Court of Appeals of Ohio, Eighth District, Cuyahoga
Appeal from the Cuyahoga County Court of Common Pleas Case
ATTORNEY FOR APPELLANT Myriam A. Miranda.
ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga
County Prosecutor BY: Christine M. Vacha Assistant County
BEFORE: Boyle, P.J., Laster Mays, J., and Celebrezze, J.
JOURNAL ENTRY AND OPINION
J. BOYLE, P.J.
Defendant-appellant, Dominique Lennon ("Lennon"),
appeals his convictions for attempted murder, felonious
assault, discharging a firearm on or near a prohibited
premise, carrying a concealed weapon, improperly handling a
firearm in a vehicle, and vandalism. He raises six
assignments of error for our review.
I. The trial court erred by denying Lennon's motion to
exclude pretrial identification testimony in violation of his
II. The trial court erred where the jury was not instructed
on the failure to comply with photo lineup procedures in
accordance with R.C. 2933.83.
III. The trial court erred by denying Lennon's Crim.R. 29
motions because the convictions were not supported by
IV. Lennon's convictions were against the manifest weight
of the evidence.
V. Lennon's sentence is contrary to law and the record
does not support the imposition of consecutive sentences.
VI. The trial court erred by admitting state's exhibit 90
over Lennon's objection and in violation of Evid.R. 401,
402 and 403.
After reviewing the record and pertinent law, we affirm.
Procedural History and Facts
In October 2015, a Cuyahoga County Grand Jury indicted Lennon
on ten counts: attempted murder of the first victim, D.D., in
violation of R.C. 2923.02 and 2903.02(A), a first-degree
felony, with one- and three-year firearm specifications; two
counts of felonious assault against D.D. in violation of R.C.
2903.11(A)(1) and 2903.11(A)(2), second-degree felonies, with
one- and three-year firearm specifications; attempted murder
of the second victim, Quantez Lawson ("Lawson"), in
violation of R.C. 2923.02 and 2903.02(A), a first-degree
felony, with one- and three-year firearm specifications; two
counts of felonious assault against Lawson in violation of
R.C. 2903.11(A)(1) and 2903.11(A)(2), second-degree felonies,
with one- and three-year firearm specifications; discharge of
a firearm on or near a prohibited premise in violation of
R.C. 2923.162(A)(3), a first-degree felony, with one- and
three-year firearm specifications; carrying a concealed
weapon in violation of R.C. 2923.12(A)(2), a fourth-degree
felony; improperly handling firearms in a motor vehicle in
violation of R.C. 2923.16(B), a fourth-degree felony; and
vandalism in violation of R.C. 2909.05(B)(1)(b), a
The charges giving rise to the indictment alleged that on
August 21, 2015, in the area of East 116th Street and Buckeye
Avenue, in Cleveland, Ohio, Lennon brandished a handgun and
fired numerous rounds toward a group of people known as the
"Buckeye Boys." The first victim, D.D., was a
13-year-old boy who was shot in the right hand. The second
victim, Lawson, was struck in the leg and buttocks.
Huntington Bank, a business nearby, also sustained damage as
a result of the gunshots. Lennon pleaded not guilty to all
Before trial, Lennon moved to suppress D.D.'s pretrial
identification testimony. At a hearing before trial,
Lennon's counsel withdrew the motion. At this hearing,
plaintiff-appellee, state of Ohio, informed the trial court
and Lennon's counsel that an eyewitness had recently come
forward. The eyewitness, T.H., was the 16-year-old sister of
D.D. Lennon's counsel orally moved to suppress T.H.'s
The Suppression Hearing
The trial court held a hearing on Lennon's motion to
suppress where the following testimony was presented.
T.H. testified that in March 2015, she first heard of a
person named "Boom" because two of her friends were
in a car accident with him. At this time, she also learned
that Boone's first name was Dominique. In June or July
2015, T.H. saw the Buckeye Boys "beat[ing] up"
Boone at the liquor store located at East 116th Street and
Buckeye Avenue - the same area where the shootings in this
case occurred. This was the first time T.H. saw Boone and
"put a face with the name." T.H. never actually met
On August 21, 2015, the day D.D. and Lawson were shot, T.H.
was walking behind D.D. as he walked to the liquor store to
buy food. She saw two cars, a "silver four door van and
a white car, " drive into a parking lot. She saw someone
exit the silver van, go by a tree, and shoot towards Joe-Joe
- Lawson's "street name." T.H. testified that
the shooter wore a black jogging suit.
Once the shooting began, T.H. ran to her house. From there,
she saw the shooter return to the vehicle and "saw his
face when he got back into the car." She testified the
shooter was Boone - the same person she saw the Buckeye Boys
previously fighting with at the liquor store.
T.H. testified that the day after the shootings Boone
"came back shooting at the Buckeye Boys." T.H.
testified that Boone was alone and driving a brown truck. At
that time, Boone looked T.H. in the eyes and she knew he was
the "guy from the day before."
T.H. testified, however, that she did not see how D.D. was
shot. She was not sure if there was anyone other than Boone
shooting a gun, although she heard two guns. She testified
that "there was some other boy with a gun, " but
she did not know his name.
T.H. failed to tell police what she witnessed until the week
of Lennon's trial. She testified that she did not tell
police because "at first I didn't want to speak.
Because my mom said don't speak if I'm not spoken
When she came forward, she gave a statement to Detective
Daugenti. She told him that she was familiar with Boone. T.H.
testified that the detective showed her a single photograph
and stated: "I am going to show you a photo of Dominique
Lennon, is that who you know as Boo[ne]?" T.H. answered,
"Yes." T.H. also testified that the detective
showed her a sheet with six photographs of young African
American men and asked her to choose the person who shot D.D.
