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State v. Scott

Court of Appeals of Ohio, Second District, Montgomery

December 29, 2017

STATE OF OHIO Plaintiff-Appellee
TONY L. SCOTT Defendant-Appellant

         Criminal Appeal from Common Pleas Trial Court Case No. 2015-CR-1136

          MATHIAS H. HECK, JR., by MICHAEL J. SCARPELLI, Atty. Reg., Assistant Prosecuting Attorney, Attorney for Plaintiff-Appellee.

          KIM BUI, Attorney for Defendant-Appellant.


          TUCKER, J.

         {¶ 1} Defendant-appellant Tony Scott appeals from his conviction and sentence for tampering with evidence. Scott contends that the conviction must be reversed because the State failed to present evidence sufficient to prove the elements of the offense and because the conviction is not supported by the weight of the evidence. He further contends that the trial court abused its discretion by permitting the introduction of evidence he claims is prejudicial. Finally, he contends that the trial court erred in sentencing.

         {¶ 2} We conclude that the record demonstrates evidence sufficient to sustain the conviction and that the jury did not lose its way in finding that Scott was guilty of tampering with evidence. We further conclude that the trial court did not abuse its discretion with regard to the admission of evidence. Finally, we find no error in sentencing.

         {¶ 3} Accordingly, the judgment of the trial court is affirmed.

         I. Facts and Procedural History

         {¶ 4} This case arises from the September 30, 2013, shooting death of Dominque Gentry. On that date, Gentry and his friend, David Banks, were in Gentry's vehicle. Gentry was driving a black Chevrolet Tahoe and Banks was in the passenger seat. At approximately 7:28 p.m., they arrived at the All-in-One gas station located in Dayton. Gentry went into the building, made a purchase, and then returned to the car. Banks was helping another man jumpstart the man's vehicle. At approximately 7:58 p.m., Gentry and Banks left the gas station with the intent to go to Gentry's home.

         {¶ 5} According to Banks, they pulled out of the rear of the parking lot onto Clemmer Street behind a black SUV and a red Cadillac. All three vehicles then turned left onto Edison Street. As the vehicles approached Orchard Avenue, Banks observed the Cadillac swerve toward the front of the black SUV. He then observed the driver's side door of the Cadillac open. He also saw a red beam of light shining out of the Cadillac. He noted that the black SUV remained beside the Cadillac. Banks heard gunshots which caused him to duck down underneath the dashboard. When the shooting ended, Banks heard the squeal of tires as the SUV and Cadillac drove away. Banks then saw that Gentry was dead from a gunshot to the head. Banks exited the car and called 911.

         {¶ 6} Dayton Police Officer Darryl Letlow was the first to arrive on the scene. He observed Gentry's vehicle which had run through a chain-link fence and into a home located at the intersection of Orchard and Edison. Letlow also observed automobile debris and shell casings in the roadway leading up to the vehicle. Letlow, after observing Gentry in the driver's seat, called for paramedics and backup officers. Letlow made contact with Banks, placed him in a cruiser, and then began to secure the scene.

         {¶ 7} Dayton Police Detective David House was assigned to investigate the shooting. When he arrived on the scene, he observed the debris in the roadway including the entire rear window of a vehicle. The window was shattered, but was held together by the dark window tinting. The debris in the street, including specifically the pieces of a broken taillight, led House to believe that a Pontiac G6 had been involved in the crash.[1]

         {¶ 8} House spoke to Banks which led him to direct Detective Rod Roberts and other officers to obtain video surveillance from the gas station. Roberts obtained video footage from the gas station for the hour prior to the shooting. Based upon his review of the surveillance tape and his conversation with Banks, House determined that there were three suspect vehicles; a black Ford Escape, a gray Pontiac G6 and a maroon two-door Cadillac Eldorado with a sunroof.[2]

         {¶ 9} The surveillance footage shows Gentry's vehicle arriving in the gas station lot at 7:28 p.m. Gentry enters the gas station store and returns to the lot. At 7:45 p.m., the three suspect vehicles enter the parking lot. The Ford Escape is followed by the Pontiac with the Cadillac in the rear. The driver of the Escape exits the vehicle and enters the store. The driver is wearing an orange t-shirt and a black camouflage baseball cap with an emblem on the front and side as well as a shiny metallic emblem on the bill. As the driver exits the store, an orange fastener can be seen on the back of the cap. The driver then begins to put gas into the Escape. There is interaction between the Escape driver and the occupants of the other two vehicles. The three suspect vehicles leave the lot in the same order they arrived. Gentry's vehicle leaves the lot at the same time and pulls onto Clemmer behind the three vehicles.

         {¶ 10} About a week after the shooting, during the course of his investigation, House compiled a list of Cadillac Eldorados in the area along with the addresses attached to the registrations for those vehicles. After finding approximately six vehicles of interest, House used Google Maps to plot his route to the locations of each vehicle. He noted that one of the Cadillacs was registered to Richard Shoup. A Google Maps aerial view of Shoup's residence showed a Cadillac with a sunroof in front of the home. House made contact with Shoup who indicated that he no longer owned the vehicle which he had sold to Chon Automotive.

