Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-558450
ATTORNEY FOR APPELLANT Britta M. Barthol
ATTORNEYS FOR APPELLEE Timothy J. McGinty Cuyahoga County Prosecutor By: Brian R. Radigan Carl Sullivan Assistant Prosecuting Attorneys Justice.
BEFORE: S. Gallagher, J., Jones, P.J., and EA. Gallagher, J.
JOURNAL ENTRY AND OPINION
SEAN C. GALLAGHER, JUDGE
(¶ 1} Appellant, Assante Davenport, appeals from his conviction for having a weapon while under disability in violation of R.C. 2923.13(A)(3), after a bench trial. Finding no merit to Davenport's claims, we affirm the decision of the trial court.
(¶2} On December 4, 2011, a party took place at 9900 Cudell Avenue in Cleveland, Ohio. The party was arranged and mostly attended by teenagers. The party included anywhere between 25 to 75 people. The witnesses' descriptions of the events were convoluted. In any event, sometime during the party, an altercation developed between the victim's brother and another male, later identified as Davenport, over the sharing of a Black & Mild cigar. A fight ensued, and the victim's brother was pistol-whipped on the head by Davenport, knocked to the ground, and stomped on by several other people. Davenport then fired the gun he used to pistol-whip the victim's brother in another direction. After the party cleared because of the shooting, the victim was found with a gunshot wound to the chest. Meanwhile, outside the house, a second shooting occurred. The police recovered a pistol not associated with the shooting inside the house. A separate suspect was identified as having had possession of that weapon.
(¶ 3} While Davenport was in custody pending the outcome of his trial, he made several jailhouse calls that were recorded. Two of those recordings, made on August 10 and 29, included Davenport's veiled references about having possession of "number 1." The state contended, based on Davenport's statements from the August 20 and September 29 recordings, that "number 1" is a reference to a firearm.
(¶4} Davenport was charged with aggravated murder, in violation of R.C. 2903.01(A); attempted aggravated murder, in violation of R.C. 2923.02; felonious assault, in violation of R.C. 2903.11(A)(2); associated one- and three-year fire arm specifications; and having a weapon while under disability, in violation of 2923.13(A)(3). Davenport waived his right to a jury trial on the charge of having a weapon under disability. After the jury acquitted Davenport of the remaining charges, the trial court found him guilty of having a weapon under disability. The trial court sentenced Davenport to 30 months in Lorain Correctional Institution. Davenport timely appeals his conviction, advancing three assignments of error, none of which have merit.
(¶ 5} Davenport's first assignment of error provides as follows:
Assignment of Error I
The trial court erred in permitting the admission of unfairly prejudicial evidence in violation of Evidence Rules 801, 401, and 403 and [Davenport's] rights under Article I Sec. 10 and 16 of the Ohio Constitution and the Fifth and Fourteenth Amendments to the United States Constitution.
Davenport generally argues that the August 10 and 29 recordings contained inadmissible hearsay, were unduly prejudicial, or were not evidence of consciousness of guilt. His first assignment of error is without merit.
(¶ 6} The trial court has broad discretion in the admission or exclusion of evidence, and unless it has clearly abused its discretion and the defendant has been materially prejudiced thereby, an appellate court should be slow to interfere. State v. Hancock, 108 Ohio St.3d 57, 2006-Ohio-160, 840 N.E.2d 1032, ¶ 122. "An abuse of discretion occurs when a decision is unreasonable, arbitrary, or unconscionable." State ex rel. ...