Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-560218
ATTORNEYS FOR APPELLANT Robert L. Tobik Cuyahoga County Public Defender Cullen Sweeney Assistant Public Defender.
ATTORNEYS FOR APPELLEE Timothy J. McGinty Cuyahoga County Prosecutor Brent C. Kirvel Assistant County Prosecutor.
BEFORE: Boyle, P.J., Blackmon, J., and McCormack, J.
JOURNAL ENTRY AND OPINION
MARY J. BOYLE, PRESIDING JUDGE.
(¶1} Defendant-appellant, Robert Robinson, appeals his conviction and sentence. Finding some merit to the appeal, we affirm the convictions but vacate Robinson's sentence and remand for a new sentencing hearing.
Procedural History and Facts
(¶2} Robinson and codefendant Jeremy Logan were charged in a ten-count indictment: aggravated murder and two counts of murder involving one victim (Counts 1-3), six counts of felonious assault involving six different named victims (Counts 4-9), and discharging a firearm on or near prohibited premises (Count 10). All counts included one-, three-, and five-year firearm specifications.
(¶3} Robinson pleaded not guilty to the charges, and the state voluntarily dismissed the aggravated murder charge prior to trial. The matter proceeded to a jury trial. The charges arose out of the fatal shooting of Dena'Jua Delaney ("Bubbles") on February 22, 2012, around 3:15 in the afternoon. The incident took place on Garfield Road (a.k.a. "The One Way"), a one-way residential street in East Cleveland, stemming from two competing groups of people squaring off to fight.
(¶4} At trial, the state presented 25 witnesses, including 17 eyewitnesses, each who offered slightly varied accounts of the events in question. We summarize the following pertinent facts from the evidence presented at trial.
(¶5} The night before the fatal shooting, on February 21, 2012, Russell Stokes and Latima Brown got into a heated altercation after a night of hanging out and drinking at Latima and Bubbles's East Cleveland apartment. Russell ultimately left the apartment after threatening Latima. At the time, Russell was "staying" nearby at his aunt's house on The One Way.
(¶6} The next day, Russell called his best friend, S.P.,  who was Robinson's girlfriend at the time, and told her to "beat up" Latima. Consequently, S.P., along with her sister and two friends, D.B. and B.D., went over to The One Way to fight Latima.
(¶ 7} According to Latima, she received a call the next day from Russell, telling her to go outside, where she encountered three females coming down The One Way to meet her. Although witnesses offered various accounts of the fight that ensued, Latima returned to her apartment after the fight with apparent injuries, including a "bloody face, " and was upset. This prompted Bubbles to call many of her family and friends, asking them to meet on The One Way "to fight."
(¶8} According to Latima, approximately 15 people — nine females and six males — congregated outside of her and Bubbles's apartment building in response to Bubbles's calls. Other witnesses estimated approximately 20 to 30 people gathered. The group ranged in ages from late teens to early 20s.
(¶ 9} Amongst the calls Bubbles made, Russell received one. He testified that Bubbles stated "you all jump my best friend" and now "you just signed your death certificate."
(¶10} Russell, in turn, called S.P. According to S.P., she got a call, "saying that they was trying to jump Russell, they outside trying to jump Russell and stuff. And then I called - my boyfriend" - Robinson. S.P. told Robinson, "come get me, they're about to jump my best friend Russell." Robinson, who drove a two-door gold Saturn, picked up codefendant, Jeremy Logan, S.P., and her two friends, D.B. and B.D., and drove to The One Way. According to Logan, Robinson called and asked him to accompany him to The One Way "because he didn't want to be up there by himself in a fight."
(¶11} When Robinson arrived on The One Way, a mob quickly convened near Robinson's car, which had stopped near Russell's aunt's house. According to Russell, he ran back inside his aunt's house once he realized that they were "outnumbered." According to S.P., she jumped out of the car, and a heated altercation ensued. D.B. and B.D. never left the car. Ultimately, when all five occupants were seated in the car, Devere Ealom, a friend of Bubbles, ran up to the front seat passenger side of the vehicle and punched Logan in the face. The eyewitnesses' accounts of what happened next, including the fatal shooting of Bubbles, conflict.
