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State v. Gordon

Court of Appeals of Ohio, Eighth District, Cuyahoga

April 26, 2018

STATE OF OHIO PLAINTIFF-APPELLEE
v.
DEANDRE GORDON DEFENDANT-APPELLANT

          Criminal Appeal from the Cuyahoga County Court of Common Pleas Case Nos. CR-15-594287-A and CR-15-596591-A

          ATTORNEY FOR APPELLANT David L. Doughten David L. Doughten Co. L.P.A.

          ATTORNEYS FOR APPELLEE Timothy J. McGinty Cuyahoga County Prosecutor Eleina Thomas Assistant County Prosecutor

          BEFORE: Kilbane, P.J., McCormack, J., and Blackmon, J.

          JOURNAL ENTRY AND OPINION

          MARY EILEEN KILBANE, P.J.

         {¶1} This cause is before us on remand from the Ohio Supreme Court's recent decision in State v. Gordon, Slip Opinion No. 2018-Ohio-259 ("Gordon II "), for further review of our decision released August 18, 2016.[1]

         {¶2} In Gordon I, defendant-appellant, Deandre Gordon ("Gordon"), sought review of his convictions and sentence for aggravated robbery, kidnapping, and felonious assault following a joint trial in Cuyahoga C.P. Nos. CR-15-594287-A and CR-15-596591-A. We reversed and remanded the matter for a retrial, finding that the trial court committed plain error by joining Gordon's two cases for trial because it prevented him from retaining counsel of choice. Id. at ¶ 23.

         {¶3} The state of Ohio ("State") appealed our decision in Gordon I to the Ohio Supreme Court. The Ohio Supreme Court accepted the appeal and reviewed whether the trial court's decision to join the two indictments at trial was prejudicial to Gordon. Gordon II at ¶ 1. The court found that there was no plain error in joining the two cases. Id. at ¶ 30. Subsequently, the court reversed our decision and remanded the matter for us to consider Gordon's remaining assignments of error, which are as follows:

Assignment of Error Two
The trial court erred by permitting witnesses to provide prejudicially irrelevant testimony which allowed the jury to base its verdict on matters other than evidence of the actual offense charged.
Assignment of Error Three
The trial court erred by failing to find the convicted offenses to be allied pursuant to R.C. 2941.25(B).
Assignment of Error Four
The convictions are against the weight of the evidence.
Assignment of Error Five
Defense counsel's failure to object to an improper joinder and to the admission of prejudicially irrelevant testimony deprived the defendant of his right to effective assistance of counsel.

         {¶4} Prior to our discussion of Gordon's assigned errors, we set forth the background of this appeal as stated in Gordon I.

On Friday, January 9, 2015, [the victim, Tevaughn Darling ("Darling") testified that] on Friday, January 9, 2015, he celebrated his 36th birthday with Gordon, his girlfriend, Terri Buckner ("Buckner"), and other friends.[2] Darling has known Gordon since 2002 and thinks of him as his nephew. Upon returning home, Darling noticed that his car had been ransacked and his windows were broken, which was common in his neighborhood.
Darling invited Gordon to stay over his house. Gordon stayed the remainder of the weekend through Monday afternoon. On Sunday, the two of them made a $1, 500 bet on a football game. Darling won the $1, 500. Gordon did not have the money to pay Darling. He told Darling that he needed money. Darling testified that Gordon did not have any money while they were celebrating his birthday. Darling paid for his birthday celebration in cash. Darling works in cash businesses, rehabbing houses, junking cars, and scrapping. On some days, he would make $2, 500 a day scrapping cars.
On Monday, January 12, 2015, Buckner took Darling's car to get it repaired. After Buckner left, only Darling and Gordon were in the house. At approximately 5:00 p.m., Gordon asked Darling what he was going to do for him. Darling said he would give Gordon some money. His plan was to give Gordon $1, 000 from the bet and keep $500. Gordon then went into the bathroom and came out wearing a hood and carrying a .45 caliber gun. Darling testified that this did not concern him because Gordon always had a .45 caliber gun on him. Gordon told Darling to "give me everything you got." At first, Darling thought Gordon was joking. Gordon then shot Darling in the foot and dragged him from the kitchen into a back bedroom. Gordon took $5, 000 out of Darling's dresser drawer and approximately $2, 300 out of Darling's pocket. Gordon threatened to kill Darling if he told anyone about the incident. Gordon then stole Darling's rental car, which the police located 0.7 miles from Darling's house.
Darling then called Buckner to take him to the hospital. When speaking with police officers at the hospital, Darling told them that he was carjacked. The police investigated and found no evidence of a carjacking or a shooting. Darling testified that initially he lied to the police because he did not want to get Gordon in trouble and deal with the consequences of snitching on Gordon, who is a member of the "Loyal Always" gang.
Darling testified that he changed his mind and decided to tell the police that Gordon shot him and took his money and the rental car. Darling made a statement, which was recorded, to Detective Glenn Daniels ("Detective Daniels") of the Bedford Heights Police Department. When Detective Daniels asked Darling where they could locate Gordon, Darling responded, "[h]e runs with the gang Loyal Always."
Darling further testified that a video of his recorded statement to the police was posted on Instagram on or about May 21, 2015. The video was edited to make it appear as though he was telling the police information about the Loyal Always gang when he was not. Darling received numerous threats as a result of this video being posted on Instagram. Darling told the prosecutor and the Bedford Heights Police Department about this video. After meeting with the prosecutor, Darling observed Gordon in his car in the parking lot. Gordon rolled down his window and yelled to Darling, "Mr. Officer, Mr. Officer." Darling ...

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