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State v. Garrett

Court of Appeals of Ohio, Second District, Montgomery

November 9, 2017

STATE OF OHIO Plaintiff-Appellee
DEVIN W. GARRETT Defendant-Appellant

         Criminal Appeal from Common Pleas Court T.C. NO. 15-CR-01836/1

          ANDREW T. FRENCH, Atty. Reg. No. 0069384, Assistant Prosecuting Attorney, 301 W. Third Street, 5th Floor, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee

          JAY A. ADAMS, Atty. Reg. No. 0072135, 36 N. Detroit Street, Suite 102, Xenia, Ohio 45385 Attorney for Defendant-Appellant


          DONOVAN, J.

         {¶ 1} Defendant-appellant Devin W. Garrett appeals his conviction and sentence for one count of aggravated robbery (deadly weapon), in violation of R.C. 2911.01(A)(1), a felony of the first degree; one count of felonious assault (deadly weapon), in violation of R.C. 2903.11(A)(2), a felony of the second degree; and one count of kidnapping (felony or flight), in violation of R.C. 2905.01 (A)(2), a felony of the first degree. Each of the three counts was accompanied by a mandatory three-year firearm specification. Garrett filed a timely notice of appeal with this Court on September 13, 2016.

         {¶ 2} The incident which forms the basis for the instant appeal occurred during the early morning hours of April 12, 2015, when the victim, Danny Courts, was moving items from his residence located on Harvard Boulevard in Dayton, Ohio. At approximately 1:50 a.m., Courts was loading items into his vehicle, a black Pontiac Grand Prix. He observed two men running around the left side of his house and another man running down the street from his right side. All of the men were running towards Courts, and each man was carrying a gun. One of the men yelled "Get him!" and ordered Courts to get in his car. Courts testified that rather than get into his car, he ran down the street toward his neighbors' houses. Two of the men ran after Courts.

         {¶ 3} In an effort to elude the men chasing him, Courts ran to his neighbor's house located at 1313 Harvard Boulevard and tried to force his way in the front door. Courts was unable to gain entrance to the house, and the two men were able to overtake him. The two men seized Courts and dragged him off the porch, shouting "Come on. Give it to me." Once they were back in the street, the two men began pistol-whipping Courts and kicking him in the head. While Courts was being beaten, one of his assailant's hood came off of his head. Courts testified that he immediately recognized the man as an individual from around the neighborhood whose nickname was "Nuke." "Nuke" was later identified as the defendant-appellant, Garrett. Upon being recognized, Garrett ordered the other assailant to "Kill him [Courts]." At that point, Courts was able to slip out of his "hoodie" and get away from Garrett and the other man. In the process of running away, Courts lost his "hoodie" and shoe.[1] Courts ran to another neighbor's house located at 1317 Harvard Boulevard and began pounding on the door asking to be let inside.

         {¶ 4} Simultaneously, the third assailant who was now driving Courts' vehicle crashed it into a truck that was parked on the street. The third assailant exited the vehicle and fled. Garrett and the other man who had been chasing Courts meanwhile stood in the street. Courts testified that one of the men also fired his gun several times. Courts laid down on the front porch of the house behind the screen door and pretended to be dead. Thereafter, a white SUV appeared at the corner of Harvard Boulevard and Princeton Drive. Garrett and the other man ran to the vehicle, and both got in the backseat. The SUV was then driven from the scene. After the assailants left, Courts got up and ran, stopped a few blocks away, and hid behind a fence. Courts testified that he eventually observed a police cruiser pass by, and he flagged the officer down.

         {¶ 5} At trial, the State presented the testimony of Katisha Postell, one of Courts' neighbors who lived at 1313 Harvard Boulevard on the date of the incident. Postell testified that she awoke to a loud crashing sound. Postell further testified that when she went to her window to investigate, she observed two men running backwards down the street firing multiple gunshots into the air. Postell also observed that someone had crashed a car into her neighbor's truck. Postell testified that she watched the two men run towards the corner of Harvard Boulevard and Princeton Drive, but she lost sight of them and could not see where they went. Postell was unable to identify either of the individuals that she observed.

         {¶ 6} The State also presented the testimony of Linda Jones, who lived at 1304 Harvard Boulevard on the night Courts was attacked. Jones testified that she awoke to the sound of gunfire and immediately called 911. While she spoke to the 911 operator, Jones looked out of her window and observed a white SUV parked near the corner of Harvard Boulevard and Princeton Street. Jones testified that she then observed two men run by her house, get into the white SUV, and drive away. Jones testified that moments later, she observed the same white SUV return and pull into an alleyway behind her house. Once the SUV stopped, Jones observed one of the men that she had initially seen running down the street get out of the vehicle. The man ran out of Jones' line of sight but then ran back to the SUV and left again. Jones testified that she called 911 again and reported the new details.

         {¶ 7} Jones' husband, Jeffrey, also awoke to the sounds of gunfire. Jeffrey testified that he observed two men run down the street in front of his house and get into the backseat of a white SUV and drive away. After the SUV left the scene, Jeffrey went outside to investigate the damage from the car wreck. Jeffrey testified that he observed that a black car had crashed into his neighbor's truck. Jeffrey observed that the black car was sitting unoccupied in the middle of the street still running. Jeffrey testified that when he saw the white SUV return, he ran back inside his house.

         {¶ 8} Cal and Tasha Foster both testified at Garrett's trial. At the time that Courts was attacked, the Fosters were living at a residence located at 1317 Harvard Boulevard. As previously stated, Courts ran to the Fosters' house after he was able to escape from being beaten by Garrett and the other assailant. Courts also pretended to be dead on the Fosters' porch. Both Cal and Tasha testified that they awoke to the sound of gunfire. The Fosters also testified that they observed that a black Pontiac had collided with Cal's truck. Tasha testified that she heard a loud noise and thought that something had rammed into her front door. Tasha further testified that when she looked at her front door the next day, she noticed that it had been damaged. Cal testified that he found a bullet casing in front of his house. Cal also found a small hole in the front of his house that he believed was a bullet hole.

         {¶ 9} Courts was not immediately able to identify the man he recognized as "Nuke" as Garrett to the police. However, after searching a local news website that contained jail book-in photos, he was able to identify Garrett as one of the men who attacked him. Shortly thereafter, Courts testified that as he was watching the news on television, he saw a story involving another robbery and recognized the two suspects who had been arrested as the other two men who attempted to rob and kidnap him, to wit: Londell Johnson and Davion McCombs. The news story also contained video footage which enabled Courts to identify the white SUV that Johnson was driving at the time of the arrest as the same SUV in which Garrett and McCombs fled from the scene of Courts' attack on April 12, 2015. Thereafter, Courts met with Detective Doug Baker of the Dayton Police Department. Courts informed Detective Baker of the information he had learned regarding his assailants' true identities. Detective Baker testified that he was able to confirm that Johnson drove the white SUV used in the attack on Courts. Moreover, prior to Garrett's trial, McComb and Johnson pled guilty in separate cases to their involvement in Courts' kidnapping, aggravated robbery, and felonious assault which occurred on April 12, 2015.

         {¶ 10} On November 3, 2015, Garrett was indicted for aggravated robbery (deadly weapon), felonious assault (deadly weapon), and kidnapping (felony or flight). As previously noted, each of the counts was accompanied by a firearm specification. At his ...

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