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State v. Martin

Court of Appeals of Ohio, Second District, Montgomery

September 1, 2017

STATE OF OHIO Plaintiff-Appellee
v.
MICHAEL J. MARTIN Defendant-Appellant

         Criminal Appeal from Common Pleas Court T.C. NO. 16-CR-977

          ANDREW T. FRENCH, Attorney for Plaintiff-Appellee.

          MICHAEL MILLS, Attorney for Defendant-Appellant.

          OPINION

          FROELICH, J.

         {¶ 1} Michael J. Martin was found guilty in the Montgomery County Court of Common Pleas of two counts of murder and several other offenses. He was sentenced to an aggregate term of 30 years to life in prison. He appeals from his conviction.

         {¶ 2} For the following reasons, the judgment of the trial court will be affirmed.

         Procedural History

         {¶ 3} On April 6, 2016, Martin was indicted on two counts of felony murder, four counts of felonious assault, and one count of discharging a firearm at or near a prohibited premises (over a public road); each of these counts included a firearm specification and a specification for discharging a firearm from a motor vehicle. Martin was also charged with improper handling of a firearm in a motor vehicle and having weapons under disability. The counts of murder and two of the counts of felonious assault related to the shooting of Gary Lamar Tisdale, Jr.; the two additional counts of felonious assault related to Elbert Soles and Ellis McMillin.

         {¶ 4} Martin waived his right to a jury on the count of having weapons under disability. In June 2016, he was tried by a jury on all other counts. Martin was found guilty of two counts of murder, two counts of felonious assault (related to Tisdale), and discharging a firearm at or near a prohibited premises, along with both specifications for each of these counts, and of improper handling of a firearm. The jury found him not guilty of the two additional counts of felonious assault. The court found Martin guilty of having weapons under disability.

         {¶ 5} The two counts of murder and the two counts of felonious assault related to Tisdale were merged for sentencing, and Martin was sentenced to a mandatory term of 15 years to life. The specifications also merged, and Martin was sentenced to three years on the firearm specification and to five years on the specification for discharging a firearm from a motor vehicle. The count of improper handling of a firearm was merged with discharge of a firearm at or near a prohibited premises, and Martin was sentenced to 12 months on this offense, along with a three-year firearm specification. Martin was sentenced to 36 months for having weapons under disability. All of the sentences and specifications were to run consecutively. Additionally, Martin was ordered to pay restitution in the amount of $7, 870.93 and court costs.

         {¶ 6} Martin appeals from his conviction, raising three assignments of error. We will address these arguments in an order that facilitates our discussion.

         The Weight of the Evidence

         {¶ 7} In his third assignment of error, Martin contends that his conviction was against the manifest weight of the evidence.

         {¶ 8} An argument based on the weight of the evidence "challenges the believability of the evidence and asks which of the competing inferences suggested by the evidence is more believable or persuasive." State v. Wilson, 2d Dist. Montgomery No. 22581, 2009-Ohio-525, ¶ 12; see Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, 972 N.E.2d 517, ¶ 19. When evaluating whether a conviction is against the manifest weight of the evidence, the appellate court must review the entire record, weigh the evidence and all reasonable inferences, consider witness credibility, and determine whether, in resolving conflicts in the evidence, the trier of fact "clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered." State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997), citing State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).

         {¶ 9} Because the trier of fact sees and hears the witnesses at trial, we must defer to the factfinder's decisions whether, and to what extent, to credit the testimony of particular witnesses. State v. Lawson, 2d Dist. Montgomery No. 16288, 1997 WL 476684 (Aug. 22, 1997). The fact that the evidence is subject to different interpretations does not render the conviction against the manifest weight of the evidence. Wilson at ¶ 14. A judgment of conviction should be reversed as being against the manifest weight of the evidence only in exceptional circumstances. Martin at 175.

         {¶ 10} The State's evidence was as follows:

         {¶ 11} On the evening of March 26, 2016, after spending some time at their aunt's house in Kettering, Gary Lamar Tisdale and his brother, Elbert Soles, set out in Tisdale's Charger to purchase some "weed" from an acquaintance of Tisdale's named "Bama" (Ellis McMillin) However, McMillin did not have what Tisdale and Soles wanted. McMillin got in the car with Tisdale and Soles to find someone from whom they could make a purchase, which they did.

         {¶ 12} Sometime after 9:00 p.m., when Tisdale, Soles, and McMillin were driving around together, they drove past a car in which Lisa Busbee was sitting. Busbee and Tisdale had been in a romantic relationship in the past, and the car in which she sat was parked in front of a house at which Busbee was staying. Busbee was sitting in the passenger's seat of the parked car, and Martin was in the driver's seat. After passing the car and recognizing Busbee, Tisdale did a U-turn and pulled up alongside the car in which Busbee was seated. The cars were then facing in the same direction.

         {¶ 13} Tisdale got out of his car and approached Busbee, walking around the back end of the vehicles. According to the testimony of Soles, McMillin, and Busbee, Tisdale was in a "happy" mood, was not behaving in a threatening or aggressive manner, and did not have a gun. These witnesses also testified that Tisdale's car was not parked so closely to Martin's as to prevent Martin from exiting. Tisdale spoke with Martin and/or Busbee through the sun roof of the car, which was open, while standing on the curb; the windows were closed.

         {¶ 14} According to Soles, Tisdale said to Martin, "You can't stay away from my girl." According to McMillin, Tisdale asked Busbee why she was "calling him over there if she's in the car with someone else." According to Busbee, Martin already had a gun in his lap when Tisdale approached the car and spoke to him. Similarly, Soles ...


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