Court of Appeals of Ohio, Eighth District, Cuyahoga
Criminal Appeal from the Cuyahoga County Court of Common
Pleas Case No. CR-16-609261-A
ATTORNEY FOR APPELLANT Joseph V. Pagano P.O.
ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga
County Prosecutor By: Maxwell Martin Assistant County
Prosecutor Justice Center.
BEFORE: Blackmon, J., E.A. Gallagher, A.J., and Kilbane, J.
JOURNAL ENTRY AND OPINION
PATRICIA ANN BLACKMON, JUDGE.
Neeko Gordon ("Gordon") appeals from his
convictions for multiple offenses associated with the murder
of Ricardo Nieves ("Nieves"). As Gordon states in
his appellate brief, "There is no dispute that Ricardo
Nieves died on August 25, 201 from a gunshot wound to the
head. The issue in this case is who did it." Gordon
assigns the following errors for our review:
I. Appellant's convictions were not supported by
sufficient evidence and the trial court erred by denying his
motion for acquittal.
II. The convictions were against the manifest weight of the
III. The trial court erred by admitting a jail call that was
not properly authenticated and violated Evid.R. 401, 402 and
403 and deprived appellant of his constitutional rights to
due process and a fair trial.
IV. The trial court erred by admitting a Facebook photograph
that was not properly authenticated and violated Evid.R. 401,
402 and 403 and deprived appellant of his constitutional
rights to due process and a fair trial.
V. The trial court erred by giving a flight instruction over
appellant's objection and that was not supported by the
VI. The trial court erred and violated appellant's due
process right to a fair trial by allowing Joe Butler to
testify, over the defense's objection, that appellant
carries a revolver and had been seen with it days before the
Having reviewed the record and pertinent law, we affirm the
decision of the trial court. The apposite facts follow.
On August 25, 2016, Robert Holsey ("Holsey") agreed
to purchase marijuana from Gordon. Holsey and Gordon knew
each other from playing basketball at Trent Park. Nieves
drove Holsey to the marijuana-purchase- meeting place on W.
38th Street in Cleveland. As Nieves and Holsey drove toward
the meeting place, they saw Gordon, became suspicious, and
started to drive away. Through the side mirror of the car,
Holsey saw Gordon raise his arm with an object in his hand,
then Holsey heard shots fired. Gordon ran away. Holsey
realized Nieves had been shot. Holsey, who was in the
passenger seat of the vehicle, ducked to avoid further
gunfire and pressed the gas pedal with his hand. Holsey
stopped the car at the next intersection, put Nieves in the
back seat, and drove toward MetroHealth. Holsey got into an
accident near the hospital, and called 911.
When the police arrived, Holsey told them that Nieves was
shot by a man named "Neeko" who stays at a house on
W. 41st Street. The police went to this house and found
Gordon there. Holsey identified Gordon as the person who shot
Nieves. Nieves later died from a gunshot wound to the neck
On September 2, 2016, a grand jury indicted Gordon for
aggravated murder, murder, attempted murder, three counts of
felonious assault, discharging a firearm in a prohibited
area, tampering with evidence, and having a weapon while
under disability. On June 20, 2017, a jury acquitted Gordon
of the aggravated murder and attempted murder charges and
convicted him of all other counts. On June 29, 2017, the
court sentenced Gordon to an aggregate prison term of 28
years to life. It is from these convictions that Gordon
Holsey testified that he and Nieves ran into Gordon at a
convenient store on Fulton Road on August 25, 2016. Holsey
knew Gordon because they had played basketball together in
the neighborhood. Video surveillance footage from the
convenient store was introduced into evidence. It showed
Holsey, Nieves, and Gordon in the store and in the parking
lot on the day in question. Gordon was wearing an orange
shirt in the video, and he had a dark-colored shirt or towel
slung over his shoulder.
Holsey arranged to buy marijuana from Gordon. Gordon said the
marijuana was "stashed, " and they were to meet
nearby on W. 38th Street. Nieves drove his white Toyota
Corolla, with Holsey in the passenger seat, to the meeting
place. As they were driving north on W. 38th Street toward
Robert Avenue, they saw Gordon waving at them.
