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State v. Potts

Court of Appeals of Ohio, Eighth District, Cuyahoga

June 15, 2017


         Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-15-601384-A

          ATTORNEY FOR APPELLANT Joseph V. Pagano

          ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga County Prosecutor BY: John Farley Hirschauer Melissa Riley Assistant Prosecuting Attorneys

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



         {¶1} Defendant-appellant, Christian Potts ("Potts"), appeals from his convictions and sentence following a jury trial. He raises the following assignments of error for review:

1. Appellant's convictions were not supported by sufficient evidence, and the trial court erred by denying his motion for acquittal.
2. The convictions were against the manifest weight of the evidence.
3. The trial court erred by admitting pretrial identifications that were tainted and where the jury was not instructed on the failure to comply with photo lineup procedures in accordance with R.C. 2933.83.
4. The trial court erred by giving the flight instructions over appellant's objection.
5. Appellant's sentence is contrary to law and consecutive sentences were not properly imposed.
6. The trial court erred by imposing costs where it found appellant indigent, did not impose costs in open court, and failed to consider his ability to pay.

         {¶2} After careful review of the record and relevant case law, we affirm Potts's convictions and sentence, but reverse and remand for the limited purpose of allowing Potts to move the trial court for a waiver of payment of court costs.

         I. Procedural and Factual History

         {¶3} In December 2015, Potts and his stepbrother, codefendant, Quentin Elder ("Elder"), were indicted for attempted murder in violation of R.C. 2903.02(A) and 2923.02, with firearm specifications; two counts of felonious assault in violation of R.C. 2903.11(A)(1) and 2903.11(A)(2), with firearm specifications; and discharge of a firearm on or near prohibited premises in violation of R.C. 2923.162(A)(3), with firearm specifications. Potts was also indicted for illegal conveyance of a deadly weapon into a detention facility in violation of R.C. 2921.36(A)(1). Both defendants pleaded not guilty and the case proceeded to a jury trial, where the following facts were adduced.

Potts's indictment arose out of an incident that occurred on November 20, 2015. A few months prior to the incident, Potts's and Elder's friend Terrell Sherron was shot and killed; rumors were that he was killed by an individual named Saquon.
S.S., who was 14 years old at the time of the incident, testified that he was at his girlfriend's house, in her bedroom, at approximately 7 p.m. on November 20, 2015. S.S. testified that when his girlfriend's mother came home unexpectedly, he climbed out the window and down the fire escape. His girlfriend's mother came outside and chased him down the street, loudly calling his name, which sounds very similar to "Saquon."
S.S. testified that he ran away, but then, as he was walking down East 71st Street, a gray Chevy Impala screeched to a stop by him, and someone holding a gun got out of the backseat of the car. S.S. ran into a nearby field and hid among some trees. S.S. testified that the individual with the gun chased him into the field looking for him, but never found him.
When he thought the coast was clear, S.S. came out of the field and began walking down Melrose Avenue. As he approached East 71st Street, S.S. saw three males turn the corner from 71st Street and begin walking toward him. S.S. recognized one of the males as his friend C.S. S.S. had seen the other two males, "Slingshot" and "Dolo" (later identified by S.S. in court as Potts), around the neighborhood. Potts asked S.S. what neighborhood he was from, and Slingshot asked him if his name was Saquon. S.S. told them he was not Saquon and that he was not from the area. C.S. told the two men that S.S. was "cool" and not the man they were looking for.
S.S. testified that Potts then shot him in his eye. The three males ran away as S.S. fell to the ground. S.S. said that a woman got out of her car to help him but then got back in her car and drove away after shots were fired into the air. Potts and C.S. then came back, and Potts shot S.S. again, this time in his jaw.
The police immediately received multiple 911 calls about the shooting, and they responded to the scene. S.S. was rushed to the hospital, where doctors performed emergency life-saving surgery. Dr. Anne Kim testified at trial that S.S. lost an eye as a result of the shooting, and that a bullet is still lodged at the top of his spine.
The 911 calls were played for the jury. In one call, an anonymous caller reported seeing a male firing a gun into the air. The caller described the male as wearing a white-striped shirt and a black jacket with a white stripe on it. The caller reported that the male was getting into a gray Impala that was parked around the corner from where the shooting occurred. The caller said the Impala had a spoiler on the back and only one headlight. The caller stated that he was following the Impala and it was turning onto a one-way street behind a school.
Cleveland police officer Fridrich Kaufmann testified that he and his partner responded to the scene of the shooting, where they found a shell casing and a bullet. They also spoke with S.S. In light of what S.S. told them, Kaufmann and his partner began looking for the gray Impala. After being advised of the 911 call about where the Impala had gone, they found the Impala parked in a driveway on Everett Court, a one-way street behind Wade Park Elementary School and only a mile and a-half from where the shooting occurred. [Potts and Elder each resided in the home where the Impala was discovered.] Kaufmann testified that the night was cold but the hood of the Impala was warm, indicating that it had recently been driven. The police found Potts's identification and an obituary for Terrell Sherron in the car.
Officer Kaufmann testified that he observed four men sitting on or standing around the porch of the house where the Impala was found. One man was Potts; another was Elder, who was wearing the clothes described by the anonymous 911 caller. Potts denied having any weapons, but the police found three guns on or near Elder. The four men were arrested and tested at the jail for gunshot residue. Elder tested positive; no gun residue was found on Potts's hands.
When Potts was patted down after being processed and booked into jail, a corrections officer found a .25 caliber Raven Arms semi-automatic pistol in Potts's underwear. [The magazine retrieved from the pistol was empty.] Ballistic expert, Detective James Kooser, testified that the casing found at the scene where S.S. was shot matched the .25 caliber pistol found on Potts.