         {¶ 11} House contacted the owner of Chon Automotive, Miguel Bernardino, who indicated that during the summer of 2013 he had purchased the Cadillac from Shoup with the intent to resell it. Shoup gave Bernardino the title to the vehicle, but Bernardino did not transfer it into his name. Three days after purchasing it, Bernardino sold the Cadillac to Scott. He gave the title, still in Shoup's name, to Scott. A few months later, on October 3, 2013 (three days after the shooting), Bernardino found the car, without the title, sitting in his business parking lot. House had the Cadillac towed to the Dayton Police Department's evidence garage.

         {¶ 12} Based upon his conversation with Bernardino, House then drove to Salem Avenue to look for additional suspect vehicles. As he was driving south on Malvern Avenue from Salem, he observed an individual in a black Volkswagen Jetta pull out behind him from an alley. The Jetta followed House as he turned right onto Otterbein Avenue and then right onto Elsmere Avenue heading back toward Salem. House, who was driving slowly in order to check the vehicles on the street, pulled to the curb to permit the Jetta to pass. The Jetta pulled up and stopped next to House's unmarked car, and the driver, identified as Scott, looked directly at House before proceeding.

         {¶ 13} House continued his search and pulled into the alley that runs behind houses on the 1800 block of Elsmere Avenue. This was the same alley that Scott had pulled out of a few moments before. In the rear of 1824 Elsmere, House noted a vehicle covered with a gray tarp. After noting a damaged and flattened tire, House exited his vehicle and touched the area of the tarp where the back window should be. He noted that the back window was missing which he found "consistent with the window that was left at the [shooting] scene * * *." Tr. p. 386. House then lifted the tarp high enough to observe that the vehicle was a Pontiac G6. House then contacted other detectives to inform them of the vehicle. He then pulled out of the alley onto Elsmere at which time he noted the Jetta coming back down the street. The Jetta slowed down as it pulled alongside House's vehicle, then continued its course of travel. House then parked at the end of the alley in order to observe whether anyone approached the Pontiac. After a few minutes, House noted the Jetta approaching his vehicle until the vehicles were "facing nose to nose." Tr. p. 388. The Jetta again drove away. These contacts led House to believe the driver of the Jetta was involved with the Pontiac.

         {¶ 14} At that point, Detective Kevin Phillips arrived on location. He and House parked their vehicles and proceeded on foot to the Pontiac. As they approached the Pontiac, Scott again drove toward them. The Detectives drew their weapons and ordered Scott to exit the vehicle. Scott complied, was placed in handcuffs, and was transported to the Detectives Section of the Dayton Police Department for questioning where he was subsequently placed under arrest.

         {¶ 15} House remained at the scene and called for an evidence technician to take pictures of the Pontiac. At that time, Detective Ryan Halburnt made contact with individuals in Apartment 3 of 1824 Elsmere Avenue. He was informed that Scott resided in Apartment 4. House then obtained a search warrant for the apartment. During the subsequent search of the apartment, the detectives found an orange tee shirt, a black camouflage Cincinnati Bengals cap, and a Bible which was found to contain the title for the Cadillac, still in Shoup's name. The shirt and cap were consistent with the garments observed on the gas station surveillance video.

         {¶ 16} At the scene, an inventory search was conducted on the Jetta. House found two cellular telephones and a Certificate of Self-Insurance issued to Scott from Enterprise Rent-a-Car for the Jetta. When he called the number on the certificate, he determined that Scott had rented the Jetta from the Enterprise store located on North Main Street in Dayton. It was determined that, at 5:40 p.m. on the day of the shooting, Scott had rented a black Ford Escape from that rental store. According to the rental agreement, Scott was to return the Escape on October 2. However, Scott returned the Escape the day after renting it and replaced it with another vehicle.

         {¶ 17} After pictures were taken of the Pontiac, it was transferred to the Dayton Police Department evidence processing facility where it was held until a search warrant could be obtained. A search warrant was also obtained for the Cadillac. The broken left rear taillight assembly of the Pontiac was removed and sent to the Miami Valley Regional Crime Laboratory where a forensic scientist was able to match it to the debris collected at the scene of the shooting. The Detectives found that a protectant-type substance had been sprayed over the interior of the Pontiac. There was so much of the substance that its residue could be felt. According to Detective Gregory Moyer, the use of the substance made it impossible to process the inside of the Pontiac for DNA or fingerprints. It was determined during the investigation that the Pontiac was registered to Scott.

         {¶ 18} Within fifteen minutes of being booked into the Montgomery County Jail, Scott made a telephone call to an acquaintance whom he told to find his Bible. During the call he made reference to a "title, " and a "mechanic on the Strip." According to House, the "Strip" is "a very well-known term for Gettysburg Avenue which is the location of Chon Automotive. A short time later he made a second call and asked the acquaintance whether she had been able to get the Bible. Later that evening, Scott made a third telephone call instructing the acquaintance to "get the whip from up the way." According to House, "whip is a street term or a slang term for expensive or a fancy car." House interpreted the call as telling the acquaintance to check on the Cadillac.

         {¶ 19} Scott was indicted on two counts of tampering with evidence (alter/destroy) in violation of R.C. 2921.12(A)(1) as related to the Cadillac and the Pontiac. Following a jury trial, he was convicted on both counts. A sentencing hearing was conducted on January 26, 2017. The trial court imposed a twenty-four month sentence for each count of tampering with evidence, and ordered the sentences to be served consecutively for an aggregate term of 48 months. The trial court further ordered that the sentences would run consecutively to a prison term imposed in September 2016 by the District Court for the U.S. Southern District of Ohio.

         {¶ 20} Scott has ...

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