APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF WAYNE, OHIO CASE No. 12-CR-0034
CLARKE W. OWENS, Attorney at Law, for Appellant.
DANIEL R. LUTZ, Prosecuting Attorney, and NATHAN R. SHAKER, Assistant Prosecuting Attorney, for Appellee.
DECISION AND JOURNAL ENTRY
BETH WHITMORE, JUDGE.
(¶ 1} Defendant-Appellant, Lashaun Reed, appeals from his convictions in the Wayne County Court of Common Pleas. This Court affirms in part, reverses in part, and remands for the court to correct the sentencing entry.
(¶ 2} At approximately 2:30 a.m. on the morning of December 10, 2011, Ashon Palmer, Samantha Ralston, Angela Rolen, and Erica Lunsford drove to Orrville to pick up Lunsford's boyfriend from work. During this trip, Palmer received a phone call from his half-brother, Lashaun Reed. Palmer told Reed to calm down and to wait until he got there. Palmer then asked Lunsford if she knew who "Gucci" and "Bear" were. Lunsford told him that they were "Detroit boys, " people from Detroit that "hang out" around the City of Wooster, Ohio.
(¶ 3} Upon the group's return from Orrville, Palmer had them drop him off at an intersection, where Reed picked him up. According to Palmer, Reed had a handgun but wanted more firepower because he believed Gucci was armed and going to "shoot up his house." Reed requested Palmer's AK-47, and the two went to retrieve the gun from a friend's house. The gun, however, was missing the magazine, which rendered it useless. Sometime thereafter, Palmer called his aunt to come pick him up at Reed's house.
(¶4} As Palmer was getting into his aunt's car, he noticed Reed get into his car and leave. Palmer asked his aunt to follow him. Reed pulled down an alley close to North Street, and Palmer jumped out of the car to follow him on foot. According to Palmer, he was attempting to prevent Reed from going to look for Gucci. As the two walked out of the alley onto North Street, Reed noticed a few people standing in front of a house. Reed approached the man standing on the sidewalk, placed a handgun to his chest, and asked if he was "Gucci." Gucci grabbed the gun and it fired. Reed and Gucci wrestled to the ground. After the first shot, Samantha Ralston, who had been standing in front of the house, ran inside. Palmer testified that he also took off running after the first shot. According to Palmer, he looked back as he was running away and saw Reed stand up and fire another shot at Gucci, who was still on the ground attempting to stand up. Palmer called his aunt again to come pick him up. Gucci was helped inside the North Street house and calls were made to 911. Gucci died shortly after being transported to the hospital.
(¶5} Reed was charged with one count of aggravated murder, in violation of R.C. 2903.01(A), and one count of murder, in violation of R.C. 2903.02(A), both with firearm specifications. A jury found Reed guilty of all charges. The trial court sentenced him to life without parole for aggravated murder and three years for the attendant firearm specification, all to be served consecutive to a sentence he is serving from another case. The court concluded the murder charge was a lesser included offense and did not impose a sentence. The court further ordered that Reed is subject to a mandatory five years of post-release control upon his release.
(¶ 6} Reed now appeals and raises ten assignments of error for our review. To facilitate our analysis, we combine several of the assignments of error.
Assignment of Error Number One
THE EVIDENCE WAS INSUFFICIENT FOR CONVICTION OF AGGRAVATED MURDER UNDER R.C. 2903.01(A)(1).
(¶ 7} In his first assignment of error, Reed argues that the State failed to produce sufficient evidence to support his conviction for aggravated murder.
(¶ 8}"'[S]ufficiency' is a term of art meaning that legal standard which is applied to determine whether the case may go to the jury or whether the evidence is legally sufficient to support the jury verdict as a matter of law." State v. Thompkins, 78 Ohio St.3d 380, 386 (1997), quoting Black's Law Dictionary 1433 (6th Ed.1990). "In essence, sufficiency is a test of adequacy." Thompkins at 386. When reviewing a conviction for sufficiency, evidence must be viewed in a light most favorable to the prosecution. State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the syllabus. The pertinent question is whether "any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt." Id.
(¶ 9}"Whether the evidence is legally sufficient to sustain a verdict is a question of law." Thompkins at 386, citing State v. Robinson, 162 Ohio St. 486 (1955). This Court, therefore, reviews questions of sufficiency de novo. State v. Salupo, 177 Ohio App.3d 354, 2008-Ohio-3721, ¶ 4 (9th Dist.).