(¶12} According to the majority of the eyewitnesses present, after Logan was punched, the car moved slightly forward, allowing Logan to position himself on the door jamb and hang his upper body outside the car while he fired several shots above the car toward the crowd of people behind the car on Garfield Road. The witnesses characterized this as the first round of shots. Following Logan's firing of his gun, Robinson fired his gun out his window and toward "the back of the car." This was characterized as the second round of shots. Several witnesses testified that Bubbles was standing after the first round of shooting but not after the driver (Robinson) shot his gun. After Bubbles fell to the ground, Robinson drove off.
(¶13} According to Bubbles's friends and family, no one from the crowd ever fired any shots at the car until after Bubbles had already fallen down. Instead, these witnesses testified that someone from the crowd fired what sounded like a shotgun following the screaming that Bubbles was down. Even Russell Stokes - Robinson's girlfriend's best friend - testified that first there were shots fired from the car, a couple of people hit the ground, the car took off, and then someone from the crowd "got to busting [shooting]" toward the car while the car was moving away. The same shooter then apparently spotted Russell in the window, "[h]e shoot toward the house, shot in the corner of the window, the room that we was in."
(¶14} Conversely, Robinson (through his statement to the police) and Logan (through his testimony at trial) stated that someone from the crowd was shooting at their car. According to B.D. and D.B., also passengers in Robinson's car, there were gunshots at the car. D.B. testified, however, that the first shots came from the "boys in the front seat" - Robinson and Logan. S.P. never mentioned any shooting directed at the car. According to her, Logan fired at least four or five shots toward the crowd of people. She further testified that after they pulled away from The One Way, Logan said, "Ah, I shot someone. I'm going to break my phone. What am I going to do?"
(¶15} East Cleveland police responded to the call of gunshots and victim down. East Cleveland police detective Reginald Holcomb testified that, through initial interviews at the scene, the police quickly learned that Jeremy Logan was a passenger in the car and had fired his gun into the crowd. They further recovered Logan's gun, a Rossie .38 Special revolver, based on an anonymous tip called into the station, which Logan acknowledged as being his gun after being called in by the police. Robinson, likewise, turned himself into the police and ultimately admitted to firing a single shot "out the window towards the back of [his] car." According to Robinson's statement, someone from the crowd fired a single round first, then Logan fired his gun, and then someone from the crowd fired another one or two shots. At that point, Logan told Robinson that "his gun was messing up" so Robinson fired a single shot and then they drove away. Based on Robinson's admission, the police also recovered Robinson's gun, a .38 caliber Smith & Wesson revolver.
(¶16} Immediately following the shooting, the police recovered a bullet from the windowsill of the upstairs residence at 1826 Garfield Road. They also recovered a bullet fragment from a .32 caliber discovered in the front yard of 1824 Garfield Road. The fragment and bullet were later determined to both be .32 calibers. According to Andrew Chappell, a forensic scientist qualified "in the area of firearms comparison and ballistics comparison, " the fragment and bullet recovered from the residence could not have been shot out of either one of the firearms recovered from Robinson and Logan because their revolvers were .38 caliber.
(¶17} The police, however, recovered a .38 Special/.357 Magnum caliber bullet found near the victim. According to Chappell, he "was able to eliminate the Rossie revolver as being the gun that fired the bullet based on a difference in class characteristics." With respect to Robinson's gun, the Smith & Wesson pistol, "it was found to have the same class characteristics; however, the first bullet didn't have sufficient individual characteristics" to conclusively say that it was fired from Robinson's gun. Chappell explained that the lack of "sufficient individual characteristics" could be attributed to a variety of causes, including the bullet passing through bone.
(¶18} The state additionally offered the testimony of deputy medical examiner Dr. Andrea McCollom, who testified that the victim died from a gunshot wound of the face with skull and brain injuries. According to Dr. McCollom, the victim's entrance wound was "lateral to the right eye" and there was a "two and a half by three and a half inch area of stippling of the right face, including the upper eyelid." She further identified an exit wound of the bullet out of the victim's scalp. Dr. McCollom testified that the victim suffered a deadly injury that ordinarily would cause a person to lose consciousness immediately. On cross-examination, Dr. McCollom explained that the injury inflicted to the victim would cause someone to fall. She further indicated that the angle of the bullet was "slightly downward" and that the existence of stippling was indicative of an "intermediate range gunshot wound." Specifically, she explained that the range "is up to about three feet."
