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State v. Person

Court of Appeals of Ohio, Tenth District

May 9, 2017

State of Ohio, Plaintiff-Appellee,
Raphael Person, Defendant-Appellant.

         APPEAL from the Franklin County Court of Common Pleas C.P.C. No. 14CR-1714

          Ron O'Brien, Prosecuting Attorney, and Valerie Swanson, for appellee.

          Barnhart Law Office LLC, and Robert B. Barnhart, for appellant.


          BROWN, J.

         {¶ 1} This is an appeal by defendant-appellant, Raphael Person, from a judgment of conviction and sentence entered by the Franklin County Court of Common Pleas following a jury trial in which he was found guilty of murder, aggravated burglary, kidnapping, aggravated robbery, and impersonating a peace officer.

         {¶ 2} On April 3, 2014, appellant was indicted on one count of aggravated murder, in violation of R.C. 2903.01, one count of murder, in violation of R.C. 2903.02, one count of aggravated robbery, in violation of R.C. 2911.01, one count of kidnapping, in violation of R.C. 2905.01, one count of aggravated burglary, in violation of R.C. 2911.11, one count of impersonating a peace officer or private policeman, in violation of R.C. 2921.51, and one count of having a weapon while under disability, in violation of R.C. 2923.13.

          {¶ 3} The matter came for trial before a jury beginning December 1, 2015. The first two witnesses for plaintiff-appellee, State of Ohio, were Columbus Police Officers Willie Chears and David A. Younker. In the early morning hours of May 2, 2012, Officers Chears and Younker were working a special duty assignment at the Wedgewood Apartments, located on the west side of Columbus; on that date, the officers heard the sound of gunshots in the neighborhood just west of the apartments. The two officers left the apartment complex and drove west on Eakin Road toward Holly Hill Drive. The officers observed a group of people near a house on Holly Hill Drive "pointing in the direction" of the house. (Tr. Vol. II at 116.) These individuals informed the officers they heard gunshots inside a residence on Holly Hill Drive, and that a white van had just left the area heading southbound on Holly Hill Drive.

         {¶ 4} The front door of the residence was open. Officers entered the house and Officer Younker observed a woman near a couch crying, and "a male directly in front of us [lying] against the wall with blood on his shirt stating he had been shot." (Tr. Vol. II at 121.) The man on the ground "said two people came through the door * * * in masks and wearing tactical gear." (Tr. Vol. II at 127.) He told officers that "when they came through * * * they yelled Columbus Police SWAT and * * * pretty much brought the female in and pushed her inside the house when they entered." (Tr. Vol. II at 128.) The woman told officers there were "four individuals" involved in the incident. (Tr. Vol. II at 102.) Officers found shell casings near the front door. Paramedics arrived and transported the shooting victim to the hospital where he subsequently died.

         {¶ 5} Jeremiah Schrack, age 35, resides on Holly Hill Drive. On the evening of May 2, 2012, a friend gave Schrack a ride home; as they neared his residence, Schrack observed a van slowing down in the area and the driver appeared to be looking for an address. After arriving home, Schrack sat in his friend's vehicle for a few minutes talking. Schrack then heard gunfire, and he exited the vehicle to "get a better view." (Tr. Vol. II at 144.) Schrack heard at least seven gunshots coming from the area where they had earlier passed the van, near the intersection of Harwood Road and Holly Hill Drive. Schrack then observed "people exiting * * * the house. There was initially a couple people that left. One person lagged behind. I could see that they were carrying * * * a large assault weapon." According to Schrack, "it looked like they were trying to signal to somebody else to hurry up and come along, and then I saw another person exit and enter the van at this point." (Tr. Vol. II at 149.) Schrack observed three individuals enter the van; the driver of the van then drove past Schrack and "turned right onto Sexton" Drive. (Tr. Vol. II at 150.)

         {¶ 6} Randy Abel, Jr., age 34, is the brother of the shooting victim, Brandon Leonard. In 2012, Abel, who is paralyzed from the waist down, resided on Holly Hill Drive with Leonard. On the evening of May 2, 2012, Leonard and his girlfriend, Arlie Bernard, arrived at the Holly Hill Drive residence; Leonard came into Abel's room to speak with him. While they were talking, Bernard approached and asked Leonard if he would retrieve something from the car for her. Leonard said "no, not right now." (Tr. Vol. II at 277.) Bernard then went out to the car by herself.