According to Holsey, "something odd came about."
As we was coming closer, he kept going back toward the fence.
* * * That's cool. But what didn't make sense is what
the neighbors - he's an African American man and * * *
there's Caucasian white people right there and
they're just staring at him. And he's waving us
towards the gate. That didn't make no sense. That was
hot. As I mean hot that was too - that was too noisy
policewise. The neighbors look like why is he there? That
didn't make sense to us. So as we drove off, Neeko Gordon
was come here, right here. I got it right here. It didn't
make no sense at all.
As soon as we went * * * he fired two, three shots as he was
running towards the car.
What I could see was him waving us towards the - trying to
get us to exit the vehicle towards the car. We said no. There
was people out there that was staring at him out the window
like why is he right there and there was another guy on his
porch looking him [sic] weird. We wasn't going to get out
of the [sic] and do a drug deal and somebody call the police
It was pure daylight. He was the only African American man by
that fence and by that area and the rest were just two white
guys and somebody staring out the window.
Asked what Gordon was wearing that day, Holsey replied,
"Neeko Gordon was wearing an orange shirt. He had on
like something on top of his shirt like he was holding like a
towel because it was hot or a T-shirt because it was real
hot." Holsey further testified that Gordon was wearing
"black or bluish" sweatpants. Holsey testified
that, from his "vantage point, " he did not see
Gordon with a gun. Asked how he knew that Gordon fired the
shot, Holsey testified as follows:
Because as I heard the first gunshot I looked back instantly
and I could see through that side window right him going like
this, his arm extended like this, orange T-shirt something
still above his thing but there definitely was an object in
his hand there should be no reason his arm was up pointed
towards as soon as I looked through that side window right
there and after the last shot I could see him run down.
He ran towards the main street. He seemed like he was just
running. I'm sorry. It was a quick glance. It was fast
because I wanted to duck from the bullet. But as soon as I
looked through that side window was Neeko that guy right
there with his arm up pointed forward just like that.
And I grabbed [Nieves] and I grabbed his head down so he
wouldn't get hit but he was already dead. It was him. It
was him. It was him.
Holsey testified that after he heard the first gunshot and
noticed that Nieves was dead, he grabbed Nieves and
"went down. I hit the gas pedal with my hand while
grabbing [Nieves] and I'm steering and I just flew down
the street. * * * I know I had to hit two or three cars but
that's what I had to do. It was gunshots going."
Holsey made it to the next street and "threw"
Nieves in the back seat of the car. Holsey drove toward
MetroHealth, but he rear-ended another car at the corner of
W. 25th and Meyer Avenue. Holsey called 911. Holsey testified
that Nieves was bleeding "uncontrollably" and
ultimately Nieves was taken by ambulance to the hospital.
Holsey told the police that he knew where the person who shot
Nieves was. "I know what house he at." Holsey
testified that when he played basketball with Gordon, Gordon
was "always in front of that house on 41st." Holsey
told the police the shooter's name was "Neeko"
and described his appearance, including "a tattoo that
says 'Heaven' right here on his chest." The
police drove Holsey to the house he identified at 3252 W.
41st Street. Gordon was there and the police brought him
outside. Gordon had changed his pants and had no shirt on,
but Holsey identified him as the person who shot Nieves.
On cross-examination, Holsey testified that he saw Gordon in
the driver's side-view mirror "running towards the
car with his arm extended, " although Holsey did not see
Gordon with a gun. Defense counsel asked Holsey the
Q: Well, what did Neeko have in his hand every minute of this
video that you just watched? What did he have in his hand the
whole time he talked to you by that car? What did he have in
A: A phone.
Cleveland police patrol officer Noel "Bo" Hernandez
testified that on August 25, 2016, he responded to an
emergency call of "a male shot * * * in the area of W.
38th and Clark." Officer Hernandez was rerouted to W.
25th Street and Meyer Avenue, where the shooting victim and
the driver were involved in a motor vehicle accident. When
officer Hernandez arrived at the scene, he saw a white car
and Holsey "outside screaming for help. Screaming for my
help and screaming for police help and yelling at us that his
brother has been shot." According to Officer Hernandez,
Holsey was "hysterical."
