APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. CR 11 09 2625
JACQUENETTE S. CORGAN, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant Prosecuting Attorney, for Appellee.
DECISION AND JOURNAL ENTRY
(¶1} Defendant-Appellant, Kennard S. Gay, appeals from his convictions in the Summit County Court of Common Pleas. This Court affirms.
(¶2} On September 10, 2011, Kennard Gay and Melvin "Ben" Coleman were involved in an argument in front of Kelly's Drive Thru on Copley Road in Akron. The two men did not know each other prior to that day. Earlier in the day, Mr. Coleman came to the home of Mr. Gay's mother, Ramona "Mona" White, and accused her of having his missing dog. During the course of the argument, Mr. Gay shot Mr. Coleman three times from approximately three feet away. He claims he was defending himself and his mother when he shot Mr. Coleman. Mr. Coleman died from internal bleeding due to a gunshot wound to his chest. Mr. Gay fled the scene, but turned himself in to the police six days later.
(¶3} The Grand Jury indicted Mr. Gay on the following charges: (1) one count of aggravated murder with a firearm specification, (2) one count of murder with a firearm specification, (3) one count of having weapons while under disability, and (4) one count of attempted aggravated murder. In the same indictment, he was also charged with other counts associated with an unrelated incident that occurred on August 18, 2011. Prior to trial, the attempted aggravated murder charge was dismissed, and the charges associated with the August 18th incident were bifurcated to be tried separately from the charges related to the September 10th incident.
(¶4} The case proceeded to trial on the aggravated murder with firearm specification, murder with firearm specification, and having weapons while under disability charges. Mr. Gay asserted that the affirmative defenses of self-defense and defense of others precluded his conviction. He was acquitted of the aggravated murder with firearm specification charge, but convicted of the murder with firearm specification and having weapons while under disability charges. The trial court sentenced him to serve the statutorily mandated prison term of 15 years to life for murder, three years for the firearm specification, and three years for having weapons while under disability. Mr. Gay was ordered to serve all imposed terms of incarceration consecutively.
(¶5} Mr. Gay filed a timely appeal of his convictions. The bifurcated charges from the August 18th incident are not the subject of this appeal. Mr. Gay raises four assignments of error for our review. This Court rearranges assignments of error numbers one and two to facilitate our analysis.
ASSIGNMENT OF ERROR II
GAY'S MURDER CONVICTION WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE, AND MUST BE REVERSED.
(¶6} In Mr. Gay's second assignment of error, he argues that his murder conviction was against the manifest weight of the evidence. This Court disagrees.
(¶7} To determine whether Mr. Gay's murder conviction is against the manifest weight of the evidence, this 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 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). Weight of the evidence pertains to the greater amount of credible evidence produced in a trial to support one side over the other side. State v. Thompkins, 78 Ohio St.3d 380, 387 (1997). "When a court of appeals reverses a judgment of a trial court on the basis that the verdict is against the manifest weight of the evidence, the appellate court sits as a 'thirteenth juror' and disagrees with the factfinder's resolution of the conflicting testimony." Id.
(¶8} Mr. Gay does not dispute shooting Mr. Coleman. He maintains that he shot him in self-defense and defense of his mother. Mr. Gay challenges the credibility of two of the prosecution's witnesses, Terrell "Izzy" Edwards and Deshanna Zanders, whose testimony at trial conflicted on certain points with their initial statements to police. Mr. Gay testified in his defense, and corroborated Ms. White's version of events. Mr. Gay argues that it was against the manifest weight of the evidence to discredit his affirmative defenses and convict him of murdering Mr. Coleman given the inconsistent testimony from Mr. Edwards and Ms. Zanders.
(¶9} In order to succeed on his affirmative defense of self-defense, Mr. Gay had to show by a preponderance of the evidence that: "(1) he was not at fault in creating the situation giving rise to the affray; (2) that he had a bona fide belief that he was in imminent danger of death or great bodily harm and that his only means of escape was in the use of force; and (3) that he did not violate any duty to retreat or avoid danger." State v. Inman, 9th Dist. Medina No. 03CA0099-M, 2004-Ohio-1420, ¶ 8, quoting State v. Mason, 9th Dist. Summit No. 21397, 2003-Ohio-5785, ¶ 4. "If a person in good faith and upon reasonable ground[s] believes that a family member is in imminent danger of death or serious bodily harm, such person may use reasonably necessary force to defend the family member to the same extent as the person would be entitled to use force in self-defense." State v. Williford, 49 Ohio St.3d 247 (1990), paragraph one of the syllabus.
(¶10} Mr. Gay focuses his argument on the second element of his self-defense/defense of others claim (i.e. "that he had a bona fide belief that he was in imminent danger of death or great bodily harm and that his only means of escape was in the use of force.") Inman at ¶ 8, quoting Mason at ¶ 4. "When determining if the second element of self-defense has been proven * * *, the jury must consider all the circumstances to see whether the defendant had an objective reasonable belief of imminent danger and if he possessed a subjective honest belief that he was in danger of imminent harm." Inman at ¶ 9, citing
State v. Thomas, 77 Ohio St.3d 323, 330-331 (1997).
