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State v. Eddy

Court of Appeals of Ohio, Eighth District, Cuyahoga

March 2, 2017

STATE OF OHIO PLAINTIFF-APPELLEE
v.
TERRELL S. EDDY DEFENDANT-APPELLANT

         Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-16-602449-A

         JUDGMENT: AFFIRMED AND REMANDED

          ATTORNEY FOR APPELLANT James R. Willis

          ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga County Prosecutor BY: Nathalie E. Naso Assistant County Prosecutor

          BEFORE: Boyle, J., Kilbane, P.J., and McCormack, J.

          JOURNAL ENTRY AND OPINION

          MARY J. BOYLE, J.

         {¶1} Defendant-appellant, Terrell Eddy, appeals his convictions. He raises four assignments of error for our review:

1. The court erred when it denied the motions for judgment of acquittal made at the end of the state's case, which were renewed at the close of all evidence.
2. The court erred when it admitted as substantive proof evidence that showed (despite the lack of any relevance), that inside the vehicle Eddy was apprehended in and arrested (after being therein for a very short while) the police found a weapon and a use quantity of marijuana.
3. Given the criminal charges made herein were based on conduct that occurred elsewhere and related to the use of a gun and narcotics, the admission of a different gun and a use quantity of drugs, found in the car, in which the accused was a mere passenger, and which added nothing of evidentiary worth in relation to his various charges cannot possibly be deemed harmless.
4. The court erred when it denied appellant's motion for mistrial.

         {¶2} Finding no merit to his arguments on appeal, we affirm. We remand, however, for nunc pro tunc correction of the sentencing entry as further explained at the end of this opinion.

         I. Procedural History and Factual Background

         {¶3} In January 2016, Eddy was indicted on seven counts: second-degree felonious assault in violation of R.C. 2903.11(A)(2); third-degree discharge of a firearm on or near prohibited places in violation of R.C. 2923.162(A)(3); fourth-degree trafficking (between five and ten grams of cocaine) in violation of R.C. 2925.03(A)(2); fifth-degree trafficking (less than 200 grams of marijuana) in violation of R.C. 2925.03(A)(2); fourth-degree drug possession (between five and ten grams of cocaine) in violation of R.C. 2925.11(A); minor misdemeanor drug possession (less than 100 grams of marijuana); and possessing criminal tools in violation of R.C. 2923.24(A). The charges carried several specifications attached to them, including one- and three-year firearm specifications, and various forfeiture of property specifications (weapons and drug-related items). Eddy pleaded not guilty to all charges, and the case proceeded to a jury trial where the following evidence was presented.

         {¶4} On July 31, 2015, Cleveland police responded to a call around 5:00 p.m. of shots being fired at an apartment complex on Livingston Road. Officer Chris Lane arrived on the scene first. He explained that when he pulled into the parking lot of the apartment complex, there was a green Ford Explorer parked in a parking space. The Explorer was running, and its driver's-side door was open, but no one was in it.

         {¶5} Officer Lane and his partner "processed the scene." Officer Lane found a couple of bullet holes in the green Explorer, including one on the driver's side of the vehicle, one on the passenger door, and one on the back window. The vehicle also had a flat tire. Officer Lane found a bag of marijuana on the passenger seat, a bag of cocaine in the center console cup holder, and a scale in the center console. He also found Eddy's identification in the vehicle and several shell casings on the ground near the driver's side of the car.

         {¶6} Officer Lane said that a female approached him and told him what she had seen. He broadcasted a description of the males that the woman gave to him.

         {¶7} Sergeant Patrick Petranek and Detective Robert McKay testified that they also responded to a call of shots being fired on Livingston Road. They explained that when they arrived at the apartment complex, a zone police car was already pulling into the parking lot so they searched the surrounding areas. The radio call had said that a male with "dreads" had fled south, possibly on a bicycle and possibly with a gun; another male in a white T-shirt had fled north, through the parking lot. While they were patrolling the area, a female flagged them down and told them that a male, who was wearing a white T-shirt and carrying a gun in hand, had just "jumped" into a gold SUV. The female pointed to where the gold SUV was.

         {¶8} Sergeant Petranek and Detective McKay followed the gold SUV for several minutes, until other police vehicles arrived to assist. Sergeant Petranek approached the front passenger door where Eddy was seated. Eddy immediately told Sergeant Petranek, "don't shoot me, there's a gun in my lap." Sergeant Petranek retrieved the gun, a 9 mm handgun, and secured it. He then took Eddy out of the vehicle and handcuffed him.

