[Cite as State v. Haywood, 2023-Ohio-1121.]

IN THE COURT OF APPEALS OF OHIO 

SEVENTH APPELLATE DISTRICT

COLUMBIANA COUNTY

STATE OF OHIO,

Plaintiff-Appellee,

v.

TERRANCE L. HAYWOOD,

Defendant-Appellant.

OPINION AND JUDGMENT ENTRY

Case No. 21 CO 0035

Criminal Appeal from the

Court of Common Pleas of Columbiana County, Ohio

Case No. 2020 CR 436

BEFORE:

Cheryl L. Waite, Carol Ann Robb, Mark A. Hanni, Judges.

JUDGMENT:

Affirmed.

Atty. Dave Yost, Ohio Attorney General and Atty. Micah R. Ault, Assistant Ohio Attorney 

General, 615 West Superior Avenue, 11th Floor, Cleveland, Ohio 44113, for PlaintiffAppellee

Atty. James R. Wise, 91 West Taggart, P.O. Box 85, East Palestine, Ohio 44413, for 

Defendant-Appellant.

Dated: March 31, 2023
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Case No. 21 CO 0035

WAITE, J.

{¶1} Appellant Terrance L. Haywood was convicted by a jury for the murder of 

his former girlfriend Destiny Moody and Appellant was sentenced to twenty-four years to 

life in prison. On appeal, he raises five assignments of error. His first assignment of 

error, relating to the testimony of the victim's minor son, alleges that the trial court failed 

to conduct a thorough in camera voir dire of the child prior to trial. While Appellant is 

correct, due to the other extensive evidence proving Appellant's guilt the error does not 

rise to the level of prejudicial and reversible error. Appellant also argues that video 

evidence did not have a proper foundation, admonitions to the jury to refrain from talking 

about the case were insufficient, Appellant's trial counsel was ineffective, and that there 

was cumulative error at trial requiring reversal. There is no merit to any of these other 

arguments, and the judgment of the trial court is affirmed. 

Factual History

{¶2} On October 21, 2019, twenty-six-year-old Destiny Moody, the victim in this 

case, was working at McDonald's in Wellsville, Ohio. She ended her shift at 11:39 p.m. 

and drove the short distance to her apartment at 407 Main Street in Wellsville. Her friend 

Citasia Tisdale was watching Moody's two children at Moody's apartment while the victim 

was at work. 

{¶3} Appellant had been dating Moody for about a year and one-half, and was 

staying at her apartment. Appellant is not the father of Moody's children. On or about 

September 22, 2019, Appellant was with Moody at a bar in West Virginia. Apparently the 

two argued, and he hit her until she was unconscious and fell to the ground. (10/21/21 

Tr., p. 843.) A few days before the shooting, Moody told two of her friends that if anything 
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happened to her, to look to Appellant as the perpetrator. (10/20/21 Tr., p. 673; 10/21/21 

Tr., p. 858.)

{¶4} Appellant spent the evening of October 21, 2019, with Michelle Byers at the 

New Dimension Bar in East Liverpool. They left the bar in separate cars on October 22, 

2019 at 12:20 a.m. Appellant was driving a 2008 GMC Acadia SUV. They drove their 

cars to the victim's apartment in Wellsville and arrived at 12:29 a.m. Byers then continued 

on to her own home. 

{¶5} A few minutes after arriving at the victim's apartment, Appellant left to pick 

up two friends one block away. Appellant drove them to a location a short distance away. 

Appellant returned to the victim's apartment at 1:16 a.m. 

{¶6} At 2:21 a.m., a surveillance camera from Cindy Mick's house across the 

street from the victim's apartment captured the sound of a gunshot being fired. Seconds 

later, a surveillance camera from My Bar, also across the street from the victim's 

apartment, recorded Appellant running out of the back of her apartment. Both of these 

cameras also recorded Appellant kicking in the front door of the victim's apartment at 2:32 

a.m. A shoe print taken from the victim's front door had the same tread size and design 

as Appellant's. Surveillance footage also captured Appellant hiding numerous items in 

an alley behind the house.

{¶7} Five phone calls were made from Moody's cellphone between 2:44 a.m. 

and 2:54 a.m. 

{¶8} Citasia Tisdale gave contradictory testimony about the events around the 

time of the murder. She had an arrangement with the victim that they would from time to 

time watch each other's children, and she was watching two of the victim's children, along 
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with her own daughter, the night of the murder. She testified that she was awake well 

past 3:00 a.m., but claimed to know nothing of the murder, which occurred at 2:21 a.m., 

until she awoke the next morning. She claimed to have found Moody in the morning lying 

on the first floor with a head wound, not moving. Tisdale showed no emotion when the 

police arrived. She did not tell the police that she had contacted Appellant that night 

through text messages and phone calls several times prior to calling 911, but she did later 

admit to that at trial. She also communicated with Appellant on Facebook, but then 

deleted the messages. One message stated: “Remove these messages when we are 

done.” (10/19/21 Tr., p. 473.) In another message Appellant asked Tisdale to find some 

guns he had left at Moody's apartment. (10/19/21 Tr., p. 474.) Tisdale called 911 at 

10:06 a.m. that morning.

