State v. McLoyd

[Cite as State v. McLoyd, 

.]
                              COURT OF APPEALS OF OHIO

                             EIGHTH APPELLATE DISTRICT
                                COUNTY OF CUYAHOGA

STATE OF OHIO,                                     :

                Plaintiff-Appellee,                :
                                                            No. 112092
                v.                                 :

TAMARA MCLOYD,                                     :

                Defendant-Appellant.               :


                               JOURNAL ENTRY AND OPINION

                JUDGMENT: AFFIRMED
                RELEASED AND JOURNALIZED: November 30, 2023


           Criminal Appeal from the Cuyahoga County Common Pleas Court
                  Case Nos. CR-22-666570-A and CR-22-669473-A


                                             Appearances:

                Michael C. O’Malley, Cuyahoga County Prosecuting
                Attorney, and Kevin Filiatraut, Assistant Prosecuting
                Attorney, for appellee.

                Michael Gordillo, for appellant


ANITA LASTER MAYS, A.J.:

                  Defendant-appellant Tamara McLoyd (“McLoyd”) appeals her

convictions and sentence and asks this court to reverse her convictions, vacate her

sentence, and remand to the trial court for a new trial. We affirm.
      {¶2} McLoyd is appealing two lower court cases that were joined for trial;

CR-22-666570-A (“666570”) and CR-22-669473-A (“669473”).                In 666570,

McLoyd was found guilty of two counts of aggravated murder, unclassified

felonies, in violation of R.C. 2903.01(A) and (B); two counts of murder,

unclassified felonies, in violation of R.C. 2903.02(B); one count of aggravated

robbery, a first-degree felony, in violation of R.C. 2911.01(A)(1); two counts of

felonious assault, first-degree felonies, in violation of R.C. 2903.11(A)(1) and (2);

one count of grand theft, a fourth-degree felony, in violation of R.C. 2913.02(A)(2);

one count of petty theft, a first-degree misdemeanor, in violation of R.C.

2913.02(A)(4); and one count of having weapons while under disability, a third-

degree felony, in violation of R.C. 2923.13(A)(2). One-, three-, and seven-year

firearms specifications and forfeiture specifications were attached to the

aggravated murder, murder, aggravate robbery, felonious assault, and grand theft

counts, while forfeiture specifications were attached to the petty theft and having

weapons while under disability counts.

      {¶3} In 669473, McLoyd was found guilty of aggravated robbery, a first-

degree felony, in violation of R.C. 2911.01(A)(1); and having weapons while under

disability, a third-degree felony, in violation of R.C. 2923.13(A)(2). The aggravated

robbery count had one- and three-year firearms specifications attached to it. After

a jury trial that heard the majority of the counts and a bench trial that considered
the having weapons while under disability counts, McLoyd was found guilty of all

counts and sentenced to life in prison with the possibility of parole after 47 years.

I.    Facts and Procedural History

      {¶4} On December 25, 2021, Raphael Hernandez (“Hernandez”) was in the

parking lot of the Cross Creek Apartments. Hernandez had recently signed a lease

and was in the process of moving in. Hernandez was unloading his suitcases from

his vehicle and observed two individuals walking towards him. Hernandez spoke

to them, and one of the individuals responded to him stating, “give me the keys.”

This individual also brandished a gun and was wearing a mask. Hernandez could

not tell if the person was a man or woman, but was able to determine that the

individual was African-American.

      {¶5} Hernandez gave the individual the keys to his vehicle, walked toward

his apartment complex, and called 911. Officers Jacquelyn Grammes (“Officer

Grammes”) and Anthony Irby (“Officer Irby”) responded to the call and were told

that a gold Toyota was taken from Hernandez at gunpoint. Officer Grammes

noticed that surveillance cameras were located on the building, but was unable to

review the footage at that time because it was Christmas Day. At the time,

Hernandez described the gun color as gray and black, but at trial, testified that the

gun was red. When questioned about the discrepancy, Hernandez explained that

he meant he saw two red dots on the gun.
      {¶6} On December 31, 2021, Officers Steve Salim (“Officer Salim”) and

Jessica Rubic (“Officer Rubic”) were dispatched to the Cross Creek Apartments.

When they arrived, they observed EMS at the apartments. They learned that

someone had been shot, later identified as Officer Shane Bartek (“Officer Bartek”),

who was in the ambulance and was being transported by EMS to the hospital.

Officer Salim was directed to where Officer Bartek’s body was found and where his

shoes were located. Officer Salim searched for shell casings from the gun used to

shoot Officer Bartek, but could not locate them, which indicated to Officer Salim

that a revolver could have possibly been used to shoot Officer Bartek. Officer Salim

accessed the surveillance video and observed the shooting along with Detective

Jake Simonelli (“Det. Simonelli”).

      {¶7} Det. Simonelli observed the surveillance video and confirmed that the

shoes and black masks found at the scene belonged to Officer Bartek. He also

observed the shooting of Officer Bartek and his car, a Mazda, and cellphone being

stolen. Officer Bartek’s autopsy was consistent with what Det. Simonelli and

Officer Salim observed on the video. Officer Bartek sustained a gunshot wound to

the right side of his back, which caused a liter of blood to pool inside of his body.

