Court of Appeals of Ohio, Eighth District, Cuyahoga
Appeal from the Cuyahoga County Court of Common Pleas Case
ATTORNEY FOR APPELLANT Rick L. Ferrara.
ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga
County Prosecutor By: Jeffrey Schnatter Assistant Prosecuting
BEFORE: Keough, A.J., Kilbane, J., and Celebrezze, J.
JOURNAL ENTRY AND OPINION
KATHLEEN ANN KEOUGH, ADMINISTRATIVE JUDGE.
Defendant-appellant, Byron Harris, appeals his convictions.
For the reasons that follow, we affirm.
In February 2015, Harris was named in a seven-count
indictment charging him with aggravated murder (Count 1),
murder (Count 2), two counts of felonious assault (Counts 3
and 4), discharge of a firearm on or near prohibited premises
(Count 5), and two counts of a having weapon while under
disability (Counts 6 and 7). Counts 1 through 5 contained
one- and three-year firearm specifications, and Counts 3
through 5 contained repeat violent offender specifications
and notices of prior conviction.
Prior to the start of trial, the state dismissed Count 7, and
Harris executed a jury waiver on Count 6 and the repeat
violent offender specifications and notices of prior
conviction attendant to Counts 3 through 5. All other counts
were tried before a jury, who heard the following evidence.
In the early afternoon of August 17, 2014, Tyler Spaulding
was riding the bus home after work. Seated in front of him
were three males and a female who, according to Tyler, were
talking about robbing him. Fearing for his safety, he called
his sister Mary, told her what he had overheard, and asked
her to have his brother meet him at the bus stop. Mary
testified that she called their brother Isaac Spaulding to
Tyler testified that two of the males - the one with the
tattoo under his eye and wearing blue jeans, and the other
darker-skinned male with a backpack - got off the bus near
East 123rd Street. The other male and the female stayed on
When Tyler got off the bus on Lakeview Road near Save-A-Lot,
his brother Isaac and his cousin's girlfriend, Chastity
Spencer, were waiting for him. Tyler told them what had
happened on the bus. As they were walking away, Tyler and
Isaac's brother Harry Spaulding, and friend James Parker,
Jr., approached. Although Tyler told them what had happened,
he indicated that it was over and to leave it alone.
Meanwhile, over on Osceola Avenue, Martinez Hunter was
sitting on a porch when he received a call from his sister
Mary that someone was trying to rob Tyler. After leaving the
residence, he saw three males - one who he knew from the
neighborhood as the "CD dude." Martinez testified
that the CD dude sells CDs and movies outside USA Food Mart.
Because Martinez had worked at USA Food Mart, he had seen the
CD dude numerous times. According to Martinez, the CD dude
was wearing gray jogging pants with no shirt and carrying a
book bag on his back. He also testified that the CD dude has
a tattoo on his face. Martinez identified Harris in court as
the "CD dude."
According to Martinez, one of the other males with Harris was
shorter in height with darker skin and dreadlocks; Martinez
could not remember much about the third male, except that he
Martinez testified that when Harris and the other two men
walked by him, Harris said "what's up?" and
Martinez, not knowing that the males had been on the bus with
his brother Tyler, responded the same. The males continued
walking, not knowing that they were about to cross paths with
Tyler's group, who were walking toward East 123rd Street.
When Tyler saw two of the males from the bus, he pointed them
out, and Parker started yelling at them that he wanted to
talk to them; when the males did not stop, Parker questioned
if they wanted to fight. The males started walking faster,
and Tyler and his group of four followed. Within moments,
Tyler's group of four grew to five when their friend,
Marcus Burton, joined the pursuit.
Soon thereafter, Martinez saw Tyler, Marcus, Isaac, Harry,
Chastity, and Parker. He could hear Tyler yelling out to him
to "stop them, " pointing to the group of males and
stating that they were the ones who tried to rob him.
Martinez then witnessed a transaction between Harris and his
friends involving a book bag - Martinez initially testified
that he saw Harris retrieve a gun from the bag, but then
later said the male with the dreadlocks pulled the gun from
the bag. Nevertheless, Harris took possession of the gun.
After the transaction, Harris and the other two males started
running, and Marcus and Parker chased after them. Martinez
also followed as they all ran toward the corner of Phillips
Avenue and East 123rd Street by Satellite Cleaners. During
the chase, Martinez saw Harris pull the gun off his hip.