{¶9} The police arrived quickly. The victim had a bullet wound on the right side 

of her forehead and had no pulse. The police found a shell casing on the floor. They 

found that the front door had been kicked in, and the door had a shoe impression on it. 

They took a print of the shoe impression. 

{¶10} Police recovered a firearm holster lying near the victim's body. The holster 

was sent to the state BCI lab for DNA analysis, and resulted in a match with Appellant's 

DNA. 

{¶11} Moody and Appellant had engaged in numerous arguments prior to the 

murder, and Moody had been trying to get Appellant to move out of the apartment. When 

Moody arrived home from work the night prior to her death, she posted a message on 

Facebook that she was single. 
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{¶12} A few hours after the murder Appellant went to the house of a former 

girlfriend, Sadie Allen. Appellant told Allen that he had been to Moody's house after going 

to the New Dimension Bar and that he and Moody had been arguing. 

{¶13} Several days after the murder, the police searched the alley behind Moody's 

apartment and found a firearm, a gun magazine, and a bag of ammunition. Police 

returned the next day and recovered a firearm from the roof of a neighbor's garage. The 

firearm from the roof was identified as the murder weapon. Investigators located 

photographs of both weapons on Appellant's Facebook page.

{¶14} There is an overwhelming amount of video evidence in this case. Police 

recovered surveillance video from My Bar across the street from the victim's apartment. 

It captured much of what happened outside the victim's residence the night of the murder. 

Appellant was identified in that video as the person arriving in the GMC Acadia at Moody's 

apartment.

{¶15} Police also recovered video from Nick's Pizza, which is a few doors away 

from the victim's apartment. Additionally, police recovered video from the Fraternal Order 

of Eagles in Wellsville, which is a short distance from the victim's apartment. Police 

recovered video from Kwik King convenience store, located close to the victim's 

apartment. Again, police recovered video from the New Dimension Bar in East Liverpool. 

These videos tracked the movements of Appellant and his vehicle that evening as well as 

the movements of various witnesses.

{¶16} Police recovered video from the Wellsville High School football stadium. 

Witness Sadie Allen's home was recorded in this video. The video showed Appellant's 

GMC Acadia at Allen's home the morning after the murder.
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{¶17} A few months after the murder, the victim's minor son J.M. told his uncle 

Dustin Emler that “[h]is daddy shot his mommy.” (Tr., p. 872.) A week later, J.M. drew a 

picture of a woman with a pool of blood around her and J.M. said “she got shot.” (Tr., p. 

873.) Many months later, J.M. told social worker Courtney Wilson that “his dad shot her.” 

(Tr., p. 899.) J.M. told Wilson that he saw his mom lying on the ground in a great deal of 

blood, that he had heard his mom and dad arguing, and that he saw a gun. J.M. was four 

years old at the time. At trial, J.M. could not identify Appellant in the courtroom, but did 

identify a photo of Appellant as his dad.

Case History

{¶18} On November 18, 2020, Appellant was indicted on the following five counts: 

murder pursuant to R.C. 2903.02(A), and unclassified felony, with a firearm specification; 

aggravated burglary pursuant to R.C. 2911.11(A)(2), a first degree felony, with a firearm 

specification; tampering with evidence under R.C. 2921.12(A)(1), third degree felony; and 

having a weapon while under a disability pursuant to R.C. 2923.13(A)(3), third degree 

felony. A five-day trial commenced on October 18, 2021. Before jury selection, the state 

dismissed the aggravated burglary charge and the corresponding gun specification. On 

October 22, 2021, the jury returned a verdict of guilty on all remaining charges and 

specifications. On November 3, 2021, the court sentenced Appellant to fifteen years to 

life in prison on the murder conviction, three years consecutive on the firearm 

specification, three years consecutive for tampering with evidence, and three years 

consecutive for having a weapon under a disability. The total sentence was twenty-four 

years to life in prison. The sentencing judgment entry was filed on November 4, 2021. 

The notice of appeal was filed on November 12, 2021.
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{¶19} Appellant presents five assignments of error on appeal.

ASSIGNMENT OF ERROR NO. 1

THE TRIAL COURT ERRED IN ALLOWING THE TESTIMONY OF [J.M.].

{¶20} On August 2, 2021, the court held an in camera hearing to determine the 

competency of J.M., the victim's six-year-old son, to testify about events he witnessed 

when the crime occurred. J.M. was four years old at the time of the crime. J.M. testified 

at trial that his "dad" shot his mommy. (Tr., p. 882.) Appellant is not J.M.'s biological or 

legal father. It is this testimony, combined with the fact that the trial judge failed to ask 

J.M. any questions about the crime during the in camera voir dire, that form the basis of 

this assignment of error. Appellant argues that the failure to ask questions about the 

crime at the voir dire, combined with J.M.'s actual testimony, constitute reversible error. 

{¶21} Evid.R. 601 states that “[e]very person is competent to be a witness except 

as otherwise provided in these rules.” Although prior versions of the rule contained a 

provision expressly dealing with children under ten years old, the current rule does not. 