Officer Bartek’s injuries and the surveillance video demonstrated that he was

fleeing from the assailant, but died within seconds of the shooting after collapsing

between two cars.
[Cite as State v. McLoyd, 

.]
        {¶8} The surveillance video also showed that the assailant, with a gun in

hand, approached Officer Bartek from behind, causing Bartek to put both of his

hands in the air. Officer Bartek gave items to the assailant with both of his hands

and tried to lunge towards the assailant’s weapon. However, Officer Bartek missed

and fell away and tried to run. The assailant fired in the air and then shot Officer

Bartek in the back with the second shot, ran to Officer’s Bartek’s car, got in, and

drove past Officer Bartek, while he was on the ground.

        {¶9} Also viewed during this time was the surveillance video from the

Hernandez robbery. The video showed that the assailant who brandished a gun

and robbed Hernandez was wearing a white face mask and a dark-colored jacket

with a white stripe down the arm. The jacket also had a separate dot of color on

the left shoulder that was a logo for the jacket.

        {¶10} A BOLO1 was put out for Officer Bartek’s vehicle to neighboring cities.

Officers from a neighboring police department observed the stolen vehicle and

began pursuit. The driver of the stolen Mazda crashed the vehicle, and was

detained by police. The driver was identified as Anthony Butler (“Butler”) and was

brought in for questioning. Detective Michael Legg (“Det. Legg”) interviewed

Butler who implicated McLoyd, the appellant, in the robbery and homicide of

Officer Bartek. Butler also gave Det. Legg access to his Instagram account and cell



        1 An acronym used by law enforcement to warn law enforcement or the general

public. It means to “be on the lookout.”
phone. A search of Butler’s cell phone revealed text messages between Butler and

another person, Cedrick, facilitating the trading of stolen vehicles. These messages

also demonstrated that McLoyd met with Butler to trade Officer Bartek’s vehicle

the night she robbed and killed him.

      {¶11} Detective Conor Odea (“Det. Odea”), a detective with the gang impact

unit, was tasked, along with other departments and members of law enforcement,

with finding Officer’s Bartek’s stolen Mazda. Det. Odea was notified that the

vehicle had been recovered and that McLoyd was a suspect. Det. Odea looked at

McLoyd’s Instagram account to attempt to locate her. McLoyd posted a video to

her account detailing her current location and the vehicle she was driving. Det.

Odea went to the location and observed McLoyd getting into the vehicle at a gas

station. McLoyd, and three other occupants of the vehicle, were detained by police

and were advised of their Miranda rights. Officers located a firearm in the door of

the driver’s side of the vehicle, where McLoyd was observed sitting. Officers

observed that the gun was a stainless-steel revolver with a black handle and a red

marking on the sight. Later, ballistics testing showed that the gun, a .357 Magnum

revolver had been fired. The bullet recovered from Officer Bartek’s body had the

same number of lands and grooves as the test-fired bullets from the gun, but the

autopsy bullet was too damaged to definitively state the bullet found in Officer

Bartek’s body came from the gun. Additionally, McLoyd’s DNA was found on the

revolver.
      {¶12} During McLoyd’s interrogation, McLoyd admitted to having Officer

Bartek’s vehicle in her possession six minutes after he was killed, although she

initially denied shooting him. However, McLoyd eventually admitted to shooting

Officer Bartek. She told officers that she was scared and did not mean to shoot

him. McLoyd also told officers that she changed clothes at a friend’s house that

evening after the shooting. McLoyd’s DNA was found on these clothes, and they

were consistent with what officers observed her wearing on the surveillance video

at the time of the shooting.

      {¶13} Officers also searched McLoyd’s Instagram account for further

evidence. They discovered that on the night Hernandez’s car was stolen, McLoyd

posted messages suggesting that she was looking for a car to steal. Later, around

the time of the theft, she posted that she stole a car from the west side, where the

Cross Creek Apartments are located. Also, McLoyd posted videos and photos of

herself wearing the same outfit the assailant was observed wearing in the

surveillance video on December 25, 2021, at the time of the Hernandez robbery.

The photos also showed a dashboard of a Toyota Corolla, the same make and model

of the car stolen from Hernandez.

      {¶14} After McLoyd was booked and processed in the county jail, she called

her mother on a recorded phone call where she admitted to killing Officer Bartek.

She also confirmed that the Instagram account being used as evidence of both
robberies was hers. She admitted that Officer Bartek was on the ground when she

shot him.

      {¶15} On January 7, 2022, McLoyd was indicted for the robbery and

homicide of Officer Bartek. On March 13, 2022, McLoyd filed a motion to suppress

her video-recorded statement that was made after she was mirandized and taken

into police custody. On April 22, 2022, McLoyd was indicted for the robbery of

Hernandez. On May 26, 2022, the state filed a motion to join the two indictments

for trial, and McLoyd objected to joinder. On May 27, 2002, there was hearing on

McLoyd’s motion to suppress her statements to the police. However, McLoyd

instructed her trial counsel to withdraw the motion.

