a gun, that children were inside, and that 

police were refused access to check on the safety of the children, more officers were 

called to the scene. 

 

1

 It was insinuated that it was at this point Carter found the emails between Sonya and Warrington. 2

 Tarah’s testimony differed as to this incident, stating that Carter never struck Sonya with a gun. There was 

also conflicting testimony as to whether Sonya had some actual injury on her face from any purported strike. 
Case No. 1-15-62 

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{¶17} A four-hour “stand-off” then ensued wherein Carter had multiple 

phone conversations with a police hostage negotiator. On the calls, some of which 

were recorded and played for the jury, Carter denied that his children were being 

held hostage, but he would not come outside and would not let the police see the 

children. On the calls Carter talked about honor and dishonor and how an honorable 

person should not have to go to jail. Meanwhile, the police attempted to keep him 

calm. Eventually the situation ended peacefully and Carter was taken into custody. 

Although an “air gun” was found inside Carter’s home, no actual firearm was 

located at that time. No charges were brought against Carter as a result of the 

“stand-off” incident. 

{¶18} After the December 2007 incident, Sonya moved out of Carter’s 

residence and moved in with friends Krista and Don Bodiker, who also worked 

security at the refinery. Sonya stayed with the Bodikers until late-summer/early fall 

of 2008 when she moved into a house at 436 McKibben Street in Lima. 

{¶19} While living with the Bodikers, Sonya sought and received a civil 

protection order (“CPO”) against Carter based primarily on the “stand-off” incident. 

Carter contested the CPO and appealed the granting of that CPO to this Court. We 
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affirmed the CPO in Burkholder v. Carter, 3d Dist. Allen No. 1-08-20, 2008-Ohio4644.3

 

{¶20} Meanwhile, after he was not charged as a result of the December 2007 

“stand-off” incident, Carter was in contact with the Lima Police Department seeking 

to have Sonya charged for filing a false report or making false claims regarding the 

incident. That case was eventually assigned to a detective, though the detective 

testified that it was low priority and he did not look into it for a while. 

{¶21} During 2008, Sonya and Warrington’s relationship deepened and 

according to Sonya the relationship became sexual for about two weeks in the 

summer of 2008. When Sonya moved out of the Bodikers’ residence and into her 

own house on McKibben Street around August of 2008, Warrington occasionally 

stayed at the residence. 

{¶22} Throughout Warrington’s relationship with Sonya, Warrington was 

married to Faye Warrington. Warrington and Faye had been married since 1983. 

Faye testified that Warrington told her about his relationship with Sonya when it 

began. Faye testified that despite the affair she did not want a divorce because 

Warrington still brought his paycheck home and Faye was hopeful that they would 

reconcile. Warrington did eventually move out of the marital residence though, and 

 

3

 In our 2008 opinion, the last name of Krista and Don Bodiker was spelled “Boedeker,” likely due to what 

the court reporter typed in the corresponding transcripts. Krista and Don spelled their last name for the record 

in this transcript. 
Case No. 1-15-62 

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it was Faye’s understanding that Warrington stayed either at his uncle’s residence 

or at Sonya’s residence. 

{¶23} Faye testified that she did not tell her family about Warrington’s 

infidelity, choosing instead to speak with her minister about it. Faye indicated that 

she did not want others to change their opinion of Warrington. However, Faye 

testified that her family found out about Warrington’s affair because they had 

received anonymous letters informing them of the situation. Faye testified that she 

did not know who wrote the letters, but she had received phone calls from Carter 

informing her of the relationship between Warrington and Sonya, which Faye 

already knew about. 

{¶24} Faye testified that Carter called her many times, sometimes at two or 

three in the morning stating that Warrington’s truck was at Sonya’s residence.4

 Faye 

testified that on one of the calls in the weeks prior to Warrington’s death in February 

of 2009, Carter stated that he was going to give Warrington “one more chance” and 

that Carter stated he was going to call Warrington and tell him to stay away from 

Sonya. (Trial Tr. at 339). Faye asked whether Carter was threatening Warrington 

and she testified that Carter did not respond. 

{¶25} Similarly, the Husky Refinery received a call that was linked to Carter 

in early January of 2009. A man identifying himself as “Mark Carter” called the 

 

4

 Her specific words were, “after that, I can’t even tell you how many phone calls I got from him.” (Trial 

Tr. at 338). 
Case No. 1-15-62 

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refinery requesting company policies regarding the use of property for employees 

engaged in an extramarital affair, specifically Sonya and Warrington. Pam Callahan 

answered the call for Husky and she stated that although the caller stated that he 

needed the information for a lawsuit and he sounded professional, she did not 

believe it was legitimate. 

{¶26} On February 18, 2009, the detective who had looked into Carter’s 

claims that Sonya should be charged for making a false report regarding the 2007 

“stand-off” incident informed Carter that he had looked into the matter and he 

recommended that no charges be filed against Sonya. The detective informed Carter 

that he turned the case over to the city prosecutor’s office, which agreed with him. 

The detective indicated Carter was not happy with the results. 

b. Testimony Regarding the Murder and its Investigation 

{¶27} On February 22, 2009, Sonya saw Warrington at work and Warrington 

indicated that he needed a key to her residence because Sonya had mistakenly taken 

Warrington’s off of the counter and he did not have his key at the time. It seems 

that at that time the two worked different shifts that overlapped at the end of Sonya’s 

and the beginning of Warrington’s. According to Sonya, the two were not 

romantically involved at the time but Warrington still stayed at her residence 
Case No. 1-15-62 

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occasionally and he kept some work uniforms in her son’s room.5

 Sonya testified 

that when she gave Warrington her key it was the last time she saw Warrington 

alive. 

{¶28} Sonya testified that she left work and went to pick up Tarah at Carter’s 

residence. Sonya indicated that Tarah had sent Sonya a text message earlier asking 

if Warrington was coming over to Sonya’s that night and Sonya found it odd. Sonya 

testified that she asked Tarah about the text message but Tarah did not know 

anything about it. Sonya then returned with Tarah to her home at 436 McKibben 

and went to sleep. 

{¶29} Work records established that Warrington clocked out of the refinery 

at 5:04 a.m. on February 23, 2009. Sometime shortly thereafter, Warrington was 

shot six times just outside a side entrance of Sonya’s home. 

{¶30} Donald Hovest, who was picking up trash on his route on a street close 

to 436 McKibben, heard the gunshots in his general area. He indicated that the 

gunshots occurred after 5 a.m., sometime possibly around 5:20. He reported the 

gunshots to police, which dispatched officers related to possible gunshots in the area 

at 5:18 a.m. Police responded to the area but officers did not observe anything 

relevant at that time. 

 

5

 The extent of Sonya and Kenneth’s relationship at the time of Kenneth’s death was a source of some dispute. 

When making a later 9-1-1 call Tarah referred to Kenneth as his mother’s boyfriend. Sonya maintained that 

the two were good friends at the time of his death but no longer romantically involved. 
Case No. 1-15-62 

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{¶31} Rosalind Johnson was asleep on her couch across the street from 436 

McKibben and was awakened by the noise from the gunshots. She looked out her 

window and saw a person coming out of the alley with a “hoodie jacket on, a 

camouflage jacket.” (Trial Tr. at 819). However, Johnson did not see any actual 

shooting and she simply went back to sleep. 

{¶32} Sonya woke up at 6 a.m. on February 23, 2009, and noticed that 

Warrington’s truck was parked at her residence but he had not come inside. After 

waking up Tarah and mentioning that it was odd, Sonya discovered Warrington’s 

body just outside and screamed. Tarah called 9-1-1 after checking Warrington for 

a pulse. The 9-1-1 call was played for the jury. 

{¶33} Police responded to the scene and began an investigation. It was 

ultimately determined that Warrington’s death was a homicide resulting from six 

gunshot wounds. The shots were to his chin, right forearm, left chest, right buttock 

and two in the back. There were 12 holes total because all six bullets exited 

Warrington’s body. The investigation further revealed that Warrington was shot by 

Winchester 9mm bullets. Shell casings and bullets were collected at the scene. 

Warrington was discovered with $160 on him, which officers felt ruled out a 

robbery, along with a gym bag and a cooler. Photographs of how and where 

Warrington was found just outside Sonya’s door were included in the record.6

 

6

 The jury also took a jury view of what was Sonya’s residence at the time. 
Case No. 1-15-62 

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{¶34} While at Sonya’s residence surveying the scene, one officer noticed 

that there was an electric bill for Carter on the counter and the officer recalled the 

2007 “stand-off” incident.7

 Officers then wanted to get into contact with Carter. 

The detective that handled Carter’s allegations against Sonya for filing a false 

report, Sergeant Godfrey, indicated that he had Carter’s phone number so he called 

Carter around 8 a.m. and generally asked Carter to come into the station. When 

Carter answered, Carter asked if Sergeant Godfrey was calling because there had 

been some movement on his case with Sonya. At that time Carter was told to just 

come in without any further information being provided to him and Carter said he 

would be in shortly. 