State v. Elder, 8th Dist. Cuyahoga No. 104392, 2017-Ohio-292, ¶ 3-12.

         {¶4} Detective Ronald James ("Det. James"), of the Cleveland Police Department, testified that on November 21, 2015, he was assigned to this case. Det. James stated that in the midst of his investigation he was contacted by Detective Saunders ("Det. Saunders") of the Cleveland Metropolitan Housing Authority ("CMHA"). According to Det. James, Det. Saunders had indicated that she was familiar with S.S.'s family. On November 24, 2015, Det. James met with Det. Saunders at the hospital where S.S. was being treated. Prior to the hospital visit, Det. James created a photo array containing a photo of Potts and five other males. He also created a separate photo array containing a photo of Elder and five other males.

         {¶5} Det. James testified that during the hospital interview, S.S. was conscious and coherent, but had difficulty communicating because he was on a ventilator and his mouth was wired shut. Nevertheless, Det. James stated that he was able to complete an interview and obtained a full statement from S.S. concerning his version of the events.

         {¶6} With respect to the administration of the photo array, Det. James stated that he read the photo lineup instructions to S.S. in the presence of S.S.'s mother and that S.S. confirmed that he understood the instructions. Det. Saunders served as a blind administrator and presented S.S. with the photo arrays while Det. James waited in the hospital hallway. After Det. Saunders administered the photo arrays, she called Det. James back into S.S.'s hospital room and indicated that he had picked suspect number 2, which was a photo of Potts.

         {¶7} Det. James testified that

Due to [S.S.'s] limited mobility, he was unable to directly point, or circle at that point in time. So once he confirmed that he had made a selection, his mom circled it and she initialed it for him.

         {¶8} During his cross-examination, Det. James explained that Det. Saunders knew S.S.'s family because they lived on CMHA property. Regarding her role as the blind administrator, Det. James testified that he did not believe Det. Saunders was biased. He testified that Det. Saunders did not know the identity of the suspects and was not provided with any information regarding his investigation into the shooting.

         {¶9} C.S. testified on behalf of the state. He stated that he knew Potts as "Dello" and knew him from the neighborhood. C.S. identified Potts in court as the person he referred to as "Dello" throughout his testimony. C.S. testified that on the night of the shooting, he was walking down the street with his friend "Slingshot" in the immediate proximity of S.S. and Potts. C.S. stated that he heard Potts ask S.S. where he was from and subsequently heard a gun shot. According to C.S., he immediately ran and did not look back. He heard approximately two more gun shots as he was running. C.S. testified that he did not see who fired the shots.

         {¶10} At the close of the state's case, the trial court denied Potts's and Elder's Crim.R. 29 motions for acquittal. At the conclusion of trial, the jury found Potts guilty as indicted. It found Elder not guilty of attempted murder and felonious assault, but guilty of firing a firearm on or near prohibited premises, in violation of R.C. 2923.162(A)(3).

         {¶11} At Potts's sentencing hearing, the trial court merged Counts 1, 2, 3, and 4 as allied offenses of similar import. The state elected to pursue sentencing on Count 1, attempted murder, and the court imposed an eleven-year sentence to run consecutive to the attached three-year firearm specification. In addition, the trial court sentenced Potts to a three-year prison term on Count 5, illegal conveyance of a deadly weapon into a detention facility, to run consecutive to the prison term imposed on Count 1, for a total prison sentence of 17 years.

         {¶12} Potts now appeals from his convictions and sentence.

         II. Law and Analysis

         {¶13} For the purposes of judicial clarity, we review Potts's assignments of error out of order.

         A. ...

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