         {¶9} Detective McKay said that he approached the driver's side of the gold SUV. He could smell a strong odor of marijuana emanating from the vehicle. Detective McKay removed the driver, Deandre Johnson, from the car and placed him in handcuffs.

         {¶10} Police found a second gun in a hidden compartment under the front passenger seat of the gold SUV. Although Eddy initially tried to claim the second gun as his to protect his friend, the gun actually belonged to Johnson. Police also found a box of sandwich "baggies" in the back seat of the gold SUV, marijuana in the center console, and a digital scale below the marijuana.

         {¶11} Detective McKay, who was the primary investigating officer, interviewed Eddy when he was removed from the gold SUV. Eddy informed Detective McKay that he had a license to carry a concealed weapon. Eddy said that he went to the apartment complex on Livingston Road to purchase marijuana from a man who ended up robbing him. Eddy further told Detective McKay that when the man started shooting, Eddy fled and left his vehicle running in the parking lot.

         {¶12} Police took Eddy back to the apartment complex. Detective McKay stated that at this point, Eddy was claiming that he was a victim and they were treating him as such. Detective McKay spoke to the officers who were already at the scene, as well as the apartment complex security guard and numerous witnesses. Detective McKay said that after speaking with the officers who were on the scene, he "got a different story" than Eddy had originally told him. At that point, Eddy became a suspect, so Detective McKay read Eddy his rights and interviewed him a second time.

         {¶13} Eddy told Detective McKay that he was going to purchase marijuana from an unknown male who Eddy found through a friend. Eddy's friend gave the "seller" Eddy's number. The "seller" called Eddy to arrange the deal at the apartment complex using a private number. Eddy said that the "seller" had told him to park in a certain place, but Eddy parked in another spot and backed in so that he could be "on full alert."

         {¶14} Eddy told Detective McKay that when the "seller" got into Eddy's vehicle, Eddy began to get his money out and "that is when [the 'seller'] proceeded to pull a gun on [Eddy]." Eddy responded by reaching for his own gun. At that point, the "seller" got out of Eddy's vehicle. When the "seller" began running away from Eddy's vehicle, the "seller" fired his gun at Eddy. Eddy shot back. Eddy said that he was scared because he was not sure if the "seller" had other people with him. Eddy left everything and ran.

         {¶15} Eddy explained to Detective McKay that in the commotion the "seller" had left the other drugs and the digital scale in Eddy's vehicle. Eddy said that the "seller" took his money; Eddy claimed that he had $30 or $40 in his visor.

         {¶16} Detective McKay testified that when he interviewed Eddy a second and third time, Eddy kept changing his story. For example, Eddy later told Detective McKay that he had deleted the "seller's" phone number from his phone rather than that the "seller" had contacted him on a private number.

         {¶17} After reviewing the security cameras of the parking lot, Detective McKay found a spent shell casing from a .380 caliber handgun in an area of the parking lot where they saw the "seller" drop something as he was running away from Eddy's vehicle. Police never found the .380 firearm that was used, nor did they ever learn who the unknown male, the "seller" according to Eddy, was.

         {¶18} Detective McKay explained that the security guard at the apartment complex was not able to give police a hard copy of the security footage of the parking lot. So the recording that was played in court was footage from Detective McKay's body camera, which recorded the footage as Detective McKay watched it.

         {¶19} As the state played the recording in court, it would stop and ask Detective McKay to explain what was happening on the recording.

         {¶20} In the security footage, Eddy's Ford Explorer can be seen backing into a parking space at the apartment complex. Soon after Eddy came to a stop, a man with long hair, wearing jeans and a white T-shirt, appears in the video, walking toward the passenger side of Eddy's car. It does not appear that the man has anything in his hands. Right before the man opens the front passenger door, he appears to pull up his jeans using both hands. Approximately one minute and 40 seconds later (according to the time on the video), the man with long hair got out of Eddy's vehicle. Detective McKay testified that when the man got out of Eddy's car, the video shows that he had a small white bag in his hand. As the man walked away from Eddy's vehicle, he looked back toward the vehicle several times.

         {¶21} Approximately eight to ten seconds after the unknown man got out of Eddy's vehicle, Eddy got out of his car and appears to shoot a gun over the top of his car in the direction of where the man had just walked (although the man can no longer be seen in the footage). Eddy then ducked down, looked up, and appears to fire a gun a second time. Although it appears that Eddy shot his gun two times (because he held his arm and hand in that position), it is not clear from the video how many shots Eddy fired because there is no sound. At that point, Eddy ran from his vehicle and out of view of the security camera.

