Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-550542
ATTORNEY FOR APPELLANT: Richard Agopian
ATTORNEYS FOR APPELLEE: Timothy J. McGinty Cuyahoga County Prosecutor, John R. Kosko Assistant Prosecuting Attorney
BEFORE: Keough, J., Jones, P.J., and E.A. Gallagher, J.
JOURNAL ENTRY AND OPINION
KATHLEEN ANN KEOUGH, JUDGE
(¶1} Defendant-appellant, Duane Gibson, appeals his convictions and sentence. For the reasons that follow, we affirm.
(¶2} In May 2011, Gibson was charged with one count each of aggravated robbery, felonious assault, and failure to comply, and three counts of kidnapping and murder, in violation of R.C. 2903.02 (felony murder), with the predicate offenses being kidnapping, aggravated robbery, and felonious assault. All of these counts carried one-and three-year firearm specifications. Additionally, Gibson was charged with one count each of having a weapon while under disability, with a forfeiture specification, grand theft, receiving stolen property, theft, and tampering with evidence. The case proceeded to trial where the jury heard the following evidence.
(¶3} At approximately 8:50 a.m. on April 18, 2011, Lloyd Davis ("Davis") was kidnapped at his Kipling Avenue home by three males at gunpoint. Davis's security cameras captured the entire incident. The security video shows three males aggressively approach Davis with guns drawn, forcing him inside his truck, and then driving off in the truck with Davis inside.
(¶4} Davis testified that after he was forced into his truck, his hands were bound behind his back with twine and duct tape, and he was ordered to sit on the floor. According to Davis, he did not recognize any of the males who kidnapped him. Davis stated that the males had their guns pointed at his neck, head, and side, and that the males were threatening to kill him. He testified that he could see they were following a white Mercury or Ford vehicle that was driving in front of them. As they were driving toward the freeway, one of the males threw Davis's cell phones out of the window. Once they got to the area of East 88th Street and St. Clair Avenue, Davis was blindfolded. While blindfolded, one of the males struck Davis in the head with what felt like a pistol. Davis stated that he was bleeding from his eye after being struck. Also while blindfolded, the males went through his pockets taking his money and jewelry.
(¶5} Eventually the truck came to a stop and Davis remained in the truck. He testified that someone told him that they were not going to kill him, but "dump him" after they got their money. He stated that he did not recognize any of the voices, except one - the voice of Duane Gibson. Davis testified that Gibson told him to "give them your brother's telephone number" and that "I'm not going to hurt you like these guys are going to hurt you." He stated that was the last time he heard Gibson's voice.
(¶6} Davis stated that he was familiar with Gibson's voice because they have common family ties and at one point he considered Gibson family. Additionally, Davis testified that two or three weeks prior to being kidnapped, Gibson approached him warning him that someone was after Davis's brother, Don Davis.
(¶7} Davis testified that on two occasions the kidnappers allowed him to talk to his brother, Don. The first time he told his brother, "they got me, " and the second time, he told Don to "give them whatever they want."
(¶8} During the course of the entire day, Davis stated he was struck in the head, burned with cigarettes, and held without food, water, or use of the bathroom. Davis testified that at one point his hands were hurting him so badly, he told his kidnappers to just kill him.
(¶9} Don Davis testified that he was at his Belvoir Boulevard home when he received a call on his cell phone from an unknown caller around 10 a.m. on April 18th. Don did not recognize the caller's voice, but the caller stated that they "had" my brother and that "if you want to see him, you want him back, we're going to need $150, 000. If you don't give me the money in twenty minutes, we're going to burn him up, kill him, and burn him up in his truck."
(¶10} Don testified that he did not panic until he found out that Davis was not home, not answering his cell phones, and not at work. Don stated he received a second call about ten minutes later again demanding money and threatening to kill Davis. He then got into his car, drove to a safe location, and called the police.
(¶11} Officer Michael Cox responded to Don's call. After interviewing Don, Officer Cox took Don to the police station to develop a strategy on how to handle the situation. While at the station, Don received a third call, again demanding the money. In an attempt to stall the demands, Don stated that he could not get that kind of money that quickly.
(¶12} Around 12:30 p.m., a plan was devised that uniformed and undercover police officers would accompany Don home and conduct surveillance in and around his house. Officer Gregory Williams rode with Don back to his house while undercover Officers Robert Taylor and Richard Mauer watched for activity behind Don's house. Officers Robert Sauterer and Smith were parked across the street from Don's house in a unmarked van.
(¶13} After arriving home, Don received about fifteen more phone calls demanding the money. The ransom demand was initially $150, 000, but after Don repeatedly told the callers he did not have the money, the ransom amount was reduced to $25, 000. Detective Robert Durbin testified that he contacted Don's phone carrier to determine from where the calls were originating. One of the "pings" came from an area around East 152nd Street and Detective Durbin ordered officers to tour that area.