Martinez testified that the gun was a .38 that he had seen
before when Harris was trying to sell it at USA Food Mart.
According to Martinez, when Harris pulled the gun, he told
Marcus and Parker that Harris had a "little ass
gun." Parker was now in between Martinez and Harris, as
he cut across Satellite Cleaners' parking lot and ran to
the middle of Phillips Avenue. Harris was on the sidewalk
about three or four houses down on Phillips Avenue when he
started shooting in the direction of Martinez and Parker.
Martinez testified that he heard a bullet go whistling by his
ear. According to Martinez, the second gunshot hit
Parker's hand, causing Parker to yell out that "It
hit my hand." Parker then retreated and took cover
behind a tree. However, Harris kept firing while approaching
Parker, this time hitting Parker in the arm area. Martinez
testified that Harris was approximately three or four feet
from Parker and fired the gun again, hitting Parker in the
chest, causing Parker to spin around and ultimately collapse
in Satellite Cleaners' parking lot. Parker was
subsequently pronounced dead at MetroHealth Medical Center.
Dr. Joseph Andrew Felo, deputy medical examiner who performed
Parker's autopsy, testified about the gunshot wounds to
Parker's body. According to Dr. Felo, one wound was
consistent with the gun pointed at an angle in a downward
direction, and another wound was consistent with the gun
being fired straight on. The exit wound of one of the
gunshots was consistent with Parker's back up against
something, like a tree.
A grainy surveillance video was played during Martinez's
testimony that showed Parker and his group following another
group of individuals across the parking lot of Satellite
Cleaners. Martinez described to the jury his location in
relation to Parker and the shooter. The jury could see a
sudden retreat by the larger group, Parker retreating, and
then collapsing in the parking lot. Detective Thomas Lynch
also testified about the video, stating that after the first
shot and everyone scatters, about 10 to 15 seconds pass and
the shooter approaches Parker, who is hiding behind a tree.
According to Martinez, he was "right there" next to
Parker and witnessed the entire event. Detective Lynch
testified that based on Martinez's statement and the
surveillance video, Martinez was in the best position to
witness the shooting. In fact, Detective James Raynard
recovered a .38 caliber casing in front of the third house
down on Phillips Avenue - the exact area where Martinez
testified that he witnessed Harris firing the gun.
Sharon Collins, who lived four houses down from East 123rd
Street on Phillips Avenue, testified that she was sitting in
her living room when her attention was directed out her front
window because she heard shouting. When she looked out her
window, she saw a black male wearing gray jogging pants
pointing a gun toward the corner of Phillips Avenue and East
123rd Street. She testified that she heard two to four
gunshots. She could not recall any more identifying details
about the shooter, except that the gun was not a revolver,
and she could not identify the shooter at trial.
When the police arrived, Martinez was interviewed on scene by
Detective Lynch. He told the officers that the shooter had a
teardrop tattoo under his right eye, and pointed to his own
left eye - the jury saw that Harris has a teardrop tattoo
under his left eye. Detective Lynch testified that on the day
of the shooting, Martinez described the shooter as a black
male with a teardrop tattoo, wearing gray jogging pants with
Subsequently, Martinez was shown two photo arrays and asked
to identify the CD dude - the man who shot Parker. In the
first photo array, the photos were generated based on
information of a possible suspect, and the second photo array
was generated based on Harris's description. In the first
photo array, Martinez identified another male and indicated
that he was only 50 percent certain that he knew this
individual. Martinez identified Harris in the second photo
array. At trial, Martinez testified that the shooter wore
gray jogging pants, and he was one hundred percent certain
that Harris shot Parker.
The state also provided testimony from the five other members
of Parker's group who witnessed various parts of the
altercation from different vantage points. Each witness
provided differing details regarding the identity of the
shooter, who was carrying the backpack, and who handed the
gun to the shooter.
Like Martinez, Isaac knew Harris as the CD man, and stated
that Harris shot Parker. Isaac testified that when Parker was
trying to "get to the guys, " the three guys
stopped and did a "transaction" with a book bag.
Isaac described the males to the jury along with the roles
they played in the transaction - the male with the dreadlocks
passed the book bag to the man he knew as the CD guy with the
tattoo on his face. According to Isaac, the third guy was of
average height and wearing a ball cap. Isaac identified
Harris as the CD guy, who he saw pull a gun from inside the
book bag and subsequently shoot Parker.
