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State v. Hope

Court of Appeals of Ohio, Eleventh District, Trumbull

June 3, 2019

STATE OF OHIO, Plaintiff-Appellee,
SHAWN HOPE a.k.a SHAWN JOHNSON, Defendant-Appellant.

          Criminal Appeal from the Trumbull County Court of Common Pleas, Case No. 2017 CR 00252.

          Dennis Watkins, Trumbull County Prosecutor, Christopher Becker, Assistant Prosecutor, and Ashleigh Musick, Assistant Prosecutor, (For Plaintiff-Appellee).

          Wesley C. Buchanan, Buchanan Law, Inc., (For Defendant-Appellant).


          MARY JANE TRAPP, J.

         {¶1} Appellant, Shawn Hope a.k.a. Shawn Johnson ("Mr. Hope"), appeals his convictions on aggravated murder, aggravated robbery, and kidnapping, each with a firearm specification, having weapons while under disability, and tampering with evidence, following a jury trial in the Trumbull County Court of Common Pleas, as well as the consecutive sentences imposed on the three firearm specifications.

         {¶2} We find: (1) the evidence was sufficient to support Mr. Hope's convictions for aggravated murder and tampering with evidence; (2) Mr. Hope's convictions were supported by the manifest weight of the evidence; (3) Mr. Hope did not establish ineffective assistance of counsel as a result of his trial counsel's failure to request a jury instruction on involuntary manslaughter; (4) Mr. Hope did not establish his trial counsel had an actual conflict of interest that resulted in ineffective assistance; (5) Mr. Hope did not establish the prosecutor committed any misconduct during his comments at trial; (6) a mistake in the jury verdict forms did not void Mr. Hope's sentences on the firearm specifications; and (7) the trial court properly utilized its discretion in imposing consecutive sentences on the firearm specifications. Although we find the trial court properly made the required statutory findings regarding consecutive sentences at the sentencing hearing, one of the findings is missing from its sentencing entry.

         {¶3} For the reasons that follow, we affirm the judgment of the Trumbull County Court of Common Pleas but remand for the issuance of a nunc pro tunc entry.

         Substantive History and Procedural Background

         {¶4} On December 1, 2016, Mr. Hope was playing cards with Alicia Binion, Tabitha Powell, and John Paul Kellar at a house located at 2313 Stephens Avenue, N.W. in Warren, Ohio. Ms. Binion resided at the house with Mr. Kellar, whom she described as her cousin, and Ms. Powell, who was engaged to Mr. Kellar. Ms. Binion was acquainted with Mr. Hope because she had been a drug user and purchased drugs from him.

         {¶5} At some point, Mr. Hope made advances toward Ms. Powell and Ms. Binion, and he and Mr. Kellar began arguing. The argument lasted only a few minutes and was resolved. Ms. Binion eventually asked Mr. Hope to leave the residence, which he did.

         {¶6} The following day, Ms. Binion, Ms. Powell, and Mr. Kellar were at the Stephens Avenue residence. Ms. Powell was in the back bedroom with Mr. Kellar rubbing his feet. Ms. Binion was getting ready to leave the residence to obtain money for the purchase of drugs.

         {¶7} At approximately 6:30 p.m., Mr. Hope knocked on the door. Ms. Binion did not want to answer the door, but Mr. Kellar told her to do so. After Ms. Binion answered the door, Mr. Hope came inside and asked where Mr. Kellar and Ms. Powell were located. He began walking toward the back bedroom. Mr. Kellar walked out into the hallway to meet him. Mr. Hope had his hands in his coat pockets. Suddenly, Mr. Hope removed a gun from his coat pocket and shot Mr. Kellar twice in the chest area at close range. Mr. Hope then said, "Who's the bitch now?" and kicked Mr. Kellar.

         {¶8} Mr. Hope then pointed the gun at Ms. Powell and demanded she give him the keys to her van. He grabbed her by the hair and threw her against the wall. Ms. Binion eventually gave the keys to Mr. Hope.

         {¶9} Mr. Hope forced the two women into the van by gunpoint. He ordered Ms. Powell to drive the van a few streets over and had the two women get out, walk through some backyards, and lie down on their stomachs on the porch of a house on Ward Street.

         {¶10} Mr. Hope knocked on the window of the house, and Rashaan Shipp came to the door. Mr. Hope asked him for "another clip," and Mr. Shipp refused.

         {¶11} The trio returned to the van, and Mr. Hope drove them to a drive-thru to purchase cigarettes. He then drove to a gas station on Market Street. Mr. Hope and Ms. Binion entered the gas station while Ms. Powell stayed in the back seat. Ms. Powell seized the opportunity to escape the van and hide underneath a vehicle parked across the street. She eventually ran to a residence, where a woman placed a 9-1-1 call on her behalf.

         {¶12} Officer Mason Henline of the Warren Police Department was dispatched to Market Street and met with Ms. Powell. She got in his cruiser and took him to the Stephens Avenue residence. In securing the residence, Officer Henline found Mr. Kellar inside the house. He was not breathing and had no pulse. According to the coroner's report, Mr. Kellar died from multiple gunshot wounds.