      {¶16} On June 3, 2022, the trial court granted the state’s motion for joinder

of indictments for one trial. Journal entry No. 124459514 (Jun. 3, 2022). In the

trial court’s judgment entry, granting the state’s request, it states:

      If the evidence at trial comes in as expected by the prosecution then
      the defendant will not be able to demonstrate prejudice because one
      subset of the evidence will be dedicated to proving the events of
      Christmas Day and the other subset of the evidence will go towards
      proof beyond a reasonable doubt of the aggravated murder and
      robbery on New Year’s Eve. In the absence of such prejudice, joinder
      of the indictments is appropriate and the State of Ohio’s motion to
      join the indictments in case numbers CR 22-666570 and CR 22-
      669473 is granted.

      {¶17} McLoyd was found guilty on all counts and sentenced to life in prison.

She filed this appeal assigning seven errors for our review:
      1.     The trial court prejudiced appellant and committed reversible
             error by incorrectly advising the petite jury that the grand jury’s
             indictment meant that the grand jury found appellant was more
             likely than not guilty;

      2.     Joinder of the cases for trial was impermissibly prejudicial to
             the appellant;

      3.     Appellant’s convictions were not supported by sufficient
             evidence;

      4.     Appellant’s convictions are against the manifest weight of the
             evidence;

      5.     The trial court committed reversible error prejudicing appellant
             by permitting hearsay testimony into evidence;

      6.     Appellant’s trial counsel was ineffective; and

      7.     The trial court committed reversible error prejudicing the
             appellant when it imposed an unconstitutional sentence upon
             appellant pursuant to the Reagan Tokes law.

II.   Jury Advisement

      {¶18} In McLoyd’s first assignment of error, she argues that the trial court

prejudiced her and committed reversible error by incorrectly advising the petit jury

that the grand jury’s indictment meant that the grand jury found that McLoyd was

“more likely than not” guilty.

      {¶19} During voir dire, the trial court made the following statements:

      An indictment is returned when the prosecutor presents evidence to a
      grand jury. When the prosecutor presents evidence to a grand jury,
      that proceeding is almost always one-sided. In other words, the
      Defendant or Defendants or their representatives are not present at
      the grand jury proceedings.
      Moreover, a grand jury, which is composed of people like yourselves
      who do this duty for several weeks at a time and hear a fair number of
      cases, it does not have to be unanimous, and a grand jury is only asked
      to determine whether there is probable cause to believe that a person
      suspected of committing a crime committed the crime. If the grand
      jury does find probable cause to believe that appears more likely than
      not that the person did commit the crime, then that grand jury returns
      an indictment and it comes here for your consideration.

      ***

      At trial, though, the Defendants are presumed innocent. That
      presumption stays in place until you as a jury have found that the
      proof is such as to exclude every reasonable doubt of the guilt of any
      particular Defendant on a particular charge.

      Reasonable doubt is present when after the jurors have carefully
      considered a charge they cannot say that they are firmly convinced of
      the truth of a charge. Reasonable doubt is a doubt based upon reason
      and common sense. Reasonable doubt is not mere possible doubt,
      because everything related to human affairs or dependent upon moral
      evidence is open to some possible or imaginary doubt. Proof beyond
      a reasonable doubt is proof of such character that an ordinary person
      would be willing to rely and act upon it in the most important of his
      or her affairs.

Tr. 159–161.

      {¶20} McLoyd contends that the trial court’s instruction was erroneously

given because “probable cause” and the words “probable” and “probably” do not

have the same meaning. Because the probable cause standard does not have a

quantification into percentages, it depends on the totality of the circumstances.

She further argues that she was entitled to a presumption of innocence, and the

state has the burden of production regarding the elements of a criminal offense.
       {¶21} McLoyd, however, did not object to this instruction at trial, and thus

has waived all but a plain error review on appeal. “Generally, ‘[i]f the defendant

failed to raise an error affecting substantial rights at trial, an appellate court

reviews the error under the plain error standard in Crim.R. 52(B).’” State v. Pugh,

8th Dist. Cuyahoga No. 111099, 

, quoting State v. Perry, 

, 

, 

. “A ‘plain error’ is obvious

and prejudicial although neither objected to nor affirmatively waived which, if

permitted, would have a material adverse effect on the character and public

confidence in judicial proceedings.” 

 citing Schade v. Carnegie Body Co., 

, 

 (1982).

       {¶22} The trial court clearly explained the reasonable doubt standard to the

jury and stated that defendants are presumed innocent.           McLoyd has not

demonstrated that the trial court’s statements had a materially adverse effect on

the proceedings or prejudiced her in anyway.

       {¶23} Therefore, McLoyd’s first assignment of error is overruled.

III.   Joinder of Cases

       A.    Standard of Review

       {¶24} “We review the trial court's decision not to sever the indictments for

an abuse of discretion.” State v. Davenport, 8th Dist. Cuyahoga Nos. 112004 and

112005, 

, ¶ 30, citing State v. Torres, 

, 

 (1981). “The Ohio Supreme Court recently explained that an abuse of
discretion ‘involves more than a difference in opinion * * *.’” State v. Price, 8th

Dist. Cuyahoga No. 111921, 

, quoting State v. Weaver, Slip

Opinion No. 

. “That is, a trial court's judgment that is

‘profoundly and wholly violative of fact and reason’ constitutes an abuse of

discretion.” 

