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State v. Jenkins

Court of Appeals of Ohio, Eighth District, Cuyahoga

June 21, 2018


          Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-16-610627-A

          ATTORNEY FOR APPELLANT Joseph V. Pagano.

          ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga County Prosecutor BY: Khalilah A. Lawson Assistant County Prosecutor

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


          MARY J. BOYLE, J.

         {¶1} Defendant-appellant, Trevonte Jenkins, appeals his convictions and sentence. He raises the following assignments of error for our review:

1. Appellant was denied a fair trial where an in-court identification was impermissibly suggestive.
2. The trial court abused its discretion by denying Appellant's request for a Telfaire instruction where it was warranted by the evidence.
3. Appellant's convictions were not supported by sufficient evidence and the trial court erred by denying his motion for acquittal.
4. The convictions were against the manifest weight of the evidence.
5. Appellant's sentence was contrary to law where it was clearly and convincingly not supported by the record.
6. The trial court erred by failing to merge all allied offenses of similar import and by imposing separate sentences for allied offenses which violated Appellant's state and federal rights to due process and protections against double jeopardy.
7. Defendant's constitutional rights were violated when Det. Miller improperly commented on his decision to remain silent.

         {¶2} Finding no merit to Jenkins's assignments of error, we affirm.

         Procedural History and Factual Background

         {¶3} A Cuyahoga County Grand Jury indicted Jenkins for two counts of attempted murder in violation of R.C. 2903.02 and 2923.02, two counts of felonious assault in violation R.C. 2903.11(A)(2), two counts of discharging a firearm on or near prohibited premises in violation of R.C. 2923.162(A)(3), two counts of improperly handling firearms in a motor vehicle in violation of R.C. 2923.16(A) and (B), one count of having weapons while under disability in violation of R.C. 2923.13(A)(2), one count of criminal damaging or endangering in violation of RC. 2909.06(A)(1), and one count of domestic violence in violation of R.C. 2919.25(A). Except for the counts for criminal damaging or endangering and domestic violence, all of the counts carried one-, three-, and five-year firearm specifications. Additionally, the counts for attempted murder and felonious assault carried a notice of prior conviction and a repeat violent offender specification.

         {¶4} Jenkins waived his right to a jury trial as to the counts for having weapons while under disability, the notices of prior conviction, and repeat violent offender specifications. Prior to trial, Jenkins filed a motion in limine, requesting the court to prohibit the state's witness, John Eanes, from identifying Jenkins during trial, arguing that the identification would be unreliable and unduly suggestive. After a hearing, the court denied Jenkins's motion. Before Eanes testified at trial, Jenkins renewed his objection on the same grounds, which the court denied.

         {¶5} The following evidence was presented at trial.

         {¶6} On October 7, 2016, the Beautiful Soulz festival, featuring local hip-hop artists, took place at the Phantasy club on Detroit Avenue in Lakewood, Ohio. Phantasy is part of a larger complex containing three separate bars and venues, including the Phantasy, the Symposium, and the Chamber.

         {¶7} Jonathan Bobak went to Phantasy that night after one of the performing artist's promoters hired him to take photographs of the event. Bobak testified that he went outside the complex to smoke a cigarette around 10:00 p.m. that evening. He stated that while outside, he saw Jenkins hit "a Caucasian female, " who he believed to be Jenkins's girlfriend, multiple times on the sidewalk outside of the complex. Bobak testified that a number of men approached and beat up Jenkins for hitting his girlfriend and that he eventually intervened because the men were "really kind of roughing [Jenkins] up a bit" and figured that Jenkins had "learned his lesson." Bobak told Jenkins to go home and saw him walk toward Value World, which was a few hundred feet away from the complex. He testified that people visiting the complex typically park in the Value World parking lot for events.

         {¶8} According to Bobak, after Jenkins left, the woman who Jenkins had hit was a "mess, " crying and slurring her words. He stated that the woman kept saying that she "needed to call [her] dude" and that she appeared to be under the influence "of something." Bobak eventually left to go back inside to the festival, and after working for another hour and a half, decided to leave and walked outside around 12:00 a.m. He testified that as he waited for his ride, he saw the same woman from earlier walking toward Value World and then get into the passenger side of a white vehicle parked in the businesses' parking lot. Bobak could not see who was driving the white vehicle. He stated that the vehicle exited the Value World parking lot, turned left on Detroit, and drove by the complex. He testified that he saw the vehicle's driver's-side window roll down right before gunshots were fired toward the complex and that upon realizing that it was gunfire, people began running into the complex. Bobak suffered a gunshot wound to his right leg during the incident, and he testified that he received treatment for the wound a few hours later.

         {¶9} Bobak also testified that law enforcement visited him later that day to look at a photo array. Bobak identified Jenkins in the photo array as the man involved in the fight with the woman that occurred earlier on the night of October 7 outside of Phantasy. At trial, Bobak stated that although he did not see the shooter, he assumed that Jenkins was the shooter after witnessing the woman get into the vehicle later after saying she needed to contact "her dude."

