State v. Prater

• Citation: 2018 Ohio 932,108 N.E.3d 665
• Decision Date: 13 March 2018
• Docket Number: No. 17AP–374,17AP–374
• Parties: STATE of Ohio, Plaintiff–Appellee, v. Frederick A. PRATER, Jr., Defendant–Appellant.
• Court: United States Court of Appeals (Ohio)

108 N.E.3d 665

2018 Ohio 932

STATE of Ohio, Plaintiff–Appellee,

v.Frederick A. PRATER, Jr., Defendant–Appellant.

No. 17AP–374

Court of Appeals of Ohio, Tenth District, Franklin County.

Rendered on March 13, 2018

On brief: Ron O'Brien, Prosecuting Attorney, and Michael P. Walton, for appellee. Argued: Michael P. Walton.

On brief: Wolfe Law Group, LLC, and Stephen T. Wolfe, Columbus, for appellant.

DECISION

BRUNNER, J.

{¶ 1} Defendant-appellant, Frederick A. Prater, Jr., appeals a judgment of the Franklin County Court of Common Pleas entered on April 25, 2017, sentencing him to serve 23 years in prison for three counts of felonious assault, three gun specifications, and one count of weapon under disability. Because his convictions were sufficiently supported by the evidence introduced and not against the manifest weight of the evidence, because it was not necessary to merge any of the counts, and because any potential error in admitting an unclear video of the events was harmless, we affirm.

I. FACTS AND PROCEDURAL HISTORY

{¶ 2} On February 19, 2016, a Franklin County Grand Jury indicted Prater for four counts of felonious assault with gun specifications and one count of possessing a weapon while under disability. (Feb. 19, 2016 Indictment.) Prater pled not guilty and the case was tried before a jury (except for the weapon under disability count which was tried to the court). (Feb. 26, 2017 Plea Form; Tr. Vols. 1–3, filed June 19, 2017.) During trial, eight witnesses testified: three men at whom Prater fired a revolver (Juan Mullins, Lewis Pettey, and Darius White), a female bystander whom Prater shot (Stephanie Norvett), an officer who responded to the scene, the detective who investigated the case, and a detective and forensic analyst who obtained and edited a video which may show the shooting.

{¶ 3} The first witness who testified was the responding officer. He recounted that on May 11, 2015 at around 10:50 p.m. he was called to a scene near the intersection of South Champion and McAllister Avenues. (Tr. Vol. 1 at 52.) He found one victim near the intersection, Norvett, with a bullet wound in her abdomen. Id. at 53–54. The police eventually located three men whom they believed to have been the targets of the shooting and who gave the police a description of the shooter. Id. at 58–59, 66. The description was of a tall thin black man with braids or dreadlocks. Id. at 66.

{¶ 4} At trial these three men at whom Prater allegedly shot, Mullins, Pettey, and White, testified that they were in the vicinity of 1117 McAllister Ave. on May 11, 2015. (Tr. Vol. 1 at 68, 74; Tr. Vol. 2 at 215–17, 269–70.) While Mullins, Pettey, and White were at the scene of the eventual shooting, a different trio (two men and one woman) who were evidently having car trouble appeared and asked to borrow a phone. (Tr. Vol. 1 at 69; Tr. Vol. 2 at 216, 270.) Pettey agreed to lend them his phone. Id. After a period of time, White or Pettey or both, asked the man seated in the passenger seat of the car to return the phone. (Tr. Vol. 1 at 70–71; Tr. Vol. 2 at 217–18, 272.) The man responded that they could have it back when he was done. Id. Around the time of this exchange, Pettey noticed that the man in the front passenger seat had a gun, a revolver. (Tr. Vol. 2 at 244–45.) White or Pettey or both told the man in the passenger seat that he could just keep the phone (which was apparently a free telephone distributed as part of a government program). (Tr. Vol. 1 at 71; Tr. Vol. 2 at 217–18, 272.) Mullins, Pettey, and White began to walk away when the man who had been sitting in the passenger seat got out of the car and lobbed the phone after them. (Tr. Vol. 1 at 71; Tr. Vol. 2 at 220, 272.) It broke when it struck the ground and Pettey or White or both made a remark to the effect of, "Touchdown, he scored!" (Tr. Vol. 1 at 71–72; Tr. Vol. 2 at 220, 272.)

{¶ 5} Immediately after the remark, all three men heard at least one gunshot and started running away. (Tr. Vol. 1 at 71–72; Tr. Vol. 2 at 220, 272–73.) Mullins reported that he heard approximately six gunshots. (Tr. Vol. 1 at 77, 79.) Pettey recounted that he heard two gunshots. (Tr. Vol. 2 at 220, 265.) White said he heard one shot. Id. at 283. Pettey said he saw the person (who was formerly seated in the front passenger seat) standing by the passenger side door. Id. at 222–23, 226, 247, 265. Pettey testified that this man was the same person who threw the phone and, after the "Touchdown" remark, produced a gun and shot. Id. Pettey saw the first shot but only heard the second shot because after the first shot he ran. Id. at 265. White saw the passenger assume what he considered to be an angled shooting position and then heard a shot. Id. at 282–83. But White admitted it was very dark and he could not see clearly. Id. Mullins and White noticed that Norvett had been struck by a bullet as they escaped the scene but could not risk stopping to render aid. (Tr. Vol. 1 at 80; Tr. Vol. 2 at 273, 300.) After escaping from the immediate scene, Pettey asked two female bystanders to telephone the police. (Tr. Vol. 2 at 227–29.)