         {¶13} Detectives Carney and Laprocina were dispatched to the Stephens Avenue residence to investigate. Detective Carney also issued a country-wide alert for Mr. Hope and the van. At the residence, there were no signs of a fight or a struggle. The detectives discovered and collected two fired cartridge cases and two fired bullets.

         {¶14} Meanwhile, back at the gas station, Mr. Hope realized Ms. Powell had escaped from the van. Mr. Hope decided he and Ms. Binion had to go to Detroit, Michigan, his hometown.

         {¶15} Mr. Hope drove the van as he and Ms. Binion traveled from Warren, Ohio toward Detroit, Michigan via the turnpike. Mr. Hope attempted to exit the turnpike in the Toledo area but was unable to pay the toll and had no driver's license. The toll booth attendant informed Mr. Hope she was required to call the state highway patrol. Mr. Hope pulled off near a rest area, left the vehicle, and kicked the gun under a salt bin.

         {¶16} Mr. Hope and Ms. Binion eventually arrived in Detroit via a different route. They stayed there for ten days and moved from place to place doing drugs. They eventually left the van on the side of the road, and it was never recovered. Mr. Hope also asked Ms. Binion to write a letter saying he shot Mr. Kellar in self-defense.

         {¶17} At some point, Mr. Hope permitted Ms. Binion to leave, and they separated. She walked to a store, and a couple bought her a bus ticket back to Warren, Ohio. The next morning, on December 14, 2016, she went to the Warren Police Department.

         {¶18} Ms. Binion took Detectives Carney and Laprocina to the area on the turnpike where Mr. Hope had disposed of the gun. A toll booth collector, however, had discovered the gun under the salt bin on December 5, 2016 and gave it to Trooper Cheryl Myers of the Ohio State Highway Patrol. Detective Laprocina eventually retrieved the gun from the Ohio State Highway Patrol.

         {¶19} Michael E. Roberts, a forensic scientist at the Ohio Bureau of Criminal Investigation ("Ohio BCI"), examined the gun, bullets, and cartridge cases that were submitted for analysis. Mr. Roberts concluded the gun was operable and the submitted bullets and cartridge cases were fired from the submitted gun.

         {¶20} Hallie Dreyer, a forensic scientist at Ohio BCI, conducted DNA analysis on the gun, the two fired cartridge cases, and the front exterior screen door handle. Using Y-STR DNA testing, Ms. Dreyer obtained a partial DNA profile from one of the cartridge cases that was consistent with Mr. Hope.

         {¶21} An arrest warrant for murder was issued for Mr. Hope. On March 30, 2017, Officer Jason Matter of the Michigan State Police and the Fugitive Apprehension Team was assisting the Northern Ohio Violent Fugitive Task Force in locating and apprehending Mr. Hope in Detroit, Michigan. A male fitting Mr. Hope's description was seen getting into a vehicle leaving the location they were observing. Officer Matter requested that Mr. Hope stop, but he fled instead. The officers set up a perimeter of the area and conducted house-to-house searches. Officer Michael Knox eventually apprehended Mr. Hope, who was hiding under a porch. Detectives Carney and Crites subsequently transported Mr. Hope back to Warren, Ohio.

         {¶22} The Trumbull County Grand Jury indicted Mr. Hope on two counts of aggravated murder, each with a firearm specification (Counts 1 and 2)[1], aggravated robbery with a firearm specification (Count 3), two counts of kidnapping, each with a firearm specification (Counts 4 and 5), having weapons while under disability (Count 6), and tampering with evidence (Count 7).

         {¶23} Mr. Hope pleaded not guilty, and after a number of continuances to permit additional discovery, the case proceeded to a jury trial.

         {¶24} The state presented testimony from Ms. Powell and Ms. Binion regarding the events prior to, during, and following the shooting. The state also introduced the surveillance footage from the gas station on Market Street and from the toll both on the turnpike.

         {¶25} Rashaan Shipp testified regarding Mr. Hope's visit to his residence after the shooting when Mr. Hope asked him for additional bullets.

         {¶26} Officer Henline testified regarding his interactions with Ms. Powell following her 9-1-1 call and the police department's securing of the Stephens Avenue residence.

         {¶27} Detectives Carney and Laprocina testified regarding their investigation and the collection of evidence.

         {¶28} Eva Linver of the Ohio Turnpike Commission testified about her interaction with Mr. Hope at the toll booth when he was attempting to drive to Detroit, Michigan. Ms. Linver, as well as her co-worker, Linda Haar, also testified regarding the discovery a few days later of Mr. Hope's gun behind the salt bin near the Ohio Turnpike Commission building. Trooper Cheryl Myers testified regarding her collection of the gun.

         {¶29} Michael E. Roberts and Hallie Dreyer from Ohio BCI testified regarding their examination and analysis of the evidence.

         {¶30} Dr. Humphrey Germaniuk, the Trumbull County Coroner, testified regarding his autopsy of Mr. Kellar.

         {¶31} Finally, Officers Matter and Knox testified regarding their team's ultimate apprehension of Mr. Hope in Detroit, Michigan.

