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State v. Williams

Court of Appeals of Ohio, Second District, Montgomery

April 27, 2018

STATE OF OHIO Plaintiff-Appellee
v.
BRYSON WILLIAMS Defendant-Appellant

          Criminal Appeal from Common Pleas Court Trial Court Case No. 16-CR-4051

          MATHIAS H. HECK, JR., by MICHAEL J. SCARPELLI, Atty. Reg. No. 0093662, Attorney for Plaintiff-Appellee

          TRAVIS KANE, Atty. Reg. No. 0088191, Attorney for Defendant-Appellant.

          OPINION

          HALL, J.

         {¶ 1} Bryson Williams appeals from his conviction and sentence on one count of murder (proximate result of felonious assault) with a firearm specification and one count of discharging a firearm on or near prohibited premises.[1]

         {¶ 2} Williams advances three assignments of error. First, he challenges the weight of the evidence to sustain his convictions. Second, he alleges ineffective assistance of trial counsel. Third, he claims the trial court erred in failing to merge the murder and discharging-a-firearm offenses as allied offenses of similar import.

         {¶ 3} The charges against Williams stemmed from the shooting death Terion Dixon on the afternoon of November 11, 2016. At trial, the State presented evidence that Williams had fired shots across a road toward a store where numerous people were standing outside. One of the shots struck and killed Dixon. The State's evidence included eyewitness testimony, statements Williams made in telephone calls after the shooting, and other corroborating information obtained during a police investigation. In his defense, Williams called a witness who had been outside the store during the shooting and who had identified someone else as the shooter when reviewing a photospread. Williams also called a witness who had been in the vicinity of the shooting but had not seen who fired the shots. Based on the evidence presented, a jury found Williams guilty of the charges against him. After merging several counts as allied offenses, the trial court imposed prison terms of fifteen years to life for murder, three years for the firearm specification, and eight years for discharging a firearm on or near prohibited premises. The trial court ordered these sentences to be served consecutively, resulting in an aggregate prison sentence of twenty-six years to life.

         {¶ 4} In his first assignment of error, Williams contends his convictions are against the manifest weight of the evidence. In support, he challenges eyewitness Samuel Barker's identification of him as the shooter. He notes Barker's admission to drinking alcohol, smoking marijuana, and not eating prior to the incident. Under these circumstances, Williams claims Barker's identification was not reliable. He also notes that eyewitness Colleen Fallas identified someone other than him as the shooter when viewing a photospread. Given that Barker was under the influence and that Fallas picked someone else out of a photospread, Williams asserts that the evidence does not support his convictions.

         {¶ 5} When a conviction is challenged on appeal as being against the weight of the evidence, an appellate court must review the entire record, weigh the evidence and all reasonable inferences, consider witness credibility, 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. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997). A judgment should be reversed as being against the manifest weight of the evidence "only in the exceptional case in which the evidence weighs heavily against the conviction." State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).

         {¶ 6} With the foregoing standards in mind, we conclude that Williams' convictions are not against the weight of the evidence. Although Barker had consumed alcohol, smoked marijuana, and not eaten in the hours before the shooting, the jury reasonably could have found his eyewitness identification of Williams to be reliable. Barker testified that Williams was a friend of his whom he had known for about ten years. (Tr. at 146-147). On the day in question, Barker was walking to meet his girlfriend when he encountered Williams. (Id. at 152-155). Barker approached Williams, and the two men engaged in face-to-face conversation. (Id. at 156-158). Barker and Williams shook hands as the conversation ended. Barker turned to leave, took two or three steps away, and heard gunshots. (Id. at 158-160). He then saw Williams firing a black-handled handgun toward a store across the street. (Id. at 161-162). There were "a lot of people" outside the store, and Williams was the only person firing a gun. (Id. at 162-163). Barker had "[n]o doubt" that Williams was the shooter. (Id. at 166, 202).