{¶35} A half-hour passed and Carter had not come in, so Sergeant Godfrey 

called Carter again and said something had happened to “Kenneth” and Carter 

needed to come in. Carter stated that he did not like the sound of that but would 

come to the police station as soon as he finished a work-related errand.8

{¶36} Before Carter came to the police station, Carter called his attorney Ken 

Rexford’s office to ask if something had happened to him since Carter was informed 

that something had happened to “Kenneth.” Leah Rexford, the attorney’s wife who 

 

7

 It appears that Tarah was using the electric bill to show proof of residence for a school-related issue. It was 

not insinuated that Carter himself had left the electric bill or that he had brought it there himself. 8

 Carter stated that he had to drop off some “proofs” to an insurance agent before he would come into the 

station. When Carter was later stopped, he did have the referenced “proofs” on him. However, officers 

spoke with the insurance agent who indicated that he had requested the proofs so long ago from Carter that 

he was not specifically expecting them that day. 
Case No. 1-15-62 

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also worked at the law firm, informed Carter that nothing had happened to Carter’s 

attorney Ken Rexford. Carter made another call to Rexford’s office shortly 

thereafter where Carter was “inconsolable” and talking about something happening 

to his baby. 

{¶37} As Carter drove around to apparently complete his errands that 

morning, he was being followed by Detective Timothy Clark who was not in a 

marked cruiser. Detective Clark noticed that Carter’s license plates did not match 

and he called for a marked cruiser to stop Carter. A patrol officer then did stop 

Carter and Detective Clark approached and told Carter that he wanted Carter to 

come in for questioning. According to one officer, Carter then “exploded in 

emotion,” as he kept talking about his baby, meaning his daughter Tarah. Officers 

were surprised by Carter’s demeanor and assured Carter that Tarah was fine but 

Carter kept referring to her.9

 After being repeatedly assured that his daughter was 

fine, Carter then voluntarily went to the police station for an interview. 

{¶38} During Carter’s interview, he stated that the night prior to 

Warrington’s murder Sonya picked up Tarah sometime after 10 p.m. and took Tarah 

to Sonya’s residence. Carter stated that he went to bed after watching shows on his 

computer and then woke up at 6 a.m. to his alarm clock. Also during the interview, 

Carter admitted to owning a .357 but denied owning a 9mm at that time. Carter told 

 

9

 A video of the stop was introduced into evidence. In the video, Carter wails repeatedly as he says something 

happened to his “baby,” despite being told by officers that nothing had happened to Tarah. 
Case No. 1-15-62 

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the police that they could have his .357 and he allowed the police to do a gunshot 

residue test on his hands. 

{¶39} Carter was under a disability for a prior conviction10 and could not 

own a firearm, so the police indicated they were going to search his house to get the 

.357. A search warrant was then obtained and executed on Carter’s residence to 

look specifically for weapons. Two guns were located at Carter’s residence at that 

time along with a box of Winchester 9mm ammunition with some of the bullets 

missing. Testing later indicated that the bullets were consistent with those that 

killed Warrington, although they were relatively common bullets. However, testing 

indicated that neither of the firearms that were found at Carter’s residence were used 

in the murder. Similarly, neither of those firearms were the subject of the Having 

Weapons While Under Disability charge in this case. Rather, the murder weapon, 

which was never found, was the firearm related to the charge. 

{¶40} As the investigation continued on the day of the murder, a second 

search warrant was executed on Carter’s residence looking for anything related to a 

homicide. On Carter’s kitchen table, a number of papers were found together 

including a copy of the private emails between Warrington and Sonya from 

December of 2007, a copy of the CPO Sonya had obtained against Carter, and a 

 

10 The prior conviction is essentially undisputed on appeal but a certified copy of a judgment entry indicating 

that Carter had been found guilty of two fourth degree drug-related felonies in 1995 was entered into 

evidence. (State’s Ex. 99). 
Case No. 1-15-62 

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copy of the related police report from the December 2007 incident. There was also 

a document officers described as a “script” that appeared to correspond to the phone 

call that had been made to the Husky Refinery in January related to Sonya and 

Warrington’s affair. 

{¶41} In addition to this paperwork, officers located camouflage clothing, 

which was later tested for gunshot residue (“GSR”). A short sleeve camouflage 

shirt and a long sleeve camouflage shirt both tested positive for GSR despite Carter 

stating in his interview that he had not fired a gun in years. Rosalind Johnson 

indicated that the camouflage pattern was consistent with what she had seen from 

her window on the morning of the murder. However, neither of the camouflage 

shirts contained a hood, which she had mentioned seeing. Nevertheless, officers 

also located a pair of gloves on a table and the gloves tested positive for GSR as 

well. 

{¶42} Various electronics belonging to Carter were seized during the search 

and analyzed. On one of Carter’s digital cameras, there were images of streets in 

Lima and a picture of Warrington’s truck parked outside of Sonya’s home at 436 

McKibben dated January 9, 2009. A forensic search of Carter’s computer revealed 

he had been on the county auditor’s website for information on the property at 436 

McKibben and that he had been looking at a map of the surrounding area. In 

addition, there were google searches performed for Sonya Burkholder and Kenneth 
Case No. 1-15-62 

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Warrington. A separate “palm” device also contained an address for Kenneth and 

Faye Warrington as well as a phone number, which had a *67 designation by it 

indicating that the number had been used while dialing *67 to block the caller ID. 

{¶43} On the day of the murder Carter was arrested for Having Weapons 

While Under Disability, which is separate from the same charge in this case. When 

Carter was taken into custody, he requested to speak with Sergeant Godfrey for a 

second time that day. Another interview of Carter was then conducted, and that 

interview was played for the jury. In the interview, Carter had some kind of ‘tic,’ 

or seizure-like occurrence that the officers did not believe was genuine. Little of 

relevance came out of the interview. 

{¶44} While Carter was incarcerated for Having Weapons While Under 

Disability, Joey Moore, another inmate, stated that he heard Carter discussing the 

murder investigation. Moore testified at trial that Carter said that police found 16 

grams of crack at his residence but they did not find a Mac-10 firearm that Carter 

claimed to have disassembled. A ballistics expert from BCI testified that a “Mac10 style” firearm would be one of over 130 possible 9mm firearms that could have 

been consistent with the firearm that fired the bullets that killed Warrington.11 Joey 

Moore also testified that Carter indicated that he had killed his girlfriend’s 

 

11 The State’s ballistic expert testified that the “Mac” in Mac-10 is an abbreviation for “Military Armament 

Corporation” and the 10 stands for model 10. The ballistic expert testified that multiple manufacturers made 

a firearm similar to the Mac-10, though they were not actual “Mac-10’s,” which were produced by a specific 

manufacturer. 
Case No. 1-15-62 

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boyfriend.12 Police found Moore’s statement credible because he was fairly 

accurate in the amount of crack that was found at Carter’s residence and it was not 

something Moore could have known otherwise. 

{¶45} Also while Carter was incarcerated, he contacted a friend named 

Carlotta Williams and requested that she visit him. When she did, Carlotta testified 

that Carter held up a note asking her to tell the police that she was with him from 

1:00 a.m. to 6:00 a.m. on the day of the murder. Carlotta refused and stated that the 

alibi Carter was requesting her to provide was false. She also stated at trial that she 

had seen Carter with a gun resembling a Mac-10 before when she was shown a 

generic demonstrative picture of a Mac-10 style firearm, though she said she had 

little familiarity with firearms. 

{¶46} Stephen Upham, another inmate who was incarcerated with Carter, 

testified that Carter told him about the murder. Upham testified that Carter indicated 

that he had gotten into an argument with the mother of his children and her boyfriend 

got mad and threatened Carter’s children. Carter told Upham that a couple of weeks 

after this incident Carter shot the boyfriend. Upham testified that Carter indicated 

he watched the victim for a couple of weeks coming and going and that he was 

wearing camouflage and a paintball mask when he committed the murder. 

 

12 Moore’s testimony is slightly confusing on this issue as he initially states that Carter told him that he 

“smoked the bitch” referring to Carter’s girlfriend, but Moore then clarifies when prompted that he meant 

that Carter indicated he smoked the boyfriend of his girlfriend. 
Case No. 1-15-62 

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{¶47} Notably just before Upham testified, he was mistakenly placed in the 

same holding cell with Carter during a brief recess in the trial. Upham asked Carter 

how his trial was going, and stood up, then Carter assaulted Upham. A video of this 

incident was introduced into evidence.13

Sufficiency of the Evidence 

{¶48} At the conclusion of the State’s case, which consisted of 30 witnesses 

and over 150 exhibits, Carter made a Crim.R. 29 motion for acquittal. Carter’s 

motion was overruled by the trial court. Carter now contends on appeal that the 

State presented insufficient evidence to convict him of Aggravated Murder, the 

accompanying firearm specification, and Having Weapons While Under Disability. 

{¶49} Although Carter claims that there was insufficient evidence to convict 

him his actual arguments related to his convictions seem to be that his convictions 

were against the manifest weight of the evidence because he contends that the 

State’s testimony was not credible and that Sonya was more likely to be the killer 

than Carter. These arguments go to weight of the evidence rather than sufficiency. 

