Criminal appeal from Common Pleas Court T.C. NO. 12CR915
APRIL F. CAMPBELL, Atty. Reg. No. 0089541, Assistant Prosecuting Attorney, Attorney for Plaintiff-Appellee
NICHOLAS G. GOUNARIS, Atty. Reg. No. 0064527, Attorney for Defendant-Appellant
YARBROUGH, J. (by assignment)
(¶ 1} Defendant-appellant, Robert Carter, appeals the judgment of the Montgomery County Court of Common Pleas, following a two-day bench trial, wherein the court found appellant guilty of two counts of felonious assault, one count of improperly discharging a firearm at or into a habitation, and one count of discharging a firearm on or near a prohibited premises, all with the attendant firearm specifications.
A. Facts and Procedural Background
(¶ 2} The state elicited the following evidence during the two-day bench trial. On March 19, 2012, at around 10:00 p.m., a gray or silver Chevy pulled into the driveway at 711 Cleverly Road, the home of Leon Davis, Jr. Dawne Jones, who was leaving the house at the time, testified that she stopped and talked to the driver, who she identified as Carter. No other passengers were in the car. After a brief conversation, Dawne left, and Sam Ford approached the driver's side of the car. Sam testified that he spoke with Carter, and that Carter requested $20 that he had loaned to Sam earlier. Sam responded that he did not have the money. Shortly thereafter, the car left. Sam testified that, although he did not perceive Carter to be angry or upset, he heard Carter say, "[L]et me go get my gun, " as Carter was leaving. Notably, Carter lived nearby.
(¶ 3} Sam returned to the front porch where he had been talking with Vanessa Hines and Bridgette Dawson. A few minutes later, Sam and Vanessa then left to walk over to Vanessa's mother's house a few blocks away. Bridgette remained sitting on the front porch. Sam and Vanessa testified that as they were walking, they saw the same car that had left the driveway moments ago coming down the street towards them. Vanessa testified that she could see that Carter was driving the car and that there were no other passengers. Sam initially testified that he also could see Carter driving the car, although he later admitted that he assumed it was Carter because it was the same car.
(¶ 4} The car passed Sam and Vanessa. As it continued driving past 711 Cleverly, gunfire came from the driver's side of the car. Approximately ten rounds were fired at the house. Sam and Vanessa testified that they could see the gunfire. Bridgette also testified that she could see the gunfire, but stood there, frozen. Three of the bullets struck Bridgette, wounding her left chest, left wrist, and right elbow. In addition, several of the bullets entered the house, striking the wall and television. Leon, who was inside the house at the time, heard the shots and fell to the floor. He was not injured.
(¶ 5} At a subsequent interview with the police, Sam and Vanessa separately identified Carter as the shooter from a photo lineup. After Carter was taken into custody, and while the criminal proceedings were pending, Carter made several phone calls from the jail in which he discussed the facts surrounding the incident, and at least on one occasion, offered money if Vanessa would change her testimony or not show up for trial.
(¶ 6} Following the state's presentation of its case, the defense called Carter's nephew, Jamikel, as an alibi witness. Jamikel testified that Carter was at Jamikel's house on the evening of the shooting. Jamikel stated that he went downstairs to get a snack on two occasions, and remembered seeing Carter there watching television both times. The defense also called Carter's mother, Rose Carter. Rose testified that in July after the incident, Vanessa admitted to her that she could not identify Carter and so was not going to testify. Vanessa denied ever having this conversation.
(¶ 7} The trial court found Carter guilty on all counts. At sentencing, the trial court merged the felonious assault counts into the count of discharging a firearm on or near a prohibited premises. The court further merged all of the firearm specifications into the one specification attached to the count of improperly discharging a firearm at or into a habitation. Ultimately, the court sentenced Carter to eight years in prison on each count, and ordered the sentences to run concurrently to each other, and consecutively to the five-year prison ...