[Cite as State v. Wells , 2022-Ohio-30.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT CLARK COUNTY

STATE OF OHIO Plaintiff-Appellee

v. GREGORY WELLS Defendant-Appellant : : : : : : : : : : Appellate Case No. 2021-CA-19

Trial Court Case No. 2020-CR-671 (Criminal Appeal from Common Pleas Court)

. . . . . . . . . . . O P I N I O N Rendered on the 7th day of January, 2022.

. . . . . . . . . . . ANDREA K. BOYD, Atty. Reg. No. 0090468, Special Prosecuting Att orney, Office of the Ohio Attorney General, 30 East Broad Street, 23rd Floor, Columb us, Ohio 43215 Attorney for Plaintiff-Appellee JOE CLOUD, Atty. Reg. No. 0040301, 3973 Dayton-Xenia Road, Beav ercreek, Ohio 45432 Attorney for Defendant-Appellant

. . . . . . . . . . . . .-2- EPLEY, J. {¶ 1} Defendant-Appellant Gregory Wells was tried by a jury and convi cted of attempted murder with a firearm specification, felonious assaul t, improper handling of a firearm in a motor vehicle, and having weapons while under disa bility. He was sentenced to a total of 18 and one half years to 24 years in prison. Well s now appeals the judgment of the trial court, raising five assignments of error. For the reasons that follow, the judgment of the trial court will be affirmed. I. Facts and Procedural History {¶ 2} Gregory Wells, Kiiesha Battle, and Kenny Danner were involved i n a love triangle. Battle and Danner had been romantically involved in a somewhat-serious relationship since 2016 and lived together; Battle and Wells ha d been in an on-again, offagain casual sexual relationship since 2004 or 2005. Battle and Wells managed to keep their affair secret until October 2019, when Danner came home o ne night to find Battle and Wells in bed together, partially clothed. The altercation t hat ensued left both men injured, though testimony seemed to suggest that Wells got the worst of it. There is no evidence in the record of another physical altercation between Danner and Wells after the 2019 incident, but Battle admitted that she and Wells conti nued to be sexually

involved. {¶ 3} In the evening of October 12, 2020, Danner pulled his car in fr ont of the home he shared with Battle after making a quick trip to the gas stat ion to pick up some drinks

to have with dinner. As Danner w as sitting there, talking on hi s phone, Wells pulled up in his dark blue Buick, emerged from the driver’s seat, and opened fire at Danner from just outside the passenger side window of Danner’s car. Bullets ridd led the passenger side of-3- the vehicle and many struck Danner. Wells continued to shoot as Danner fell out of the car in an attempt to get to the safety of his house. Wells retu rned to his car and left the

scene. {¶ 4} Danner made it inside and was tended to by Battle. She testifie d that she heard the shots and ran to the front door to see Danner trying to get inside, “just bleeding everywhere.” Trial Tr. at 212. She quickly called 911 and was i nstructed by the dispatcher to ask Danner who shot him. He immediately identified Wells. Me dics soon arrived and transported Danner to Springfield Regional Medical Center, wher e he was stabilized and then flown to Miami Valley Hospital. {¶ 5} Danner’s injuries were significant. He was shot at least six ti mes and had wounds to his back, shoulder, neck, leg, elbow, and knee. Battl e testified that she thought “there were three or four holes in his back. They were all over his chest, his arm, leg. I think his neck was grazed. Like, [bullet holes] were just every where.” Trial Tr. at 212. Overall, Danner was hospitalized for approximately a month, and a bullet remains in his leg. Danner testified at trial t hat he was still going to physi cal therapy twice per week and was unsure if he would ever work again due to numbness and para lysis of his right hand. {¶ 6} Wells was charged with attempted murder (with a firearm specifi cation), felonious assault, improper handling of a firearm in a motor ve hicle, and having weapons under disability. The case proceeded to a three-day trial in Ma rch 2021. The jury heard testimony from Danner, Battle, and members of law enforcement, including Detective Justin Massie and Jeff Moran, the criminal intelligence unit su pervisor for the Ohio State Highway Patrol. Wells testified on his own behalf. He admitted that he shot Danner, but claimed it was done in the heat of passion and that the act was not done with the intent-4- to kill Danner. The jury also saw dozens of exhibits, including surveillance video from a neighbor’s house which captured the shooting. {¶ 7} Wells was found guilty of all charges and specifications. At t he disposition, the attempted murder and felonious assault counts were merged f or sentencing purposes, and the State opted to proceed on the attempted murde r count. Wells was sentenced to a total of 18 and one half to 24 years in prison. II. Discovery Issues {¶ 8} In his first and second assignments of error, Wells argues that the trial court erred by failing to enforce disco very rules pursuant to Crim.R. 16, and because of that, he was denied a fair trial. The factual basis for Wells’ argume nt revolves around the allegation that the State failed to provide him with an itemize d and detailed witness list prior to trial. {¶ 9} Crim.R. 16 directs discovery in criminal cases. “This rule is t o provide all parties * * * with the information necessary for a full and fai r adjudication of the facts, to protect the integrity of the justice system and the rights of d efendants, and to protect the well-being of witnesses, victims, and society at large.” Crim.R . 16(A). The purpose of the Rule is “‘to prevent surprise and the secreting of evidence fav orable to one party.’” State