         {¶ 7} A short time later, Bernard yelled out for Leonard. By the tone of her voice, Abel could sense something was wrong. Leonard ran out of Abel's room, and Abel heard someone say "he's got a gun, Columbus Police, drop the gun, drop the gun, Columbus Police." (Tr. Vol. II at 279.) The voice came from the porch area. Abel then heard between five to eight shots fired. Leonard "ran into" Abel's room and "threw something in the closet and * * * told me that the police was here." (Tr. Vol. II at 281.)

         {¶ 8} Leonard ran out of the room, and Abel could "hear them patting him like real hard like where is the gun at, where is the gun at. And he's like, I don't have any -- I don't have no gun." (Tr. Vol. II at 281.) Abel then heard Leonard state he had been shot, and that he needed an ambulance. Abel heard a "second guy with an accent say, [o]kay, we'll -- we're going to get you an ambulance and then they ran out of the house." The next individual Abel observed was a police officer in a uniform; the officer told Abel that those "guys weren't the real cops." (Tr. Vol. II at 282.)

         {¶ 9} Bernard testified that she dated Leonard "off and on, " and that she was dating him on the date of the incident. Bernard referred to Leonard as "Mikey." (Tr. Vol. II at 298.) On the evening of May 2, 2012, Bernard planned to spend the evening at Leonard's residence on Holly Hill Drive. After arriving at the residence, Bernard went outside to get some items from Leonard's car. Bernard observed a van near the curb, but she did not pay attention to it at first. As she was removing items from the trunk of the car, "three guys ran up to me and told me they was Columbus Police. They told me to drop everything that I had in my hands, and one guy grabbed me from behind." (Tr. Vol. II at 303.) The three men "had all black on. They were wearing masks and they were dressed from head to toe in black." (Tr. Vol. II at 305.) The word "police" was displayed in yellow lettering on their clothing. (Tr. Vol. II at 306.)

         {¶ 10} The men questioned Bernard as to "who was in the house, " and she told them that "Mikey" and Abel were inside. One of the men told her to "yell for Mikey" as they walked inside the house. (Tr. Vol. II at 306.) Bernard testified that she entered the residence and "yelled for Mikey. Mikey came down the hallway. I heard somebody say, He's got a gun. He walked back down the hallway and came back without the gun and that's when they started shooting him." (Tr. Vol. II at 308.) The three men were carrying rifles. Bernard testified that when Leonard came down the hallway the second time he did not have a weapon; Leonard "came out with his arms up and they started shooting him." (Tr. Vol. II at 310.)

         {¶ 11} On cross-examination, Bernard stated she believed Leonard owned a weapon, but she had never observed him with it. Bernard also testified that Leonard sold cocaine. On re-direct examination, Bernard stated she told detectives the intruders had a Spanish accent.

         {¶ 12} Mickey Velazquez, age 30, is currently serving a 30-year sentence in a federal prison on an unrelated robbery and firearm conviction after entering into a federal plea agreement. Velazquez also entered, pursuant to a plea agreement in Ohio, guilty pleas to involuntary manslaughter, aggravated robbery, and aggravated burglary arising out of the events in the instant case involving the death of Leonard. In exchange for his testimony in this case, Velazquez received a state sentence of 22 years to be served concurrently with his federal sentence.

         {¶ 13} In May 2012, Velazquez resided on Brookside Boulevard. He worked as a tattoo artist at Columbus Ink, located on Demorest Road. Velazquez's brother owned the tattoo shop and also operated a cell phone store adjacent to the tattoo shop. Velazquez is a friend of Ricardo Velazquez-Flores ("Flores"), as well as Jonathan Flores-Oquendo ("Oquendo"). Velazquez has known appellant for "about six years." (Tr. Vol. III at 362.)

         {¶ 14} Velazquez gave the following testimony as to the events of May 2, 2012. On that date, Velazquez, along with Flores, Oquendo, and appellant, drove to "a guy's house to rob them." (Tr. Vol. III at 367.) According to Velazquez, it was appellant's idea to commit the robbery which both men had discussed one day at the tattoo shop.

