[Cite as State v. Alexander, 2012-Ohio-460.] 

 

Criminal Appeal From: Hamilton County Court of Common Pleas 

 

Judgment Appealed From Is: Affirmed 

Date of Judgment Entry on Appeal: February 10, 2012 

Joseph T. Deters, Hamilton County Prosecuting Attorney, and Philip R. Cummings,

Assistant Prosecuting Attorney, for Plaintiff-Appellee, 

Rubenstein and Thurman, L.P.A., and Scott A. Rubenstein, for Defendant-Appellant. 

Please note: This case has been removed from the accelerated calendar. 

IN THE COURT OF APPEALS 

FIRST APPELLATE DISTRICT OF OHIO 

HAMILTON COUNTY, OHIO 

STATE OF OHIO, 

 Plaintiff-Appellee, 

 vs. 

CHRISTOPHER ALEXANDER, 

 Defendant-Appellant. 

:

: 

: 

: 

: 

APPEAL NO. C-110035 

TRIAL NO. B-0904637 

 

 O P I N I O N
OHIO FIRST DISTRICT COURT OF APPEALS

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HILDEBRANDT, Presiding Judge. 

{¶1} Defendant-appellant Christopher Alexander appeals the judgment 

of the Hamilton County Court of Common Pleas convicting him of aggravated 

murder, murder, attempted murder, and aggravated robbery, with firearm 

specifications. He was convicted after a jury trial. 

{¶2} This case involves shootings that caused the deaths of Mark 

Davenport and Kenneth Gaines and that resulted in serious injuries to Ruben Willis. 

The state alleged that the crimes were perpetrated by Alexander and his accomplice 

Gerald Wilson. 

A Feud Over $200 

{¶3} Alexander and Davenport had a simmering feud over $200 in drug 

money. That dispute came to a head in July 2009. 

{¶4} Johanna Sadler was Davenport’s live-in girlfriend. She testified 

that on the night before the shootings, Davenport had received a telephone call. 

After the telephone conversation had ended, Davenport told her that the caller was 

Alexander and that Alexander had told him that he better enjoy his last day because 

he was going to kill him. 

{¶5} The next day, Ruben Willis was standing with Davenport in front of 

Davenport’s house when a car approached. Willis testified that Alexander had been 

driving the car and that he had pointed his finger at them as if he were firing a gun. 

{¶6} Wilson testified that Alexander had called to enlist him in what 

Alexander described as a robbery. Wilson assented, and the two approached 

Davenport’s house, with Alexander carrying a gun. 

{¶7} Davenport, Gaines, and Willis were standing in front of 

Davenport’s house. According to Wilson, Alexander opened fire in the direction of 
OHIO FIRST DISTRICT COURT OF APPEALS

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the three men. A bystander testified that he had seen Alexander and Wilson flee and 

that Alexander had been carrying a gun. 

{¶8} When police arrived, Davenport and Gaines had been fatally 

wounded, and Willis had suffered serious leg injuries. The police observed that 

Davenport’s pants pockets had been turned inside out as if someone had reached 

into them to take the contents. 

{¶9} Alexander turned himself in. In response to interrogation, 

Alexander confessed that he had been involved in the crimes. But according to 

Alexander, he had intended to merely rob Davenport. He maintained that Wilson 

had possessed the gun and that he had fired the shots despite Alexander’s attempts 

to restrain him. 

{¶10} Eric Kleinholz was incarcerated in the Hamilton County Justice 

Center with Alexander. Kleinholz testified that Alexander had told him that he had 

shot someone in a dispute over $200. 

{¶11} Tamela Scott took the stand for the defense and stated that she had 

dropped Alexander and Wilson off near the scene of the shootings and had picked 

them up later in the day. She also testified about a confrontation between Alexander 

and Davenport before the shootings. Scott did not witness the shootings and was 

unable to remember details about what had happened after she had driven 

Alexander and Wilson from the area. 

{¶12} The jury found Alexander guilty, and the trial court sentenced him 

to prison terms of life without the possibility of parole for aggravated murder, 15 

years to life for murder, and two consecutive ten-year terms for attempted murder 

and aggravated robbery, as well as two consecutive three-year terms for the firearm 

specifications. 
OHIO FIRST DISTRICT COURT OF APPEALS

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Admissibility of Alexander’s Statement to Police 

{¶13} In his first assignment of error, Alexander argues that the trial 

court erred in overruling his motion to suppress the confession he made to police 

soon after the shootings. He argues that the confession was coerced and therefore 

inadmissible. 