However, Isaac was cross-examined with the formal written
statement he provided to the police shortly after the murder.
His statement provided that he did not know any of the males.
Isaac testified that his statement was not true.
Additionally, in his statement, he described the males to the
police: (1) 15-18 years old, tall, slim to medium build,
braided black hair, with a tattoo on the right side of his
face, wearing camouflage pants and an orange shirt carrying a
backpack; (2) 18-year-old male, caramel skin color, wearing
burgundy pants and a white and black shirt, and a ball cap;
(3) under 20 years old, black male, average build wearing a
blue shirt and black jean shorts. Additionally, the jury
heard that Isaac told the police that he did not see any of
the males with a weapon. Again, Isaac told the jury that his
statement was not true.
While Martinez and Isaac unequivocally identified Harris as
the shooter, Marcus Burton and Harry Spaulding testified that
Harris was not the shooter, but gave the shooter the gun from
the backpack. Marcus testified he recognized one of the males
-who had a tattoo and sold CDs at the USA Food Mart - from
the neighborhood. Marcus identified Harris in the courtroom
as the man he recognized. However, Marcus testified that
Harris was not the shooter; rather, Harris took the gun out
of the backpack that the darker-skinned male was wearing and
handed it to the darker-skinned male.
Harry, Parker's best friend, testified that he only
recognized one of the males - the one known as the "CD
guy, " who was identified as Harris. Harry described
another male as light-skinned with tight braids, and the
third as a darker-skinned, heavy-set male with a "little
[A]fro" hairstyle. Harry told the jury that Parker kept
arguing with the group of males. During that time, he saw
Harris take the backpack off his back and put it in front of
him and then pass something to the darker-skinned male
wearing a striped shirt. According to Harry, once Harris
passed the backpack to the dark-skinned male, Harris and the
other male ran away. However, when the scene escalated
between Parker and the darker-skinned male, the male started
Chastity testified that the male with the book bag handed
something from his pocket to the male with the dreadlocks.
Tyler's identification was made solely on the presence of
the teardrop tattoo on Harris's face. He testified that
he saw the "tattoo guy" pull a gun out from the
other male's book bag. He identified Harris in court as
the shooter - as "the black guy with the teardrop
tattoo." He made this in-court identification even
though he had not identified Harris in the two photo arrays
he viewed shortly after the murder. On one of the photo
arrays, the officer wrote next to the photo that Tyler said:
"The teardrop. I'll never forget the teardrop.
He's the shooter." Tyler admitted he picked those
individuals because they each had a teardrop tattoo on their
face. Additionally, Tyler admitted that he and his brothers
discussed that the male with the teardrop tattoo was the
shooter prior to talking with detectives on a later date.
Detective Lynch testified that after the shooting, he
received a telephone call from Parker's mother with
information about the shooter and the name "Byron."
Based on the descriptions, photo array identifications, the
surveillance video, and the information he received from
Martinez and Parker's mother, Detective Lynch obtained a
warrant for Harris's arrest. Harris was subsequently
arrested in September 2014 in Texas.
The jury found Harris guilty of all counts it considered,
including the one-and three-year firearm specifications, and
the trial court found him guilty of all counts and
specifications tried to the bench. Harris was sentenced to
life in prison with the possibility of parole after 29 years.
Harris now appeals, raising five assignments of error, which
will be addressed out of order.
Sufficiency of the Evidence - Aggravated Murder
Harris argues in his second assignment of error that
insufficient evidence was presented to support his conviction
for aggravated murder. Specifically, he contends that the
state failed to present sufficient evidence that the shooter
acted with prior calculation and design.
A Crim.R. 29 motion challenges the sufficiency of the
evidence. 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. State v.
Murphy, 91 Ohio St.3d 516, 543, 747 N.E.2d 765 (2001).
"'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. Walker, Slip Opinion No.
2016-Ohio-8295, ¶ 12, quoting State v. Jenks,
61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of
In the Ohio Supreme Court's recent Walker
decision, the court discussed the elements of aggravated
murder, specifically (1) purpose and (2) prior calculation
and design, addressing what each element requires. It stated
in its syllabus, "the elements of purpose and prior
calculation and design are distinct, and the state must prove