(¶11} Deshanna Zanders was Mr. Gay's former girlfriend. On the day of the shooting, she drove to Ms. White's home to pick up Mr. Gay. As she walked up to the house, a man on a bicycle, who was later identified as Mr. Coleman, asked if Ms. White was there. Ms. Zanders told him she did not know and went into the home. Ms. White, her young daughter, and Mr. Gay were home at the time. Mr. Gay was asleep in a back bedroom. Ms. Zanders told Ms. White about the man on the bicycle outside.
(¶12} Ms. White testified that Mr. Coleman then pounded on the door. When she opened it, he allegedly threatened her and called her names. According to Ms. White, Mr. Coleman said, "bitch, I'm going to kill you" and "reached like he was about to go up under his shirt for something." Ms. Zanders testified that she was standing in the living room and could hear Mr. Coleman speaking with Ms. White. She further testified that Mr. Coleman asked Ms. White if she had his dog, which Ms. White denied. Ms. White testified that she did not hear Mr. Coleman asking about his dog because he was "babbling on" and "so crazy." Ms. White then slammed the door shut.
(¶13} Mr. Gay woke up when he heard people yelling and the door slam. Ms. White testified that she told Mr. Gay that "someone was just at [her] door threatening [her] life." Ms. White could not recall if she told Mr. Gay that she thought Mr. Coleman had a gun. She asked Ms. Zanders to drive her to see a friend, Izzy Edwards, who owned a t-shirt shop at Kelly's Drive Thru. Mr. Edwards and Mr. Coleman were friends who grew up together. Mr. Coleman lived on the first floor of a building owned by Mr. Edwards. Ms. White wanted to tell Mr. Edwards about "the man who threatened [her] life" to find out his real name so that she could call the police. Ms. White said she was "terrified" after the encounter with Mr. Coleman. Mr. Gay went with Ms. Zanders and his mother to see Mr. Edwards. He took a gun with him to Kelly's Drive Thru as he "was going up there with two females and [he] wanted to protect them if [he] had to." He described the neighborhood as "terrible, " full of crime including murder, violence and guns, and where the people are "just out of control."
(¶14} Surveillance video of the scene showed that Ms. White entered the store and exited a short time later. She jogged back to Ms. Zander's car with Mr. Edwards following behind her. Ms. White claims she ran back to the car because she was scared due to the incident with Mr. Coleman. Mr. Gay and Ms. Zanders remained in the car while Ms. White and Mr. Edwards talked outside the driver's side front window of the car. Ms. White testified that she told Mr. Edwards that Mr. Coleman "had threatened her life again, for the second time, and [she] wanted his name so [she could] call the police." As Ms. White and Mr. Edwards conversed, Mr. Coleman and another individual walked across the street and approached the car.
(¶15} As Mr. Coleman approached, Ms. White testified that she moved toward the rear of the car because she was afraid of Mr. Coleman. At this point, Mr. Gay exited the front passenger side of the car with a gun in his hand. Mr. Gay described Mr. Coleman as having a "look on his face, had his hand in his pocket, he kind of made me feel like he was going to attack my mother or something like that." He had the gun out because he was unsure if Mr. Coleman was holding onto a gun in his pocket and because his mother looked scared. Mr. Gay put the gun back in his pocket when he saw that Mr. Coleman did not have a gun in his hand.
(¶16} An argument ensued between Ms. White and Mr. Coleman over the whereabouts of his dog. Ms. White testified that she feared Mr. Coleman throughout the whole exchange, although video of the altercation demonstrated that she was within arms-length of him during the incident. The video reflected that during the argument, when Mr. Coleman stepped up close to Mr. Gay, Mr. Gay put his arm out in front of him to keep Mr. Coleman away from him. Mr. Gay testified that he tried to persuade Mr. Coleman and his mother to calm down.
(¶17} The argument continued to escalate when according to Mr. Gay, Mr. Coleman then allegedly stated, "that bitch, I fuck her up." Ms. White testified that Mr. Coleman said, "bitch, I am going to kill you and fuck * * * you up" and that "it ain't over." Mr. Edwards then pushed Mr. Coleman away from Ms. White. Mr. Gay testified that Mr. Coleman kept reaching around his belt area and then behind his back, which he "automatically assumed [meant] he was reaching for a gun." Mr. Gay told Mr. Coleman to leave, and Ms. White testified that Mr. Coleman made a reaching movement around his pockets and the edge of his shirt. She was not sure if she saw Mr. Coleman flash a gun. Mr. Edwards testified that Mr. Coleman did not say anything to Mr. Gay to threaten him.
(¶18} Mr. Gay testified that he thought that Mr. Coleman was going to shoot him and Ms. White. The reason Mr. Gay shot Mr. Coleman, according to Mr. Gay, was because he reached behind his back and threatened Ms. White more than once. There was no evidence produced during trial that Mr. Coleman had a gun or any other weapon on his person at the time of the shooting. Toxicology tests conducted on Mr. Coleman after the ...