{¶50} Nevertheless, to the extent that Carter is arguing that there was 

insufficient evidence presented to convict him, we do not find Carter’s arguments 

well-taken as the State produced ample evidence to establish each element of 

Aggravated Murder, the accompanying firearm specification, and Having Weapons 

 

13 Whether this incident and the evidence related to it were admissible is the subject of a separate assignment 

of error, which will be discussed infra. 
Case No. 1-15-62 

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While Under Disability. In fact, the State presented substantial circumstantial 

evidence against Carter. Notably, the Supreme Court of Ohio has stated that, “direct 

evidence of a fact is not required, and circumstantial evidence may be more certain, 

satisfying, and persuasive than direct evidence.” State v. Jackson, 57 Ohio St.3d 

29, 38 (1991). 

{¶51} In this case the State clearly established evidence of a motive and it 

also clearly established a plan for Carter to murder Warrington based on Carter’s 

statements to Faye, the pictures Carter took essentially casing the area around 

Sonya’s residence, and the searches Carter did on his computer. Warrington was 

shot six times just as he was returning to Sonya’s from work, indicating that the 

murder was not an accident and that the killer had been waiting for him to return 

and aware of his schedule, which is essentially what Carter told Upham. 

{¶52} The State also presented evidence of a witness who saw someone near 

the scene at the time of the gunshots wearing camouflage and Carter was found in 

possession of camouflage clothing and gloves that had GSR on them. Corroborative 

of this evidence was the fact that Carter told Upham that Carter had committed a 

murder while wearing camouflage and a paintball mask.14 Further, Carter possessed 

bullets of the same type and caliber that were used to kill Warrington. 

 

14 Carter was known to play paintball and a picture of Carter wearing a paintball mask on the top of his head 

was introduced into evidence. 
Case No. 1-15-62 

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{¶53} Moreover, multiple jailhouse witnesses testified that Carter admitted 

to killing someone and Carter also sought out a friend to manufacture an alibi. 

Additionally, on the day of the murder officers remarked on the repeatedly odd 

behavior of Carter during the traffic stop and during his interviews, much of which 

was viewed by the jury. 

{¶54} Based on all of this we conclude that sufficient evidence was presented 

to find that Carter committed Aggravated Murder and did so with a gun, which 

would make him guilty of the accompanying firearm specification and Having 

Weapons While Under Disability as well. 

Manifest Weight of the Evidence 

{¶55} Turning to Carter’s argument that his convictions were against the 

manifest weight of the evidence, we must review all of the evidence presented, 

which includes the evidence presented by Carter. Carter called several witnesses 

on his behalf who were inmates with the inmates who testified against Carter. The 

inmates testifying on Carter’s behalf casted doubt on the credibility of the State’s 

inmate-witnesses, particularly Upham. 

{¶56} Carter also emphasized that sometime after the “stand-off” incident, 

Sonya got a concealed-carry license. In addition, Carter called a witness who 

testified that prior to Warrington’s death a sign had been put on Warrington’s license 
Case No. 1-15-62 

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plate that said “Number One Asshole.” Sonya previously testified that she put that 

sign on Warrington’s truck in jest, as Warrington was a practical joker. 

{¶57} In his case-in-chief, Carter also called a fingerprint expert from BCI 

who testified that none of the prints taken from Warrington’s truck were consistent 

with Carter’s prints. Finally, Carter called his daughter, Tarah, who testified that 

Carter did not strike Sonya with a gun during the 2007 “stand-off” incident, contrary 

to what Sonya had testified. Tarah also testified that Warrington was not at Sonya’s 

residence every night; however, Tarah testified, contrary to Sonya, that Sonya 

indicated she was waiting on Warrington to get a divorce, and that Warrington had 

indicated to Sonya that it was imminent. Finally, Tarah testified that the night before 

the murder Sonya was “acting different,” and that she was drunk, which Tarah had 

never seen. 

{¶58} On appeal, Carter contends that the evidence actually established that 

Sonya was the more likely suspect or, at the very least, the evidence created 

reasonable doubt as to whether Carter killed Warrington. Despite Carter’s 

arguments, officers testified that Sonya was investigated and that she was ruled-out 

as a suspect. In addition, Sonya testified that she took the concealed-carry course 

with a number of people at work who were doing the course but she never actually 

purchased a gun. The jurors were also able to see and hear Sonya’s testimony, as 
Case No. 1-15-62 

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well as any contrary testimony of her daughter Tarah, and evaluate their credibility 

for themselves. 

{¶59} Notwithstanding Sonya, Carter ignores the overwhelming 

circumstantial evidence establishing him as the culprit of the Warrington murder, 

which was discussed previously. After a thorough review of the record, the 

transcripts, and the exhibits presented we cannot find that the jury clearly lost its 

way and created a manifest miscarriage of justice. Therefore, we find that Carter’s 

arguments are not well-taken and his third assignment of error is overruled. 

First Assignment of Error

{¶60} In Carter’s first assignment of error, he argues that the trial court erred 

by failing to declare a mistrial after there was an altercation between Carter and one 

of the State’s inmate-witnesses, which occurred in a holding cell during a recess on 

the seventh day of trial. In addition, Carter argues that the trial court erred by 

permitting evidence of the altercation to be presented to the jury, claiming that it 

was improper under Evid.R. 403 and Evid.R. 404(B). 

Standard of Review 

{¶61} The grant or denial of a motion for a mistrial rests within the sound 

discretion of the trial court. State v. Garner, 74 Ohio St.3d 49, 59 (1995). Thus the 

trial court’s decision is to be given great deference. State v. Hines, 3d Dist. Marion 

No. 9-15-13, 2005-Ohio-6696, ¶ 23. Notably, mistrials are appropriate only when 
Case No. 1-15-62 

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the ends of justice so require and a fair trial is no longer possible. State v. Franklin, 

62 Ohio St.3d 118, 127 (1991). Because the decision to grant or deny a motion for 

mistrial rests within the sound discretion of the court, we will apply an abuse of 

discretion standard in reviewing the issue. An abuse of discretion constitutes a 

decision that is arbitrary, capricious, or grossly unsound. Blakemore v. Blakemore, 

5 Ohio St.3d 217, 219 (1983). 

{¶62} Similarly, as to the evidentiary issues raised by Carter, we review a 

trial court’s decision to admit or exclude evidence under an abuse of discretion 

standard. State v. Cassel, 2d Dist. Montgomery No. 26708, 2016-Ohio-3479, ¶ 13, 

citing State v. Graham, 58 Ohio St.2d 350 (1979), and State v. Morris, 132 Ohio 

St.3d 337, 2012-Ohio-2407, ¶ 19. 

Relevant Rules of Evidence 

{¶63} Carter contends that Evidence Rules 403 and 404(B) should have 

precluded presentation of the altercation between Carter and Upham at trial. 

Evidence Rule 403(A) reads as follows. 

(A) Exclusion Mandatory. Although relevant, evidence is not 

admissible if its probative value is substantially outweighed by the 

danger of unfair prejudice, of confusion of the issues, or of 

misleading the jury. 

Evidence Rule 404(B) reads, 

(B) Other Crimes, Wrongs or Acts. Evidence of other crimes, 

wrongs, or acts is not admissible to prove the character of a 

person in order to show action in conformity therewith. It may, 
Case No. 1-15-62 

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however, be admissible for other purposes, such as proof of 

motive, opportunity, intent, preparation, plan, knowledge, 

identity, or absence of mistake or accident. In criminal cases, the 

proponent of evidence to be offered under this rule shall provide 

reasonable notice in advance of trial, or during trial if the court 

excuses pretrial notice on good cause shown, of the general nature 

of any such evidence it intends to introduce at trial. 

The Altercation, the Mistrial Motion, and the 

Introduction of Evidence of the Altercation 

{¶64} On the seventh day of Carter’s trial, Steven Upham, an inmate who 

had previously been incarcerated with Carter, was set to testify against Carter. 

Upham was the inmate who Carter had told that Carter killed a man while wearing 

camouflage and a paintball mask. 

{¶65} Just prior to Upham testifying, Upham was placed in a holding cell. 

When the trial court took a brief afternoon recess, Carter was taken and placed in 

the same holding cell with Upham.15 No one else was present in the holding cell at 

that time. It is undisputed that neither Carter nor Upham said anything to the 

corrections officers questioning why they were placed in the same holding cell or 

alerting the officers to the situation. 

{¶66} Upham was seated when Carter entered the holding cell. According 

to Upham, who was surprised that they were placed in the same cell, Upham said to 

Carter, “How’s your trial going?” (Trial Tr. at 1396). Carter then responded by 

 

15 Just after the incident both parties stated that they believed the incident was entirely accidental. (Trial Tr. 

at 1362). 
Case No. 1-15-62 

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saying, “Why are you lying on me?” (Id. at 1397). At that time, Upham stood up 

and Carter then approached and assaulted Upham by throwing a punch. Next, 

Upham tried to put Carter in a headlock and Carter put his finger in Upham’s eye. 

Carter also bit Upham’s arm, leaving teeth marks. After roughly forty seconds, 

officers responded and broke up the altercation. The incident was recorded by 

surveillance video but there was no accompanying sound. Upham had several 

abrasions from the altercation, which were photographed. 

{¶67} Following the altercation, the trial court recessed the trial for the day. 

When court reconvened the following morning defense counsel moved to have 

evidence of the incident excluded contending that it was improper character 

evidence. In the event that the evidence was not excluded, defense counsel argued 

that the trial court should declare a mistrial. The State strongly opposed a mistrial 

and argued that the evidence should be admissible as showing a “consciousness of 

guilt.” 