On the other hand, R.C. 2317.01 states: “All persons are competent witnesses except 

those of unsound mind and children under ten years of age who appear incapable of 

receiving just impressions of the facts and transactions respecting which they are 

examined, or of relating them truly.” Therefore a “trial court must conduct a voir dire 

examination of a child under ten years of age to determine the child's competence to 

testify.” State v. Maxwell, 139 Ohio St.3d 12, 2014-Ohio-1019, 9 N.E.3d 930, ¶ 100. In 

this voir dire the court must consider: (1) the child's ability to receive accurate impressions 

of fact or to observe acts about which he or she will testify, (2) the child's ability to recollect 
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those impressions or observations, (3) the child's ability to communicate what was 

observed, (4) the child's understanding of truth and falsity and (5) the child's appreciation 

of his or her responsibility to be truthful. Id. citing State v. Frazier, 61 Ohio St.3d 247, 

251, 574 N.E.2d 483 (1991). The competency review refers to the time of trial rather than 

the time of the crime or subject matter of the testimony. State v. Clark, 71 Ohio St.3d 

466, 470-471, 644 N.E.2d 331 (1994). The competency determination is reviewed on 

appeal for abuse of discretion. Frazier at 251. 

{¶22} The state contends that the Frazier/Maxwell competency review of a child 

witness does not need to include questions about the crime at issue, and cites a long list 

of cases supporting this interpretation. It is clear to us that factors one and two of the 

Frazier/Maxwell test cited above direct the trial judge to question the child about the 

impressions and facts that will be part of the testimony. The interpretation of these factors 

by appellate courts have led many to conclude that they only require the trial judge to 

determine if the child: has an understanding of truth and lies; can answer general 

questions about his or her life; and can adequately discuss and relay back information 

presented in the hearing. 

{¶23} For example, the Sixth District case of State v. Jones held that:

Many Ohio courts have affirmed a trial court's finding of competency in 

cases where the competency hearing did not include questions about the 

crime at issue. Often, a competency hearing contains only general 

questions about the child's everyday life. Although it arguably may have 

been helpful if the trial court in this case had questioned the children as to 
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some of the events of the indictment, we find that doing so was not 

necessary to the trial court's competency evaluation.

State v. Jones, 6th Dist. Lucas No. L-09-1262, 2011-Ohio-2173, ¶ 17. 

{¶24} Similarly, State v. Brooks, 2d Dist. Montgomery No. 18502, 2001 WL 

1295285 (Oct. 26, 2001), held that “a general inquiry is sufficient for a trial court to 

determine if a child can perceive, recollect, and truthfully relate events.” Brooks further 

held that “[a]lthough it would have been helpful if the trial judge would have questioned 

the minor regarding the rape and the circumstances surrounding the rape, it was not 

necessary in the trial court's competency determination.” Id. at *3. 

{¶25} We cited Brooks in State v. Anderson, 7th Dist. No. 01-CA-214, 154 Ohio 

App.3d 789, 2003-Ohio-5439, 798 N.E.2d 1155, when we found that: “In the present 

case, the court determined Brea's competence by asking her questions that 

demonstrated that she could recount and relate past events and that she knew she should 

tell the truth in court. Therefore, we cannot say that the court abused its discretion in 

failing to question Brea about the shootings.” Id. at ¶ 66. 

{¶26} The state is therefore correct in explaining the proper standard for reviewing 

voir dire questioning of a child witness who is under ten years old, with the caveat that it 

was at least the intent of Frazier/Maxwell that voir dire should include questioning about 

the crime or the content of the proposed testimony. This appeal underscores why 

questioning the child about the crime itself can sometimes be necessary in determining 

competency.

{¶27} The parties agree that J.M. was not asked any questions in voir dire about 

the crime. Appellant is correct that J.M. was not asked questions testing his ability to 
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receive accurate impressions, whether those are immediate impressions or the child’s

impressions at the time of murder. We also must keep in mind that the voir dire occurred 

on August 2, 2021, while the crime occurred on October 22, 2019. At the voir dire, J.M. 

was asked about his family (but not about Appellant's involvement in the family), his 

daycare, his meals, Christmas presents, his play time, and about telling the truth. J.M. 

was also able to tell when the trial judge would say something incorrect (on purpose). 

The judge did this to verify that J.M. knew whether the judge was telling the truth or not.

{¶28} At trial J.M. was asked similar types of questions. The critical piece of 

testimony at trial, though, was the following:

Q. Okay. The last time that you saw your mom, what happened?

A. The cops took me away from and she was away.

Q. The cops took you away?

A. Yeah, before I could see.

Q. Did you see your dad do something to your mom?

A. No because the cops took me away.

Q. All right. The cops took you away.

A. Yeah.

Q. Before that happened --
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Case No. 21 CO 0035

A. Yeah.

Q. -- did you see your dad and your mom?

A. Yes.

Q. What happened?

A. My dad shot my mom, and cops took me away, and I couldn't see 

again.

Q. Your dad shot your mom?

A. Yes.

Q. And the cops took you away so you wouldn't see it again?

A. Yes.

Q. After your dad shot your mom, did you talk to your dad at all?

A. No because I wasn't allowed.

Q. You weren't allowed. Okay. What did you do after your dad shot 

mom?

