FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF
LORAIN, OHIO CASE No. 15CR091956
J. DARLING, Attorney at Law, for Appellant.
P. WILL, Prosecuting Attorney, and ELIZABETH LINDBERG,
Assistant Prosecuting Attorney, for Appellee.
DECISION AND JOURNAL ENTRY
J. CARR, Judge.
Defendant-Appellant Nichalos Potts appeals from his
convictions in the Lorain County Court of Common Pleas. This
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.
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.
Potts has appealed, raising four assignments of error for our
review, which will be addressed out of sequence to facilitate
OF ERROR IV
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.
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.
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.
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.
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
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.
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.
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.
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 ...