{¶ 6} An enhanced video taken from a nearby Central Ohio Transit Authority camera was shown to Pettey, White, and Mullins with the result that all identified it as appearing to generally depict the scene and the incidents in question. (Tr. Vol. 1 at 89–91; Tr. Vol. 2 at 234, 239, 288.) But none of those three could testify definitively about what the video (which is extremely dark and blurry) shows. (State's Ex. J.; Tr. Vol. 1 at 89–91; Tr. Vol. 2 at 234–39, 288–90.) None of the three men identified Prater as the passenger. (Tr. Vol. 1 at 76; Tr. Vol. 2 at 231–32, 302, 304–05.) All three men described the passenger as black with short dreadlocks. (Tr. Vol. 1 at 97; Tr. Vol. 2 at 219, 274, 287.)

{¶ 7} The person who was struck by the bullet, Norvett, also testified. Norvett testified that she knew two of the people in the car, Prater and the other male companion,¹ and had known them since childhood. (Tr. Vol. 2 at 141–43, 181.) She testified that she saw them both on May 11, 2015 but that her memories of that evening were somewhat erratic. Id. at 143, 157. She admitted that she had smoked some marijuana and had drunk some Hennessy cognac that evening. Id. at 182–83. She testified that she did not witness any of the altercation involving the cell phone. Id. at 146–49. As she remembered it, Prater and his two companions were in a car and needed a jump-start. Id. at 145. She had walked across the street to see if she could find some help when she was shot. Id. at 145–46. She testified that she did not know who shot her. Id. She only heard one shot. Id. at 195.

{¶ 8} Norvett admitted that initially, at the hospital, she identified Prater as the one who shot her. Id. at 159–60. She admitted that she picked Prater from a photo lineup and wrote on the associated identification form that, "he pulled the gun out and shot." (State's Ex. C1; Tr. Vol. 2 at 161–64.) However, at trial, she insisted that she had been confused and on medication and that she did not actually know who shot her. (Tr. Vol. 2 at 160.) She admitted that she signed an affidavit approximately ten months after the shooting in which she swore that Pater was not the shooter. Id. at 167, 192–93, 206. She had denied having told the prosecutor that she signed the affidavit because she was scared, but she did confess that she told the prosecutor she was frightened for her children. Id. at 167–68. She stated that Prater never threatened her and that she made the affidavit of her own free will. Id. at 200. However, she admitted that she spoke to Prater's family between her original interview with the police detective and signing the affidavit ten months later. Id. at 206–07. Norvett confirmed that she spoke to Prater on the telephone while she was still in the hospital and said he denied having shot her. Id. at 164–65. She confirmed that she changed hospital rooms after that phone call, but testified that the change was not because she was nervous about Prater knowing what room she was in. Id. at 165–66. Although she insisted at trial that she did not know who shot her, she admitted she could not definitively say that it was not Prater and she confirmed that Prater had been seated on the passenger side of the car. Id. at 156, 168–69, 175–76, 179.

{¶ 9} The investigating detective testified that he interviewed Norvett at Grant Medical Center approximately four days after the shooting. (Tr. Vol. 3 at 409, 414.) Although he did not review her records or obtain a list of the medications she was on, and although he admitted she must have been in pain and on some medications, he maintained that Norvett had not appeared to be conspicuously under the influence of medication at the time of the interview. Id. at 409–10, 418–19. The detective testified that Norvett identified Prater by name as the person who shot her, picked him out of a photographic lineup administered by a "blind" administrator, and wrote on the identification form that Prater "pulled the gun out and shot." Id. at 410–13; State's Ex. C1. The detective admitted, however, that he also interviewed Norvett in September 2016 and, at that time, Norvett opined that Prater's companion in the driver's seat of the car was the one who shot her. (Tr. Vol. 3 at 421–22.) The detective also explained that he obtained video of the scene from the Central Ohio Transit Authority, whose nearby building cameras had recorded what took place. Id. at 407–08. He testified that he took that raw footage to a unit of the Ohio Attorney General to see if it could be digitally clarified. Id.

{¶ 10} An expert forensic analyst from the Ohio Organized Crime Investigation Commission testified that, at the request of the police, he clarified, brightened, and magnified the video to enable its contents to be more easily observed. (Tr. Vol. 3 at 372–73, 377–78.) He explained that, other than a red box, which he drew around...