A. The cops told me to come outside, so I did, and got in the police car 

and they took me to my grandma's.

Q. Did you see your mom on the ground?
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A. Yes.

Q. What did she look like?

A. Laying on the ground and blood was everywhere.

(Tr., pp. 881-883.)

{¶29} This is all the information that was revealed on direct examination. On 

cross-examination, J.M. also testified that after his mom came home from work his dad 

and mom had an argument inside the house. (Tr., p. 887.) He testified that he was

upstairs watching television when they argued. He testified that he and siblings heard a 

shot, and after that they ran outside. (Tr., p. 889.) 

{¶30} Other parts of the record indicate that J.M. did not come forward with this 

story immediately. A few months after the murder J.M. told his uncle that his daddy shot 

his mommy. This was reported to authorities. J.M. was not interviewed by social worker 

Courtney Wilson of Akron Children's Hospital until July 15, 2020, nine months after the 

murder. (Tr., p. 894.) J.M. told Ms. Wilson that “his dad shot her.” (Tr., p. 899.) J.M. 

told her that there was a great deal of blood, that his mom and dad were arguing outside 

before his dad entered the home, and that he saw a gun. (Tr., p. 899.) Ms. Wilson stated 

that there was nothing else of importance from that interview. At trial, J.M. did not 

remember having this interview. (Tr., p. 885.) Nothing in his trial testimony indicates that 

he saw a gun, and at trial he testified that the argument happened inside.

{¶31} A careful reading of the transcripts reveals that J.M. did not testify he saw 

the shooting, but only that “my dad shot my mom.” This is exactly how Ms. Wilson 

described it: that J.M. said “that his dad shot her.” He could have been told this by any 
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number of people rather than having witnessed it himself. The statement “my dad shot 

my mom” is actually a conclusion and not testimony regarding witnessing a crime. He 

also testified that he was upstairs watching television, heard a shot, and immediately ran 

outside. There is no means of testing J.M.'s trial testimony against the answers in the 

voir dire because he was not asked what he remembered about the crime during voir dire. 

Obviously, a child testifying about his mother's murder is an important piece of evidence, 

and yet, J.M. failed to actually state that he saw the murder and seemed to contradict 

himself in his testimony. 

{¶32} Based on the specific facts of this case, we must conclude that the trial court 

committed error in the voir dire of this child. However, the next important question is 

whether the error affected the outcome of the trial. We conclude it did not. The volume 

of evidence against Appellant, even without the child's testimony, is overwhelming. 

Multiple witnesses and security camera videos placed Appellant and his car at the scene 

of the crime at the time of the shooting. Appellant’s DNA matched DNA evidence on the 

gun holster, the footprint on the front door matched Appellant's. The murder weapon that 

was recovered appeared in photos on Appellant's Facebook page, threats were made on 

Facebook, and there was prior evidence of Appellant’s attacks on the victim, including 

choking her with a cord, punching her in the face, and beating her until she was 

unconscious. The record contains Appellant's prior threats to kill the victim. Appellant 

made statements to multiple witnesses that he was at the victim's home the night of the 

crime. There is evidence that Citasia Tisdale and Appellant tried to cover up the crime

by making it appear the shooting occurred later in the morning, after Appellant had 

departed from the scene. The jurors, if they were paying attention to J.M.'s testimony, 
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may have noticed the obvious fact that he did not say he saw the murder take place. 

Regardless, there is an overwhelming amount of evidence in this case on which to base 

a conviction. We conclude that the error in allowing J.M.'s testimony did not affect the 

outcome of this case. As the error was not prejudicial, Appellant's first assignment of 

error is overruled. 

ASSIGNMENT OF ERROR NO. 2

THE TRIAL COURT FAILED TO PROPERLY ADMONISH THE JURY 

DURING BREAKS IN THE TRIAL.

{¶33} R.C. 2945.34 states: “If the jurors are permitted to separate during a trial, 

they shall be admonished by the court not to converse with, nor permit themselves to 

be addressed by any person, nor to listen to any conversation on the subject of the 

trial, nor form or express any opinion thereon, until the case is finally submitted to 

them.” Appellant argues that the trial court gave a single admonition at the beginning 

of the five-day trial, but the next eleven times that the court should have admonished 

the jury, the judge merely reminded the jurors of the initial admonishment. Appellant 

has no quarrels with the original admonition. He only objects to the cursory nature of 

all the subsequent admonitions. Appellee does not disagree with this assessment of 

the record, but concludes that the initial admonition was sufficient. The initial 

admonishment covers five pages of the transcript and is very extensive.

{¶34} Appellee notes that an error in admonishing the jury is not reversible 

error unless it is also shown that the jury was in fact guilty of misconduct. State v. 

Helm, 1st Dist. Hamilton No. C-150242, 2016-Ohio-500, 56 N.E.3d 436, ¶ 25. The 
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mere violation of R.C. 2945.34 does not, in and of itself, constitute reversible error: 

“R.C. 2945.34 does not prescribe reversal if the trial court fails to comply[.]” State v. 