(¶ 10} R.C. 2903.01(A) provides that "[n]o person shall purposefully, and with prior calculation and design, cause the death of another * * *." "A person acts purposely when it is his specific intention to cause a certain result, or, when the gist of the offense is a prohibition against conduct of a certain nature, regardless of what the offender intends to accomplish thereby, it is his specific intention to engage in conduct of that nature." R.C. 2901.22(A).
(¶11} "[T]he phrase 'prior calculation and design' is a single divisible term, describing the mens rea element of the proof necessary to find a violation of R.C. 2903.01(A)." (Emphasis omitted.) State v. Taylor, 78 Ohio St.3d 15, 18 (1997). There is no bright-line test to determine prior calculation and design; each case must be viewed based on its particular facts. Id. at 20-21. The Ohio Supreme Court cited several factors that were used by the Eighth District Court of Appeals in determining whether prior calculation and design existed. Those factors were: "(1) Did the accused and the victim know each other, and if so, was the relationship strained? (2) Did the accused give thought and preparation to choosing the murder weapon or murder site? and (3) Was the act drawn out or 'an almost instantaneous eruption of events'?" Id. at 19, citing State v. Jenkins, 48 Ohio App.2d 99, 102 (8th Dist.1976). While these factors are important to consider, these are not the exclusive factors in determining whether there was prior calculation and design. "Where evidence adduced at trial reveals the presence of sufficient time and opportunity for the planning of an act of homicide to constitute prior calculation, and the circumstances surrounding the homicide show a scheme designed to implement the calculated design to kill, a finding by the trier of fact of prior calculation is justified." State v. Cotton, 56 Ohio St.2d 8 (1978), paragraph three of the syllabus.
(¶12} Here, Reed argues that the facts do not support a finding of prior calculation and design. Specifically, he argues that the record supports a finding that Gucci was a drug dealer and that he was shot in self-defense during a struggle over a gun. Moreover, according to Reed, the shooting occurred in a chance encounter on the street, in an instantaneous eruption of violence, not in a planned attack.
(¶13} Just before 3:00 a.m., Palmer was a passenger in the car headed to Orrville when he received a phone call from Reed. Palmer told Reed to calm down and to wait for him to get there. According to Palmer, Reed told him that he had gotten into an argument with Bear and Gucci at Deb Cook's house and that he feared they were going to "shoot up his house." Because of this, Reed asked Palmer for his AK-47. Palmer knew that Reed had a small handgun, but Reed wanted more protection.
(¶14} Reed picked up Palmer upon his return to Wooster and the two went to a friend's house to retrieve the AK-47. The gun, however, did not have a magazine clip or ammunition. According to Palmer, this upset Reed and the two returned to Reed's house. Sometime thereafter, Palmer called his Aunt Joan to come pick him up, which she did. As Palmer was getting into his aunt's car, he noticed Reed leaving. Palmer asked his aunt to follow Reed's car. After Reed pulled down an alleyway, Palmer got out of his aunt's car and followed him on foot. Palmer believed that Reed was going to Deb Cook's house to look for Gucci and/or Bear. To get to Cook's house from where Reed had parked his car, he had to walk north in the alleyway and turn east on North Street. Cook's house was located where North Street dead-ends into Spink Street.
(¶15} Palmer testified that he walked with Reed up the alleyway, and, as soon as they turned onto North Street, they saw some people standing outside a house. According to Palmer, Reed sped up and confronted the man standing on the sidewalk, shoved his handgun in the man's chest, and asked if he was Gucci. Palmer stated that Gucci, the man on the sidewalk, grabbed for the gun and it fired. After the first shot, Palmer took off running toward Spink Street. Palmer testified that he looked back while he was running away and saw Reed shoot Gucci. Palmer said that it appeared that Gucci and Reed had both fallen to the ground in a fight over the gun, but that when Reed shot Gucci, he was standing over Gucci, who was still on the ground. Gucci died from a single bullet wound. The bullet entered his back by his shoulder blade and travelled down through his lungs, liver, stomach, and colon. The bullet exited out the right lower abdomen.
