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State v. Houston

Court of Appeals of Ohio, Eighth District, Cuyahoga

August 2, 2018

STATE OF OHIO PLAINTIFF-APPELLEE
v.
CARDELL D. HOUSTON DEFENDANT-APPELLANT

          Criminal Appeal from the Cuyahoga County Court of Common Pleas Case Nos. CR-16-604546-A and CR-16-611762-A

          ATTORNEYS FOR APPELLANT Mark A. Stanton Cuyahoga County Public Defender BY: Noelle A. Powell Jeffrey Gamso Assistant Public Defenders

          ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga County Prosecutor BY: Brian Radigan Assistant County Prosecutor

          BEFORE: E.A. Gallagher, A.J., E.T. Gallagher, J., and Keough, J.

          JUDGMENT

          EILEEN A. GALLAGHER, ADMINISTRATIVE JUDGE

         {¶1} In this consolidated appeal, defendant-appellant Cardell Houston appeals his conviction for murder and the trial court's imposition of a mandatory consecutive sentence. We affirm in part, and reverse in part.

         Factual and Procedural Background

         {¶2} In 2016 Houston was charged in CR-16-611762 with aggravated murder, two counts of murder, two counts of felonious assault and one count of having weapons while under disability. The case proceeded to a bench trial where the following facts were adduced.

         {¶3} On November 20, 2015, William Barnes, Jr. was shot and killed in his car on West 104 Street near Western Avenue in Cleveland, Ohio. Surveillance video from two nearby homes captured the incident and showed that at approximately 2:06 p.m. a blue Chevy Trailblazer appeared and parked on West 104th near Western Avenue. Three minutes later Barnes appeared in a Hyundai Sonata and parked behind the Trailblazer. About one minute later a black male exited the Trailblazer and entered the front passenger seat of Barnes' vehicle. Just under two minutes later, a second black male exited the Trailblazer and entered the rear passenger seat of Barnes' automobile. Less than a minute thereafter flashes of light were visible inside the rear passenger compartment of the Sonata; the front passenger exited the vehicle and seconds later the right rear passenger exited the vehicle as well. The surveillance video showed that after exiting, the rear passenger placed his left hand on the roof of the Sonata just above the right rear passenger door while leaning with his right arm extended back into the passenger compartment of the vehicle. A neighbor witnessed the shooting and testified to seeing two shots fired through an open door of Barnes' vehicle from the passenger side of the vehicle. The posture of the right rear passenger in the video was consistent with this testimony. That passenger then turned to flee back to the Trailblazer and an object consistent with the appearance of a firearm could be seen in his right hand. Nine millimeter shell casings were later recovered by police from both inside the Sonata and on the sidewalk near the passenger side of the vehicle.

         {¶4} The two persons fled in the Trailblazer and shortly thereafter Barnes' Sonata slowly rolled forward into a van parked in front of it. Neighbors who heard, and saw, part of the shooting called 911 and Barnes was found shot and hunched over in the driver seat of the Sonata. He was transported to MetroHealth hospital where he was ultimately pronounced dead.

         {¶5} An autopsy was performed and Dr. Erica Armstrong testified that Barnes had sustained five gunshot wounds. Three gunshot wounds were to Barnes' back right shoulder, the upper portion of his back on the right side and his lower right back. Dr. Armstrong detailed the path of those gunshots as back to front and right to left through Barnes' body. The direction of these wounds was consistent with the state's theory at trial that Barnes was shot by the passenger in the right rear seat of his vehicle.

         {¶6} Investigating detectives swabbed the roof of Barnes' car where the surveillance video reflected the shooter touching the vehicle and the Cuyahoga County Medical Examiner's Office linked the major component of the mixture of DNA obtained from those swabs to Cardell Houston. A forensic scientist testified at trial that, to a reasonable degree of scientific certainty, in the absence of an identical twin, Cardell Houston was the source of the major DNA component obtained from the roof of Barnes' car where the shooter had placed his hand.

         {¶7} The trial court found Houston not guilty of aggravated murder but guilty of two counts of murder and two counts of felonious assault. The count of having weapons while under disability was nolled. The trial court merged all four counts as allied offenses and, at sentencing, the state elected to proceed to sentencing on the charge of murder in Count 2. The court imposed a prison term of 15 years to life to be served consecutive to an attached three-year firearm specification. The court also ordered Houston's sentence for murder to be served consecutively to his sentences in four other cases: CR-603783, CR-604546, CR-604979 and CR-607747.

         {¶8} In this consolidated appeal Houston also appeals from his sentence in CR-604546. In that case, Houston was charged with failure to comply, failure to stop after an accident and two counts of criminal damaging or endangering. Houston entered a guilty to plea to an amended count of attempted failure to comply and the remaining counts were nolled. The trial court imposed a prison term of 18 months in that case and ordered that sentence to be served consecutive to Houston's sentences in CR-603783, CR-611762, CR-604979 and CR-607747. The trial court stated at sentencing that it was compelled to run Houston's sentence for attempted failure to comply consecutive to the other sentences because consecutive service of this count was "mandatory" under the law.

         Law and Analysis

         I. Manifest Weight

         {¶9} In his first assignment of error, Houston argues that his conviction for murder was against the manifest weight of the evidence.

         {¶10} A manifest weight challenge attacks the credibility of the evidence presented and questions whether the state met its burden of persuasion at trial. State v. Whitsett, 8th Dist. Cuyahoga No. 101182, 2014-Ohio-4933, ¶ 26, citing State v. Thompkins, 78 Ohio St.3d 380, 387, 1997-Ohio-52, 678 N.E.2d 541; State v. Bowden, 8th Dist. Cuyahoga No. 92266, 2009-Ohio-3598, ¶ 13. Because it is a broader review, a reviewing court may determine that a judgment of a trial court is sustained by sufficient evidence but nevertheless conclude that the judgment is against the weight of the evidence.

         {¶11} In evaluating a challenge to the verdict based on the manifest weight ...


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