      B.     Law and Analysis

      {¶25} In McLoyd’s second assignment of error, she argues that the joinder

of the cases for trial was impermissibly prejudicial. “Preliminarily, the law favors

joinder of multiple offenses in a single trial if the offenses charged ‘are of the same

or similar character.’” Davenport at ¶ 27 quoting 

; Crim.R. 13;

Crim.R. 8(A). “Joinder is favored because it offers the benefits of ‘conserving time

and expense, diminishing the inconvenience of witnesses and minimizing the

possibility of incongruous results in successive trials before different juries.’” 

“Crim.R. 13 allows two different indictments to be tried together ‘if the

offenses * * * could have been joined in a single indictment or information.’” 

Crim.R. 8(A) allows offenses to be joined in a single indictment where they “are of

the same or similar character, or are based on the same act or transaction,” “or are

based on two or more acts or transactions connected together or constituting parts

of a common scheme or plan or are part of a course of criminal conduct.” 

      {¶26} Here, in the instant case, the trial court reasoned that

      [t]hese offenses occurred exactly one week apart. Both offenses
      involved the use of a gun [with] the object of the robbery being the
      vehicle controlled by the victim. Both offenses occurred at the same
      relative time of day (late afternoon) and at the same location — the
      Cross Creek Apartment complex. Both offenses involved the same
      video system recording the events.

Judgment entry Nos. 666570 and 669473.
      {¶27} “The Supreme Court has noted that a continuing course of criminal

conduct is found when the evidence interlocks and the events occur in close

proximity in location and time; or when the offenses are part of a common scheme

or plan and similarly, occur over a short period of time.” Davenport at ¶ 28. See

also State v. Hamblin, 

, 

 (1988); State v.

Dean, 

, 

, 

.

      {¶28} McLoyd argues that she was prejudiced by the joinder under Crim.R.

14. Crim.R. 14 provides, in relevant part:

      If it appears that a defendant or the state is prejudiced by a joinder of
      offenses or of defendants in an indictment, information, or complaint,
      or by such joinder for trial together of indictments, information or
      complaints, the court shall order an election or separate trial of
      counts, grant a severance of defendants, or provide such other relief
      as justice requires.

      {¶29} “When challenging joinder under Crim.R. 14, the appellant ‘has the

burden of affirmatively showing that his rights were prejudiced.’” Davenport at ¶

30, quoting Torres, 

. “Appellant also bears the burden of

providing sufficient information to the trial court ‘that it can weigh the

considerations favoring joinder against the defendant’s right to a fair trial.’” 

      {¶30} “However, a claim of prejudicial joinder may be rebutted by showing

either 1) the evidence in the joined cases could be introduced in separate trial as

‘other acts’ evidence under Evid.R. 404(B); or (2) by showing that the evidence as
to each crime is simple and direct.” Id. at ¶ 32, citing State v. Diar, 

, 

, 

.

      {¶31} In this case, we determine that the evidence was simple and direct.

McLoyd argues that the evidence concerning the assailants who robbed Hernandez

was lacking and the video surveillance of the Bartek killing was insufficient quality.

However, McLoyd’s arguments are misplaced. There were messages on McLoyd’s

phone implicating her in the Hernandez robbery. There were pictures and videos

of McLoyd wearing the same clothes of the assailant in the surveillance video on

her Instagram.

      {¶32} Additionally, McLoyd confessed to the police that she shot Officer

Bartek. Her DNA was found on the gun used in the shooting as well as on the

clothes she wore the night of shooting. McLoyd also confessed to her mother that

she shot Officer Bartek during a recorded call from the jail. Text messages on

Butler’s phone implicated McLoyd in both robberies.           McLoyd has failed to

demonstrate how she was prejudiced by the joinder of the cases.

      {¶33} Therefore, McLoyd’s second assignment of error is overruled.

IV.   Sufficiency and Manifest Weight of the Evidence

      A.     Standard of Review

      {¶34} “Although the terms ‘sufficiency’ and ‘weight’ of the evidence are

‘quantitatively and qualitatively different,’ we address these issues together

because they are closely related, while applying the distinct standards of review.”
State v. Hester, 8th Dist. Cuyahoga No. 108207, 

, quoting

State v. Thompkins, 

, 

 (1997).

      {¶35} “‘[T]he test for sufficiency requires a determination of whether the

prosecution met its burden of production at trial.’” Id. at ¶ 17, quoting State v.

Bowden, 8th Dist. Cuyahoga No. 92266, 

, ¶ 13. “‘The relevant

inquiry is whether, after viewing the evidence in a light most favorable to the

prosecution, any rational trier of fact could have found the essential elements of

the crime proven beyond a reasonable doubt.’” 

 quoting State v. Jenks, 

, 

 (1991), paragraph two of the syllabus.

      {¶36} “In contrast to sufficiency, ‘[w]eight of the evidence [involves] the

inclination of the greater amount of credible evidence.’” Id. at ¶ 18, quoting

. “While ‘sufficiency of the evidence is a test of adequacy as to

whether the evidence is legally sufficient to support a verdict as a matter of

law, * * * weight of the evidence addresses the evidence’s effect of inducing belief.’”

 quoting State v. Wilson, 

, 

, 

, ¶ 25, citing 

. “‘In other words, a reviewing court asks

whose evidence is more persuasive — the state’s or the defendant’s?” 

 citing

. “The reviewing court must consider all the evidence in the

record, the reasonable inferences, and the credibility of the witnesses to determine

‘whether in resolving conflicts in the evidence, the jury clearly lost its way and

created such a manifest miscarriage of justice that the conviction must be reversed
and a new trial ordered.’” 

 quoting State v. Martin, 

, 

 (1st Dist.1983).

