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State v. Tucker

Court of Appeals of Ohio, Second District, Montgomery

July 20, 2018

STATE OF OHIO Plaintiff-Appellee
v.
ISAIAH M. TUCKER Defendant-Appellant

          Criminal Appeal from Common Pleas Court Trial Court No. 2016-CR-3714

          MATHIAS H. HECK, JR., by MICHAEL SCARPELLI, Assistant Prosecuting Attorney, Montgomery County Prosecutor's Office, Appellate Division, Attorney for Plaintiff-Appellee.

          HILARY LERMAN, Attorney for Defendant-Appellant.

          OPINION

          DONOVAN, J.

         {¶ 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 ...


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