(¶16} Viewing the evidence in a light most favorable to the State, there is sufficient evidence to support a finding that Reed had an argument earlier that evening with Gucci. While the record does not reflect what the argument was about, the evidence does indicate that Reed thought there was a threat to his safety, that he wanted to arm himself, and that he went looking for Gucci and/or Bear. After discovering that Palmer's AK-47 was useless, Reed took his handgun and went to search for the men at Deb Cook's house. Reed parked in an alleyway behind a group of houses and decided to walk down North Street to find Gucci. On his way to Cook's house, Reed came across his target. Reed approached Gucci with his gun drawn and shoved it in his chest. While Gucci did attempt to wrestle the gun from Reed's control, there was testimony that Reed had broken free from Gucci and was standing over him when he fired the fatal bullet into Gucci's back. Viewing the evidence in a light most favorable to the State, a jury could have reasonably concluded that Reed formed the intent to kill Gucci when he left his house with his gun in search for Gucci. Reed's "method of shooting * * * as well as his apparent determination to follow through on a specific course of action, sufficiently supports the finding that [Reed] had adopted a plan to kill." Taylor, 78 Ohio St.3d at 22, quoting State v. Toth , 52 Ohio St.2d 206, 213 (1977). Reed's first assignment of error is overruled.
Assignment of Error Number Two
THE VERDICT OF GUILTY OF AGGRAVATED MURDER IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
Assignment of Error Number Three
THE VERDICT OF GUILTY OF MURDER WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
(¶17} In his second and third assignments of error, Reed argues that his aggravated murder and murder convictions are against the manifest weight of the evidence. The heart of Reed's argument is that the weight of the evidence supports the conclusion that Palmer shot Gucci.
(¶18} "Weight of the evidence concerns 'the inclination of the greater amount of credible evidence, offered in a trial, to support one side of the issue rather than the other.'" (Emphasis sic.) Thompkins, 78 Ohio St.3d at 387, quoting Black's at 1594.
In determining whether a criminal conviction is against the manifest weight of the evidence, an appellate court must review the entire record, weigh the evidence and all reasonable inferences, consider the credibility of witnesses and determine whether, in resolving conflicts in the evidence, the trier of fact clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.
State v. Otten, 33 Ohio App.3d 339, 340 (9th Dist.1986). "When a court of appeals reverses a judgment of a trial court on the basis that the verdict is against the weight of the evidence, the appellate court sits as a 'thirteenth juror' and disagrees with the fact[-]finder's resolution of the conflicting testimony." Thompkins at 387. An appellate court should exercise the power to reverse a judgment as against the manifest weight of the evidence only in exceptional cases. Otten at 340.
A. Review of the Evidence
(¶19} Palmer, Ralston, Lunsford, and Rolen all testified that at approximately 2:30 a.m. on December 10, 2011, they all drove out to Orrville to pick up Lunsford's boyfriend, Octavio, from work. During this trip, Palmer received a call on his cell phone from Reed. Palmer was heard telling Reed to calm down and to wait until he got there. Palmer then asked about the identity of men going by the street names of Gucci and Bear. Upon returning to Wooster, the group dropped off Palmer at the corner of Spink and Bowman.
a. Palmer's testimony
(¶20} According to Palmer, Reed picked him up at the corner of Spink and Bowman and the two went to retrieve Palmer's AK-47 that was being stored at a friend's house. After discovering that the gun was missing the magazine clip, the two returned to Reed's house. Palmer testified that sometime thereafter he called his Aunt Joan to come and pick him up. As he was getting into his aunt's car, he noticed Reed driving away. Palmer asked his aunt to follow him. Reed pulled down an alleyway just south of North Street. Palmer got out of his aunt's car and followed on foot. Palmer believed Reed was on his way to Deb Cook's house to look for Gucci. He caught up with Reed and tried to talk him out of going over to Cook's house, but Reed just ignored him and kept on walking. When they exited the alley onto North Street, they noticed some people standing in front of a house. Reed sped up and approached a man standing on the sidewalk. Reed asked the man if he was Gucci, but Palmer did not remember Gucci responding. Palmer testified that another man, Michael Thomas, was standing nearby, but that Thomas did not reply either. Reed then pulled a gun and shoved it into Gucci's chest. Palmer said that Gucci then grabbed for the gun and it discharged. Palmer explained that he took off running toward Spink Street after the first shot, but turned to look back as he was running away. He testified that he saw Gucci and Reed wrestle over the gun and fall to the ground. He further testified that he saw Reed stand up and shoot Gucci, who was still on the ground trying to get up. Palmer ran to Dino's at the corner of Beall and East Liberty Street and called his Aunt Joan to pick him up.