{¶14} In a hearing on a motion to suppress a confession, the prosecution 

must prove by a preponderance of the evidence that the confession was voluntary. 

See Lego v. Twomey, 404 U.S. 477, 489, 92 S.Ct. 619, 30 L.Ed.2d 618 (1972). The 

Supreme Court of Ohio has stated that in deciding whether a defendant’s confession 

is involuntarily induced “the court should consider the totality of the circumstances, 

including the age, mentality, and prior criminal experience of the accused; the 

length, intensity, and frequency of interrogation; the existence of physical 

deprivation or mistreatment; and the existence of threat or inducement.” State v. 

Edwards, 49 Ohio St.2d 31, 358 N.E.2d 1051 (1976), paragraph two of the syllabus. 

Coercive police activity is a necessary predicate to a finding that the admission of a 

confession would violate the defendant’s due-process rights. State v. Cedeno, 192 

Ohio App.3d 738, 2011-Ohio-674, 950 N.E.2d 582 (1st Dist.), ¶ 17, citing Colorado v. 

Connelly, 479 U.S. 157, 167, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986), and State v. 

Combs, 62 Ohio St.3d 278, 285, 581 N.E.2d 1071 (1991). 

{¶15} In the case at bar, Alexander has failed to demonstrate any 

coercion or other impropriety on the part of the investigating officers. The 

interrogation lasted no more than two hours. During the interrogation, Alexander 

was permitted to take a break to smoke a cigarette, and he was provided with food. 

Alexander expressed the desire to tell his version of the events, and there was no 

indication that the officers placed undue pressure on him to talk. Under these 
OHIO FIRST DISTRICT COURT OF APPEALS

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circumstances, the trial court correctly denied the motion to suppress, and we 

overrule the first assignment of error. 

Admissibility of Davenport’s Statement 

{¶16} In his second assignment of error, Alexander contends that the 

trial court erred in admitting into evidence the statement that Davenport had made 

to Johanna Sadler on the night before he was killed. Alexander argues that the 

statement was inadmissible hearsay, while the state maintains that the statement 

was admissible as a present sense impression. 

{¶17} A trial court generally has broad discretion in admitting or 

excluding evidence. State v. Stafford, 158 Ohio App.3d 509, 2004-Ohio-3893, 817 

N.E.2d 411 (1st Dist.), ¶ 65, citing State v. Sage, 31 Ohio St.3d 173, 510 N.E.2d 343 

(1987). Evid. R. 803 provides for the admissibility of certain statements, regardless 

of the availability of the declarant. One such type of statement is a “present sense 

impression,” defined as a “statement describing or explaining an event or condition 

made while the declarant was perceiving the event or condition, or immediately 

thereafter unless circumstances indicate lack of trustworthiness.” Evid. R. 803(1); 

Stafford at ¶ 65. 

{¶18} In this case, the trial court did not abuse its discretion in admitting 

the statement. Sadler’s testimony indicated that Davenport had repeated 

Alexander’s threat from the telephone call immediately after the conversation had 

ended. Davenport had no time to reflect or to fabricate the substance of the 

conversation, and there was no indication that his statement was otherwise 

unreliable. Thus, the statement was properly admitted, and we overrule the second 

assignment of error. 
OHIO FIRST DISTRICT COURT OF APPEALS

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Prosecutorial Misconduct 

{¶19} In his third assignment of error, Alexander argues that he was 

prejudiced by prosecutorial misconduct. 

{¶20} He first argues that improper comments by the prosecutor during 

closing arguments deprived him of a fair trial. He cites as improper the prosecutor’s 

statement that the jury should not “let one of the killers walk away here.” 

{¶21} To obtain a reversal on the ground of improper remarks made 

during closing argument, the defendant must demonstrate not only that the 

comments were improper, but also that they deprived the defendant of a fair trial. 

State v. Seay, 1st Dist. No. C-090233, 2010-Ohio-896, ¶ 23. 

{¶22} In the case at bar, we find no impropriety in the prosecutor’s 

comment. In the context of the argument, the prosecutor simply emphasized that 

Alexander could not overcome the overwhelming evidence of his guilt by merely 

pointing the finger at Wilson. The prosecutor did not appeal to the passions of the 

jury and did not misstate the law or the evidence. Accordingly, we cannot say that 

the comment deprived Alexander of his right to due process. 