{¶68} The trial court permitted both parties to make arguments in support of 

their positions. Defense counsel argued that placing Carter and Upham in the 

holding cell together was a complete accident and that the incident itself was not 

created by Carter. Defense counsel argued that evidence of the incident would be 

highly prejudicial and it would constitute improper “other acts” evidence under 

Evid.R. 404(B). Further, defense counsel argued that if Upham was to testify 
Case No. 1-15-62 

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defense counsel would be seeking a mistrial due to visible marks that may be on 

Upham from the incident, which could further prejudice Carter. Moreover, defense 

counsel was concerned that the jury may have heard about the incident because it 

had been covered in the newspaper. 

{¶69} By contrast, the State argued that while Carter and Upham should not 

have been placed in the same holding cell together, the ultimate assault was an 

intentional act perpetrated by Carter and that he should not be granted a mistrial on 

the basis of his own actions in assaulting a State’s witness. As to the admissibility 

of the evidence, the State argued that Carter’s actions reflected “consciousness of 

guilt” as Carter was aware of what Upham’s testimony was likely to be, particularly 

since a number of Carter’s witnesses were inmates seeking to discredit Upham. 

{¶70} After allowing the parties to make their arguments, the court addressed 

both the motion for mistrial and the ability of the State to present evidence of the 

altercation. The court began with Carter’s motion for mistrial because, “obviously 

if I grant the mistrial then everything else is, I suppose, moot[.]” (Trial Tr. at 1366). 

{¶71} The trial court then analyzed the issue on the record, citing a number 

of cases to support its decision. First, the trial court noted that a mistrial only needed 

to be declared when a fair trial was no longer possible and that a mistrial should not 

be ordered merely because some error or irregularity had intervened. State v. 

Franklin, 62 Ohio St.3d 118, 127-128 (1991). Then, the trial court cited the invited 
Case No. 1-15-62 

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error doctrine, wherein a party could not take advantage of an error that the party 

induced, and indicated that the invited error doctrine had been applied to motions 

for a mistrial where the defendant had been disruptive. The trial court cited a 

number of cases to support its point. See State v. Greathouse, 2d Dist. Montgomery 

No. 21536, 2007-Ohio-2136 (defendant’s own disruptive actions in the courtroom 

could not be grounds for a mistrial); State v. Chambers, 10th Dist. No. 99AP-1308, 

2000 WL 963890 *5 (“In the present case, appellant cannot participate in numerous, 

intentional, disruptive acts and then seek the protection of the court from his own 

misbehavior.”); State v. Gonzalez, 4th Dist. Athens No. 97CA52, 1998 WL 823737 

(invited error doctrine precluded defendant from taking advantage of any prejudice 

that resulted from his own disruptive behavior in courtroom); State v. James, 2d 

Dist. Clark No. 98-CA-54, 1999 WL 76815 *4 (defendant could not take advantage 

of his own outburst because it would “provide a criminal defendant with a 

convenient device for provoking a mistrial whenever he chose to do so.”). 

{¶72} After citing these cases, among others, for their overriding principles, 

the trial court came to the following conclusion regarding the motion for a mistrial. 

Now, I agree with the defense characterization, and based upon 

all of the information that I have that’s been presented that’s on 

the record, it was an accident. It was an unfortunate accident that 

the defendant and the witness were put in the same holding room. 

But, what occurred thereafter I find was not an accident. It was 

intentional based upon the viewing of the video of that. I’m going 

to find that the defendant cannot participate in an intentional act. 
Case No. 1-15-62 

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So, I’m going to overrule the Motion for a Mistrial under the 

invited error doctrine. 

(Trial Tr. at 1368-69). 

{¶73} Next, the trial court turned to whether evidence of the altercation could 

be presented at trial. The trial court determined that Evid.R. 404(B) was not 

implicated in situations where the act is related to the crime or has a connection to 

the offense. See State v. Goehring, 6th Dist. No. OT-06-023 2007-Ohio-5886, ¶ 15, 

quoting State v. Lowe, 69 Ohio St.3d 527, 531 (1994) (“Evid.R. 404(B) allows the 

admission of ‘other acts’ evidence if it is ‘related to and share[s] common features 

with the crime in question * * *.’ ”). To support its position, the trial court cited, 

inter alia, State v. Williams, 8th Dist. Cuyahoga No. 89461, 2008-Ohio-1948, which 

stated, “Evidence of threats or intimidation of witnesses reflect a consciousness of 

guilt and are admissible as admission by conduct.” Williams at ¶ 29; see also, State 

v. Soke, 105 Ohio App.3d 226 (8th Dist.1996).

{¶74} Here, the trial court found that there was a connection to the offense 

because Upham was going to testify that Carter had confessed a murder to him and 

relayed some of the details. Then the court determined that, 

[Evid.R.] 404(B) is not implicated. This is intrinsic evidence not 

wholly independent of the offenses and it is evidence of an 

admission by conduct reflecting a consciousness of guilt that tends 

logically to prove an element of the crimes charged. But, even if 

404(B) were implicated, which I don’t think it is, but if 404(B) 

would be implicated it would be admissible for other purposes 

other than to prove character or that the defendant acted in 
Case No. 1-15-62 

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conformity with character, such as intent, knowledge, motive, and 

things that are listed in 404(B). 

(Trial Tr. at 1371). 

{¶75} Thus the trial court permitted the State to introduce evidence of the 

incident at trial through the testimony of Upham. Upham then testified regarding 

the incident, stating that Carter punched him and that Upham put Carter in a 

headlock in the hopes that guards would respond shortly. In addition, the State 

introduced the surveillance video from the holding cell, which showed the 

altercation. The State also introduced multiple pictures of Upham’s injuries. 

{¶76} After Upham testified, defense counsel again moved for a mistrial 

stating that Carter was now being charged with intimidation of a witness for Carter’s 

actions during the altercation. Additionally, defense counsel stated his 

understanding that there was an investigation being done as to how Carter and 

Upham had been placed in the same holding cell. Defense counsel stated that he 

wanted that investigation to be included in the record. The court ordered that 

investigation to be included in the record, and the reports that were produced were 

included as court exhibits separate from the trial. 

{¶77} Those court exhibits were included in the record on appeal and they 

contained offense reports from various officers stating what happened from their 

perspective, including one that concluded, “[i]t was later discovered that there was 

a miscommunication between jail staff and court security which lead to Dep. Enyart 
Case No. 1-15-62 

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placing the two inmates together in the same holding cell by mistake.” (Court’s Ex. 

4). 

{¶78} After hearing defense counsel’s argument renewing his motion for a 

mistrial, the trial court went on to state its own view of what led to the incident, 

beginning with the court’s recollection of an in-chambers discussion of the logistics 

of having the prison witnesses in the same building as Carter. 

My understanding was that they would be separated. I doublechecked my entries. * * * It was the Court’s understanding that 

that would have been generally understood. In our chamber 

conference there was a discussion about the prison inmates, 

specifically Mr. Upham, being kept in the probate holding room, 

which is separate from the regular holding room. I think it was 

in the nature of perhaps a mistake because Mr. Upham was 

dressed in stripes instead of in typical Department of Corrections 

garb that somehow there was a non-communication, or a 

miscommunication, to the booking officers who brought him up. 

So, it was an accident/mistake. I think I already mentioned that 

on the record. So, that’s the court’s take on that. 

(Trial Tr. at 1562-63). 

{¶79} The court then overruled defense counsel’s renewed motion for a 

mistrial. The court did indicate it would inquire into whether anyone on the jury had 

heard about the incident from the news, and the court did so. No one on the jury 

indicated having heard anything about the case outside of the courtroom. (Id. at 

1374-75). 

{¶80} In addition, the trial court did state that it would give a specific 

instruction to the jury that the incident could only be considered to show 
Case No. 1-15-62 

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consciousness of guilt and not to show actions in conformity with character. The 

trial court did, in fact, give the jury such an instruction. It read, 

Testimony has been admitted indicating that the defendant was 

involved in a physical altercation with a witness in the holding 

room. You are instructed that defendant’s conduct alone does not 

raise a presumption of guilt, but it may tend to indicate the 

defendant’s consciousness or awareness of guilt. If you find that 

the facts do not support that the defendant’s conduct, or if you 

find that some other motive prompted the defendant’s conduct, 

or if you are unable to decide what the defendant’s motivation 

was, then you should not consider this evidence for any purpose. 

However, if you find that the facts support that the defendant 

engaged in such conduct and if you decide that the defendant was 

motivated by a consciousness or an awareness of guilt, you may, 

but are not required to, consider that evidence in deciding 

whether the defendant is guilty of the crimes charged. You alone 

will determine what weight, if any, to give to this evidence. 

(Trial Tr. at 1844-45). 