         {¶32} The defense rested without calling any witnesses.

         {¶33} The jury found Mr. Hope guilty on all the counts and specifications contained in the indictment.

         {¶34} The trial court determined Counts 1 and 2 and Counts 3 and 4 merged for purposes of sentencing. The state elected to proceed on Counts 2 and 3.

         {¶35} The trial court subsequently sentenced Mr. Hope to an aggregate prison term of 44 years to life. Specifically, the trial court imposed (1) 25 years to life on Count 2, plus three years for the firearm specification to be served prior to and consecutive to the life sentence, (2) five years on Count 3, plus three years for the firearm specification, to be served prior to and consecutive to the sentence imposed on Count 2, (3) five years on Count 5, plus three years for the firearm specification, to be served prior to and consecutive to the sentences imposed on Counts 2 and 3, and (4) 36 months each on Count 6 and 7, to be served concurrently with the sentence imposed on Count 2.

         {¶36} Mr. Hope now appeals, asserting the following six assignments of error:

         {¶37} "[1.] The evidence against Shawn was insufficient to support his convictions.

          {¶38} "[2.] Shawn's convictions were not supported by the manifest weight of the evidence.

         {¶39} "[3.] Shawn's sentence was contrary to law.

         {¶40} "[4.] Shawn received ineffective assistance of counsel.

         {¶41} "[5.] The jury verdict forms were incorrect.

         {¶42} "[6.] The Prosecutor committed misconduct by characterizing Shawn as a monster."

         Sufficiency of the Evidence

         {¶43} In his first assignment of error, Mr. Hope claims the state failed to produce sufficient evidence to sustain his convictions for aggravated murder and tampering with evidence. With respect to aggravated murder, Mr. Hope argues the state did not produce sufficient evidence of prior calculation and design. With respect to tampering with evidence, Mr. Hope argues the state did not produce sufficient evidence that he knowingly tampered with evidence.

         {¶44} "An appellate court's function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt." State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the syllabus. "The relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt." Id.

         {¶45} A sufficiency challenge requires this court to review the record to determine whether the state presented evidence on each of the elements of the offense. State v. Muncy, 11th Dist. Ashtabula No. 2011-A-0066, 2012-Ohio-2830, ¶13. This test involves a question of law and does not permit us to weigh the evidence. Id., citing State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist.1983).

         Aggravated Murder

         {¶46} To convict Mr. Hope of aggravated murder, the state was required to prove beyond a reasonable doubt that Mr. Hope did purposely, and with prior calculation and design, cause the death of Mr. Kellar. R.C. 2903.01(A). Mr. Hope argues the state did not produce sufficient evidence of the element of prior calculation and design to support his conviction for aggravated murder.

         {¶47} Under prior Ohio law, "murder in the first degree" required proof of "deliberate and premeditated malice." State v. Taylor, 78 Ohio St.3d 15, 18 (1997) citing former R.C. 2901.01. Under this standard, "a killing could be premeditated even though conceived and executed on the spur of the moment. The only requirement was that the malicious purpose be formed before the homicidal act, however short in time." State v. Cotton, 56 Ohio St.2d 8, 11 (1978).

         {¶48} Effective January 1, 1974, the General Assembly reclassified first-degree murder as "aggravated murder" and substituted a requirement of "prior calculation and design" in place of "deliberate and premeditated malice." Taylor at 18. According to the Supreme Court of Ohio, "prior calculation and design" is a more stringent element. Id. at 19, citing Cotton at paragraph one of the syllabus. The General Assembly's apparent intention "was to require more than a few moments of deliberation * * * and to require a scheme designed to implement the calculated decision to kill." Id., quoting Cotton at 11.

         {¶49} The phrase "prior calculation and design" is not defined in the Revised Code. Cotton at 10. By its own terms, the phrase suggests "advance reasoning to formulate the purpose to kill. Evidence of an act committed on the spur of the moment or after momentary consideration is not evidence of a premeditated decision or a studied consideration of the method and the means to cause a death." State v. Walker, 150 Ohio St.3d 409, 2016-Ohio-8295, ¶18.

         {¶50} There is also no bright-line test to determine whether prior calculation and design are present. Taylor at 20. Rather, each case must be decided on a case-by-case basis. Id.

         {¶51} The Supreme Court of Ohio has held, "[w]here evidence adduced at trial reveals the presence of sufficient time and opportunity for the planning of an act of homicide to constitute prior calculation, and the circumstances surrounding the homicide show a scheme designed to implement the calculated decision to kill, a finding by the trier of fact of prior calculation and design is justified." Cotton at paragraph three of the syllabus.

         {¶52} The Supreme Court of Ohio has also considered three factors in determining whether a defendant acted with prior calculation and design: "(1) Did the accused and victim know each other, and if so, was that relationship strained? (2) Did the accused give thought or preparation to choosing the murder weapon or murder site? and (3) Was the act drawn out or 'an almost instantaneous eruption of events?'" Walker at ¶20, quoting Taylor at 19.

         {¶53} Mr. Hope argues that the consideration of these three factors does not support a finding of prior ...

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