Rose, 2nd Dist. Montgomery No. 17431, 1999 WL 957715, *2. Appellant does not 

disagree, but he argues that this prejudicial error requirement should be waived in this 

appeal.

{¶35} Appellee also points out that Appellant did not object to the abbreviated

jury admonitions, and that failure to object waives all error except for plain error. State 

v. McCray, 5th Dist. Stark No. 2013CA00133, 2014-Ohio-2289, ¶ 42, citing Warner v. 

State, 104 Ohio St. 38, 135 N.E. 249 (1922). There are no objections noted in the 

record.

{¶36} Based on the very clear admonition given by the trial court at the 

beginning of trial, the lack of any evidence of juror misconduct, and the failure to 

preserve this objection, Appellant's second assignment of error is overruled.

ASSIGNMENT OF ERROR NO. 3

DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL.

{¶37} Appellant argues that his counsel engaged in ineffective assistance of 

counsel, citing six examples. 

{¶38} The test for an ineffective assistance of counsel claim is two-part: whether 

trial counsel's performance was deficient and whether the deficiency resulted in prejudice 

to the defendant. State v. White, 7th Dist. Jefferson No. 13 JE 33, 2014-Ohio-4153, ¶ 18, 

citing Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); 

State v. Williams, 99 Ohio St.3d 493, 2003-Ohio-4396, 794 N.E.2d 27, ¶ 107. 
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{¶39} In order to prove prejudice, “[t]he defendant must show that there is a 

reasonable probability that, but for counsel's unprofessional errors, the result of the 

proceeding would have been different. A reasonable probability is a probability sufficient 

to undermine confidence in the outcome.” State v. Lyons, 7th Dist. Belmont No. 14 BE 

28, 2015-Ohio-3325, ¶ 11, citing Strickland at 694; see also State v. Bradley, 42 Ohio 

St.3d 136, 538 N.E.2d 373, paragraph three of the syllabus. The appellant must 

affirmatively prove the alleged prejudice occurred. Id. at 693. The appellant also must 

demonstrate more than vague speculations of prejudice to prove prejudice. State v. Otte, 

74 Ohio St.3d 555, 566, 660 N.E.2d 711 (1996).

{¶40} If one prong of the Strickland test is not met, an appellate court need not 

address the remaining prong. Id. at 697. The appellant bears the burden of proof on the 

issue of counsel's effectiveness. A licensed attorney is presumed competent. State v. 

Calhoun, 86 Ohio St.3d 279, 289, 714 N.E.2d 905 (1999).

{¶41} Courts are very deferential to the tactical choices that attorneys make at 

trial and “indulge a strong presumption that counsel's conduct falls within the wide range 

of reasonable professional assistance.” Bradley at 142, citing Strickland at 689. 

Counsel's tactical choices, even those having negative consequences, normally do not 

constitute ineffective assistance. State v. Carpenter, 116 Ohio App.3d 615, 626, 688 

N.E.2d 1090 (2nd Dist.1996).

{¶42} Appellant's first example of ineffectiveness is that his counsel failed to 

object to the lack of any black jurors. Appellant is black. 

{¶43} The constitutional guarantee to a jury trial “contemplates a jury drawn from 

a fair cross-section of the community.” Taylor v. Louisiana, 419 U.S. 522, 527, 95 S.Ct. 
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692, 42 L.Ed.2d 690 (1975). This is not a specific requirement that the jury “must mirror 

the community and reflect the various distinctive groups in the population." Id. at 538. 

“ ‘Defendants are not entitled to a jury of any particular composition, but the jury wheels, 

pools of names, panels, or venires from which juries are drawn must not systematically 

exclude distinctive groups in the community and thereby fail to be reasonably 

representative thereof.’ ” State v. Johnson, 88 Ohio St.3d at 117, 723 N.E.2d 1054, 

quoting Taylor at 538.

In order to establish a violation of the fair representative cross-section of the 

community requirement for a petit jury array under the Sixth and Fourteenth 

Amendments to the United States Constitution, a defendant must prove: (1) 

that the group alleged to be excluded is a “distinctive” group in the 

community; (2) that the representation of this group in venires from which 

juries are selected is not fair and reasonable in relation to the number of 

such persons in the community; and (3) that the representation is due to 

systematic exclusion of the group in the jury-selection process. 

State v. Fulton, 57 Ohio St.3d 120, 566 N.E.2d 1195, (1991), paragraph two of the 

syllabus.

{¶44} Appellant has presented no evidence of any attempt to systematically 

exclude persons of color from the jury. His argument is based solely on the fact that 

there were no black persons on his jury. However, underrepresentation or lack of 

representation of a group on a single jury does not constitute systematic exclusion. 

State v. Bryan, 101 Ohio St.3d 272, 2004-Ohio-971, 804 N.E.2d 433, ¶ 113; State v. 
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McNeill, 83 Ohio St.3d 438, 444, 700 N.E.2d 596 (1988). Appellant's argument, 

therefore, has no merit.

