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State v. Turner

Court of Appeals of Ohio, Eighth District, Cuyahoga

May 11, 2017

STATE OF OHIO PLAINTIFF-APPELLEE
v.
BRETT A. TURNER DEFENDANT-APPELLANT

         Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-15-597060-A

          ATTORNEYS FOR APPELLANT Mark Stanton Cuyahoga County Public Defender BY: Jeffrey Gamso Assistant Public Defender.

          ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga County Prosecutor BY: Owen M. Patton Assistant Prosecuting Attorney.

          BEFORE: E.T. Gallagher, J., Kilbane, P.J., and Celebrezze, J.

          JOURNAL ENTRY AND OPINION

          EILEEN T. GALLAGHER, J.

         {¶1} Defendant-appellant, Brett A. Turner ("Turner"), appeals his convictions and raises two assignments of error:

1. Mr. Turner's right to due process and a fundamentally fair trial was violated when he was convicted of aggravated robbery on insufficient evidence.
2. Mr. Turner's conviction for felonious assault was against the manifest weight of the evidence.

         {¶2} We find no merit to the appeal and affirm the trial court's judgment.

         I. Facts and Procedural History

         {¶3} Turner was charged with two counts of aggravated robbery, in violation of R.C. 2911.01(A)(1) and (3), two counts of felonious assault, in violation of R.C. 2903.13(A)(1) and (2), and one count of having a weapon while under disability, in violation of R.C. 2923.13(A)(3). The aggravated robbery and felonious assault charges included one- and three-year firearm specifications. The charges resulted from an incident in which Steve Baker-Terrell ("Baker-Terrell") was shot outside his girlfriend's house on Cable Avenue in Cleveland. Turner waived his right to a jury on the having a weapon while under disability charge, and the remaining counts were tried to a jury.

         {¶4} Baker-Terrell testified that on the evening of June 24, 2015, he stopped by the home of his daughter's mother, Jamie Carr ("Carr"), to give her some money for the child's care. During the visit, Carr's brother "Bub" joined Baker-Terrell for a drink in Baker-Terrell's vehicle. Shortly thereafter, Carr approached the vehicle and warned the men that there were "a couple of cats" coming down the street and that they had better be careful. Baker-Terrell testified that as five armed men approached his vehicle, he took approximately $1, 000 in cash from his pocket and placed it in the vehicle along with two cell phones. (Tr. 286, 290.)

         {¶5} Per Baker-Terrell's instruction, he and Bub exited the vehicle, and Baker-Terrell offered the men some Hennessy. Baker-Terrell explained:

The reason why I did that is just to take their mind off whatever they was thinking. If somebody thinking about shooting or killing me, let me offer them something, take his mind off of it. That's the reason I did that. I don't care if I didn't know 'em, that's just what I did to take their mind off of whatever their intention was of doing.

(Tr. 297.)

         {¶6} According to Baker-Terrell, the men accepted the Hennessy but nevertheless began shooting within minutes of their arrival. (Tr. 297.) The men shot Baker-Terrell in the calf and fired several shots into his car and into another car that was driving down the street. Baker-Terrell took a few steps and fell to the ground, but managed to flee to a neighbor's backyard.

         {¶7} A neighbor was sitting on her boyfriend's front porch directly across the street from Baker-Terrell's car. She was talking to Bub when she suddenly heard arguing and gunfire in the street. The neighbor testified that she only saw one man with Baker-Terrell, and that he had a small handgun. Following the shooting, the neighbor and Bub attended to Baker-Terrell, who appeared to be going into shock. They tied a shirt around his leg to stop the bleeding until an ambulance arrived.

         {¶8} The neighbor told police the shooter was a black male, shorter than 5'6, " had a short buzzed haircut, and was wearing a white t-shirt and jeans. She knew the gunman was less than 5'6" tall because he was shorter than Baker-Terrell, who is approximately 5'6" tall. When asked whether there was more than one gunman, the neighbor testified: "I didn't see any other - I assume if someone else had a gun they should have been shooting also, but no one else was shooting. No one else had a gun." (Tr. 198.)

         {¶9} Police scanned the area, searching for the suspect. Officer Michael Schwebs ("Schwebs") of the Cleveland Police Department testified that he and his partner, Sergeant Stephen Beckner ("Beckner"), responded to the scene and observed a black male, fitting the description the neighbor gave, walking on some nearby railroad tracks. As soon as the suspect saw the police, he ran into a large field of tall grass and disappeared. Schwebs followed the suspect on foot while ...


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