         {¶ 7} For her part, Fallas testified that she was outside the store when the shooting occurred. (Tr. at 402). She "hit the ground" and saw two people across the street, one of whom was doing the shooting. (Id. at 402-405, 408). Fallas described the shooter as being "slender" whereas the person with him was "heavyset." (Id. at 403-404, 408). The record reflects that Williams weighed about 150 pounds, whereas Barker weighed around 315 pounds. (Id. at 163, 372). Approximately one month after the shooting, Fallas reviewed a photospread and identified someone other than Williams as the person she had seen shooting. (Id. at 414-415). The record reflects, however, that Williams and the person Fallas identified in the photospread were nearly the same weight and height. (Id. at 416-417). Fallas acknowledged that the two men looked so much alike that they could be brothers. (Id. at 416). Even when seeing Williams in person at trial, she had trouble determining which picture in the photospread was his. (Id. at 415-416). In addition, Fallas was approximately eighty-eight feet away from the shooter, and she was wearing her reading glasses at the time of the incident, not her "regular glasses." (Id. at 375, 417). Fallas conceded at trial that she may have been mistaken in her photo identification. (Id. at 417). A police investigation found no evidence that the person Fallas identified in the photospread had been involved in the shooting. (Id. at 373).

         {¶ 8} The record also contains evidence that Williams made telephone calls after the shooting in which he essentially admitted his guilt. Marcquietta Hunter testified that she was the girlfriend of Terion Dixon, the victim. (Id. at 204). Hunter knew Williams, had gone to school with him, and was able to recognize his voice. (Id. at 207-208). The day after the shooting, she was with a friend of hers, Isaiah Tucker, when Tucker received a telephone call from Williams. Tucker put the call on speakerphone, and Hunter overheard the conversation. Specifically, she heard Williams apologize and say that "[i]t wasn't meant for Terion, " but was "meant for Dae-Dae." (Id. at 208). The next day, Williams called Hunter's phone. After identifying himself, he again apologized and said "[t]hat it wasn't meant for Terion, " but was "meant for Dae-Dae." (Id.). Tucker also testified about the telephone call he received from Williams. According to Tucker, Williams said that he was sorry, that he had hesitated "to squeeze, " and that he had seen Terion Dixon but that did not stop him from "shooting at Dae-Dae." (Id. at 248, 253). During their investigation, police obtained Williams' cell phone and confirmed the existence of outgoing calls from his phone to Tucker's phone at the time claimed. (Id. at 338-344). Police also investigated Williams' claim that he was out of the area at a particular residence in Trotwood at the time of the shooting. (Id. at 357-358). A detective spoke with the individuals Williams claimed to have been with and refuted his claim. (Id. at 360). Finally, police discovered during a post-arrest interview of Williams that Davion Clark, who went by the nickname "Dae-Dae, " had beaten and robbed Williams several weeks before the shooting. (Id. at 360-363).

         {¶ 9} Having reviewed the record, we do not find that the jury clearly lost its way and created a manifest miscarriage of justice when it convicted Williams of murder and discharging a firearm on or near prohibited premises. This is not an exceptional case in which the evidence weighs heavily against his convictions. To the contrary, the evidence strongly points to his guilt. Accordingly, the first assignment of error is overruled.

         {¶ 10} In his second assignment of error, Williams asserts that he received ineffective assistance of counsel at trial. Specifically, he contends his attorney provided ineffective assistance by failing to object when the State asked the trial court to certify two witnesses as experts in the presence of the jury. Williams does not suggest the witnesses-forensic pathologist Susan Allen and forensic firearm examiner Christopher Monturo-are not experts. We note that the record unquestionably supports that they are both eminently qualified in their respective fields. Rather, he contends they should not have been certified as experts in front of the jury because doing so enhanced their stature and gave the appearance of judicial approval of their testimony.

         {¶ 11} Upon review, we find Williams' argument to be unpersuasive. A defendant is deprived of effective assistance of counsel when counsel's performance is deficient and the deficiency prejudices the defendant. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The prejudice prong of ineffective assistance of counsel has been equated by the Ohio Supreme Court to the same deferential standard that is required for finding plain error wherein the proponent must demonstrate "that the trial court's error must have affected the outcome of the trial." State v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, ¶ 22, quoting State v. Barnes, 94 Ohio St.3d 21, 27, 759 N.E.2d 1240 (2002).

         {¶ 12} Williams primarily relies on United States v. Johnson,488 F.3d 690 (6th Cir.2007) and cases cited therein for the argument that it was error for the trial court to recognize Dr. Allen and Chris Montouro to be experts in front of the jury. Therefore, he contends, the failure to object constitutes ineffective assistance of counsel. In Johnson, based on his training and experience Cincinnati police officer Richard Dews was ...


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