          {¶ 15} On the date of the incident, appellant phoned Velazquez and told him to "call the other two guys, Ricardo and Jonathan, and that we was going to go rob the house." (Tr. Vol. III at 369.) Velazquez phoned Flores and Oquendo from his home. Appellant came to Velazquez's house "and he brought * * * a bag with * * * assault rifles. And then he said he was going to leave so he could check the victim's house, make sure they was there." (Tr. Vol. III at 370.) After appellant left, Velazquez went to the garage and "opened a duffle bag and there [were] two assault rifles." Flores and Oquendo arrived, and Velazquez loaded the assault rifles. After several hours, appellant returned and told Velazquez "it was a go, that they was there. And we got dressed in all black." (Tr. Vol. III at 371.) Appellant "brought shirts that say 'police.' " (Tr. Vol. III at 372.)

         {¶ 16} The four men got into a Honda Odyssey minivan belonging to Velazquez, with Flores acting as the driver. The men brought two assault rifles and a shotgun, as well as a sledgehammer "to break their door." (Tr. Vol. III at 373.) Appellant gave Flores directions to the house on Holly Hill Drive.

         {¶ 17} On arriving at the address, Velazquez, Oquendo, and appellant "got out of the vehicle and * * * approached a female in back of a vehicle and [appellant] grabbed the female and [they] walked toward the house." (Tr. Vol. III at 376.) Velazquez carried the shotgun, while appellant and Oquendo carried the assault rifles. The three men were wearing black shirts that had "police" displayed on the front. (Tr. Vol. III at 379.)

         {¶ 18} As they approached the house, appellant told the woman to "call for the victim. And when she opened the door, she started calling the victim and we went inside the house. And when * * * we seen the victim, [appellant] and [Oquendo] started to shoot." (Tr. Vol. III at 377.) Velazquez recalled "a lot of shots" being fired. The victim appeared from the hallway. Velazquez testified that the victim "had a handgun -- a chrome handgun; and when he seen us, he -- he tried to turn around immediately and ran back toward the hallway." (Tr. Vol. III at 378.)

         {¶ 19} After the shooting, Oquendo ran out of the house toward the minivan. Velazquez ran out next, and appellant followed him to the van. Flores drove away, and appellant gave Flores "directions where to go and we went to an area where there was some woods." (Tr. Vol. III at 380.) The men had earlier stolen a license plate, and they took the plate off the vehicle at that time; they also removed the weapons and sledgehammer from the minivan. Appellant and Oquendo remained in the wooded area, while Velazquez and Flores drove back to Velazquez's residence. According to Velazquez, the men had intended to "get money and drugs" from the Holly Hill residence but they left with nothing. (Tr. Vol. III at 384.)

         {¶ 20} On May 4, 2012, SWAT officers arrived at the home of Velazquez. Velazquez testified officers were conducting an investigation related to his federal robbery case, and they recovered a number of items from the residence including hoodies, masks, bulletproof vests, and a shotgun used during the incident at Holly Hill Drive. In March 2013, Velazquez was arrested in Florida and extradited to Ohio on federal charges. On July 9, 2013, Velazquez entered into a proffer statement, at which time he informed law enforcement authorities of his involvement in the Holly Hill Drive shooting. At trial, Velazquez identified state's exhibit M1 as the state plea agreement he entered in exchange for his testimony in this case; he also identified state's exhibit M2 as his federal plea agreement.

         {¶ 21} On cross-examination, Velazquez related that, on one occasion prior to the incident, he observed Leonard at the tattoo shop. Velazquez had also, prior to the incident, once performed a tattoo on Bernard. Velazquez testified he did not fire any shots during the incident. He stated they ran out of the house without looking for drugs or money because the noise from the shooting "attracted people." (Tr. Vol. III at 428.)

         {¶ 22} Oquendo, age 23, is currently incarcerated in a federal facility in West Virginia, serving a 28-year sentence for a robbery and firearm conviction after entering into a federal plea agreement. He also entered into a plea agreement with the state to testify in this case. Oquendo and Flores are cousins, and Oquendo is acquainted with Velazquez and appellant.

         {¶ 23} Oquendo gave the following testimony with respect to the events of May 2, 2012. On that date, Oquendo, appellant, Flores, and Velazquez drove to the residence on Holly Hill "[b]ecause we were going to rob * * * it" of drugs and money. (Tr. Vol. III at 507.) Earlier that day, Velazquez called Oquendo and asked him to participate in the robbery. Oquendo met up with the others at the home of Velazquez; when he first arrived, Flores and Velazquez were at the residence. Appellant arrived later, and they began to discuss the robbery. Oquendo did not speak English at the time, while Velazquez and Flores both spoke English as well as Spanish.