(¶14} After all the officers were in place and a strategy was developed, Don told the kidnappers that he had the money. The caller instructed Don to leave the money on his back patio. Don filled an empty duffle bag with medical supplies and left the bag on his back patio. Law enforcement surrounded the area around Don's house, waiting for the bag to be picked up. Don then received another phone call from the kidnappers stating that they were not coming to the house because of his security cameras.
(¶15} At approximately 5:30 p.m., the kidnappers changed the drop off location and instructed Don to leave his house with the money and drive down Euclid Avenue. Three officers accompanied Don to the new drop location. After driving down Euclid Avenue, he was then instructed to drive to a Walgreens on Dille Road, drive through the parking lot, and drop the money by the dumpster in the back of the car wash. Don did as instructed and left the scene.
(¶16} The officers conducting surveillance on the bag testified that a male in a red hooded sweatshirt picked up the bag and got into a red Ford Taurus. As the police attempted to detain the vehicle, the driver of the Taurus pulled away and a high speed chase ensued. The Taurus eventually came to a stop after crashing into some railroad ties behind a house in South Euclid. All of the occupants fled from the vehicle, and the pursuing officers chased the suspects on foot.
(¶17} Officer Mitchell Sheehan testified that he was involved in the high speed pursuit of the Taurus. After the vehicle stopped and the vehicle occupants fled, he chased the driver of the vehicle and repeatedly ordered him to stop while identifying himself as a Cleveland police officer. According to Officer Sheehan, the driver ran towards Trebisky Road and, after slipping and falling, Officer Sheehan was able to secure him and place him under arrest. The driver was identified as Duane Gibson.
(¶18} Detective Durbin and Officer Knowles pursued the male in the red hooded sweatshirt. They finally apprehended the male, identified as Jay Hillsman, in the backyard of a house on Trebisky Road.
(¶19} The other occupant of the vehicle, Ron Brunson, was found hiding in some bushes and was apprehended by Officer Renee Perez. According to Officer Perez, Brunson immediately told her and her partner that he had nothing to do with the kidnapping, but that the man that was kidnapped was in a garage. He stated that he did not know the address, but could help them locate the man. He further told police that he met up with Gibson and Hillsman on East 152nd Street and Shiloh Road and that one of the vehicles they were driving was a white Chevy Malibu.
(¶20} After Gibson, Brunson, and Hillsman were apprehended and secured in the back of police cruisers, Detective Durbin received information that one of the cell phone "pings" had come from a house on Trebisky Road. During the course of interviewing the apprehended males, it was also discovered that Gibson lived at that house. The Trebisky house was searched, but neither the victim nor the victim's truck was located. However, Erica Darby, Gibson's girlfriend, told police that he owned other properties, including residences on Shiloh Road and Herrick Avenue.
(¶21} Based on the interviews with Brunson, the cell phone "pings" they received earlier, and information received from Gibson's girlfriend, Sergeant Andrew Ezzo obtained a few addresses that needed to be investigated because neither the victim nor the victim's truck had been recovered.
(¶22} Officer Mauer testified that hours after the suspects in the Taurus were apprehended, Sergeant Ezzo called him and asked that he and his partner check out two addresses - one on East 112th Street and one on Herrick Avenue. Officers Mauer, Taylor, and Williams then drove in their undercover car to those addresses to investigate.
(¶23} When they arrived at the Herrick Avenue address, they saw a garage behind the house next to the alley. Officer Mauer approached and opened the garage door. He stated that it was relatively dark inside the garage and he could not see very well, but with the lighting outside, he could see Davis's stolen pick-up truck parked at an angle inside the garage. He testified that he could not see through the back window because the windows were tinted. Officer Mauer stated that he yelled to his partner Officer Taylor that they had found the truck. As Officer Taylor approached the passenger-side door of the truck, he could see people inside. He immediately identified himself as "Cleveland police" and ordered them to "show their hands."
(¶24} According to Officer Mauer, immediately after Officer Taylor announced police presence, the truck engine started up and the reverse lights illuminated. Without hesitation, Officer Mauer ran to safety out of fear that he would be struck by the truck. Officer Taylor testified that because the truck was moving backwards towards his partner, he fired two shots from his service weapon at the driver of the truck. Officer Mauer, hearing gunshots, ran back towards the vehicle and saw someone with a cover over his head that was secured by duct tape. Officer Mauer then saw the truck moving forward towards Officer Taylor. Both Officers Mauer and Taylor fired their service weapons one time at the driver of the vehicle. The truck then struck their undercover vehicle again, and it came to a stop. The officers were able to apprehend the occupants of the truck -Leon James, Umar Clark, and Lloyd Davis. James, the driver, was shot in the head and chest during the altercation and later died from his injuries.