         {¶10} George Trouche testified that he visited Phantasy on October 7, 2016, to perform at the music festival. He stated that toward the end of the night he was waiting outside for a ride when someone started shooting. He testified that he was standing outside in front of the complex when he heard the gunshots. He ran inside and later realized that he had been shot in the leg. At trial, Trouche admitted that he did not see where the shots were coming from or who the shooter was.

         {¶11} Gregory Cunningham testified that he is the owner of G-Enforcement, a personal security company that staffs security guards for venues and celebrities. He stated that he, along with several of his employees, were at the complex that night, working the venues and the entrances. According to Cunningham, at one point during the evening, he was outside the complex and witnessed a "young man fighting a * * * white young lady." He testified that he saw the man punch the woman "at least" five times before he intervened and that some other men approached the young man and started fighting with him. Cunningham eventually intervened in the fight between the man and the other men, and after he broke up that fight, the man walked toward the Value World parking lot and got into a white four-door vehicle. He stated that after breaking up the fight, the woman, who seemed intoxicated, said that the man was her boyfriend.

         {¶12} Cunningham testified that the woman asked him if she could use his cell phone to call her boyfriend so that he could come back and get her. Cunningham gave her his phone, retrieved it a few minutes later, and then went back inside Phantasy. A few minutes later, a number of people ran inside the complex shouting, "[H]e's out there shooting, the young man that drove away in the white car."

         {¶13} While he was not outside when the shots were fired, Cunningham testified that he spoke to law enforcement when they arrived and viewed a photo lineup later that day. The lineup administration form was presented at trial and shows that one of the six pictures is circled; the one that is circled is not Jenkins. When presented with the form at trial, Cunningham testified that he did not personally circle or initial the page with the pictures of the suspects. He testified that he told the officer that he recognized two men in the lineup, one of whom was Jenkins. He also told the officer that the men he identified were at Phantasy and that Jenkins was the man involved in the fight with the woman.

         {¶14} John Eanes, Jr. testified that he worked as a security guard for G Enforcement, and that he was working Phantasy's front door all night. He testified that during the night, he witnessed a man and woman arguing and fighting a few feet away from Phantasy's entrance. He stated that they were screaming at each other for a few minutes when the man began hitting the woman. Eanes said that a group of men then approached the man and began fighting him and that eventually he and Cunningham intervened. He stated that after the fight was broken up, Jenkins walked toward the Value World parking lot and, a few minutes later, pulled out of the parking lot in a "white Ford Fusion."

         {¶15} Eanes testified that the woman with whom Jenkins was fighting remained outside of Phantasy and seemed to be "high or something." He stated that the woman indicated that she needed a ride to Lorain County and that he radioed Cunningham to assist her. About two hours later, Eanes saw the white vehicle return and pull into the Value World parking lot. He also saw the woman walk toward Value World and testified that a short time later, the white vehicle pulled out and drove toward Phantasy. Eanes stated that as the vehicle approached Phantasy, he saw the vehicle's driver's-side window roll down, saw Jenkins's face, saw the woman in the passenger seat, and saw Jenkins point a gun out of the driver's-side window toward the group of people in front of Phantasy. He stated that there were about 20 people outside of Phantasy at that time and that he told everyone to get inside when the gunfire started.

         {¶16} According to Eanes, he did not speak to the police because he told Cunningham what he witnessed and that Cunningham took the lead and said he would contact Eanes if he needed anything. Eanes testified that he did not speak to police until a few weeks before trial, months after the shooting. When asked why he did not give a statement to the police earlier, Eanes stated that he was not aware that the police had identified and caught the shooter.

         {¶17} At trial, Eanes stated that he got a good look at both the man and the woman and that the lighting in the area outside of Phantasy was good. He testified that he remembered the man who was fighting the woman and identified Jenkins as that man in court.

         {¶18} Sadie Jones testified that she worked as a bartender at Phantasy that night and arrived around 7:00 p.m., parking her 2006 Ford Freestyle right in front of the entrance to the venue. During the shooting, Jones's vehicle was hit multiple times. Jones stated that her vehicle's rear tire was flat as the result of a gunshot, the driver's-side window was "shot out, " her driver's-side door had a bullet hole, and her driver's-side headrest had a bullet hole.

         {¶19} Sarah Super testified that she went to Phantasy on the night of October 7 with Jenkins, who was her boyfriend at the time, but as of the date of trial was her fiancé. She stated that they went to the club around 9:30 p.m. and that Jenkins drove them in a white four-door rental car and that they parked "around the corner from the club[.]" Super stated that she did not know the make or model of the vehicle.

         {¶20} According to Super, she drank a Four Loko on the way to Phantasy and continued drinking at Phantasy and was heavily intoxicated. Because of this, Super explained that she did not recall getting into a verbal or physical altercation with Jenkins that night. When asked about the bruises that officers observed the next day at Super's house, Super testified that it was "probably" from her "drunk stumbling" that night and that she "probably fell down [her] steps[.]" Exhibits submitted by the state during Super's testimony showed bruises and scratches on Super's chin, neck, right eye, left cheek, lower back, arms, and elbow. Super stated that she did not have the bruises before going to Phantasy that night.