Holsey indicated that he knew who the shooter was, and he
believed he knew where the shooter went - to a house on
"41st and Storer." Officer Hernandez called his
Lieutenant and got permission to bring Holsey to the house in
question. Police officers knocked, and three black males
opened the front door. All three males were shirtless. All
three denied being in the area of the shooting. The police
told the men they were "investigating a shooting that
happened not too long ago." One officer also stated,
"and this might be related to a possible homicide."
Gordon responded, "So he died?"
The officers took Gordon outside for a cold stand. Officer
Hernandez "heard [Holsey] scream that's him.
That's the shooter. That's the guy who killed
[Nieves]." The police arrested Gordon at this time.
Cleveland police detective Walter Emerick testified that he
works for the crime scene investigation unit, and he
performed a gunshot residue test on Gordon's hands while
Gordon was outside on W. 41st Street, just over two hours
after the shooting took place. Detective Emerick also
recovered an "[o]range T-shirt out of the hamper within
one of the bedrooms, " a black cell phone, and ".22
live rimfired rounds, " which are unfired bullets. On
cross-examination, Det. Emerick testified that he did not
"bag" Gordon's hands nor were Gordon's
hands bagged at anytime that he was aware of.
Cleveland police homicide Det. David Borden testified that he
responded "to the intersection of W. 38th and Robert
[Avenue] and we started to canvass the area for witnesses and
other evidence that might be useful in this homicide
investigation." Det. Borden spoke with Anthony Sobczyk,
who lives one or two houses from where the shots were fired.
Sobczyk gave the following description of the suspect:
"black male, five-ten, five-eleven, medium build,
wearing a red shirt and blue jeans and short hair."
According to Det. Borden, Sobczyk informed him that the
suspect used a revolver in the shooting and fired two shots.
Det. Borden testified that the police did not find any shell
casings on the scene. According to Det. Borden,
"[r]evolvers do not eject casings"
Det. Borden testified that he interviewed Farmer Baker, who
lives on the corner of W. 38th and Robert Avenue and saw
"an individual running west on Roberts" wearing a
Scientist Lisa Przepyszny
Lisa Przepyszny testified that she is a forensic scientist in
the trace evidence department of the Cuyahoga County Medical
Examiner's Office. Przepyszny analyzed the gunshot
residue test taken from Gordon's hands on August 25,
2016. She found "particles that were characteristic of *
* * gunshot primer residue and that would indicate that
either the individual fired a gun, was in close proximity to
a fired gun, or handled an object that had gunshot residue on
Medical Examiner Dr. Todd Barr
Dr. Todd Barr testified that he is a forensic pathologist who
is serving as a deputy medical examiner in the Cuyahoga
County Medical Examiner's Office. Dr. Barr performed
Nieves's autopsy on August 26, 2016, and concluded that
Nieves died from "a gunshot wound to the head and
neck." In Dr. Barr's opinion, Nieves' wound
"is most consistent with a distant gunshot wound [of]
[g]reater than four feet." According to Dr. Barr,
"the path of the projectile, it entered in the * * *
left side in the back of the neck, back of the head, and
basically went through the skin soft tissue muscles. * * *
And then it travels through and fractures one of his neck
bones, one of his vertebrae. * * * And then it comes out
through the back of his mouth * * *." Dr. Barr
determined that the manner of death was homicide.
Anthony Sobczyk testified that he lives at 3278 W. 38th
Street in Cleveland, and on August 25, 2016, at about 4:30
p.m., he witnessed a shooting on his street. He was getting
pizzas out of the passenger side of his car, which was parked
on the street, when he saw a "[b]lack male, about 18,
short, short hair, medium build" walking
"suspiciously" down the street. Sobczyk testified
that the person was wearing "I believe jeans and I think
a bright shirt." According to Sobczyk, this person was
suspicious because "in a matter of seconds he
disappeared. * * * He crouched behind the fence."
Sobczyk's testimony continued: "Then I seen a white
car coming down the street slowly. It wasn't racing or
nothing. Stopped at the stop sign. Next thing I know the guy
jumped up, went in the street, fired the shot, car took off,
he took off, that was it." Sobczyk testified that he did
not see anybody else on the street, and he only heard one
shot. According to Sobczyk, the man was about 15 feet from
the car when he fired the shot.