{¶23} Alexander also argues that the prosecutor engaged in misconduct 

by misstating the testimony of a witness. But Alexander does not specifically identify 

the testimony that was allegedly mischaracterized, and we find nothing in the record 

to indicate that the state improperly commented on the evidence. 

{¶24} Finally, Alexander argues that the state violated Crim.R. 16 in 

failing to provide the defense with photographs of spent shell casings. We find no 

merit in this argument. At trial, the state contended that it had in fact provided the 

photographs to Alexander, and there is nothing in the record other than the 

assertions of counsel to indicate that the state had withheld any evidence. In any 

event, the trial court permitted defense counsel to review the photographs before 
OHIO FIRST DISTRICT COURT OF APPEALS

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cross-examining the state’s witness, and Alexander has thus demonstrated no 

prejudice that resulted from the state’s alleged discovery violation. We overrule the 

third assignment of error. 

Weight of the Evidence 

{¶25} In his fourth assignment of error, Alexander argues that his 

convictions were against the manifest weight of the evidence. 

{¶26} To reverse a conviction on the manifest weight of the evidence, a 

reviewing court must review the entire record, weigh the evidence and all reasonable 

inferences, consider the credibility of the witnesses, and conclude that, in resolving 

the conflicts in the evidence, the trier of fact clearly lost its way and created a 

manifest miscarriage of justice in finding the defendant guilty. State v. Thompkins, 

78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997). 

{¶27} R.C. 2903.01(A), governing aggravated murder, provides that “[n]o 

person shall purposely, and with prior calculation and design, cause the death of 

another * * *. The murder statute, R.C. 2903.02(B), provides that “[n]o person shall 

cause the death of another as the proximate result of the offender’s committing or 

attempting to commit an offense of violence that is a felony of the first or second 

degree * * *.” The attempt statute, R.C. 2923.02(A), states that “no person, 

purposely or knowingly, and when purpose or knowledge is sufficient culpability for 

the commission of an offense, shall engage in conduct that, if successful, would 

constitute or result in the offense.” The aggravated-robbery statute, R.C. 

2911.01(A)(1), states that “[n]o person, in attempting or committing a theft offense * 

* * or in fleeing immediately after the attempt or offense, * * * shall * * * [h]ave a 

deadly weapon on or about the offender’s person or under the offender’s control and 

either display the weapon, brandish it, indicate that the offender possesses it, or use 

it.” 
OHIO FIRST DISTRICT COURT OF APPEALS

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{¶28} In this case, the convictions were in accordance with the evidence. 

The state presented evidence that Alexander had shot Davenport, Gaines, and Willis 

and that the first two had died from their injuries. With respect to Davenport, the 

state demonstrated that Alexander had killed him with prior calculation and design 

and that he had gone through Davenport’s pockets in an attempt to steal from him. 

{¶29} Alexander contends that he had merely intended to rob Davenport 

and that Wilson had caused the confrontation to escalate. But that contention was 

refuted by the witnesses who testified about threats that Alexander had made and by 

the testimony of the bystander who had seen Alexander fleeing with a gun in his 

hand. We cannot say that the jury lost its way in finding Alexander guilty, and we 

overrule the fourth assignment of error. 

Jury Instruction on Complicity 

{¶30} In the fifth assignment of error, Alexander argues that the trial 

court erred in instructing the jury on complicity. He maintains that because the state 

tried the case on the theory that he was the principal offender, the evidence did not 

support an instruction on complicity. 

{¶31} A person who violates R.C. 2923.03 by aiding and abetting 

another, conspiring with another, or soliciting another to commit an offense, “is 

guilty of complicity in the commission of an offense, and shall be prosecuted and 

punished as if he were a principal offender. A charge of complicity may be stated in 

terms of this section, or in terms of the principal offense.” R.C. 2923.03(F). Thus, if 

the evidence permits, a defendant is deemed to be on notice that he can be convicted 

as a principal offender or as an accomplice under R.C. 2923.03(F). State v. 

Harrington, 1st Dist. Nos. C-080547 and C-080548, 2009-Ohio-5576, ¶ 12. And 

where the state presents evidence that the defendant had acted in concert with 
OHIO FIRST DISTRICT COURT OF APPEALS

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another to commit a crime, a jury instruction on complicity is proper. See State v. 