Carter’s Arguments Related to the Motion for Mistrial on Appeal 

{¶81} On appeal, Carter renews his argument that the trial court should have 

granted his motion for a mistrial. Carter contends that the cases cited by the trial 

court in making its decision to overrule the motion for a mistrial were 

distinguishable and that the situation in this case was not of Carter’s making. Carter 

contends that court personnel created the situation, not Carter as the trial court 

determined. Carter contends that the cases cited by the trial court were all situations 

where the defendant was specifically disruptive without provocation, and most often 

in front of the jury. 
Case No. 1-15-62 

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{¶82} In our review of the matter, we cannot condone the serious lapse that 

occurred by placing Carter in the same holding cell with Upham; however, we 

cannot find that the trial court abused its discretion in determining that the physical 

altercation itself was actually a direct result of Carter’s own intentional action in 

assaulting Upham. As the trial court indicated, when Carter was paced in the 

holding cell he could have told the authorities that it was Upham in the cell or Carter 

could simply have chosen not to assault Upham when they were in the same cell. 

Instead, Carter chose to assault Upham, which was not an action by the State. 

{¶83} Moreover, in the cases cited by the trial court, James, Gonzalez, 

Greathouse, and Chambers, supra, multiple Ohio Appellate Courts found that in 

situations where a defendant’s actions led to his own motion for a mistrial, it was 

not an abuse of discretion for the trial court to overrule the defendant’s motion for 

a mistrial, particularly under the invited error doctrine. While Carter contends that 

the cases cited by the court to overrule his motion for a mistrial were distinguishable, 

they do stand for the proposition that a defendant cannot take advantage of a 

situation that he created himself. It may be true that the altercation would not have 

been possible had Carter and Upham been kept separate as they were ordered to be, 

but Carter ignores that Upham never would have been struck had Carter simply 

ignored him upon entering the holding cell, or taken some action other than resorting 

to physical violence. 
Case No. 1-15-62 

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{¶84} In sum, while we wish to emphasize that Carter and Upham should 

never have been placed in the same holding cell, we cannot find that the trial court 

abused its discretion in declining to grant Carter a mistrial based on Carter’s actions. 

Thus, Carter’s argument is not well-taken. 

Admissibility of Evidence of the Altercation 

{¶85} Carter next contends that even if it was not error for the trial court to 

overrule his motion for a mistrial, any evidence related to the altercation should not 

have been presented to the jury. More specifically, Carter contends that his 

altercation with Upham in the holding cell in 2015 was not connected to the 2009 

murder of Kenneth Warrington. 

{¶86} In support of his position, Carter urges this Court to apply the dissent’s 

rationale in a 4-3 decision by the Supreme Court of Ohio, State v. Richey, 64 Ohio 

St.3d 353, 1992-Ohio-44, abrogated in part by State v. McGuire, 80 Ohio St.3d 390, 

1997-Ohio-335. In Richey the Supreme Court of Ohio determined that threats made 

by Richey to the prosecutor were admissible evidence as “consciousness of guilt, 

similar to evidence of flight to avoid prosecution, or efforts made to cover up a crime 

or intimidate witnesses.”16 Richey at 357. 

{¶87} By contrast, the dissent in Richey, which Carter relies upon, stated that 

A person wrongly accused could easily take out his frustration 

and anger in this fashion. In particular, Richey's anti-social and 

 

16 Richey was reviewed under a plain error standard. 
Case No. 1-15-62 

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borderline personality traits might make the urge to lash out from 

a false accusation stronger. In any case, jailhouse threats are of a 

different order than flight from prosecution or a coverup as 

evidence of guilt. 

The threats made by Richey are, pure and simple, acts 

separate and distinct from the one for which he was being tried. 

Proof of such threats can be admitted during the guilt phase only 

to show motive, opportunity, intent, plan, and so forth. (Evid.R. 

404[B].) As the threats came after the events for which Richey was 

being tried, none of these factors can possibly be proved by 

evidence of later threats. Therefore the evidence is inadmissible 

for the guilt phase of trial, and it was error for the trial court to 

admit it. 

Richey at 374-375. 

{¶88} Carter contends that the rationale in the Richey dissent should be 

applied in this case. However, the cited portion is facially from the Richey dissent 

rather than the majority. Moreover, while a separate portion of Richey has been 

abrogated, the majority’s ruling on consciousness of guilt has not been altered. 

Richey’s underlying holding related to “consciousness of guilt” has, in fact, been 

cited even recently by multiple Ohio Appellate Courts. State v. White, 10th Dist. 

Franklin No.15AP-565, 2016-Ohio-1405; State v. Tucker, 10th Dist. Franklin Nos. 

15AP-434, 15AP-435, 2016-Ohio-1033, ¶ 17; State v. Culegrove, 8th Dist. 

Cuyahoga No. 102173, 2015-Ohio-3476, ¶ 20, citing State v. Soke, 105 Ohio App.3d 

226, 250 (8th Dist.1995) (“Intimidation of a witness is not independent of the 

charged offense; it is an indicator of guilt.”). This court has also used similar 

reasoning to Richey recently, although we did not directly cite Richey. State v. 
Case No. 1-15-62 

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Missler, 3d Dist. Hardin No. 6-14-06, 2015-Ohio-1076, (“Moreover, ‘[u]nder Ohio 

law, ‘evidence of threats or intimidation of witnesses reflects a consciousness of 

guilt and is admissible as admission by conduct.’ ”). 

{¶89} Carter thus urges this Court to essentially disavow a majority decision 

from the Supreme Court of Ohio and ignore decisions from various districts, 

including a prior opinion from this Court, indicating that threats against a witness 

can be used to show consciousness of guilt. Until this Court is given guidance 

otherwise from the Supreme Court of Ohio, we are bound to follow the majority 

opinion in Richey, and we are persuaded by the precedent of this Court and the other 

appellate courts. In these circumstances, we cannot find that the trial court abused 

its discretion in finding that Carter’s actions could be reflective of a consciousness 

of guilt and thus were admissible at trial. 

{¶90} Although Carter next contends that evidence of the altercation would 

not be admissible under Evid.R. 404(B) if it was not admissible as “consciousness 

of guilt,” we need not address this issue having found that it was not an abuse of 

discretion for the trial court to find that the evidence was admissible as 

consciousness of guilt. However, Carter does contend that even if this Court did 

find that the evidence was somehow relevant and admissible, its probative value 

was still substantially outweighed by the danger of unfair prejudice and it should 

have been excluded under Evid.R. 403. 
Case No. 1-15-62 

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{¶91} After reviewing the record and the arguments, we cannot find Carter’s 

argument well-taken. Undoubtedly there is some inherent prejudice in evidence 

being used against Carter but there is probative value in the altercation as well. We 

cannot find that the trial court abused its discretion in determining that the probative 

value was not substantially outweighed by the danger of unfair prejudice, 

particularly given the deference accorded to trial courts in evidentiary matters. 

Therefore, Carter’s first assignment of error is overruled. 

Second Assignment of Error

{¶92} In Carter’s second assignment of error, he argues that the trial court 

erred by failing to grant a mistrial based upon what he claims are discovery 

violations committed by the State. Carter argues that the State failed to disclose 

information that was testified to by its ballistic expert and that Carter was prejudiced 

by it. Carter also argues that the State failed to disclose a demonstrative picture of 

a Mac-10 style firearm to the defense. 

Standard of Review 

{¶93} As stated previously, the decision to grant a mistrial is within the 

sound discretion of the trial court. State v. Ahmed, 103 Ohio St.3d 27, 2004-Ohio4190, ¶ 92. Regarding the alleged discovery violations, we will also review the trial 

court’s decision under an abuse of discretion standard. See State v. Opp, 3d Dist. 

Seneca No. 13-13-33 2014-Ohio-1138, ¶¶ 7-15. 
Case No. 1-15-62 

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Criminal Rule 16(K) 

{¶94} In this assignment of error, Carter contends that the State violated 

Crim.R. 16(K), which reads, 

(K) Expert Witnesses; Reports. An expert witness for either side 

shall prepare a written report summarizing the expert witness’s 

testimony, findings, analysis, conclusions, or opinion, and shall 

include a summary of the expert’s qualifications. The written 

report and summary of qualifications shall be subject to 

disclosure under this rule no later than twenty-one days prior to 

trial, which period may be modified by the court for good cause 

shown, which does not prejudice any other party. Failure to 

disclose the written report to opposing counsel shall preclude the 

expert’s testimony at trial. 

The Alleged Discovery Violation, Mistrial 

Motion, and Ruling by the Trial Court 

{¶95} On the sixth day of Carter’s trial, the State called Kevin Kramer, a 

forensic scientist with the Ohio Bureau of Criminal Identification and Investigation 

to testify. Kramer was qualified as an expert in “forensic firearm ballistic bullet and 

casing analysis” with no objection by the defense. 

{¶96} Kramer then testified that he “re-worked” or re-analyzed the ballistic 

evidence in this case. The ballistic evidence had been analyzed twice previously. 

The first person to analyze the ballistic evidence for the State, Todd Wharton, had 

taken a new job in Florida and the second person to analyze the evidence, Heather 

Williams, was on a leave of absence due to a medical issue so Kramer was asked to 

analyze the evidence and testify at trial. Kramer testified that he did not review the 
Case No. 1-15-62 

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prior reports before doing his own analysis and that he actually did not even have 

access to notes or findings from the prior testing until he got his own results. 