Cleveland police officer Jonathan Holub testified that he is
Officer Hernandez's partner, and he was driving their
zone car on August 25, 2016, when they responded to the
shooting in question. The officers first went to W. 38th and
Clark, near where the shooting occurred, then went to W. 25th
and Meyer, where Holsey and Nieves got into the car accident.
Next, Officer Holub drove Officer Hernandez and Holsey, who
was in the backseat, to "the area of W. 41st [and] the
house where the suspect was."
After Gordon's arrest, Gordon is captured on Officer
Holub's body camera talking to a relative through the
police car window. This family member came outside from the
house where the police found Gordon. After reviewing the
video from his body camera, Officer Holub testified that
Gordon said, "it's not enough. [T]hey don't got
shit on me." Officer Holub further testified that Gordon
"said he was alone" at the time of the incident.
Letha Sanchez testified that she was sitting on the front
porch of a home located at W. 38th Street and Robert Avenue
on August 25, 2016, when she heard gunshots. Sanchez hurried
off the porch and saw "somebody go by with a red shirt
and black pants on. And it looks like he was putting a gun in
his pocket as he was running. * * * I just hurried up and * *
* got in my car and left." Sanchez testified that she
"was in a panic" and her observation "was real
brief." Sanchez recalled that the person was "a
black male, " but other than his clothing, she could not
identify him. Sanchez did not recall seeing anybody else.
Cleveland police Det. Thomas Lynch testified that he
interviewed Gordon, who had been taken into custody at 3252
W. 41st Street. Gordon was in the back seat of a zone car and
agreed to speak with Det. Lynch about "what was going on
that day." Det. Lynch testified that Gordon said he was
at his girlfriend's house, then he took the bus to W.
25th Street and Clark, "then made his way to the
convenience store on Fulton, Fulton Beverage * * *."
Gordon ran into Holsey, who "he knew from the
neighborhood, I believe he said it was from playing
basketball * * *." Gordon told Det. Lynch that he was
wearing a white T-shirt when he saw Holsey. Gordon said he
took the white T-shirt off at his aunt's house on W. 41st
Street, "before the police arrived." Det. Lynch
asked Gordon if he had a cell phone, and Gordon told him that
he did not, because he smashed it after a fight with his
girlfriend and threw it in a dumpster.
Det. Lynch testified that the police obtained permission from
the owner of the house on W. 41st Street to "take a look
around" for a gun. The police recovered Gordon's
cell phone and "some bullets" from the owner of the
house's bedroom. Additionally, they "recovered an
orange shirt with a stain on the front of it" from a
Det. Lynch interviewed Gordon again at the police station the
next day. Gordon now told police that he had two cell phones,
the one he smashed and the one found in the house on W. 41st
Street. Additionally, when the police told Gordon that
surveillance video from the day of the shooting showed him
wearing an orange shirt - and not a white one, which is what
he previously told the police - Gordon admitted that he had
been wearing an orange shirt the day before. Gordon then gave
the police "three basic stories as to what had
[T]he first time we asked him about what had happened he said
that he was walking on West 38th Street when the car that he
had talked to at the convenient store drove by him and he
told us as the car drove by him, someone from behind him had
shot at the car. * * *
The second story that he told was that as he got to the
corner after leaving the store and walking across the street
as he was at the corner, the car passed by him and he saw the
male that he had talked to at the store like had his hand in
the air like he was saying what's up and he - so he
responded like what's up like this, raising his hand up
in the air.
But he could not explain how Ricardo Nieves got shot.
And then the third way he explained what had happened -
basically about three-quarters of the way into the interview
he's like I'm going to tell you the truth.
And he * * * stated that as he was walking down West 38th
Street the vehicle that he had encountered and spoke with
Robert Holsey in at the convenience store came down the
street and as this vehicle approached him, Robert Holsey was
holding his hand in the air like he had a gun and that Neeko
held his hand up in the air * * * like to scare him like he
had a gun pointed in his direction and then Neeko heard a