Smith, 1st Dist. Nos. C-080712 and C-090505, 2009-Ohio-6932, ¶ 33. 

{¶32} In this case, the trial court did not err in providing an instruction 

on complicity. The evidence presented by the state demonstrated that Alexander had 

acted in concert with Wilson in committing the crimes. Moreover, in Alexander’s 

own statement to police, he admitted that he and Wilson had acted in concert, 

maintaining that Wilson had been the principal offender. Under these 

circumstances, the instruction on complicity was warranted, and we overrule the 

fifth assignment of error. 

Allied Offenses of Similar Import 

{¶33} In his sixth assignment of error, Alexander argues that the trial 

court erred in imposing sentences for both aggravated murder and aggravated 

robbery. Specifically, he argues that the offenses were allied offenses of similar 

import because the aggravated murder was committed merely to effectuate the 

aggravated robbery. 

{¶34} Under R.C. 2941.25, a trial court may sentence a defendant for two 

or more offenses arising from the same criminal conduct or transaction if the 

offenses (1) were not allied offenses of similar import, (2) were committed 

separately, or (3) were committed with a separate animus as to each offense. See

State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061, ¶ 51; State 

v. Baron, 1st Dist. No. C-100474, 2011-Ohio-3204, ¶ 17. 

{¶35} In this case, the trial court did not err in sentencing Alexander for 

both offenses, as the state demonstrated a separate animus for each. Alexander had 

planned to kill Davenport well in advance of the aggravated robbery, as reflected by 

the threats he had made on the telephone and by the threatening gesture he had 

made toward Davenport. The intent to kill was thus separate from the motive for the 
OHIO FIRST DISTRICT COURT OF APPEALS

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aggravated robbery. Accordingly, multiple sentences were proper, and we overrule 

the sixth assignment of error. 

Removal of Prospective Juror 

{¶36} In the seventh assignment of error, Alexander argues that the trial 

court erred in removing a prospective juror for cause. 

{¶37} A prospective juror who indicates that she cannot be fair and 

impartial or that she will not follow the law may be removed for cause. R.C. 

2313.42(J). The decision to remove a prospective juror for cause is within the 

discretion of the trial court. State v. McGlothin, 1st Dist. No. C-060145, 2007-Ohio4707, ¶ 10, citing Berk v. Matthews, 53 Ohio St.3d 161, 559 N.E.2d 1301 (1990), 

syllabus. 

{¶38} In the case at bar, the trial court did not abuse its discretion. The 

prospective juror in question stated that she did not feel comfortable sitting in 

judgment of others and that she therefore could not render a verdict in accordance 

with the law. Although the juror vacillated somewhat in her answers to the court, her 

final response indicated that she could not faithfully discharge the duties of a juror. 

The trial court was correct in removing her from the jury for cause, and we overrule 

the seventh assignment of error. 

Denial of Motion for a New Trial 

{¶39} In his eighth and final assignment of error, Alexander argues that 

the trial court erred in overruling his motion for a new trial based on alleged 

misconduct of a defense witness. In support of his argument, Alexander cites 

evidence in the record that a spectator at the trial had violated the court’s order 

requiring separation of witnesses by revealing to Tamela Scott the testimony of other 

witnesses. 
OHIO FIRST DISTRICT COURT OF APPEALS

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{¶40} The decision to grant or deny a new trial under Crim.R. 33 is within 

the discretion of the trial court and will not be reversed absent an abuse of discretion. 

State v. Gaines, 1st Dist. No. C-110145, 2011-Ohio-6719, ¶ 34. 

{¶41} Here, there was no abuse of discretion. Alexander bases his 

argument on R.C. 2945.79(B), which provides that “[a] new trial, after a verdict of 

conviction, may be granted on the application of the defendant for any of the 

following causes affecting materially his substantial rights: * * * [m]isconduct of the 

jury, prosecuting attorney, or the witnesses for the state.” (Emphasis added.) See 

also Crim.R. 33(A)(2). 

{¶42} In the instant case, Alexander argues that a defense witness had 

engaged in misconduct. Such misconduct is not one of the statutory bases for the 

granting of a new trial, and Alexander has failed to show that he was prejudiced by 

the alleged impropriety. Accordingly, we overrule the eighth assignment of error. 

Conclusion 

{¶43} The judgment of the trial court is affirmed. 

Judgment affirmed. 

DINKELACKER and FISCHER, JJ., concur. 

Please note: 

 The court has recorded its own entry this date.