v. Darmond , 135 Ohio St.3d 343, 2013-Ohio-966, 986 N.E.2d 971, ¶ 19, quot ing Lakewood v. Papedelis , 21 Ohio St.3d 1, 3, 511 N.E.2d 1138 (1987). {¶ 10} As applicable to this case, Crim.R. 16(I) provides that each pa rty must provide a written witness list to opposing counsel that include s the names and addresses of witnesses who they intend to call in their case-in-chief, re buttal, or surrebuttal. Crim.R.(I). If it is brought to the attention of the trial cour t that a party has not complied-5- with Crim.R. 16, the court may grant a continuance, prohibit th e party from introducing the material not disclosed, or “it may make such other order as it deems just under the circumstances.” Crim.R. 16(L)(1). {¶ 11} When faced with a purported violation of Crim.R. 16, the trial court should consider (1) whether the failu re to disclose was a willful viol ation of the Rule; (2) whether knowledge of the undisclosed material would have benefitted the accused in the preparation of a defense; and (3) whether the defendant was pre judiced. Darmond at ¶ 35. We review the trial court’s decision under an abuse of di scretion standard. State v.

Blanken , 2d Dist. Clark No. 2012-CA-73, 2014-Ohio-5361, ¶ 16. To const itute an abuse of discretion, a trial court’s action must be arbitrary, unreas onable, or unconscionable. Ojalvo v. Bd. of Trustees of Ohio State Univ. , 12 Ohio St.3d 230, 232, 466 N.E.2d 875 (1984). {¶ 12} In this case, there was a discovery mix-up on the part of the S tate. It is undisputed that the State provided Wells with discovery months before the trial, which included police reports and written statements with the identit ies of all potential witnesses. The State, however, inadvertently electronically filed its item ized witness list for this trial in another one of Wells’ criminal cases in which he was represe nted by the same attorney. The State attempted, in good faith, to comply with its discover y duty, but made a mistake: submitting the list in the wrong case, but to the correct defen dant and attorney. It was not a willful violation of Crim.R. 16(I). {¶ 13} The second Darmond factor is not implicated either. There is no evidence that Wells would have benefited in the preparation of his defen se had there not been the violation. He was in possession of the names and addresses of t he potential witnesses in-6- the form of the police reports and statements, he could have, w ith minimal effort, discovered the witnesses the State was to likely call, and Well s (by way of his attorney) could have followed up with the State to gain access to the ite mized list. If the State refused to turn it over, then Wells had another option – a moti on to compel pursuant to Crim.R. 16(M). Instead, Wells waited until the morning of trial to raise the issue, and by that time, his ability to use the motion to compel had expired, as according to the Rule, “[a] motion to compel compliance with this rule shall be made n o later than seven days prior to trial.” Crim.R. 16(M). {¶ 14} Finally, Wells was not prejudiced by the violation. The record reflects that there was a mountain of evidence pointing to Wells’ guilt. He w as identified by Danner, the victim, as the shooter multiple times; first, moments after the shooting on the phone with 911, then in the hospital, and finally, on the stand at tr ial. Wells took the stand at trial and admitted, no fewer than five times, to shooting Danner. Tri al Tr. at 472, 496, 498, 500, 512. Google cell phone data also confirmed that Wells was within 17 meters of the crime scene at the time of the shooting. And perhaps as the mos t important evidence of all, the incident was caught on tape. It cannot be said that th e outcome of the trial would

have been different if Wells had received the itemized witness list. {¶ 15} The trial court did not abuse its discretion by denying Wells’ request for a continuance or the exclusion of evidence, and Wells was not den ied a fair trial. The first and second assignments of error are overruled. III. Witness Testimony {¶ 16} In his third and fourth assignments of error, Wells argues that the trial court erred by permitting Jeff Moran, a criminal intelligence supervi sor at OSHP, to testify as-7- an expert about Wells’ cell phone location data. The State coun ters that Moran was not an expert witness as the court never qualified him as such. Fur ther, it asserts that his testimony was not technical in nature and that he was merely te stifying as a lay witness. We agree with the State’s analysis. {¶ 17} The Rules of Evidence delineates two forms of witness testimony – lay and expert. “The distinction between lay and expert witness opinion testimony is that lay testimony results from a process of reasoning familiar in every day life, while expert testimony results from a process of reasoning which can be mast ered only by specialists in the field.” 28 Ohio Jurisprudence 3d, Criminal Law: Procedur e, Section 1641. See State

v. McKee , 91 Ohio St.3d 292, 2001-Ohio-40, 744 N.E.2d 737. {¶ 18} Evid.R. 701 states that lay witness testimony is limited to opi nions or inferences that are: (1) rationally based on the perception of the witness; and (2) helpful to a clear understanding of the witnesses’ testimony or the det ermination of a fact in question. In other words, a witness must have first-hand knowle dge of the subject of his or her testimony and the opinion must be one that a rational pe rson would form based on the observed facts. It also must help the trier of fact in unde rstanding the testimony of the witness or determining a fact in issue. Id