(¶25} Umar Clark testified that he knew Gibson from the area where he grew up. On April 17, 2011, Clark stated that he received a telephone call from Gibson requesting his help in a kidnapping and advising him that he could make some money. Clark testified that Gibson picked him up the following morning in a white Malibu and they drove by a house on Kipling Avenue, with Gibson pointing out that "the guy" lived there. According to Clark, they drove to Superior Avenue and East 114th Street and pulled up to a male parked in a purple or maroon SUV. Gibson then placed a phone call and three men came outside of house and got into the SUV. Clark testified that he only knew one of the men as "Leon." From there, the SUV and Gibson traveled to the house on Kipling, and Gibson parked his car down the street. As they waited, Gibson gave Clark a gun. According to Clark, because something did not go as planned, Gibson told Clark to get into the SUV and the three men who were originally in the SUV got into Gibson's car. As the SUV pulled away, Clark stated that he looked in the mirror and saw one of the men in the car with Gibson go up the driveway on Kipling.
(¶26} Later that day, Clark received a call from Gibson, who told him to meet him at his house on Herrick Avenue. Clark testified that Gibson told him that the kidnapped male was in the garage and that the money was ready to be picked up. Clark was instructed by Gibson to wait in the garage with the victim and Leon James.
(¶27} Jay Hillsman testified that Gibson called him and told him that he needed help and would pick him up. When Hillsman got into Gibson's white Malibu, Gibson told him that he needed Hillsman to make calls to Don Davis and negotiate a ransom amount and drop location. According to Hillsman, this occurred all afternoon, and he was lying down in the backseat negotiating with Don while Gibson drove around Don's neighborhood. Hillsman testified that several times Gibson spotted what appeared to be police cars, so they cancelled the first ransom pick up and decided on the car wash drop. Hillsman was instructed to pick up the ransom bag by the dumpster, and then walk up the street to where Gibson was parked in a Ford Taurus. According to Hillsman, when the police chase ensued, Gibson told him to throw the evidence out of the window.
(¶28} Ron Brunson testified that Gibson and "the other guy" asked him if he would go with them to get some money. Gibson wanted to use Brunson's car, a Ford Taurus. Brunson testified that they all got into the car, with Gibson driving. According to Brunson, the "other guy" was making several phone calls that appeared to be ransom calls. Brunson testified that, after several calls, they went to a car wash where the "other guy, " who was "wearing red, " got out of the car, walked to the dumpster, grabbed a duffel bag, and got back into the car. Brunson testified that as they were being chased by the police, the "other guy" was throwing phones out of the car window.
(¶29} At the close of the state's case, the state dismissed the receiving stolen property charge and the firearm specifications attendant to the failure to comply charge. The forfeiture specification was also dismissed attendant to the weapons while under disability charge was also dismissed. The trial court denied Gibson's Crim.R. 29 motion for judgment of acquittal.
(¶30} In his defense, Gibson called various witnesses who all testified that they saw Gibson throughout various times during the day of April 18th and that he was "acting normal." Erica Darby further testified that Gibson explained to her that Davis had been kidnapped, but that he was trying to help get Davis back. She stated that Gibson did not call the police out of fear of retaliation, and that he ran from the police after the high speed chase because he was scared.
(¶31} Following the close of the defense's case, the trial court again denied Gibson's Crim.R. 29 motion for judgment of acquittal.
(¶32} The jury found Gibson guilty of all the remaining counts and specifications, and the court sentenced Gibson to an aggregate prison term of 38 years to life. Gibson now appeals, raising ten assignments of error, which will be reviewed and addressed out of order and together where appropriate.
I. Sufficiency of the Evidence
(¶33} Gibson was charged with felony murder because accomplice Leon James was shot and killed by police during the course of the kidnapping for ransom enterprise. In his second assignment of error, Gibson argues that the evidence was insufficient to convict him of felony murder pursuant to R.C. 2903.02(B).
(¶34} The test for sufficiency requires a determination of whether the prosecution met its burden of production at trial. State v. Bowden, 8th Dist. Cuyahoga No. 92266, 2009-Ohio-3598, ¶ 12. An appellate court's function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt. 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. State v. Thompkins, 78 Ohio St.3d 380, 386, 1997-Ohio-52, 678 N.E.2d 541.
(¶35} Under this assignment of error, Gibson contends that his convictions for felony murder were based on insufficient evidence. "Felony murder" under R.C. 2903.02(B) provides that "[n]o person shall cause the death of another as a proximate result of the offender's committing or attempting to commit an offense of violence that is a felony of the first or second degree * * *."
