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State v. Lester

Court of Appeals of Ohio, Eighth District, Cuyahoga

August 2, 2018

STATE OF OHIO PLAINTIFF-APPELLEE
v.
HOWARD LESTER DEFENDANT-APPELLANT

          Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-17-613903-A

          ATTORNEYS FOR APPELLANT MARK A. STANTON CUYAHOGA COUNTY PUBLIC DEFENDER JEFFREY GAMSO ASSISTANT PUBLIC DEFENDER

          ATTORNEYS FOR APPELLEE MICHAEL C. O'MALLEY CUYAHOGA COUNTY PROSECUTOR EBEN MCNAIR ASSISTANT COUNTY PROSECUTOR

          BEFORE: KILBANE, P.J., STEWART, J., AND JONES, J.

          JUDGMENT

          MARY EILEEN KILBANE, PRESIDING JUDGE

         {¶1} Defendant-appellant, Howard Lester ("Lester"), appeals his convictions for having a weapon while under disability, criminal damaging, tampering with evidence, carrying a concealed weapon, and improper handling of a firearm in a motor vehicle. For the reasons set forth below, we affirm.

         {¶2} In February 2017, Lester was charged in a 20-count indictment, along with the following three codefendants: his sister, Sonya Cammon ("Cammon"), Robert Shepard ("Shepard"), and Vernell Jordan ("Jordan").[1] Lester was charged in 11 of those counts. The charges against him included four counts of felonious assault (Counts 1-4), two counts of having a weapon while under a disability (Counts 5 and 13), two counts of criminal damaging or endangering with furthermore clauses alleging risk of physical harm (Counts 8 and 9), one count of tampering with evidence (Count 10), one count of carrying a concealed weapon (Count 12), and one count of improper handling of a firearm in a motor vehicle (Count 14).[2] The charges stem from incidents occurring on October 7, 2016 (victims James Jones ("Jones") and Lauren Campbell) and October 24, 2016.

         {¶3} The matter proceeded to a jury trial with all four defendants tried together. The following evidence was adduced at trial.[3]

         {¶4} On October 7, 2016, Jordan, Shepard, and Lester were involved in a shooting at Visions Blu Lounge ("Visions Blu") on Euclid Avenue in Cleveland. Cleveland Police Officer, Demetrius Woods ("Officer Woods") testified that around midnight, he noticed a few men engaged in a loud discussion outside of Visions Blu. At the time, Woods was off duty and was working security for Visions Blu. Woods approached the group of men and they all dispersed except for one individual, Jones. Jones was upset about being robbed on a prior occasion, and the involvement in that robbery by one of the males in the group. Officer Woods recognized one of the males in the group as Lester. Based on what Jones said, Officer Woods believed "something was going to take place" that night, so he wrote down the license plate number of a black SUV used by the group that was parked outside Visions Blu. Woods identified Lester as the driver of the black SUV.

         {¶5} Approximately three hours later, Woods heard gunfire coming from the front of Visions Blu. Woods ran to the front and observed people running. He also observed the same black SUV race away from the scene. Woods testified it was the same SUV because he wrote down the plate earlier that night, it was the only black SUV, and it had noticeable oversized metallic rims. Woods found Jones lying on the ground behind a vehicle in a grassy lot near Visions Blu.

         {¶6} Jones testified that he got into a confrontation with Lester at Visions Blu. He was upset with Lester because Lester was at the scene, on another occasion, when he was robbed by two other individuals. Jones identified codefendants, Shepard and Jordan, as the other males with Lester during his initial confrontation. Jones testified that after the initial confrontation, he left Visions Blu and later returned around 2:00 a.m. At that time, Jones was outside of the establishment waiting for Lester to exit. He wanted to confront him about the robbery. He observed Jordan and Shepard together, and Lester pulled up in his black SUV and exited his vehicle. Jordan then pulled out a gun and started shooting at Jones. Shepard and Lester also had guns. Jones testified that he could not see who else was shooting at him because he "was trying to take cover from the gunshots, so I really didn't see exactly who was shooting. I just know I heard a bunch of shots and then I got shot. I was shot [in both legs], so * * * I couldn't move no more." Gunshots also damaged Jones's car. Jones was taken to the hospital.

         {¶7} Approximately two and a one-half weeks later, on October 24, 2016, Lester drove Jordan to MetroHealth Hospital because Jordan had been shot. Cleveland Police Officer David Price ("Officer Price") and his partner responded to a dispatch call to MetroHealth Hospital to speak with a witness to a shooting at a Cleveland Metropolitan Housing Association property. The witness, later identified as Lester, was asked to sit in Officer Price's zone car until a witness statement could be taken. Lester was told that he was not under arrest and he was not put in handcuffs. Lester was sitting in the rear passenger side seat of the police car when codefendant Cammon approached the window. Officer Price observed Lester hand his phone to Cammon through the open window. Cammon held the phone in her hand for a minute before handing it back to Lester, asking him to unlock it. Lester took the phone back and then returned the phone through the window, but also handed Cammon a black do-rag that was bunched up underneath the phone. After observing this, Officer Price immediately exited his car and stopped Cammon. Officer Price asked Cammon what was under the phone. She then gave the phone and the do-rag to Officer Price. Officer Price unwrapped the do-rag to find a small handgun (state's exhibit No. 14). Cammon was then arrested. While in the back of the zone car, Officer Price and his partner checked and confirmed that Lester had an open warrant. The officers then arrested him at that time.

         {¶8} Kristin Koeth ("Koeth"), a scientific examiner with the City of Cleveland Department of Public Safety - Division of Police, testified that the gun recovered by Officer Price was a Ruger .380 (state's exhibit No. 14). Koeth further testified that the testing performed on the gun revealed that it was operable and operates normally. Koeth testified that she did not personally test the Ruger for its operability. The test results were sent to her by someone else.

         {¶9} At the conclusion of trial, the jury found Lester guilty of Count 9 (criminal damaging or endangering with further finding that Lester created a risk of physical harm), Count 10 (tampering with evidence), Count 12 (carrying a concealed weapon) and Count 14 (improper handling of a firearm in a motor vehicle). The trial court found Lester guilty of both Counts 5 and 13 (having a weapon while under disability). The jury found Lester not guilty on Counts 1-4 (felonious assault).[4] The trial court sentenced Lester to a total of six years in prison.

         {¶10} Lester now appeals, raising the following six assignments of error for review, which shall be discussed together where appropriate:

         Assignment of Error One

The evidence is insufficient to support the guilty verdicts on Counts 5 and 9.

         Assignment of Error Two

The guilty verdicts on Counts 5 and 9 are not supported by the manifest weight of the evidence.

         Assignment of Error Three

The guilty verdicts on Counts 10, 12, 13, and 14 are not supported by the manifest weight of the evidence.

         Assignment of Error Four

The handgun at issue in Counts 10, 12, 13, and 14 is the fruit of an unconstitutional seizure and it should have been suppressed.

         Assignment ...


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