Court of Appeals of Ohio, Eighth District, Cuyahoga
Appeal from the Cuyahoga County Court of Common Pleas Case
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.
JOURNAL ENTRY AND OPINION
T. GALLAGHER, J.
Defendant-appellant, Christian Potts ("Potts"),
appeals from his convictions and sentence following a jury
trial. He raises the following assignments of error for
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
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.
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.
Procedural and Factual History
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
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
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
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.
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.
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.
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
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.
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.
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.
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).
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
Potts now appeals from his convictions and sentence.
Law and Analysis
For the purposes of judicial clarity, we review Potts's
assignments of error out of order.