b. Aunt Joan's testimony
(¶21} Aunt Joan testified that she is Palmer's maternal aunt and that she is unrelated to Reed. Aunt Joan explained that she received a number of calls from Palmer the evening of the shooting. One call was for her to pick Palmer up at Reed's house. When she arrived, Palmer got into her car and asked her to follow Reed. She dropped him off on Beall close to where it dead ends into East Liberty Street. She testified that she then went home, a trip which takes about 10 to 15 minutes. When she arrived home, she said she received another call from Palmer asking her to come back and pick him up at Dino's on East Liberty Street, not far from where she had dropped him off Palmer told her about the shooting when they got back to her apartment. She testified that he did not stay at her place long because she did not want to get involved. The day after Gucci was shot, Aunt Joan was traveling in her car when it was struck by bullets. She testified that just before the shooting Reed's girlfriend was a passenger in the car.
(¶22} On cross-examination Aunt Joan was asked about calls from Palmer at 2:46 a.m., 3:42 a.m., 4:12 a.m., and 6:16 a.m. She testified that while she could not be sure of the timing, that those times sounded right. She testified that the 6:16 a.m. call was not the call in which Palmer asked her to pick him up at Dino's, but that she was not sure if it was the 4:12 a.m. call either. Aunt Joan explained that she had another phone and it was possible that Palmer also called her on the other phone, but she could not remember.
(¶23} Palmer testified that he was unable to remember how many times he called his Aunt Joan that evening. He remembered calling her once to pick him up at Reed's and once to pick him up at Dino's after the shooting. According to Officer McConnell, the shooting was reported at 4:21 a.m.
c. Ralston's testimony
(¶24} Ralston testified that she had sent Michael Thomas a text to come meet her at the North Street house, and when he arrived at about 4:15 a.m., she stepped outside to talk to him. Ralston said that Gucci came along with Thomas, but that he stayed down on the sidewalk while Ralston and Thomas were talking. When she heard voices from people coming down the street, she turned and saw two guys walking from across the street toward Gucci. Ralston recognized Palmer as one of the two men because he was wearing the same shirt that he had on earlier in the evening when the group drove to Orrville together. Ralston explained that she had seen the other man before, but did not know his name. She later identified that other man as Reed. According to Ralston, as Reed approached Gucci, he asked if he was Gucci and asked Thomas if he was a man known as "Fresh." Ralston did not remember Thomas or Gucci responding before Reed pulled out a gun and fired toward Gucci. At that point, Ralston said she took off running into the house and did not look back. She heard another shot as she opened the door, but did not see anything because she was facing away from the men. She explained that she assumed the first shot missed Gucci because he was shot in the back and the first shot was fired while Gucci was facing Reed.
(¶25} Ralston ran into the house and told Lunsford and Octavio that Gucci had been shot. Lunsford and Rolen both called the police. Ralston testified that she heard Gucci say that "Shaun" shot him, but does not remember if she told the police that. Ralston admitted that she was not willing to talk to the police when they were questioning her at the house because she was scared. Not long after Gucci was taken to the hospital, Ralston was taken to the police station to give a statement. At the station, she told the police that she could identify the shooter, and the police prepared a photo line-up for her to view.
d. Photo arrays
(¶26} Detective Juan McCloud compiled six photographs from the Wayne County Jail booking system, one of which was of Reed. The photographs were of very poor quality and had a purplish tint to them. Detective Robert Merillat, acting as the blind administrator, conducted the photo line-up. After viewing the six photographs, Ralston was not able to make an identification. Detective Merillat showed her the same line-up again. Ralston lingered over one of the photographs (which was not of Reed), but said she was not sure. After seeing the photographs, Detective Merillat expressed concern about their quality. Detective McCloud then compiled another six photographs from another database. Reed was the only person to appear in both photo arrays. Ralston identified Reed from this second line-up, and ...