{¶97} Kramer testified that as a result of his examination he determined that 

the casings found at the scene of the Warrington murder were fired from the same 

firearm and that they were 9mm Luger cartridges. In addition, Kramer testified that 

the box of Winchester ammo—which had been located in Carter’s residence—

contained bullets consistent with the bullets presented by the State for him to test, 

although they were relatively common bullets. However, Kramer concluded that 

the bullets at the scene of the murder were not fired by the weapons submitted to 

him that were found during the search of Carter’s residence. 

{¶98} Kramer’s report reflected his findings and was entered into evidence. 

It read, in pertinent part, “Examination of the three (3) fired bullets * * * revealed 

they are consistent with 9mm Luger full metal jacketed bullets fired from a 

conventional rifled barrel having (6) lands and six (6) grooves, right-hand twist.” 

(State’s Ex. 138). Kramer’s findings were consistent with the findings of the two 

prior analysts.

{¶99} After testifying to his analysis, Kramer was asked whether he was 

familiar with a firearm referred to as a Mac-10 and he answered in the affirmative. 

As Kramer was being shown a demonstrative exhibit of a generic picture of a Mac10 style firearm, defense counsel asked to approach the bench. Defense Counsel 
Case No. 1-15-62 

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objected to the photo and the questioning, stating that the picture was not provided 

in discovery and that he was not prepared to cross-examine Kramer relative to a 

Mac-10 because there was nothing in Kramer’s report regarding a Mac-10. 

{¶100} The State argued that it had already shown the demonstrative picture 

of a Mac-10 style firearm to Carlotta Williams, who previously testified in the trial, 

that defense counsel did not object at that time, and that Kramer was an expert in 

firearms and could therefore testify regarding his familiarity with a Mac-10. The 

State also argued that the defense was put on notice of possible inquiry into a Mac10 due to the statements of Joey Moore. Carter had made statements that were 

overheard by Moore, including that when the police searched Carter’s residence the 

police did not find a disassembled Mac-10. Ultimately the trial court overruled 

defense counsel’s objection and allowed the State to ask questions regarding a Mac10. 

{¶101} The questioning of Kramer then resumed. Kramer testified that the 

demonstrative picture produced by the State in Exhibit 139 was “consistent in style 

and appearance with what’s been described as a Mac-10 style of firearm.” (Trial 

Tr. at 1176). Next, Kramer described a Mac-10’s appearance and how it operated. 

Kramer was then asked if back in 2009 there was any kind of Mac-10 that could 

have fired the bullets found at the scene of the Warrington murder. Kramer stated 

that given the specific “groove” characteristics in the bullets, after reviewing Todd 
Case No. 1-15-62 

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Wharton’s report and notes and Heather Williams’s report and notes there was a 

Mac-10 style weapon on the list of possible candidate firearms that could have fired 

the bullets. Defense counsel objected to portions of this testimony. 

{¶102} Before the defense cross-examined Kramer, defense counsel asked 

to break for the evening given what he termed the “surprise of the disclosure.” 

Defense counsel argued that tying the rifling specifics on the bullets at the scene of 

the murder to the Mac-10 was a new issue to him and it was not disclosed in 

Kramer’s report. The trial court then excused the jury for the night and at that time 

defense counsel moved for a mistrial, contending that Kramer’s testimony went 

beyond the scope of his report. 

{¶103} At that time defense counsel acknowledged that he had received 

Kramer’s report and the reports from the prior analysts. However, defense counsel 

stated that he had never seen any list from any expert tying a Mac-10 style firearm 

to the bullets from the Warrington Murder scene. But, defense counsel did 

acknowledge that he was aware of Joey Moore’s statement regarding a Mac-10. 

{¶104} Defense counsel then contended that he could not properly crossexamine Kramer based on the new information. He indicated that he would need to 

get his own expert. The State, by contrast, indicated that the previous analysts’ 

reports and the discussions regarding rifling grooves on the bullets should have put 
Case No. 1-15-62 

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defense counsel on notice, particularly when combined with Joey Moore’s 

statement. 

{¶105} The trial court inquired as to whether the defense had the candidate 

list of the firearms that BCI stated were possibly consistent with the rifling 

characteristics on the bullets, and defense counsel stated he did not. The State was 

then ordered to give the candidate list to the defense at that time. Court then 

recessed for the evening, and reconvened the following morning. 

{¶106} On the morning of the seventh day of Carter’s trial, defense counsel 

filed a written motion for a mistrial. The trial court heard arguments from both 

parties on the matter. Defense counsel again contended that the State had violated 

Crim.R. 16 by not disclosing the possible firearm candidate list, which contained 

over 130 firearms that could have fired the 9mm Luger rounds and created similar 

“lands and grooves” on the bullets that were found at the scene of the Warrington 

murder. 

{¶107} Defense counsel also stated that he had contacted an expert who 

defense counsel thought could contradict the State’s evidence, or at least indicate 

that the State’s candidate list was overly broad and that the potential expert could 

possibly exclude the Mac-10 as a candidate. Defense counsel argued that he was 

prejudiced by the State’s non-disclosure of the firearm candidate list. 
Case No. 1-15-62 

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{¶108} By contrast, the State argued that the defense was not unfairly 

surprised as the firearm candidate list was more akin to notes used in generating an 

expert report and thus was not required to be given under Crim.R. 16(D). The State 

maintained that the candidate list was simply a large list of possible firearms that 

could match the lands and grooves on the fired bullets, leading to Todd Wharton’s 

stated conclusion that he could not match the bullets at the scene to a single specific 

firearm. Todd Wharton’s report, which the trial court included as a court exhibit, 

contained the following language. 

Examination of the evidence bullets * * * revealed that they are 

9mm Luger caliber, full metal jacketed design, and fired from a 

barrel with conventional rifling consisting of six (6) lands and six 

(6) grooves, right-hand twist. Microscopic comparisons of the 

three (3) evidence bullets to each other revealed matching 

individual barrel engraved striations, confirming that the 

evidence bullets were fired from the same firearm. Further 

microscopic comparison of the evidence bullets to test fires from 

the Glock pistol, submitted as item #1, revealed dissimilar general 

rifling class characteristics (polygonal rifling versus conventional 

rifling). These findings confirm that the evidence bullets were not 

fired by the submitted pistol. 

The rifling specifications on the evidence bullets correspond to 

numerous brands of 9mm Luger caliber semi-automatic firearms. 

* * * 

Digital images of the individual characteristics present on the 

evidence cartridge case, submitted as item #4, have been entered 

into Ohio’s computerized firearms identification system 

(“NIBIN/IBIS”) and compared with images of all similar 

specimens currently on file. No identification was made at this 

time; however, the images will remain in the system and will be 
Case No. 1-15-62 

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routinely compared with all future images entered by any of the 

laboratories in the Ohio network. 

(Court Exhibit 1-M). 

{¶109} The State argued that the analysts’ reports contained the conclusions 

that were required to be turned over under Crim.R. 16 and that defense counsel was 

on notice and could have examined any of the experts related to what possible 

weapons matched the rifling characteristics on the bullets, particularly given that 

Wharton and Kramer’s reports contained those rifling characteristics. 

{¶110} Separately, the State argued that the demonstrative picture of a Mac10 style firearm was listed as a potential exhibit to be presented at trial in the State’s 

exhibit list, which was given to defense counsel just prior to trial. Specifically, the 

exhibit list indicates “Mac-10 Photo” with Kramer and C. Williams as the witnesses 

who would identify the exhibit. (Court’s Ex. 1-M). 

{¶111} After hearing the parties’ arguments, the trial court proceeded to rule 

on the matter. The trial court indicated that it had reviewed the memorandum 

supporting defense counsel’s motion for a mistrial, that it had reviewed what had 

been disclosed in discovery and what had not been disclosed, and that it had 

reviewed relevant case authority. 

{¶112} The trial court then conducted its analysis on the record, stating that 

defense counsel did have Joey Moore’s statement regarding the Mac-10, that it did 

have Todd Wharton’s report indicating that there was a list of possible candidate 
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firearms but none of them could be specifically identified as the weapon used in the 

murder, and that defense counsel had information that other firearms could have 

fired the bullets. What defense counsel did not have, was the actual list of candidate 

firearms (Defense Exhibit HH), which contained 131 possible matching firearms 

made by dozens of manufacturers. 

{¶113} The court then made the following ruling. 

But, I find it’s not necessarily a discovery violation not giving the 

defense exhibit ‘HH’ until yesterday because Mr. Wharton’s 

report indicates that there was a list of guns that could have fired 

the casings that were tested. The defendant knew of Mr. 

Wharton’s report. The defendant’s counsel knew that Moore had 

said that the defendant had an unassembled Mac-10 at his house. 

Therefore, since the defendant had Wharton’s report and knew 

that there was evidence that the casings could have been fired 

from any number of guns, including a Mac-10, I find that failure 

to provide the full exhaustive hundred and thirty-one list is not a 

willful discovery violation. It’s more in the nature of notes or data 

that supports the conclusion in Wharton’s report. 

Did the defendant have prior discovery that the State would 

show a picture of the Mac-10? Apparently at the very earliest 

would be on the day the trial started when the list of exhibits was 

provided. I find that the picture is demonstrative or illustrative 

of what Moore said that the defendant told him, or that he heard 

the defendant say. Demonstrative evidence is admissible if it 

satisfies the general standard of relevance set forth in Evidence 

Rule 401, if it is substantially similar to an object that it is 

intended to represent. 