{¶45} Appellant raises, in very cursory fashion, five other alleged errors made 

by counsel. First, counsel at one point called the victim by the wrong name. Second, 

the court mentioned that a matter regarding the presentation of exhibits to a particular 

witness would be handled at a break, but the matter was not discussed at the break, 

and counsel did not object. Third, counsel did not object having the audio recording 

played in front of the jury. Fourth, a witness was permitted to testify “regarding other 

bad acts” without objection. (Appellant's Brf., p. 11.) Fifth, a witness was allegedly

permitted to give “hearsay testimony” without objection. (Appellant's Brf., p. 11.)

{¶46} Appellant does not explain how any of these alleged errors are actually 

errors as a matter of law, does not explain how any of them may have prejudiced him 

at trial, fails to cite a single statute, case or specific rule that is violated, and gives no 

further explanation as to how these allegations constitute ineffective assistance of 

counsel. 

{¶47} It is not the state’s responsibility to make Appellant's arguments for him, 

only to then refute them as part of its own argument. Without any citation of law or 

actual argument made in support of Appellant's allegations, all of his trial counsel's 

actions can be attributed either to trial tactics, or may be deemed harmless errors, 

either of which defeats a claim of ineffective assistance of counsel. Crim.R. 52 allows 

for harmless errors to be disregarded, whether at trial or on appeal. “[T]he harmlesserror rule, was created in essence to forgive technical mistakes.” State v. Morris, 141 

Ohio St.3d 399, 2014-Ohio-5052, 24 N.E.3d 1153, ¶ 24. 
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{¶48} For all these reasons, Appellant's third assignment of error is without 

merit.

ASSIGNMENT OF ERROR NO. 4

THE TRIAL COURT ERRED IN ALLOWING VIDEO SURVEILLANCE AND 

FACEBOOK POSTS INTO EVIDENCE.

{¶49} Appellant argues that seven surveillance video recordings and a variety of 

postings on the social media platform Facebook should not have been entered into 

evidence. Appellant contends that none of these items were admitted with proper 

authentication. Appellant's contentions are incorrect.

{¶50} Evid.R. 901 requires evidence to be properly authenticated before it is 

deemed admissible. “The requirement of authentication or identification as a condition 

precedent to admissibility is satisfied by evidence sufficient to support a finding that the 

matter in question is what its proponent claims.” “This low threshold standard does not 

require conclusive proof of authenticity, but only sufficient foundational evidence for the 

trier of fact to conclude that the document is what its proponent claims it to be.” State v. 

Easter, 75 Ohio App.3d 22, 25, 598 N.E.2d 845 (4th Dist.1991). “[T]here is nothing to 

prevent parties from voluntarily stipulating to the admissibility of evidence otherwise 

requiring authentication.” Dungan v. Poynter, 12th Dist. Clinton No. CA96-09-016, 1997 

WL 423348, *1, citing Ohio Evid. R. 901, staff notes.

{¶51} Starting with the Facebook posts, the parties stipulated to the authenticity 

of all of them. (Tr., p. 828.) Parties are permitted to stipulate to authenticity. Therefore, 

there is no error in failing to provide further evidence of authenticity.
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{¶52} Regarding the videos, the parties agree that video evidence is authenticated 

in the same manner as photographic evidence. One method of authenticating 

photographic evidence is under the “pictorial testimony” theory, in which the photograph 

is merely illustrative of a witness' testimony and must have a sponsoring witness who 

must testify "that it is a fair and accurate representation of the subject matter, based on 

that witness' personal observation." State v. Green, 7th Dist. Mahoning No. 12 MA 226, 

2014-Ohio-648, ¶ 12, citing Midland Steel Prods. Co. v. U.A.W. Local 486, 61 Ohio St.3d 

121, 129-130, 573 N.E.2d 98 (1991). 

{¶53} Another way to authenticate photographic or video evidence is via the “silent 

witness” theory: “Under the silent witness theory, photographic evidence may be 

admitted upon a sufficient showing of the reliability of the process or system that produced 

the evidence.” Midland Steel Prods. Co. at 130. Using this method of authentication, “the 

photographic evidence is a ‘silent witness’ which speaks for itself, and is substantive 

evidence of what it portrays independent of a sponsoring witness.” Id.

{¶54} “Silent witness” authentication normally requires proof of the reliability of the 

video recording system, proof of the custody of the video recording, a showing that the 

evidence has not been altered, and that the video being shown is from the camera system 

being described. State v. Green, 7th Dist. Mahoning No. 12 MA 226, 2014-Ohio-648, 

¶ 13. “It is not necessary that the individual authenticating the footage must have actually 

witnessed the events as they occurred, merely that he or she is able to verify that the 

material is what it purports to be: in this instance, the complete surveillance footage of the 

incident.” Id. at ¶ 14. Reliability can be proven by the video equipment installer, a user 
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of the equipment, or by a law enforcement officer who investigated the matter. State v. 

Vermillion, 4th Dist. Athens No. 15CA17, 2016-Ohio-1295, ¶ 17-20. 

{¶55} Authentication is an evidentiary matter and is reviewed under an abuse of 

discretion standard. Green at ¶ 11. “We have defined an abuse of discretion as conduct 

that is unreasonable, arbitrary or unconscionable.” State v. Beasley, 152 Ohio St.3d 470, 

2018-Ohio-16, 97 N.E.3d 474, ¶ 12. 

