Court of Appeals of Ohio, Eighth District, Cuyahoga
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.
JOURNAL ENTRY AND OPINION
J. STEWART, PRESIDING JUDGE.
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.
Sufficiency of the Evidence
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.
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
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.
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.
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.
"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, ¶ 30
(12th Dist.). For identification purposes, whether the
clothing is ...