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State v. Potts

Court of Appeals of Ohio, Ninth District, Lorain

February 12, 2018

STATE OF OHIO Appellee
v.
NICHALOS POTTS Appellant

         APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF LORAIN, OHIO CASE No. 15CR091956

          BRIAN J. DARLING, Attorney at Law, for Appellant.

          DENNIS P. WILL, Prosecuting Attorney, and ELIZABETH LINDBERG, Assistant Prosecuting Attorney, for Appellee.

          DECISION AND JOURNAL ENTRY

          DONNA J. CARR, Judge.

         {¶2} Defendant-Appellant Nichalos Potts appeals from his convictions in the Lorain County Court of Common Pleas. This Court affirms.

         I.

         {¶3} In July 2015, Potts was indicted on one count of attempted murder, two counts of felonious assault, two counts of aggravated robbery, and two counts of tampering with evidence. All but one of the counts of tampering with evidence included a firearms specification. The charges stemmed from a shooting that happened the night of December 23, 2014, outside an abandoned residence on Gary Avenue. Potts' friend, Kashaun Sibley, was separately indicted based upon his alleged participation in the crimes. Potts' brother, who was also tied to the crimes, pleaded guilty to two felonies and a misdemeanor, including complicity to commit felonious assault, in exchange for his testimony against Potts and Sibley.

         {¶4} The matters were consolidated for purposes of trial, at which Potts and Sibley were represented by the same attorney. Ultimately, the jury found Potts guilty of all of the charges. Potts filed a motion for a new trial, which was subsequently denied. Thereafter, Potts was sentenced to an aggregate term of 17 years in prison.

         {¶5} Potts has appealed, raising four assignments of error for our review, which will be addressed out of sequence to facilitate our analysis.

         II.

         ASSIGNMENT OF ERROR IV

         THE VERDICTS FOR ATTEMPTED MURDER, AGGRAVATED ROBBERY, FELONIOUS ASSAULT, AND TAMPERING WITH EVIDENCE, AS DEFINED BY THE COURT, IN COUNTS ONE, TWO, THREE, FOUR, FIVE, AND SIX WERE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.

         {¶6} Potts argues in his fourth assignment of error that the verdicts for attempted murder, felonious assault, aggravated robbery, and tampering with evidence are against the manifest weight of the evidence. Potts essentially argues that the State's witnesses were not credible and the weight of the evidence does not support that Potts committed the offenses.

In determining whether a criminal conviction is against the manifest weight of the evidence, an appellate court must review the entire record, weigh the evidence and all reasonable inferences, consider the credibility of witnesses 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. Otten, 33 Ohio App.3d 339, 340 (9th Dist.1986). "When a court of appeals reverses a judgment of a trial court on the basis that the verdict is against the weight of the evidence, the appellate court sits as a 'thirteenth juror' and disagrees with the fact[-]finder's resolution of the conflicting testimony." State v. Thompkins, 78 Ohio St.3d 380, 387 (1997), quoting Tibbs v. Florida, 457 U.S. 31, 42 (1982). An appellate court should exercise the power to reverse a judgment as against the manifest weight of the evidence only in exceptional cases. Otten at 340.

         {¶7} Potts' brother, who was sometimes known as "Rome, " first met the victim sometime late in 2014. Potts' brother was walking to McDonald's and the victim, who was driving, noticed Potts' brother and thought he knew him. The victim pulled up near Potts' brother and began talking to him. The victim realized he did not know Potts' brother but the two started talking about marijuana, as the victim was looking for a supplier. Potts' brother told the victim that he could help the victim with that. The two exchanged phone numbers at that time. However, Potts' brother had to put the information in Potts' phone as Potts' brother was using Potts' phone because Potts' brother did not have a phone. Potts' brother testified that, at one point, the victim sent Potts' brother text messages that Potts' brother interpreted as being of a sexual nature and that evidenced that the victim was gay. Potts' brother did not respond to those texts.

         {¶8} On December 23, 2014, Potts' brother went over to Potts' house and asked Potts to get him a bottle of liquor. Potts informed his brother that the victim had texted Potts and was "trying to hook up or whatever[.]" Potts, Potts' brother, and Sibley, whom Potts' brother knew as Tushay, went to JR Foods. Potts parked the truck on a nearby street and told his brother that they were going to rob the victim because Potts had heard the victim had some money. Potts pulled a gun out of the side of the middle console and put it in his pants. Potts' brother told Potts that he was not going to do it, but Potts told him that he had to because the victim knew Potts' brother. The three walked down Gary Avenue to an abandoned residence that was part of a duplex. Potts' brother told police that he also noticed that Sibley had a gun. Potts texted the victim and told him where to go. Then the three waited on the back porch of the residence.

         {¶9} The resident from the other half of the duplex came home that evening to find three people wearing black hoodies sitting on the porch in the backyard. He did not know who they were. He said hello to them and they said they were waiting on their friend. The resident then went inside. A couple minutes later he heard four or five gunshots and heard someone screaming that he had been shot. The resident then saw a man fall in the resident's front yard. The resident called 911 but did not go outside. He did, however, observe a car pull up, and saw a large black man get out, check on the victim, and then leave.

         {¶10} Matthew Day was driving down Gary Avenue going to visit someone who lived across the street from the crime scene. When he pulled up to the scene, he saw three or four men standing in the front yard talking. Day then saw flashes and heard gunshots and the three or four men took off running towards Homewood. Day then noticed the victim and proceeded to provide aid and called for an ambulance. Once Day could hear the ambulance getting close, Day left.

         {¶11} Potts' brother described the events that took place once the victim arrived. Potts' brother was waiting for the victim on the sidewalk and walked with him down the driveway. Sibley was waiting on the back porch and Potts was waiting on the side of the house next door. When they got halfway down the driveway, both Potts and Sibley ran at the victim and someone said "give it up." Potts' brother then heard gunshots and ran. Potts' brother told police that both Potts and Sibley were pointing guns at the victim. Pott's brother saw the victim fall and heard him screaming. Potts and his brother ran towards Homewood and Potts tossed the gun a couple houses down. The two went to Mario Escobar's and Corinna Magrum's house.

         {¶12} Michael Casella was sitting on his friend's porch on the night of the shooting when he heard at least two gunshots and ran towards Gary Avenue. There he saw three men running. The men paused near Michal McCoy's house and then shortly thereafter two of the men kept going straight and one turned off towards the right. The next day, Michael McCoy found a pistol outside his house and sold it for money and drugs. Law enforcement officers contacted Michel McCoy about the weapon but were unable to recover it.

         {¶13} Magrum testified that she and her boyfriend, Escobar, were drug addicts at the time of the events at issue, but both Magrum and Escobar denied being high at the time Potts and his brother arrived at their house. Both had prior criminal records. They both knew Potts and Sibley, as Potts and Sibley sold drugs to them. According to Magrum, that night, Potts came running into the house and kept saying that he needed to get up to the bathroom to get his clothes off and he asked for chemicals like bleach to use to clean himself. Both Potts and his brother began scrubbing themselves with bleach and gave their clothes to Magrum. Magrum washed both of their clothes. Potts' brother told the police that, while they were there, he overhead Potts say, "Did you see me shoot him[?]" Magrum remembered hearing "them saying they had to get gun residue off their hands, they shot at somebody or shot a gun." Magrum testified that while Sibley did come to the house, he stayed outside, and Potts and his brother later left with Sibley. Escobar testified that Sibley did come in the house but did not arrive with Potts and Potts' brother and instead came ...


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