{¶56} Five of the videos are of the street outside of the victim's apartment and 

show vehicle and foot traffic at the time of crime. They are used to track Appellant inside 

his vehicle and on foot, and to establish the movements of other persons at or near the 

time of the crime. One of the videos also includes the sound of a gun being fired at 2:21 

a.m. There are two exhibits from Nick's Pizza because Lieutenant Marsha Eisenhart left 

out one video clip from the first exhibit she created for trial, so she created a second one. 

{¶57} The video from Wellsville School District was introduced to corroborate the 

testimony of Sadie Allen. The video from New Dimension Bar in East Liverpool was 

introduced to corroborate the testimony of Michelle Byers. 

{¶58} Neither party cites to any objections made by Appellant to the authentication 

of the videos when they were entered into evidence. Appellant's counsel did object to the 

accuracy of the time-stamp on the video provided by Cindy Mick, which could be 

interpreted as an objection to authenticity. (Tr., pp. 1019-1021.) Appellant's counsel 

raised other objections to the videos, but none of the objections are based on

authentication. Therefore, the challenge to the authentication of the video exhibits is 

reviewed for plain error, except for the Mick video, which is reviewed for abuse of 

discretion. 
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{¶59} Pursuant to Crim.R. 52(B), “plain errors” that affect a defendant's 

substantial rights “may be noticed although they were not brought to the attention of the 

court.” A court will only take “[n]otice of plain error * * * with the utmost caution, under 

exceptional circumstances and only to prevent a manifest miscarriage of justice.” State 

v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978), paragraph three of the syllabus.

{¶60} Wellsville Police Department Lieutenant Eisenhart authenticated the seven 

video recordings being challenged by Appellant. Further, the state provided evidence 

from the users of each of video, who testified about the footage provided to Eisenhart. 

These witnesses all described how the surveillance systems worked, how the digital files 

were stored, and how the files were to be delivered to the police. These facts alone satisfy 

the authentication standards discussed above for video evidence under a plain error 

standard. 

{¶61} Appellant challenges the video from Cindy Mick because she did not testify 

about the actual video clip that would be used at trial and because it is not clear how the 

Wellsville Police Department obtained the video. This video is from a backyard video 

camera. Cindy Mick testified about the type of camera, how it was installed in her yard, 

how it recorded images, that it was on a continuous record setting, and that it included 

sound. The file and folder structure of the SD card (a digital storage device for holding 

electronic data) were examined at trial to show that there was a folder for every hour and 

minute of recording. Mick testified that the video clips showed her backyard.

{¶62} Mick was not asked to view the specific clip that was relevant to trial. This 

is not a requirement under Midland Steel Prods. Co., this Court's Green case, or any case 

setting forth the "silent witness" method of authenticating video evidence. The "silent 
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witness" method authenticates the process for recording the videos, not the detailed 

content of the videos. Mick testified that she put the SD data card in a baggy, handed it 

to the police, and identified the exhibit at trial. There was no abuse of discretion in 

allowing this video into evidence.

{¶63} Appellant challenges the video from My Bar because the entire DVR 

recording machine was given to the police instead of a copy of the recording, but the 

recording used at trial was not directly on the DVR machine, but a copy of the video on a 

flash drive. It is not clear why Appellant believes this was a legal error. Lieutenant 

Eisenhart testified that the DVR machine was sent to the state BCI lab, and a copy of the 

video was retrieved and put on a flash drive. (Tr., p. 1024.) Appellant did not object to

this authentication at trial, and the chain of custody was discussed at trial. When Roy 

Larkins, the owner of My Bar, was on the stand, the state offered to show him all the video 

that was on the flash drive, but Appellant's counsel replied that he did not want to see all 

of the video content. (Tr., p. 320.)

{¶64} Appellant objects to the use of the video from New Dimension Bar because 

witness Mark Walton, the owner of the bar, was not asked to authenticate the actual video 

clip used at trial. As mentioned earlier, this is not required when authenticating a video 

clip under the “silent witness” theory.

{¶65} Appellant objects to the use of the video clips from Nick's Pizza because 

the first clip did not show the date and time, but the second clip did. Our examination of 

the video clips reveal time stamps on both. The testimony of Lieutenant Eisenhart at trial

was that the two exhibits, 57 (a flash drive) and 205 (a disc), were identical except that 

205 had one additional clip on it that was inadvertently left off of exhibit 57. The new 
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copy, exhibit 205, was produced so that all the clips needed for trial were on one disc. 

The record does not support that any error occurred.

{¶66} Appellant takes issue with the video from the Fraternal Order of Eagles 

because witness William Collins, a trustee for the Eagles, did not authenticate the entire 

video clip. Again, this is not required under Midland Steel Prods. Co., the Green case, or 

any case setting forth the “silent witness” theory of authentication.