         {¶21} Super testified that she did not remember leaving Phantasy and did not know how she got home that night. She blacked out and did not recall hearing any gunfire. Super stated that when she woke up the next morning, Jenkins was with her, and the white rental car they drove to Phantasy the night before was parked outside of her home. When shown a photograph of the rental vehicle, she confirmed that the vehicle's license plate was from Wisconsin and read 876XPZ. When shown another photograph of items found in the vehicle, Super identified one of the items as her wallet, but stated that she could not remember if she had her wallet on her person when she went to Phantasy on October 7.

         {¶22} Officer Daniel Hilfiker testified that he was the officer who administered the photo lineup with Cunningham. He testified that Cunningham wrote on the form and circled the picture. The officer was unclear as to what his instructions were. He stated that after reading Cunningham the instructions, he "showed him the pictures, and [] said if you see anybody you recognize, * * * just circle them, initial and date." Later, however, Officer Hilfiker agreed that the purpose of the photo lineup was to identify the shooter. He also testified that Cunningham only identified one individual, which was not Jenkins, and that he understood Cunningham's identification to be of the shooter.

         {¶23} Officer Ariana Zuk of the Lakewood Police Department testified that she responded to a call of an incident at Phantasy on October 8 and, upon arriving, began identifying evidence at the scene. She testified that she discovered that the suspect shooter had been identified as a "[b]lack male who was with a white female[, who] * * * had left eastbound in a white four-door vehicle[.]" Officer Zuk stated that officers found a keychain with a tag at the scene that "came off of the suspected shooter" and contained the make, model, and year of the vehicle ("2015 HYUN ACNT"), the license plate number ("876XPZ"), and the vehicle's color ("white"). The tag also stated, "Average Key Replacement Cost $225."

         {¶24} Laura Stanton testified that she is a forensic DNA analyst with the Cuyahoga County Medical Examiner's Office. She explained that based on her test of item four, which was a blood swab from the driver's seat of the white rental vehicle (later identified as a Hyundai Accent), Jenkins was the source of the DNA to a reasonable degree of scientific certainty.

         {¶25} Officer Jeffrey Robinson of the Lakewood Police Department testified that he responded to the scene and took photographs of the evidence and that based on the bullet holes in Jones's vehicle, the shots were "coming from a moving object[.]" He admitted on cross-examination, however, that his conclusion was a general assumption based on his observations and was not the result of in-depth calculations concerning the bullet holes' angles.

         {¶26} Sergeant Duane Brown of the Lakewood Police Department testified that he was in the police station that night when he received a request to check the traffic cameras for information related to a drive-by shooting that occurred outside of Phantasy. He said that he received a phone call about shots being fired around 12:46 a.m. He reviewed the footage and witnessed a white four-door sedan driving northbound on West 117th Street toward Phantasy around 12:41 a.m. He stated that another camera captured the same car heading westbound on Detroit Avenue toward Phantasy a minute later. At trial, Sergeant Brown admitted that the cameras did not capture any part of the drive-by shooting.

         {¶27} Detective Terry Miller of the Lakewood Police Department testified that he was assigned to investigate the shooting outside of Phantasy and reviewed the footage collected from the traffic cameras. He identified the suspect vehicle based on the keychain collected from the scene and observed the vehicle on the footage entering the city around 12:41 a.m. When asked about some of the witnesses' statements that the suspect vehicle was a Ford Fusion or Taurus, Detective Miller stated that he did not "put a lot of credence into that" because "[generally, sedans that are all generic looking, anybody in my opinion can be confused[.]" Detective Miller stated that he was able to identify the vehicle's license plate information from a still photograph of the camera footage "[a]fter kind of zooming in and out."[1] Detective Miller stated that he contacted Enterprise Rent-A-Car and learned that the vehicle was a 2015 Hyundai Accent that was rented to Jenkins from an Enterprise location in Elyria.

         {¶28} Based on that information, Detective Miller explained that officers obtained an arrest warrant for Jenkins and a search warrant for the addresses where police believed Jenkins lived, one of which was Super's home in Elyria. According to Detective Miller, during the search of Super's home, as well as the search of the white rental vehicle parked outside of the home, officers located and photographed a ticket stub for the Beautiful Soulz festival on the weekend of October 7-8. Detective Miller stated that officers collected blood from the driver's seat vehicle of the car as well based on the fact that witnesses told officers that the shooter was in a fight earlier in the night and was "possibly bleeding." During the search, officers also collected some items of clothing, including a black T-shirt and a pair of blue jeans, which Super told officers that Jenkins wore to Phantasy on the night of the shooting. Further, when asked why officers did not contact Eanes right away, Detective Miller stated that officers "weren't aware that he existed as far as someone who had actually been a witness to the events."

         {¶29} During trial, Jenkins requested that the court give the jury the instruction concerning eyewitness identification set forth in United States v. Telfaire, 469 F.2d 552 (D.C.Cir.1972), but the court denied his request.

         {¶30} The jury found Jenkins guilty of all counts and the related firearm specifications. The bench found Jenkins guilty of having weapons while under disability and the notice of ...

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