         {¶22} Detective McKay then viewed a video recording of another angle of the parking lot, which showed where the man with the long hair ran to when he could no longer be seen in the previous recording. Detective McKay stated that when the man appears, he and Eddy are shooting back and forth. It does appear as if the man is running backwards, facing Eddy's vehicle, and running sideways as if he is trying to get away from something. It also appears that right before the man takes off running across the parking lot, he briefly put his arm up, as if he was shooting a gun. When the man was running across the parking lot, he tripped and almost fell down. Detective McKay testified that spot was where the man dropped the small plastic bag of marijuana. Detective McKay further stated that this was the same bag of marijuana that was on Eddy's seat when police arrived because a witness at the scene picked it up and placed it on Eddy's passenger seat.

         {¶23} Detective McKay stated that Eddy did not have any money on him when he was arrested, nor was there any money found in the green Explorer.

         {¶24} At the close of the state's case, Eddy moved for a Crim.R. 29 acquittal. The trial court granted it with respect to discharging a firearm on or near prohibited places. The trial court denied it with respect to the remaining charges.

         {¶25} Eddy testified that he pulled into a gas station and saw his friend JJ. He asked JJ if he had any marijuana that he could purchase. JJ did not have any, but said that he had a friend who could sell Eddy some. JJ gave Eddy's number to the "seller." Approximately 15 minutes later, the "seller" called Eddy on a private number. The "seller" told Eddy to meet him at the apartment complex on Livingston Road. Eddy said that he did not park where the "seller" told him to park because he would have been closed in and not able to easily escape, which made him suspicious because he had never met the "seller" before that day. Eddy parked somewhere else, and backed into the spot so that he could see better.

         {¶26} Eddy said that the "seller" got in his vehicle and said, "what's up? Your name Terrell?" The "seller" said, "I'm JJ's friend." Eddy asked him for the marijuana. Eddy told the "seller" that he was wanted the marijuana because he was going to "smoke with some females." The "seller" showed Eddy the marijuana. The "seller" also showed Eddy some cocaine, and asked Eddy if the females "do coke?" Eddy replied that he just wanted to buy the marijuana. Eddy pulled out his wallet, which he said had "maybe close to $400" in it. Eddy opened his wallet and began sorting through it, and then the unknown male "pulled a gun" on Eddy and said, "give me everything." The "seller" took Eddy's money and got out of the car.

         {¶27} Eddy testified that he grabbed his gun, opened his car door, and yelled for the "seller" to give him his money back. Eddy said that he told the "seller, " "Hey mother f***cker, give me my money back. I have my gun. I have the drop on you. Give me my money back." At that point, the "seller" turned around and "opened fire at the vehicle." Eddy testified that he shot back at the "seller, " firing five or six shots. After he and the "seller" "exchanged fire, " Eddy grabbed his cell phone and ran.

         {¶28} Eddy said that he called his friend, Deandre Johnson, and told him that he had just been robbed. He asked Johnson to pick him up because Johnson lived near that area. He was going to have Johnson take him home, but that is when the police stopped them.

         {¶29} Eddy said that he lied to police that the gun in Johnson's vehicle was his because he did not want to get his friend in trouble because Johnson had tried to help him.

         {¶30} Eddy further stated that the scale, marijuana, and cocaine found in his Explorer was placed there by the "seller."

         {¶31} Eddy admitted that when he got out of his vehicle and yelled at the "seller" in the parking lot, the seller had not yet shot at him. He agreed that his tire was not flat at that point and that he could have just driven away from the scene. Eddy also admitted that when he told the "seller" that he "had a drop on him, " that he meant "I have the upper hand." He further explained that what he meant by that phrase, "I have a drop on you, " was that he was warning the "seller" that he had a gun and was in the better position.

         {¶32} At the close of all of the evidence, the jury found Eddy guilty of all of the charges. Before sentencing Eddy, the trial court merged the one- and three-year firearm specifications, and merged Counts 3 and 4 (trafficking and possession of cocaine), and Counts 5 and 6 (trafficking and possession of marijuana). The state elected to proceed on the trafficking counts. The trial court sentenced Eddy to three years for the firearm specification and ordered it to be served prior to and consecutive to two years on the base charge of felonious assault, for a total of five years in prison. The trial court also sentenced Eddy to one year for trafficking cocaine, one year for trafficking marijuana, and one year for possessing criminal tools, and ordered that they all be served concurrent to each other and to the term imposed for felonious assault. The trial ...


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