. {¶ 19} Trial courts have considerable discretion in admitting the test imony of lay witnesses, and we evaluate the court’s decision for abuse of di scretion. Brown v. Burnett , 2020-Ohio-297, 144 N.E.3d 475, ¶ 28 (2d Dist.). {¶ 20} A witness who is qualified as an expert by knowledge, skill, ex perience, training, or education may testify in the form of an opinion or otherwise if: (1) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand-8- the evidence or to determine a fact in issue; (2) the testimony is based on sufficient facts or data; (3) the testimony is the product of reliable methods a nd principles; and (4) the expert has reliably applied the methods and principles to the f acts of the case. Evid.R.

702. {¶ 21} At trial, the State presented two witnesses who testified about Wells’ cell phone location data. Detective Massie testified that he obtaine d data from Google in the form of a spreadsheet with the date, time, latitude, longitude, device identification, and display radius. He then testified that to ascertain the locatio n of Wells’ cell phone, he simply plotted the latitude and longitude on a map. Massie conc luded that Wells’ cell phone was near 814 Cedar Street at the time of the shooting. {¶ 22} To double-check his work, Detective Massie sent the same data s et to Moran at OSHP. Moran testified that he ran the data through sof tware that his agency possessed (Detective Massie testified that he soon-after learne d his department also had the software) and came to the same conclusion that Detective Ma ssie had – that Wells’ phone was within 17 meters of 814 Cedar Street at the time of t he shooting. {¶ 23} Moran also testified, however, that running the data through t he program was not necessary. “It’s very str aight-forward. It has latitude and longitude, which is something you can easily plot on a map with very, very little t echnology.” Trial Tr. at 243- 244. Moran “simply upload[ed] the records that [were] provided into a program, and based on the data already provided by, in this case, Google, those po sitions [were] mapped.” Trial Tr. at 263. Finally, Moran testified that he was not rend ering an opinion, simply noting where the coordinates were on the map. Trial Tr. at 267. {¶ 24} At trial, the State never asked that Moran be qualified as an e xpert witness,-9- and the court never classified him in that manner. The record r eflects that Moran did not express an opinion or interpret anything. He just noted where t he coordinates were on the map. Moran essentially had the same testimony as Detective Massie, who, incidentally, Wells does not claim was testifying as an expert. We cannot say that the trial court abused its discretion when it permitted Moran to testify as a lay witness. {¶ 25} Other Ohio courts of appeal have held similarly. In State v. Robinson , 4th Dist. Washington No. 16CA22, 2017-Ohio-8273, a detective testif ied as a lay witness about the location of the defendant’s cell phone based on data received from Verizon.

The Fourth District affirmed the trial court’s decision to clas sify the detective as a lay witness, stating “testimony concerning a defendant’s cell phone records and the location of cellular towers used by a defendant’s phone in relation to l ocations relevant to the crime constitutes lay opinion testimony that does not require special ized knowledge, skill, experience, training, or education.” Id . at ¶ 66. Likewise, in the case at bar, Moran’s testimony did not require any specialization or skill; he just told the jurors where the coordinates were on the map. {¶ 26} Wells’ third and fourth assignments of error are overruled.

IV. Cumulative Error {¶ 27} In this fifth and final assignment of error, Wells contends tha t he was denied

a fair trial due to cumulative error of the court. {¶ 28} Under the doctrine of cumulative error, a conviction will be re versed where the cumulative effect of trial court errors deprives a defendan t of the constitutional right to a fair trial, even though each instance of error, by itself, does not constitute cause for

reversal. State v. York , 2018-Ohio-612, 107 N.E.3d 672, ¶ 29 (2d Dist.). The doctrine,-10- however, does not apply unless there are “multiple instances of harmless error.” State v.

Garner , 74 Ohio St.3d 49, 64, 656 N.E.2d 623 (1995). {¶ 29} “In order to find cumulative error, we must find: (1) that mult iple errors were committed at trial, and (2) there is a reasonable probability t hat the outcome of the trial would have been different but for the combination of the separa tely harmless errors.”

State v. Goldblum , 2d Dist. Montgomery No. 25851, 2014-Ohio-5068, ¶ 58. {¶ 30} Our review of the record has not revealed any errors, let alone multiple ones. We previously determined that the trial court did not err when it denied Wells’ request for a continuance or exclusion of evidence based on the State electronically sending the itemized witness list to the wrong case file. Likew ise, we concluded that there was no error in Jeff Moran’s testifying as a lay witness as opp osed to an expert. Because no errors were found, cumulative error cannot exist. Wells’ fif th assignment of error is

overruled.

V. Conclusion {¶ 31} The judgment of the trial court will be affirmed.

. . . . . . . . . . . . .

TUCKER, P. J. and WELBAUM, J., concur.

Copies sent to: Andrea K. Boyd Joe Cloud Hon. Douglas M. Rastatter