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State v. Mallory

Court of Appeals of Ohio, Eighth District, Cuyahoga

May 10, 2018


          Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-15-602117-A

          ATTORNEY FOR APPELLANT Susan J. Moran

          ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga County Prosecutor Kerry A. Sowul Assistant County Prosecutor

          BEFORE: Stewart, P.J., Boyle, J., and Celebrezze, J.



         {¶1} Defendant-appellant Delvonta Mallory appeals from a judgment of conviction, entered after a trial to the court, finding him guilty of felonious assault, improperly discharging a firearm into a habitation, aggravated menacing, having a weapon while under disability, vandalism, and theft. The state charged that Mallory, after being accused of taking the victim's car keys, threatened the victim and later fired shots into the victim's house. On appeal, Mallory complains that the court, having barred an identification of the defendant made by the victim as a discovery sanction, improperly allowed a police officer to detail the substance of the victim's identification; that the state engaged in misconduct by eliciting hearsay from the police officer and otherwise misstated the evidence in its closing argument; and that the court's judgment of conviction was not supported by sufficient evidence or by the weight of the evidence.

         I. Sufficiency of the Evidence

         {¶2} We first address Mallory's claim that there was insufficient evidence to prove that the state established his identity as the person who shot into the victim's house. He also argues that the state failed to show that he made any specific threat sufficient to prove aggravated menacing, that there was insufficient evidence of the cost of any damage to the house sufficient to prove vandalism, and that there was no physical evidence that he took the victim's car keys.

         {¶3} The evidence shows that Mallory, whom the victim knew casually, went to the victim's house to borrow movies. While there, Mallory received permission to take a slice of the victim's pizza. Not long after Mallory left, the victim realized that both his car keys and his car were missing. A few hours later, the victim found his car parked two blocks away. Later that evening, the victim and a friend were on their way to a store when they saw Mallory in the parking lot of the victim's housing complex. At that point, it dawned on the victim that his car keys, which had been placed on a chair near the pizza box, disappeared after Mallory had asked for a slice of pizza. The victim confronted Mallory, saying that he heard car keys jingling in Mallory's pants. Mallory said that the keys belonged to his sister. The victim had a friend with him, and the friend started choking Mallory. Mallory threw the victim's keys into some leaves. The victim returned to his apartment to watch television and later heard gunshots from outside the house. The victim saw a person wearing a "hoodie sweatshirt" similar to that worn by Mallory running down the street. The police found several bullet holes inside the victim's house.

         {¶4} Three of the counts for which Mallory was found guilty were related to the shooting: improperly discharging a firearm into a habitation; felonious assault; and having a weapon while under disability. Mallory argues that none of those counts were supported by sufficient evidence because the victim failed to identify Mallory.

         {¶5} When reviewing the legal sufficiency of the evidence, we view the facts and inferences most favorable to the state to determine whether any reasonable trier of fact could have found the essential elements of an offense proven beyond a reasonable doubt. State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus.

         {¶6} The victim testified that when he first confronted Mallory about stealing his car keys, Mallory was wearing "a hoodie sweatshirt" and "brown slippers." When asked if he recognized any of the people who ran from his apartment after the shooting, the victim testified, "I thought I did because of [sic] he had a hoodie sweatshirt on and the incident had just happened so I didn't never see his face." The victim said that "[b]uild, looked like it could have been him, but I can't say that it was him exactly because I didn't see his face." But when asked if the person he saw running from the apartment was wearing the same outfit as earlier, the victim replied, "[a]s far as the hoodie sweatshirt, yes." On redirect examination, the state asked the victim if he recognized the hoodie:

A. Yeah. Well, I didn't recognize it, but I know he wore - I can't lie and say that was 100 percent knew that it was him. I was still like - because what happened and I had been drinking at that point. I was talking about seeing the hoodie and I seen him running. I just put it together and assumed it was him.

         {¶7} "The general rule is that to warrant conviction the evidence must establish beyond a reasonable doubt the identity of the accused as the person who committed the crime." State v. Scott,3 Ohio App.2d 239, 244, 210 N.E.2d 289 (11th Dist.1965). Although the victim candidly testified that he did not see the face of the person he saw running from his house after shots were fired, "[t]here is no requirement that a victim state she is making an identification with 100 percent certainty." State v. Gallagher, 6th Dist. Lucas No. L-15-1102, 2016-Ohio-8524, ¶ 9. Even where an eyewitness does not see the perpetrator's face, identification can be based on circumstantial evidence of peculiarities such as clothing. See, e.g., In re A.W., 8th Dist. Cuyahoga No. 103269, 2016-Ohio-7297, ¶ 31; State v. Merriweather,2017-Ohio-421, 84 N.E.3d 72, ΒΆ 30 (12th Dist.). For identification purposes, whether the clothing is ...

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