      {¶37} “In conducting such a review, the Ohio Supreme Court has stated that

the appellate court ‘sits as a thirteenth juror’ and disagrees with the factfinder’s

resolution of conflicting testimony.’” Id. at ¶ 19, quoting 

.

“The Supreme Court’s characterization of the appellate court as a ‘thirteenth juror’

refers to the appellate court’s ‘discretionary power to grant a new trial.’” 

quoting 

. “As a ‘thirteenth juror,’ the appellate court may

disagree with the factfinder’s resolution of the conflicting evidence and, in effect,

create a deadlocked jury, which requires a new trial.” 

      {¶38} “However, our status as a ‘thirteenth juror’ is not equal to the other

twelve jurors, who are uniquely positioned to view the witnesses’ demeanor,

gestures, facial expressions, and voice inflections.” Id. at ¶ 20. “These outward

behaviors are not evident in a written transcript. Demeanor is not what the witness

says, but the manner in which he or she says it.” Id. “Demeanor evidence is

invaluable in assessing a witness’s credibility, yet it is totally lost in transmission

to the court of appeals.” Id. “It is for this reason that ‘the weight to be given the

evidence and the credibility of the witnesses are primarily for the trier of facts.’”

Id., quoting State v. DeHass, 

, 

 (1967), paragraph

one of the syllabus.
      {¶39} “‘Because the trier of fact sees and hears the witnesses and is

particularly competent to decide ‘whether, and to what extent, to credit the

testimony of particular witnesses;’ we must afford substantial deference to its

determinations of credibility.’” Id. at ¶ 21, quoting Barberton v. Jenney, 

, 

, 

.

      {¶40} “Although we have the discretionary power of a ‘thirteenth juror’ to

grant a new trial, that power ‘should be exercised only in the exceptional case in

which the evidence weighs heavily against the conviction.’” Id. at ¶ 22, quoting

. “‘[A] finding that a conviction [was] supported by the manifest

weight of the evidence necessarily includes a finding of sufficiency.’” 

 quoting

State v. Robinson, 8th Dist. Cuyahoga No. 96463, 

.

      B.    Law and Analysis

      {¶41} In McLoyd’s third and fourth assignment of errors, she argues that

her convictions are not support by sufficient evidence and they are against the

manifest weight of evidence. Specifically, McLoyd argues that the evidence was

insufficient to conclude that she was the one who robbed Hernandez. She also

contends that text messages from her phone were hearsay, and therefore

impermissible evidence. Further, she argues that without these messages, there

was not a link between her and Bartek’s robbery and murder.

      {¶42} Circumstantial evidence corroborates the information taken from

Butler and McLoyd’s phones, surveillance videos from both robberies, and autopsy
and ballistics reports, in addition to McLoyd’s own statements to the police and

her mother. “It is well established that the elements of an offense may be proven

by direct evidence, circumstantial evidence, or both.” State v. Kyle, 8th Dist.

Cuyahoga No. 108702, 

. See State v. Durr, 

,

 (1991). “Direct evidence exists when ‘a witness testifies about a

matter within the witness’s personal knowledge such that the trier of fact is not

required to draw an inference from the evidence to the proposition that it is offered

to establish.’” 

 quoting State v. Cassano, 8th Dist. Cuyahoga No. 97228, 2012-

Ohio-4047, ¶ 13. “Circumstantial evidence, on the other hand, is evidence that

requires ‘the drawing of inferences that are reasonably permitted by the evidence.’”

 quoting Cassano, at ¶ 13. See also State v. Hartman, 8th Dist. Cuyahoga No.

90284, 

 (“Circumstantial evidence is the proof of facts by

direct evidence from which the trier of fact may infer or derive by reasoning other

facts in accordance with the common experience of mankind.”).

      {¶43} “Circumstantial and direct evidence are of equal evidentiary value.”

Id. at ¶ 27, citing State v. Santiago, 8th Dist. Cuyahoga No. 95333, 2011-Ohio-

1691, ¶ 12.    “‘Although there are obvious differences between direct and

circumstantial evidence, those differences are irrelevant to the probative value of

the evidence.’” Id., quoting Cassano, at ¶ 13. “In some cases, circumstantial

evidence may be ‘more certain, satisfying and persuasive than direct evidence.’”

Id., quoting State v. Lott, 

, 

 (1990).
      {¶44} As previously stated, the surveillance video from the Hernandez

robbery showed that the assailant who brandished a gun and robbed Hernandez,

was wearing a white face mask and a dark-colored jacket with a white stripe down

the arm. The jacket also had a separate dot of color on the left shoulder that was a

logo for the jacket. McLoyd posted videos and photos of herself wearing the same

outfit the assailant was observed wearing in the surveillance video on December

25, 2021, at the time of the Hernandez robbery. The photos also showed a

dashboard of a Toyota Corolla, the same make and model of the car stolen from

Hernandez.

