Court of Appeals of Ohio, Second District, Montgomery
Criminal Appeal from Common Pleas Court Trial Court No.
MATHIAS H. HECK, JR., by MICHAEL SCARPELLI, Assistant
Prosecuting Attorney, Montgomery County Prosecutor's
Office, Appellate Division, Attorney for Plaintiff-Appellee.
LERMAN, Attorney for Defendant-Appellant.
1} Defendant-appellant, Isaiah M. Tucker, appeals
his conviction and sentence for Count I, felonious assault
(deadly weapon), in violation of R.C. 2903.11 (A)(2), a
felony of the second degree; Count II, improperly discharging
a firearm at or into a habitation, in violation of R.C.
2923.161(A)(1), a felony of the second degree; and Count III,
discharge of a firearm on or near prohibited premises, in
violation of R.C. 2923.162(A)(3) and (C)(2), a felony of the
third degree. Counts I and II were both accompanied by a
five-year firearm specification. Count III was accompanied by
a three-year firearm specification. Tucker filed a timely
notice of appeal on August 16, 2017.
2} On November 11, 2016, Samuel Parker witnessed
Bryson Williams shoot Terion Dixon on Germantown Street in
Dayton, Ohio. Dixon succumbed to his wounds. Although it was
later determined that Parker had no involvement in the
shooting, both he and Williams were seen running away in the
same direction after the crime occurred. Parker testified
that he believed that residents in his neighborhood,
including Isaiah Tucker, were blaming him for Dixon's
death. Tucker and Dixon had been close friends before Dixon
was shot and killed.
3} Parker testified that he was acquainted with
Tucker through an individual named Robert Stargell. Parker
testified that Stargell is his cousin. Parker testified that
Stargell's apartment at the DeSoto Bass housing complex
was known as "the spot." It was a place where
people from the surrounding neighborhood would gather to
socialize, drink alcohol, and smoke tobacco. Parker testified
that he had observed Tucker several times at Stargell's
apartment and was familiar with the sound of his voice.
Parker testified that he had observed Tucker at "the
spot" on the day Dixon was murdered.
4} At approximately 2:30 p.m. on November 25, 2016,
Parker was sitting in a yard across the street from his
residence, which was located at 94 Benning Place in Dayton,
Ohio. Parker testified that he was sitting across the street
so that he could access his neighbor's wireless internet
connection. Next, Parker testified that he heard a motor
vehicle being driven very quickly up Clement Avenue to his
left. As Parker looked on, the vehicle came to a stop at the
intersection of Clement Avenue and Benning Place, and a man
sitting in the rear-passenger seat stated, "There he go,
right there." Parker testified that he identified the
man by his face and voice as the defendant-appellant, Isaiah
Tucker. Tucker was wearing a black hooded sweatshirt with the
hood pulled up. Parker testified that there were three other
individuals in the car.
5} After pointing out Parker, Tucker extended his
arm out of the vehicle with a firearm in his hand and fired
seven to eight shots. Parker testified that he ran around the
side of a nearby building for cover. The driver put the
vehicle in reverse and backed up, apparently so that Tucker
could see Parker. Parker began running away, and Tucker fired
several more shots. Parker ran to the apartment of a neighbor
and tried to enter the front door, but it was locked and no
one answered the door. Parker then ran to a grassy area in
the apartment complex where he tripped and fell when one of
his sandals came off. Parker lay on the ground for a short
time until the shooting stopped.
6} Once he determined that Tucker had left the
vicinity, Parker got up and ran to another neighbor's
apartment, and he called 911. Parker did not identify the
shooter to the 911 operator. At trial, Parker testified that
he failed to do so because he was "in shock" and
only wanted the police to arrive quickly. Parker did inform
the 911 operator that he believed he was attacked in
retaliation for the killing of Terion Dixon by Bryson
Williams. Parker also informed the 911 operator that the
vehicle in which the shooter had ridden was a light blue,
four-door Saturn sedan. At trial, however, Parker testified
that after observing similar vehicles in the days following
the shooting, he realized that the vehicle from which Tucker
shot at him was a light green, four-door Volvo sedan. Thus,
in his written statement to the police, he identified the
suspect vehicle as a light green, four-door Volvo sedan.
7} Officer Cody Hartings of the Dayton Police
Department was dispatched to the scene of the shooting. Upon
arriving, Officer Hartings interviewed Parker, who
immediately identified Tucker as the individual who shot at
him. Also responding to the scene, Officer Ronald
Christoffers testified that he discovered a fired bullet
lying in the road between two cars parked in front of 91
Benning Place. Officer Christoffers testified that he also
observed that one of the screens on a window at 91 Benning
Place had been damaged. No one was home at the time, so
Officer Christoffers left a note for the residents. When the
resident, Tyneia McGill, returned home to 91 Benning Place,
she contacted Officer Christoffers.
8} Upon gaining entry to the residence, Officer
Christoffers found that a bullet had passed through and
shattered a window, damaged the blinds, and passed into the
kitchen where it struck the door of the refrigerator. Upon
further examination, Officer Christoffers observed that the
bullet had lodged itself into the top of the refrigerator.
Officer Christoffers testified that he could not retrieve the
bullet without causing structural damage to the refrigerator.
Since McGill had perishable items in the refrigerator,
Officer Christoffers decided not to retrieve the bullet.
Officer Christoffers testified that, based upon the
trajectory of the bullet, the shot could have been fired from
the intersection of Clement Avenue and Benning Place.
9} In his written statement to police, Parker
identified Tucker as the individual who shot at him on
November 25, 2016. Parker also testified at Tucker's
preliminary hearing and identified Tucker as the shooter. At
trial, Parker testified that he was "one hundred
percent" certain that Tucker was the individual who shot
at him on the day in question.
10} Thereafter, on February 2, 2017, Tucker was
indicted for one count of felonious assault with a deadly
weapon (Count I), one count of improperly discharging a
firearm at or into a habitation (Count II), and one count of
discharge of a firearm on or near prohibited premises (Count
III). As previously stated, each count was accompanied by a
firearm specification. At his ...