(¶19} After the presentation of the state's case, Robinson moved for an acquittal of all the charges under Crim.R. 29. The trial court granted it with respect to one of the felonious assault counts (Count 9).
(¶20} As part of the jury instructions, the trial court instructed the jury on aiding and abetting with respect to the state's alternative theory that Robinson aided and abetted Logan in the commission of the crimes.
(¶21} The jury ultimately acquitted Robinson of the murder count contained in Count 3, a violation of R.C. 2903.02(A), but found him guilty of felony murder, a violation of R.C. 2903.02(B), as contained in Count 2. The jury further found Robinson guilty of five counts of felonious assault, violations of R.C. 2903.11(A)(2) (Counts 4-8), and one count of discharging a firearm on or near prohibited premises, a violation of R.C. 2923.162(A)(3) (Count 10). The jury found Robinson guilty of the one- and three-year firearm specifications related to these counts, but not guilty of the five-year firearm specifications attendant to those counts.
(¶22} The trial court ultimately imposed a sentence of life imprisonment with the possibility of parole after 21 years: 15 to life for felony murder (Count 2), two years on each of the felonious assault convictions (Counts 4-9), three years for discharging the firearm on or near a prohibited place (Count 10), and a single three-year firearm specification, with the base offenses running concurrently except for the three-year sentence on Count 10.
(¶23} Robinson now appeals, raising 15 assignments of error. These assignments of error are set forth in the attached appendix.
Sufficiency of the Evidence
(¶24} In his first three assignments of error, Robinson argues that the state's evidence against him was insufficient to sustain the convictions.
(¶25} When an appellate court reviews a record upon a sufficiency challenge, "'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. Leonard, 104 Ohio St.3d 54, 2004-Ohio-6235, 818 N.E.2d 229, ¶ 77, quoting State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus.
(¶26} Robinson was convicted of one count of felony murder, five counts of felonious assault, and one count of first-degree felony of discharging a firearm on or near prohibited premises. We will address each offense in turn.
(¶27} To survive a Crim.R. 29 motion for acquittal, the state had to present sufficient evidence on the elements of felony murder, such that the trier of fact could find Robinson guilty of the offense beyond a reasonable doubt. The elements are defined as follows:
(¶28} Under R.C. 2903.02(B), felony murder, "[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."
(¶29} The underlying felony giving rise to the felony murder was felonious assault against Bubbles. Thus, to support the count of felony murder, the state had to present sufficient evidence that Robinson caused the death of Bubbles as a proximate result of his felonious assault against her.
(¶30} Under R.C. 2903.11(A)(2), felonious assault, "[n]o person shall knowingly * * * [c]ause or attempt to cause physical harm to another * * * by means of a deadly weapon or dangerous ordnance."
(¶31} Robinson argues that the state's evidence is deficient in two respects: (1) that it failed to present legally sufficient evidence that he shot Bubbles and caused her physical harm, and (2) that it failed to prove that he acted "knowingly." We find no merit to Robinson's sufficiency challenge. Indeed, Robinson acknowledges that several eyewitnesses testified that they saw Bubbles "go down" after Robinson fired his gun. And these witnesses testified that there was no shooting from the crowd directed toward the car or anywhere else until after Bubbles went down.
(¶32} For example, Paul Small, who lives on Garfield Road - and was not a party to either group that congregated on Garfield Road for the fight - testified that he watched from his window and observed "the car speeded off, dude [front seat passenger] got up out of the car and shot twice." Small explained that the car "was rolling slow * * *; [s]low enough for him to shoot. He shot twice and the gun got jammed." Small further testified that the two shots were followed by another shot from the driver's side and that following the driver's shot, Bubbles dropped to the ground. According to Small, someone from the crowd - not the car - started to shoot at his neighbor's house after Bubbles went down.
(¶33} Similar to Small's testimony, Antonio Delaney, Bubbles's brother, testified that after the driver (Robinson) started firing his gun, "that's when Bubbles had dropped." And several other witnesses - at least four other eyewitnesses from Bubbles's group -echoed this testimony, testifying that they saw Bubbles lying on the ground after the driver started shooting. Although they specifically did not see Bubbles fall at the exact moment, they identified the driver (Robinson) as the only shooter before Bubbles fell.