      {¶45} As it pertains to the murder of Officer Bartek, McLoyd confessed to

the police that she shot Officer Bartek stating that it was an accident and she was

scared. Her DNA was found on the gun used in the shooting as well as on the

clothes she wore the night of shooting. McLoyd also confessed to her mother that

she shot Officer Bartek during a recorded call from the jail. Text messages on

Butler’s phone implicated McLoyd in both robberies.          There was sufficient

evidence to demonstrate that McLoyd robbed Hernandez and killed Officer Bartek.

      {¶46} Additionally, McLoyd’s convictions were not against the manifest

weight of the evidence. McLoyd has not demonstrated that the jury lost its way

and created such a manifest miscarriage of justice that the conviction must be

reversed and a new trial ordered. Given the evidence stated above, McLoyd also

has not demonstrated that the evidence weighs heavily against her convictions.
She does not cite conflicting testimony or identify testimony that was not credible.

She only argues that the evidence should not have reached the jury. Her arguments

regarding the permissibility of the evidence are addressed in the review of the next

assignment of error.

      {¶47} Therefore, McLoyd’s third and fourth assignments of error are

overruled.

V.    Hearsay

      A.     Standard of Review

      {¶48} “We review evidentiary rulings that implicate the Confrontation

Clause de novo.” State v. Jacinto, 

, 

 (8th Dist.),

¶ 60, citing State v. McKelton, 

, 

, 

.

      {¶49} However, “[a] trial court has broad discretion regarding the

admission of evidence, including whether evidence constitutes hearsay and

whether it is admissible hearsay.” In re A.M., 8th Dist. Cuyahoga No. 110551,

, citing Solon v. Woods, 8th Dist. Cuyahoga No. 100916, 2014-

Ohio-5425, ¶ 10. “We therefore will not disturb a trial court’s decision regarding

the admissibility of hearsay evidence absent an abuse of discretion.” 

 citing

State v. Maurer, 

, 

 (1984).

      B.     Law and Analysis
      {¶50} In McLoyd’s fifth assignment of error, she argues that the trial court

committed reversible error by permitting hearsay testimony into evidence. First,

McLoyd contends that admitting Hernandez’s 911 call was impermissible. She

argues that the 911 call was a testimonial, out-of-court statement offered for its

truth, and not subject to cross-examination.

      {¶51} Preliminarily, we note that McLoyd did not object to the admission of

the text messages or the 911 call during the trial, and thus, we review only for plain

error. Under Crim.R. 52(B), plain errors affecting substantial rights may be

noticed by an appellate court even though they were not brought to the attention

of the trial court. To constitute plain error, there must be (1) an error, i.e., a

deviation from a legal rule, (2) that is plain or obvious, and (3) that affected

substantial rights, i.e., affected the outcome of the case. State v. Barnes, 

, 

 (2002).

      {¶52} “‘911 calls are generally admissible as excited utterances or under the

present sense impression exception to the hearsay rule.’” Cleveland v. Myles, 8th

Dist. Cuyahoga No. 111309, 

, quoting State v. Martin, 2016-

Ohio-225, 

, ¶ 59 (5th Dist.).

      {¶53} “Evid.R. 803(1) defines the present sense impression 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.’” Id. at ¶ 26, quoting Evid.R.
803(1). “Regarding Evid.R. 803(1), ‘[t]he key to the statement’s trustworthiness

is the spontaneity of the statement; it must be either contemporaneous with the

event or be made immediately thereafter.’” Id., quoting State v. Essa, 

, 

, 

 (8th Dist.). “‘The principle

underlying this hearsay exception is the assumption that statements or

perceptions, describing the event and uttered in close temporal proximity to the

event, bear a high degree of trustworthiness.’” 

 quoting State v. Dixon, 

, 

, 

 (3d Dist.). “Accordingly, ‘Ohio

courts have routinely held that 911 calls are admissible as present sense

impressions.’” 

 quoting Ohio v. Scott, 1st Dist. Hamilton Nos. C-200385 and

C-200403, 

. See also State v. Smith, 

, 

 (1st Dist.) (“911 calls are usually admissible under the excited

utterance or the present sense impression exception to the hearsay rule”).

      {¶54} “‘While temporal proximity is critical to a present sense impression

analysis, there is no bright line rule as to what amount of elapsed time precludes a

finding that the exception applies.’” Id. at ¶ 27, quoting State v. May, 3d Dist.

Logan No. 8-11-19, 

. “Some courts have found that the

present sense impression exception applies even where the 911 call is made up to

an hour after the event perceived.” 

 citing State v. Travis, 

,

, 

 (2d Dist.).
      {¶55} In this case, the surveillance video demonstrates that the robbery of

Hernandez occurred at approximately 4:20 p.m. Hernandez immediately called

911, and by 4:30 p.m., officers were dispatched to the scene. Given this evidence,

Hernandez’s 911 call is admissible as an excited utterance or under the present

sense impression exception to the hearsay rule.         McLoyd’s argument that

Hernandez was no longer in danger is misplaced and is not a factor is determining

whether the call is testimonial in nature.