Under the 'proximate cause theory, ' it is irrelevant whether the killer was the defendant, an accomplice, or some third party such as the victim of the underlying felony or a police officer. Neither does the guilt or innocence of the person killed matter. [A] [d]efendant can be held criminally responsible for the killing regardless of the identity of the person killed or the identity of the person whose act directly caused the death, so long as the death is the 'proximate result' of [d]efendant's conduct in committing the underlying felony offense; that is, a direct, natural, reasonably foreseeable consequence, as opposed to an extraordinary or surprising consequence, when viewed in the light of ordinary experience.
State v. Ervin, 8th Dist. Cuyahoga No. 87333, 2006-Ohio-4498, quoting State v. Dixon, 2d Dist. Montgomery No. 18582, 2002-Ohio-541, citing Moore v. Wyrick (C.A. 8, 1985), 766 F.2d 1253; see also State v. Lovelace, 137 Ohio App.3d 206, 738 N.E.2d 418 (1st Dist.1999).
(¶36} Thus, for criminal conduct to constitute the "proximate cause" of a result, the conduct must have (1) caused the result, in that but for the conduct the result would not have occurred, and (2) the result must have been foreseeable. State v. Muntaser, 8th Dist. Cuyahoga No. 81915, 2003-Ohio-5809, ¶ 38, citing Lovelace at 216. Foreseeability is determined from the perspective of what the defendant knew or should have known, when viewed in light of ordinary experience. Id. It is not necessary that the defendant be able to foresee the precise consequences of his conduct; only that the consequences be foreseeable in the sense that what actually transpired was natural and logical in that it was within the scope of the risk created by the defendant. Id.; State v. Losey, 23 Ohio App.3d 93, 491 N.E.2d 379 (10th Dist.1985).
(¶37} In this case, the predicate acts charged were kidnapping (Count 6), aggravated robbery (Count 7), and felonious assault (Count 8). Gibson contends that the death of Leon James was not the proximate result of the predicate acts because the resulting death was "so extraordinary or surprising that it would be simply unfair to hold [him] criminally responsible for something so unforeseeable."
(¶38} In State v. Ervin, 8th Dist. Cuyahoga No. 87333, 2006-Ohio-4498, this court addressed a similar case where we held that the shooting of a kidnapped FBI informant by an FBI agent was a proximate result of the kidnapping; thus, sufficient to support Ervin's conviction for felony murder.
(¶39} In that case, Ervin and his codefendant, Waller, kidnapped Lester, who was an informant for the FBI. Instead of calling his family for the ransom money, the informant called the FBI, who then tracked their movements. Posing as Lester's family, the FBI told the kidnappers that they would pay the ransom, and arranged the ransom drop. Once Ervin and Waller arrived at the drop point, they were surrounded by SWAT and FBI vehicles. Ervin tried to break out of the blockade by ramming his car into vehicles, while Waller started firing shots toward law enforcement. The FBI returned fire, killing Lester. Ervin was convicted of the murder of Lester.
(¶40} On appeal, Ervin argued that he was not the cause of the informant's death; rather, it was the FBI's fault. Id. at ¶ 22. This court stated that there was more than one cause to the informant's death, with the most immediate and obvious cause being the intervening act of the officer shooting at the driver of vehicle. Id. at ¶ 25. However, we stated that the officer shooting was not the "sole and exclusive cause" of death. Id
Had Ervin and Waller not kidnapped Lester and demanded a sum of money or drugs for his return, Lester would not have been shot. Had Ervin surrendered at the scheduled drop-off when the FBI SWAT team converged on his vehicle and had Ervin not driven his vehicle at SA Werth, Lester, the front-seat passenger, would not have been shot and killed. By kidnapping Lester, attempting to avoid apprehension, and driving at SA Werth, Ervin and Waller set in motion a chain of events in which one of the reasonably foreseeable consequences was the death of Lester. Thus, Ervin and Waller's conduct was a proximate cause of Lester's death for which Ervin is criminally responsible.
(¶41} Gibson contends that the facts in his case are different than Ervin because it was unforeseeable that the police would not have followed protocol in dealing with a hostage situation, and it was this failure to follow protocol that resulted in Leon James's death. We disagree.
(¶42} When Officers Mauer, Taylor, and Williams investigated the house on Herrick Road, there was no evidence that the vehicle or victim would be at this address. Officer Mauer testified that they went to the address to investigate, at the direction of Sergeant Ezzo, due to information received. By this time, Officer Mauer testified that several hours had passed since the police apprehended the suspects, so he believed they were only looking for the vehicle or victim.
(¶43} Once they discovered that the victim's truck was inside the garage, the testimony and evidence reveal that the officers had no way of knowing who was in the truck, if they were armed, or if the victim was present. The record demonstrates that the chain of events happened suddenly, which required them to act quickly, and that this was not a typical "hostage" situation where the police know the location of the victim. In this case, the officers encountered the victim's truck, and when the driver of the truck decided to immediately flee, rather than comply with officer directives to "show me your hands, " the police used their training and ...