(¶34} Further, through forensic scientist Andrew Chappell's testimony, the state established that the bullet recovered from Bubbles had the "same class characteristics" of Robinson's firearm, a Smith & Wesson .38 revolver. In other words, the bullet that killed Bubbles was capable of being fired from the type of firearm used by Robinson.
(¶35} Contrary to Robinson's assertion, construing this evidence in a light most favorable to the state, only one reasonable inference can be drawn: Robinson shot Bubbles. To the extent that Robinson argues that this inference is not reasonable based on other evidence contradicting it, such an argument amounts to an attack of the weight of the evidence, which we will address separately under our manifest weight analysis.
(¶36} Next, Robinson argues that the state failed to prove that he acted "knowingly." He contends that the evidence only established that he acted "recklessly." We disagree.
(¶37} "A person acts knowingly, regardless of his purpose, when he is aware that his conduct will probably cause a certain result or will probably be of a certain nature. A person has knowledge of circumstances when he is aware that such circumstances probably exist." R.C. 2901.22(B).
(¶38} It is common knowledge that a firearm is an inherently dangerous instrumentality, use of which is reasonably likely to produce serious injury or death. State v. Widner, 69 Ohio St.2d 257, 270, 431 N.E.2d 1025 (1982). This court has consistently held that "shooting a gun in a place where there is risk of injury to one or more persons supports the inference that the offender acted knowingly." State v. Hunt, 8th Dist. Cuyahoga No. 93080, 2010-Ohio-1419, ¶ 19, citing State v. Brooks, 44 Ohio St.3d 185, 192, 542 N.E.2d 636; see also State v. Ivory, 8th Dist. Cuyahoga No. 83170, 2004-Ohio-2968, ¶ 6; State v. Jordan, 8th Dist. Cuyahoga No. 73364, 1998 Ohio App. LEXIS 5571 (Nov. 25, 1998). Notably, "[e]ven firing a weapon randomly at victims arguably within range of the shooter is sufficient to demonstrate actual intent to cause physical harm." Ivory at ¶ 6, citing State v. Phillips, 75 Ohio App.3d 785, 600 N.E.2d 825 (2d Dist.1991); State v. Owens, 112 Ohio App.3d 334, 678 N.E.2d 956 (11th Dist.1996).
(¶39} Here, Robinson admitted to shooting his gun into the crowd of people. Further, the majority of the eyewitnesses who testified indicated that Robinson fired his gun several times into the crowd and that Bubbles "went down" after Robinson fired. The state presented, through both direct and circumstantial evidence, that Robinson fired his gun out of his car toward Bubbles.
(¶40} As for Robinson's claim that his conduct was merely "reckless" because the crowd had already dispersed, we find his claim unsupported by the record. Based on the collective testimony of the eyewitnesses, a crowd of at least 15 to 20 people was congregated behind Robinson's car when he fired his gun into the crowd. While the scene was definitely chaotic, we cannot say that the evidence established that the crowd had dispersed. To the contrary, one witness testified that she was standing behind the car "in shock" when Robinson started firing toward the crowd. Accordingly, we find that there was sufficient evidence that Robinson acted "knowingly rather than "recklessly in firing his gun.
(¶41} Having found that the state presented sufficient evidence to support the single count of felony murder, we overrule Robinson's first assignment of error.
Separate Five Felonious Assault Counts
(¶42} In his second assignment of error, Robinson argues that the state failed to present sufficient evidence to support the five felonious assaults with respect to Darylisa Crenshaw, Latima Brown, Kayla Moorer, Devin Delaney, and Antonio Delaney. He argues that the state failed to establish that any of these alleged victims were almost shot by Robinson or were otherwise "in the line of fire." Without evidence that they were "in the line of fire, " Robinson contends that the convictions cannot stand. In support of this argument, Robinson relies on the Ohio Supreme Court's decision in State v. Mills, 62 Ohio St.3d 357, 582 N.E.2d 972 (1992). Mills, however, is distinguishable from this case.
(¶43} In Mills, the defendant had been accused of committing several felonious assaults during the commission of a bank robbery. The Supreme Court vacated one of those counts against a teller who was standing off to the side of the line of fire and behind a teller counter. In distinguishing the Mills case from ...