      {¶56} Second, McLoyd contends that the Instagram messages between

Butler and Cedric were inadmissible because McLoyd was not a part of the

conversation. McLoyd also argues that these messages were used to form a key

part of the state’s evidence that she was the individual who robbed and killed

Officer Bartek. However, McLoyd’s own confession to the police and her mother

that she killed Officer Bartek were the key part of the state’s evidence. These

messages were not admitted to demonstrate McLoyd robbed and killed Officer

Bartek, but rather to explain why the police asked McLoyd about the messages

when she confessed. The trial court did not allow any testimony about the specifics

of the interview with Butler. While observing the video of McLoyd’s interrogation

during the trial, the police were shown asking McLoyd about the information

gathered from Butler’s messages. His actual messages were not entered into

evidence. Tr. 803.
      {¶57} After reviewing this assignment of error for plain error, we cannot

conclude, given the evidence, that an error occurred.

      {¶58} Therefore, McLoyd’s fifth assignment of error is overruled.

VI.   Ineffective Assistance of Counsel

      A.     Standard of Review

      {¶59} “In a claim of ineffective assistance of counsel, the burden is on the

defendant to establish that counsel’s performance fell below an objective standard

of reasonable representation and prejudiced the defense.” State v. Virostek, 8th

Dist. Cuyahoga No. 110592, 

, citing State v. Bradley, 

, 

 (1989), paragraph two of the syllabus; Strickland v.

Washington, 

, 

, 

 (1984).

      {¶60} “This court has held that to establish ineffective assistance of counsel

for failure to file a motion to suppress, one must prove that: (1) there was a basis

to suppress the evidence in question and (2) that failure to file the motion to

suppress caused prejudice.” State v. Marneros, 8th Dist. Cuyahoga No. 109258,

, citing State v. Garcia, 8th Dist. Cuyahoga No. 94386, 2010-

Ohio-5780, ¶ 8; State v. Robinson, 

, 

(3d Dist.1996). “Failure to file a motion to suppress is not per se ineffective

assistance of counsel.” 

 citing Garcia at ¶ 8 (citations omitted). “Put simply,

failure to file a motion to suppress constitutes ineffective assistance of counsel only
if the motion would have been granted.” 

 citing State v. Willis, 8th Dist.

Cuyahoga No. 89044, 

 (citations omitted).

      B.     Law and Analysis

      {¶61} In McLoyd’s sixth assignment of error, she argues that her trial

counsel was ineffective because he withdrew her motion to suppress. On March

13, 2022, McLoyd filed a motion to suppress her video-recorded statement that

was made after she was mirandized and taken into police custody. According to

the record, McLoyd made the decision to withdraw the motion. The record reflects

that McLoyd orally withdrew the motion at the hearing.

      {¶62} “A criminal defendant has the right to effective assistance of counsel.”

State v. Debose, 8th Dist. Cuyahoga No. 109531, 

, citing

Strickland v. Washington, 

, 

, 

 (1984). “The Sixth Amendment to the United States Constitution guarantees

a defendant the effective assistance of counsel at all ‘critical stages’ of a criminal

proceeding, including sentencing.” 

 citing State v. Davis, 

,

2020-Ohio- 309, 

 (“sentencing is a critical stage in which a

felony offender has a right to counsel”).

      {¶63} “To constitute ineffective assistance of counsel, the errors

complained of must amount to ‘a substantial violation of * * * defense counsel’s

essential duties to his client.’” Id. at ¶ 23, quoting State v. Bradley, 

, 

 (1989).
       As a general matter, to establish ineffective assistance of counsel, a
       defendant must demonstrate: (1) deficient performance by counsel,
       i.e., that counsel’s performance fell below an objective standard of
       reasonable representation, and (2) that counsel’s errors prejudiced
       the defendant, i.e., a reasonable probability that but for counsel’s
       errors, the outcome of the proceeding would have been different.
       

; Bradley, at paragraphs two and three of
       the syllabus. “Reasonable probability” is “probability sufficient to
       undermine confidence in the outcome.” 

.

Id. at ¶ 21.

       {¶64} McLoyd’s has not demonstrated that she was prejudiced by counsel’s

decision to withdraw the motion to suppress. The trial court’s journal entry states,

in part: “This case was called on 5/27/2022 for a hearing on the defendant’s

3/13/2022 motion to suppress evidence. The defendant orally withdrew the

motion.”       Journal entry No. 124183087 (May 31, 2022).      She also does not

demonstrate any evidence that the motion would have been successful if the

hearing moved forward.

       {¶65} Therefore, McLoyd’s sixth assignment of error is overruled.

VII. Reagan Tokes Law

       {¶66} In McLoyd’s seventh assignment of error, she challenges the

application of the Reagan Tokes Law to her sentence. McLoyd’s assignment of

error is overruled pursuant to the decision in State v.Hacker, Slip Opinion No.

, where the Ohio Supreme Court recently addressed similar

arguments and found the Reagan Tokes Law to be constitutional. The Hacker
Court determined the law does not violate the separation-of-powers doctrine, the

right to a jury trial, or the right to due process. Id. at ¶ 41.

      {¶67} Judgment affirmed.

      It is ordered that appellee recover from appellant costs herein taxed.

      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this court directing the

common pleas court to carry this judgment into execution.

      A certified copy of this entry shall constitute the mandate pursuant to Rule

27 of the Rules of Appellate Procedure.