(Trial Tr. at 1242-43). 

{¶114} In sum, the trial court stated, 
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The defense had access to all B.C.I. reports. The defense had 

access to all the witnesses. If there is a violation I think the only 

violation here would be not giving the actual picture of the Mac10, the purported Mac-10, State’s Exhibit ‘139’. So with that in 

mind, finding that there has not been any other discovery 

violation, I’m going to exercise discretion. 

(Id. at 1243). 

{¶115} The court thus found that there was no willful violation of the 

discovery rules by the State in this instance. Therefore, the court determined that 

the severe sanction of a mistrial was not appropriate. The court indicated that it had 

given defense counsel the evening to prepare for cross-examination of Kramer and 

that defense counsel had demonstrated that he was prepared to do so through his 

argument to the court in support of his motion for a mistrial. However, the court 

stated that if defense counsel needed a continuance when the trial reached the 

defense’s case-in-chief to present an expert, the court would take that under 

advisement at that time. In addition, the court noted that it would give an instruction 

that the photograph of the Mac-10 style-weapon was merely a demonstrative 

exhibit.17

{¶116} Following the hearing on the mistrial, trial resumed and defense 

counsel cross-examined Kramer. On cross-examination Kramer indicated that an 

actual “Mac-10” was not on the candidate firearm list, but two manufacturers made 

 

17 The trial court did give a generic instruction regarding demonstrative exhibits. 
Case No. 1-15-62 

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a firearm similar to the Mac-10, and they were on the candidate list. Kramer also 

acknowledged that over 130 different 9mm firearms could have fired the bullets that 

were located at the Warrington murder and if Kramer was shown a demonstrative 

photograph of each and every one of them he would agree that they were all 

consistent with the rifling pattern of the bullets from the scene of the Warrington 

murder. 

Carter’s Argument on Appeal and Analysis 

{¶117} Carter now renews his argument on appeal that the trial court should 

have granted his motion for a mistrial and that the State committed discovery 

violations. Carter argues that Crim.R. 16(K) requires an expert to produce a report 

summarizing his testimony and he contends that Kramer’s report only summarized 

part of his testimony. In addition, Carter argues that there is actually little validity 

to the science behind Kramer’s testimony. Carter argues that various publications 

have questioned the validity of comparing a bullet collected at a crime scene to a 

fired bullet in a lab and that such an analysis does not reach the level of rigor to be 

considered scientifically viable. Finally, Carter argues that defense counsel had 

indicated he had been in contact with an expert who had said that he would 

undermine the State’s ballistic evidence had defense counsel been aware of the Mac10 information. 
Case No. 1-15-62 

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{¶118} In our own review of the trial court’s decision on this matter, we 

would begin by noting that the trial court was very thorough in addressing these 

issues. The trial court also prepared a thorough record, having the referenced 

ballistic expert reports and the “candidate list” included in the record as court 

exhibits separate from the trial, many of which may not have otherwise been 

included. In addition, the trial court also held lengthy arguments on these issues 

and clearly considered the record and some relevant caselaw. 

{¶119} Dealing first with the purported discovery violations, we cannot find 

that the trial court abused its discretion. Defense counsel was in possession of Joey 

Moore’s statement regarding a Mac-10 and defense counsel also did have the reports 

from the analysts indicating that a number of potential firearms could cause similar 

groove patterns on the bullets in this case. A Mac-10 style weapon was one of over 

130 of those firearms and Kramer, the expert, could only say that the Mac-10 style 

was one of many possible candidates. Defense counsel thus did receive a summary 

of the experts’ findings and was clearly aware that a Mac-10 style firearm was a 

weapon that Carter was alleged to be in possession of. Moreover, defense counsel 

was able to effectively cross-examine Kramer on the issue given the extra night to 

prepare. 

{¶120} As to the demonstrative photograph of a Mac-10 style firearm, 

defense counsel was provided with an exhibit list indicating that the photograph 
Case No. 1-15-62 

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would be used. While the State should still have provided the defense with the 

actual photograph, defense counsel did have the ability to ask for it. Similarly 

defense counsel did not object to the use of the demonstrative photo with a prior 

witness and was aware of it at that time, prior to Kramer’s testimony. Again, 

defense counsel was also aware of the possibility of reference to a Mac-10 given 

that Joey Moore was set to be a witness at trial. 

{¶121} Given the trial court’s familiarity with the case and its analysis of the 

issue, we cannot find that the trial court abused its discretion in finding that there 

was no discovery violation, or that if there was it was not serious enough to warrant 

a mistrial. Mistrials are to be granted only in exceptional circumstances, and we 

cannot find given the specific facts before us that the trial court abused its discretion 

in declining to grant Carter’s motion for a mistrial, even if there were some 

discovery irregularities. Therefore, Carter’s second assignment of error is 

overruled. 

Fourth Assignment of Error

{¶122} In Carter’s fourth assignment of error, he argues that the prosecutor 

committed misconduct during closing arguments. Specifically, Carter argues that 

the prosecutor misstated evidence and that the State attempted to shift the burden of 

proof to the defense. In addition, Carter argues that the cumulative discovery 

violations constituted prosecutorial misconduct. 
Case No. 1-15-62 

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Standard of Review 

{¶123} Prosecutorial misconduct is generally not grounds for reversal unless 

it so taints the proceedings as to deprive the defendant of a fair trial. State v. Johns, 

3d. Dist. Seneca No. 13-04-23, 13-04-24, 13-04-25, 2005-Ohio-1694, ¶ 25. Where 

it is clear beyond a reasonable doubt that the jury would have found the defendant 

guilty, even absent the alleged misconduct, the defendant has not been prejudiced, 

and his conviction will not be reversed. See State v. Underwood, 2d Dist. 

Montgomery No. 24186, 2011-Ohio-5418, ¶ 21. We review allegations of 

prosecutorial misconduct in the context of the entire trial. State v. Stevenson, 2d 

Dist. Greene No. 2007-CA-51, 2008-Ohio-2900, ¶ 42, citing Darden v. Wainwright, 

477 U.S. 168, 106 S.Ct. 2464 (1986). “In making this determination, an appellate 

court should consider several factors: (1) the nature of the remarks, (2) whether an 

objection was made by counsel, (3) whether corrective instructions were given by 

the court, and (4) the strength of the evidence against the defendant.” State v. 

Braxton, 102 Ohio App.3d 28, 41 (8th Dist.1995). 

{¶124} Furthermore, as to prosecutorial misconduct allegations related to 

closing arguments, “[p]arties have wide latitude in their closing statements, 

particularly ‘latitude as to what the evidence has shown and what inferences can be 

drawn from the evidence.’ ” State v. Wolff, 7th Dist. Mahoning No. 07MA166, 

2009-Ohio-7085, at ¶ 13, quoting State v. Diar, 120 Ohio St.3d 460, 2008-Ohio-
Case No. 1-15-62 

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6266, at ¶ 213. A prosecutor may comment upon the testimony of witnesses and 

suggest the conclusions to be drawn. State v. Hand, 107 Ohio St.3d 378, 2006-

Ohio-18, at ¶ 116. 

Alleged Improper Statements in Closing Arguments 

{¶125} Carter first argues that during its rebuttal closing argument the State 

made an improper statement related to the expert testimony of Matthew Congleton, 

who had performed the GSR testing in this case. Carter claims that the following 

statement during the prosecutor’s rebuttal closing argument was improper. 

Now, there was not gunshot residue found on that car. True. But, 

Mr. Congleton told you that gunshot residue does not stick to 

smooth surfaces. If there was any on Mr. Carter’s bare hands 

and then transferred to that door handle it probably wouldn’t 

stick to that door handle. If it did, it may have blown away in the 

wind as Mr. Carter drove. 

[DEFENSE COUNSEL]: Objection. That was not the expert’s 

testimony. 

THE COURT: Well, the jury can remember what the testimony 

was. This is argument. It’s not evidence. 

(Trial Tr. at 1812). 

{¶126} Carter contends that a “fair review” of Congleton’s testimony shows 

that Congleton did not make any statements as to GSR blowing away as Carter drove 

away. Contrary to Carter’s argument, a “fair review” of the prosecutor’s statement 

indicates that the prosecutor was suggesting something that “may” have happened. 

The prosecutor was not indicating that the GSR expert actually did testify that the 
Case No. 1-15-62 

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GSR likely blew off of the vehicle. Rather the prosecutor was making an inference 

based on Congleton’s testimony. Congleton actually did testify that “[a] smoother 

object obviously would have less adhesion power—it would give the particles less 

stick-to-itiveness than a rougher surface.” (Trial Tr. at 1135). Congleton also 

testified that, “[g]enerally speaking * * * [t]he more an object or person moves, or 

it rubs up against something or themselves, the more likely you will have gunshot 

residue shed and continue to be shed from whatever surface it might be.” (Id. at 

1136). Thus the prosecutor’s statement is a fair inference made from the evidence. 

{¶127} Finally, even if the statement was somehow error, which we do not 

find that it is, the jury was clearly instructed that closing arguments were not 

evidence and we presume the jury followed that instruction. Thus Carter’s argument 

on this issue is not well-taken. 