          {¶ 24} Oquendo testified that the plan was for appellant, Velazquez, and Oquendo to enter the Holly Hill residence "and rob what was inside the house." The men were all dressed in black, and Velazquez and appellant "had a shirt that said 'police.' " (Tr. Vol. III at 511.) Appellant brought the shirts to the house. The men also had "masks to cover our faces completely. You could only see our eyes." (Tr. Vol. III at 512.) Appellant, Velazquez, and Oquendo were also wearing bulletproof vests. The men had two rifles and one shotgun; Oquendo and appellant each carried one of the rifles, while Velazquez carried the shotgun. According to Oquendo, it was Velazquez's idea to rob the home.

         {¶ 25} Flores drove the men in a van to the Holly Hill location and parked the van in front of the residence. As they were sitting in the van, a woman came outside of the residence and began looking for something in the trunk of a car. Velazquez "got out and went straight toward the woman." (Tr. Vol. III at 520.) The woman was "very scared" and she "lifted her hands." (Tr. Vol. III at 521.) Velazquez, appellant, and Oquendo entered the house, and a man came out of a bedroom and into the living room; the man "had a pistol." Oquendo testified that appellant "started shooting." (Tr. Vol. III at 523.) Oquendo also fired two shots. The man "fell on the floor and he started screaming as if he had been hit by a shot." (Tr. Vol. III at 525.)

         {¶ 26} After the shooting, Oquendo and the others left the house and fled the scene in the van. Appellant had a cell phone "which tracked police, " and the men learned that "the van had been reported." (Tr. Vol. III at 527.) They then drove to a wooded area to dispose of the weapons. When they arrived at the location, Oquendo handed the weapons and vests to appellant, who took them into the woods. The men also changed the license plate on the van. The four men then split up; Velazquez and Flores drove to Velazquez's house, while appellant and Oquendo "started walking in that area waiting for another person to come pick us up." They split up because "the van had already been reported and we were afraid we would all get caught together." (Tr. Vol. III at 530.) An individual subsequently arrived and picked up appellant and Oquendo in a red Cavalier, and they drove to the home of Velazquez.

         {¶ 27} In 2012, Flores, age 24, resided with his parents at a residence on Trabue Road. Flores is currently serving a 17-year federal prison sentence for aggravated robbery with a firearm in an unrelated case. Flores also entered, pursuant to a plea agreement in Ohio, a guilty plea to involuntary manslaughter and aggravated robbery arising out of the death of Leonard; Flores received a 10-year state sentence in exchange for his testimony in this case.

         {¶ 28} Flores and Oquendo are cousins, and Flores is a friend of Velazquez. Velazquez introduced Flores to appellant in 2011. On May 2, 2012, Flores received a phone call from Velazquez "asking me if I wanted to go * * * do a robbery and I agreed." (Tr. Vol. IV at 596.) Flores went to the residence of Velazquez, where Velazquez and Oquendo were waiting. Appellant arrived approximately one-half hour later. Velazquez was in the garage taking a shotgun apart, and he later began loading some "clips for some AR15s." (Tr. Vol. IV at 598.) Appellant had "two shirts that said 'police' on it. And then * * * we started planning how we was going to go do the robbery." Oquendo, who did not speak English, "didn't really understand much, but he was there." (Tr. Vol. IV at 599.)

         {¶ 29} Flores testified that "[t]he plan was just * * * supposedly they had robbed some money from one of them or some drug money or something like that, and we was just supposed to go back and get the money * * * and leave." (Tr. Vol. IV at 599.) Oquendo, Velazquez, and appellant each had rifles; the men also had bulletproof vests and masks. The four men traveled to the Holly Hill residence in a Honda Odyssey minivan; they changed the license plate on the van before arriving at the residence. Flores drove the van, and Velazquez provided him with directions.

         {¶ 30} On arriving at the Holly Hill residence, Velazquez, appellant, and Oquendo exited the van; Velazquez and appellant were wearing "police shirts, " while Oquendo was wearing a black hoodie. (Tr. Vol. IV at 604.) Flores remained in the vehicle with the engine running. A woman was standing in the driveway with the car trunk open. Velazquez "grabbed her and they took her inside the house." (Tr. Vol. IV at 605.) A short time later, Flores "heard a lot of gunfire." (Tr. Vol. IV at 606.) Flores then observed Oquendo exit the house, followed by Velazquez and appellant. The men got inside the minivan, and Flores asked if anyone had been shot. Velazquez said: "I ...

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