T.H. said that the detective did not tell her who to pick and
did not tell her that the shooter may or may not be in the
photographs. T.H. testified she picked Boone's photograph
immediately because of his dreadlocks.
T.H. made an in-court identification of Boone as Lennon and
said that Lennon was the shooter.
Detective Shay testified that he was the lead investigator
for Lennon's case until January 2016, when he left for a
position in basic patrol. He testified that Detective
Daugenti took T.H.'s statement, but that he was present
during the end of it. Detective Shay testified that he had
compiled a six-photo lineup during the course of his
investigation, but he disagreed with T.H. that she was shown
the lineup. He made it clear that she was not shown the
lineup because she knew Lennon. Therefore, Detective Daugenti
only showed T.H. one photograph of Lennon, which was from the
Ohio Law Enforcement Gateway system.
Detective Shay testified that it is the Cleveland Police
Department's written procedure that when a victim or
witness does not know the suspect, a photo lineup must be
used. When a victim or witness knows the suspect, a photo
lineup is not necessary.
After hearing T.H.'s and Detective Shay's testimony,
the trial court denied Lennon's motion to suppress. The
trial court noted that under R.C. 2933.83, which sets forth
eyewitness identification procedures in lineups, it had to
consider whether police failed to comply with the statute.
The trial court stated, "I don't think this is a
complete stranger scenario, which would at least, in my
opinion, require a complete compliance or substantial
compliance with 2933.83. But [T.H.] knew who he was."
The trial court found:
[T.H.'s] testimony, and her in-court identification, as
well, was certainly that of a level of certainty. And that
goes along with her testimony of having met this guy
previously or knew who he was prior. It's not to say I
wouldn't entertain particular requests for jury
instructions at a later point. But at this point in time
she'll be able to testify on the identification[.] So
I'm going to deny your motion.
The matter proceeded to a jury trial and the following
evidence was presented.
D.D.'s mother, Tamika Palmer ("Palmer"),
testified that D.D. is dyslexic and developmentally delayed.
On the day of the shootings, she gave D.D. money to walk to
the liquor store to buy food. D.D. was with another young
boy. Palmer's house is not far from the area where the
shootings occurred. Soon after D.D. left, Palmer heard
gunshots. She went outside and saw her daughter, T.H., by the
liquor store. She then learned that her son had been shot and
ran to help him.
The day after the shootings, Palmer was with D.D. when
Detective Shay came to her home. She witnessed D.D. identify
a man named Boone as the shooter.
The next day she was again with D.D. when Detective Shay
showed D.D. a photo lineup with six color photographs. She
witnessed D.D. pick Lennon's photograph from the photo
lineup. She made certain that her son was sure and told him
that if he was not sure, then he should not pick anyone. She
signed the photo lineup for D.D. because he could not write
due to his hand being shot.
D.D. testified that on the day of the shootings, he and his
friend walked to the liquor store after he received money
from his mother. He heard a gunshot, looked back, saw someone
with a black "hoodie, " and heard more gunshots.
D.D. testified he saw a "little bit" of the
shooter's face. He then started running, not realizing
that he had been shot in the hand.
D.D. recalled giving Detective Shay the name Boone, looking
at a group of photographs, and choosing the person who he
believed shot him. He testified that no one told him he had
to identify anyone. He chose Lennon because he saw part of
the shooter's face at the time of the shooting and
recognized his skin color and dreadlocks.
D.D. testified that when he chose Lennon from the photo
lineup, he was about 30 percent certain, and on the witness
stand he said that he was 40 percent certain of his
identification. When asked at trial if he knew who shot him,
D.D. testified, "yes, " and identified Lennon as
the shooter. Then, D.D. stated that he was "not
sure" who shot him. D.D. admitted that he was scared
because Lennon knew where he lived.
T.H.'s trial testimony was similar to her testimony at
the suppression hearing. She testified that the shooter wore
a black jogging suit, which she explained meant sweat pants
and a "hoodie." T.H. testified that she knew the
shooter was Lennon "[b]ecause his dreads were sticking
out, and I saw his face. He didn't have nothing on his
face." She came forward at trial because D.D. was scared
to testify. She made an in-court identification of Lennon as
Lawson testified that he has known Lennon for
about two or two and one-half years. Lennon used to
"chill" with the Buckeye Boys until he allegedly
stole money from one of them. Lawson said that the Buckeye
Boys physically fought with Lennon approximately two or three
weeks before the shootings.
Days after the shootings, Lawson told police that the shooter
was wearing all black with a "hoodie." At trial,
however, Lawson claimed that he told this to police because
he "had just got out of surgery and they was waking me
up out of my sleep, " so he made up the description.
Lawson then testified that he did not know who shot him, but
stated that he had seen Lennon with a gun in the past. Lawson
also testified that Lennon sent him a letter after the
shootings, which he gave to police. In the letter, Lennon
discussed his theory about the shootings, including who shot
D.D. and Lawson; Lennon said it was "Joe" a cousin
of Lawson's friend "Munchy."
An employee of Huntington Bank testified about the bullet
holes and damage to the bank because of the shootings.
Officer Paul Benedictis ("Officer Benedictis")
testified that on the day of the shootings, he went to the
hospital to check on D.D. At that time, D.D. gave a
description of the suspect and Officer Benedictis made a
broadcast accordingly: the suspect was a black male, around
20 years old, ...