{¶67} Appellant challenges the video from Kwik King because witness Elaine 

Austin, who was a clerk and manager at the store, did not know how the video was turned 

over to police and because she only authenticated part of the video. She also did not 

know whether the data from all cameras was stored on the same digital recorder. Austin 

testified about the camera system, where the cameras were located, and that she was 

familiar with their use through the prior investigation of a robbery. She identified the video 

for one of the cameras and explained what the footage was from that camera. Lieutenant 

Eisenhart testified that she went into Kwik King, asked for a copy of the video, and 

someone copied it for her. (Tr., p. 1029.) Appellant did object to the introduction of this 

video.

{¶68} There is a very low bar for authenticating evidence, particularly video 

evidence under the "silent witness" theory. The purpose of authentication under this 

theory is to show the reliability of the process that produced the evidence, and the video 

will then speak for itself that it is what it purports to be. Midland Steel Prods. Co. at 129-

130. There was testimony about how the Kwik King surveillance system worked and that 

the cameras properly and accurately recorded images from the store. As vague as some
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of Lieutenant Eisenhart's testimony was about the video, it did show how the video was 

obtained.

{¶69} Appellant does not appear to be challenging the actual content of the Kwik 

King videos, but simply believes that the authentication is not sufficient. Even if the Kwik 

King evidence had been excluded from trial, this would not have changed the result of the 

trial. The Kwik King video was only one of many pieces of evidence showing that 

Appellant was at or near Destiny Moody's apartment at the time of the murder. Appellant 

has not demonstrated any prejudice even if there was insufficient authentication of this 

video, and there is no basis for sustaining this assignment of error with respect to the 

Kwik King video.

{¶70} Appellant challenges the use of the video from Wellsville High School 

football stadium. Witness Bill Ricciardulli, the tech coordinator for Wellsville schools, did 

not know how the police obtained the video and there is no further evidence in the record 

as to how it became part of the evidence. Ricciardulli otherwise testified as to the design, 

installation, and the manner in which the system worked. No objections appear in the 

record as to this evidence. He testified that the part of the video he saw at trial was 

accurate and true. Without some type of challenge to the content of the video, and with 

no objection raised, no plain error can be found as to the inclusion of this evidence at trial. 

{¶71} Appellant's fourth assignment of error is overruled.

ASSIGNMENT OF ERROR NO. 5

DEFENDANT WAS DENIED A FAIR TRIAL DUE TO THE CUMULATIVE 

ERRORS IN THE ALLOWANCE OF INADMISSIBLE TESTIMONY, THE 

ACTIONS OF COUNSEL AND THE COURT.
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{¶72} Appellant argues that there was cumulative error in this case requiring 

reversal. Under the doctrine of cumulative error, a reviewing court will reverse a 

conviction when the cumulative effect of errors deprives a defendant of a fair trial even 

though each of the instances of error does not individually constitute cause for reversal. 

State v. Kirkland, 140 Ohio St.3d 73, 2014-Ohio-1966, 15 N.E.3d 818, ¶ 140, citing State 

v. Powell, 132 Ohio St.3d 233, 2012-Ohio-2577, 971 N.E.2d 865, at ¶ 223. Harmless 

errors do not become reversible error simply because of the sheer number. State v. Hill, 

75 Ohio St.3d 195, 212, 661 N.E.2d 1068 (1996). The defendant must make an 

affirmative showing that multiple errors deprived him of a fair trial. State v. Hohvart, 7th 

Dist. Mahoning No. 06 MA 43, 2007-Ohio-5349, ¶ 37.

{¶73} The only error Appellant has demonstrated was the deficient voir dire of the 

child witness J.M., and since Appellant was not prejudiced by this error it does not rise to 

the level of reversible error. With no other demonstrated errors, it is apparent there is no 

cumulative error. Appellant's fifth assignment of error is overruled.

Conclusion

{¶74} Appellant has raised five assignments of error on appeal. The first was 

sustained, as the trial court should have conducted a more thorough voir dire of the child 

witness J.M. Nevertheless, this error did not affect the outcome of trial due to the 

overwhelming evidence of guilt offered in this case. Thus, it was not reversible error. 

Appellant also argued that the court failed to properly admonish the jury to not talk about 

the case, but the record contains an extensive admonishment at the beginning of trial and 

a reminder of that admonishment many times throughout the trial. Appellant argued that 

trial counsel was ineffective, but he could not demonstrate either error or prejudice from 
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counsel's actions. Appellant argued that Facebook posts were not properly 

authenticated, but the parties stipulated to authenticity. Appellant argued that seven 

videos should not have been admitted as evidence due to lack of authentication, but the 

record shows they were properly authenticated. Finally, he argued cumulative error, but 

there must be multiple errors on the record for cumulative error to apply. All five of 

Appellant's assignments of error are overruled and the judgment of the trial court is

affirmed in full.

Robb, J., concurs. 

Hanni, J., concurs. 
[Cite as State v. Haywood, 2023-Ohio-1121.]

For the reasons stated in the Opinion rendered herein, the assignments of error 

are overruled and it is the final judgment and order of this Court that the judgment of the 

Court of Common Pleas of Columbiana County, Ohio, is affirmed. Costs waived.

A certified copy of this opinion and judgment entry shall constitute the mandate in 

this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that a 

certified copy be sent by the clerk to the trial court to carry this judgment into execution.

NOTICE TO COUNSEL

This document constitutes a final judgment entry.