______________________________________
ANITA LASTER MAYS, ADMINISTRATIVE JUDGE

MARY J. BOYLE, J., CONCURS;
FRANK DANIEL CELEBREZZE, III, J., CONCURS (WITH SEPARATE OPINION)


FRANK DANIEL CELEBREZZE, III, J., CONCURRING:

                I concur fully with my esteemed colleagues in the majority opinion.

I write separately to express my dismay and exasperation with the current state of

gun control in the state of Ohio. The erosion of gun control in Ohio has placed more

deadly weapons in the hands of inexperienced and unqualified people to the

detriment of not only ordinary civilians, but all public servants.

               To begin, I want to express in no uncertain terms that I am an ardent

supporter of both the Ohio Constitution, Article I, Section 4, that provides the right
of people to “bear arms for their defense and security” and the Second Amendment

to the U.S. Constitution, that protects “the right of the people to keep and bear

Arms[.]” Additionally, my life experiences put me in a position to speak on this

issue. I am a Navy veteran who served as intelligence during the Vietnam War. I

am a member of the National Rifle Association. Since my election to the common

pleas bench in 1992, and then the appellate bench in 2001, I have been an Ohio jurist

that is passionate about stare decisis and a dedicated follower of the strict

constructionism legal philosophy. Throughout my career on the bench, I have

handled cases involving gun violence, but I have recently noticed a glaring frequency

in the amount of these cases, especially where the violence has been directed at

public servants, including police officers, firefighters, my fellow jurists, and my

colleagues of the Ohio bar. I can no longer remain silent. The prevalence of guns

and their increased usage in violent crimes, especially by young people, mandates

checks by the General Assembly on gun ownership and usage.

              In this case, McLoyd was 18 years old at the time she wielded a Smith

& Wesson .357 magnum revolver and fatally shot Officer Bartek, even after he

handed over his keys and phone — he had nothing else to give her. She shot him in

his back when he presented no danger or threat to her. She later flaunted the same

weapon in an Instagram video and referred to someone “getting popped.” Because

of McLoyd’s cavalier attitude towards handguns, 25-year-old Officer Bartek, who
had his entire life and career in law enforcement ahead of him, left behind a grieving

family, including a mother, grandmother, brother, and twin sister.

               McLoyd, at only 18 years old, was not permitted to purchase a

handgun under R.C. 2923.211(B), which precludes the sale of handguns to

individuals under 21 years of age who are not law enforcement officers or members

of the armed services.2 No individual or seller of handguns was permitted to furnish

the handgun to her under R.C. 2923.21(A)(3). Nonetheless, as explained below,

McLoyd was easily able to obtain a handgun due to the relaxed laws surrounding

gun ownership in Ohio.

               In recent years, Ohio has gradually loosened gun-control measures to

the detriment of civilians and public servants alike. As of June 2022, adults need

not obtain concealed handgun licensure or obtain a background check to purchase

a firearm. R.C. 2923.111. Moreover, Ohio does not have any “red flag” laws that

authorize courts to remove guns from individuals deemed to be imminent risks to

themselves or others, whether that risk is the result of mental health issues,

alcoholism, drug dependency, or criminal history. Red flag laws have been passed

in many states all along the political spectrum, such as California, Colorado, Florida,

Maryland, and Virginia. Safety is not a partisan issue.




      2 The irony is not lost on me that McLoyd, at 18 years old, would have been legally

permitted under Ohio law to purchase a semiautomatic assault rifle and high-capacity
magazines, but not a handgun.
               In addition, Ohio law does not require any training to carry a

concealed weapon. As a result, deadly weapons are in the hands of inexperienced,

untrained individuals who use guns to intimidate others or as an aid in criminal

activity, rather than for personal defense and security, as the Ohio Constitution

provides.

               Restrictions on gun ownership not only promote the safety of our

civilians and society as a whole but protect those who have devoted their lives to

serving Ohio. There are a variety of public servants, but I am most concerned about

those whose jobs are entrenched in the community, such as police officers,

firefighters, members of the judiciary, and other government agents. I have no

doubt that the increased gun violence and failure of the General Assembly to place

restrictions on gun ownership has deterred many well-qualified and well-meaning

individuals from seeking a career in public service, or has caused individuals who

have offered their services to seek other employment. Not only does this disinterest

or fear of public service perpetuate the very crimes we are trying to prevent, it

prevents otherwise well-qualified, talented, and educated people from dedicating

their lives to the service of our state.

               One month ago, I presided over State v. Hatcher, 8th Dist. Cuyahoga

No. 112552, 

, where a firefighter was merely doing his job and

investigating a potential fire hazard, when an individual brandished a gun. The

firefighter and his team were not only prevented from investigating the hazard, but
they became fearful for their lives. During the same week that Hatcher was released,

a trial judge in Washington County, Maryland, was shot and killed in his own

driveway, while his wife and son were in the house, by an aggrieved party in a child

custody case. These are just two recent examples among countless others, but the

violence against public servants speaks for itself.

               We cannot know whether gun control measures would have kept the

revolver out of McLoyd’s hands, but owning and wielding a deadly weapon is a

serious responsibility that the General Assembly must use its legislative power to

check. Without these checks to regulate guns, the quantity of firearms in the hands

of those with ill-intent is increased. For the safety of civilians and public servants,

the state of Ohio must act to better regulate the sale, distribution, and possession of

firearms.