{¶128} Carter next argues that the following statement made during the 

State’s rebuttal closing argument was improper. 

[PROSECUTOR]: [Defense Counsel] also said, “Well, maybe 

that gunshot residue got on those clothes,” not one article, and not 

two articles, but three articles of clothing collected from the 

defendant’s house, “got on those clothes at the Police station.” 

Maybe. Maybe. Okay, now we have two possibilities. I would 

submit to you that the more possibilities we have the more likely 

it is that each one of them is a mere possibility. Okay? Well, 

maybe. Maybe. Maybe just isn’t good enough. Maybe doesn’t 

get you to reasonable doubt. The jury instructions tell you that. 
Case No. 1-15-62 

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[DEFENSE COUNSEL]: Objection, Your Honor. He’s reversing 

the burden of proof. Maybe doesn’t get you reasonable doubt is 

reversing the burden of proof in this case. 

[PROSECUTOR]: I’m speaking directly to the jury instructions 

that talks specifically about mere possible doubt. 

[THE COURT]: Okay. The Statement you just made I’ll sustain 

and tell the jury to disregard. But, continue. 

[PROSECUTOR]: Okay. 

THE COURT: The State has the burden of proof. 

(Trial Tr. at 1808-1809). 

{¶129} Here, clearly the trial court sustained an objection and the jury was 

instructed to disregard. We must presume that the jury followed the court’s 

instructions, particularly given that shortly thereafter the jury was specifically 

instructed on reasonable doubt as follows. 

Reasonable doubt is present when, after you have carefully 

considered and compared all of the evidence, you cannot say you 

are firmly convinced of the truth of the charge. Reasonable doubt 

is a doubt based on reason and common sense. Reasonable doubt 

is not a mere possible doubt because everything relating to human 

affairs or depending on moral evidence is open to some possible 

or imaginary doubt. Proof beyond a reasonable doubt is proof of 

such a character that an ordinary person would be willing to rely 

and act upon it in the most important of the person’s own affairs. 

If, after a full and impartial consideration of all of the 

evidence, you are firmly convinced of the truth of the charge the 

State has proved its case beyond a reasonable doubt. If you are 

not firmly convinced of the truth of the charge you must find the 

defendant not guilty. 
Case No. 1-15-62 

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(Trial Tr. at 1830-31). 

{¶130} Given that the trial court sustained the objection to the prosecutor’s 

statement, that the trial court gave thorough instructions related to reasonable doubt, 

and given our presumption that the jury followed the trial court’s instructions, we 

can find no error here, let alone prejudicial error. 

{¶131} Next, Carter argues that the prosecutor committed error in making 

the following statement in rebuttal closing argument. 

Also with respect to Sonya [Defense Counsel] brings up the idea 

that she was with a lot of other men. Well, we know of one other 

than Mr. Warrington and that would be Arguello Harris. Okay? 

I don’t know that there was any evidence of a lot of other men. 

But, again, even assuming there were other men, is it just a mere 

possibility that some other man did this? Because a mere 

possibility does not rise to a level of reasonable doubt. 

[DEFENSE COUNSEL]: Objection, your Honor. It’s shifting the 

burden. 

THE COURT: The Court will remind the jurors, and I’ll tell you 

in the instructions, it’s the State’s burden to prove. 

(Trial Tr. at 1817). 

{¶132} Here, the state’s indication that a mere possibility does not rise to the 

level of reasonable doubt is straight out of the jury instructions. Again the court 

also provided specific instructions related to reasonable doubt. We can find no error 

here, let alone prejudicial error. 
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{¶133} Next, Carter argues that the following statement of the prosecutor 

during rebuttal closing argument was error. 

Now, Carlotta. [Defense Counsel] said something with respect to 

Carlotta and this is very important. He said – [Defense Counsel] 

suggested that Mr. Carter was not trying to set up an alibi because 

he was guilty, but because maybe he was innocent and the alibi 

was true. 

[DEFENSE COUNSEL]: Objection. That’s not what I said. 

THE COURT: It’s just argument. The jury will decide what the 

evidence is. Overruled. 

(Trial Tr. at 1826). 

{¶134} It appears that the prosecutor’s statement in rebuttal closing argument 

was in reference to the following portion of defense counsel’s closing argument. 

Carlotta, when asked by the Prosecutor, said this whole thing 

about this alibi stuff. It wasn’t meant by Markelus because he 

was guilty and he was trying to create a falsehood to get out of it. 

Markelus Carter feels, and felt, like the system wasn’t going to 

give him a fair shake and he needed extra help to do it. 

(Trial Tr. at 1803). 

{¶135} While the prosecutor’s characterization of what defense counsel said 

in rebuttal closing argument was not entirely accurate, we cannot find that it was an 

unfair characterization of the evidence or that it in any way prejudiced the outcome 

of the trial or rose to the level of prosecutorial misconduct. Thus Carter’s arguments 

related to statements made during the prosecutor’s rebuttal closing statements are 

not well-taken. 
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{¶136} Finally, Carter argues summarily in two sentences in his brief that 

the State’s discovery violations and improper arguments cumulatively constitute 

reversible error. We found no error in closing arguments and although there were 

discovery irregularities in this case, we cannot find that anything here rose to the 

level of prosecutorial misconduct. Thus there is no basis for cumulative error. 

Therefore, Carter’s fourth assignment of error is overruled. 

Fifth Assignment of Error

{¶137} In Carter’s fifth assignment of error, he argues that he received 

ineffective assistance of counsel. Specifically, he contends that defense counsel 

poorly handled the government firearms expert, Kramer, and that defense counsel 

failed to adequately investigate the possibility of a Mac-10 style weapon being 

involved in this case. 

Standard of Review 

{¶138} To establish his claims on appeal, Carter must show that trial 

counsel’s performance was deficient and that counsel’s deficient performance 

prejudiced him. State v. Jackson, 107 Ohio St.3d 53, 2005–Ohio–5981, ¶ 133, citing 

Strickland v. Washington, 466 U.S. 668, 687 (1984). The failure to make either 

showing defeats a claim of ineffective assistance of counsel. State v. Bradley, 42 

Ohio St.3d 136, 143 (1989), quoting Strickland at 697 (“[T]here is no reason for a 

court deciding an ineffective assistance claim to approach the inquiry in the same 
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order or even to address both components of the inquiry if the defendant makes an 

insufficient showing on one.”). 

Purported Ineffective Assistance and Analysis 

{¶139} Carter contends that if the State is to be believed that defense counsel 

should have been on notice from discovery that a Mac-10 style firearm would be 

painted as the alleged murder weapon, then defense counsel was ineffective for 

failing to adequately investigate the matter. In addition, Carter contends that 

defense counsel failed to call an expert related to ballistics despite indicating on the 

record that he had been in contact with one. 

{¶140} Contrary to Carter’s arguments, there is no evidence in the record 

that his trial counsel could have called a witness to dispute Kramer’s testimony. 

Multiple days before Carter presented his case-in-chief, the trial court addressed 

Carter’s motion for a mistrial related to discovery matters, which was discussed in 

the second assignment of error. As defense counsel argued for a mistrial, he 

indicated that he had been in contact with an expert and the expert would look into 

the matter and the expert gave some brief opinions on the matter over the phone, 

but it did not appear that the expert had actually reviewed the ballistic evidence yet 

based on Carter’s counsel’s representations. Although it overruled Carter’s motion 

for a mistrial, the trial court indicated that it would consider granting Carter a 

continuance when the trial reached his case-in-chief if Carter needed to bring in an 
Case No. 1-15-62 

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expert, but defense counsel never requested such a continuance. In fact, defense 

counsel did not suggest at any point later in the trial that he had received further 

word from the expert and would like to call the expert to testify. 

{¶141} On appeal, Carter would have us find, without any facts to support it, 

that his counsel was ineffective for failing to investigate, request a continuance, or 

call an expert when there is no indication that a ballistic expert would actually have 

been able to meaningfully contradict testimony by the State. It is equally likely, 

though equally uncertain, that the expert reviewed the evidence and could not 

provide any exculpatory testimony. Carter would have this Court engage in pure 

speculation that some expert existed who would have provided exculpatory 

testimony related to ballistics that would somehow overcome the mountain of other 

circumstantial evidence against him. 

{¶142} Moreover, even if Carter could produce evidence disputing the 

State’s expert that a Mac-10 style firearm was one of over 130 firearms that could 

match the groove patterns on the bullets found at the Warrington murder scene, such 

testimony would only call into question the type of firearm used in the murder, not 

the murder itself. Thus we cannot find any prejudicial error here. 

{¶143} This is particularly true given that Carter’s trial counsel was able to 

effectively cross-examine the State’s expert and have him admit that the bullet 

grooves matched with over 130 weapons, giving little weight to his assertion that 
Case No. 1-15-62 

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the Mac-10 style weapon was one of many possible firearms. For these reasons, 

Carter’s fifth assignment of error is overruled. 

Conclusion 

{¶144} For the foregoing reasons Carter’s assignments of error are overruled 

and the judgment of the Allen County Common Pleas Court is affirmed. 

Judgment Affirmed 

PRESTON, P.J. and WILLAMOWSKI, J., concur. 

/jlr