from the Franklin County Court of Common Pleas No. 17CR-886
brief: Ron O'Brien, Prosecuting Attorney, and Michael P.
Walton, for appellee.
brief: Brian J. Rigg, for appellant.
1} This is an appeal by defendant-appellant, Jesse
C. Salazar, from a judgment of conviction and sentence
entered by the Franklin County Court of Common Pleas
following a jury trial in which the jury returned a verdict
finding appellant guilty of felonious assault, with firearm
specification, and the trial court separately found him
guilty of having weapons while under disability.
2} On February 10, 2017, appellant was indicted on
one count of felonious assault, in violation of R.C. 2903.11,
and one count of having weapons while under disability, in
violation of R.C. 2923.13. Count 1 (felonious assault) also
carried a 54-month firearm specification, pursuant to R.C.
2941.145(D), and a repeat violent offender specification
pursuant to R.C. 2941.149(A). The indictment arose out of an
incident on August 21, 2016, during which Johnson was struck
by gunfire outside a residence on Sullivant Avenue.
3} On October 2, 2017, the matter proceeded to a
jury trial on the felonious assault count, as well as the two
attendant specifications. The first witness for the state was
Johnson, the shooting victim. Johnson is the father of D.J.,
age 15. D.J. is a friend of several other teenagers, T.H.,
D.H., and D.B. Rebecca Peck, the mother of D.B. and D.H., is
involved in a dating relationship with appellant. Johnson and
appellant did not get along, and Johnson did not want his son
to be at Peck's residence if appellant was present.
4} On August 21, 2016, D.J. was spending time with
D.H. and D.B. at Peck's residence. D.J. called Johnson
and told his father that he needed a ride home. Johnson
"first told him to ask his mom and he couldn't get
ahold of his mom so I told him I was on my way to pick him
up." (Tr. Vol. I at 122.) Johnson drove to Peck's
residence, located near the intersection of Sullivant and
5} Upon arrival, Johnson did not initially see his
son, but he did observe appellant and Peck, as well as three
other individuals, standing outside the residence. Johnson
sat in his truck waiting for his son, while Peck went inside
to get D.J. During this time, appellant "was talking
trash" to Johnson. Appellant told Johnson "he was
going to beat my ass." (Tr. Vol. I at 126.)
6} Appellant then "took off his shirt and
walked in the street and told me to come on." Johnson
"asked him did he really want to do this, was he
serious." (Tr. Vol. I at 126.) Appellant responded:
"Yeah. He was going to beat my ass." Johnson exited
his truck, and asked appellant "one more time was he
serious, he really wanted to do it, he said, yeah. He walked
up on me and swung, and he got the worst end of it."
Appellant "grazed" Johnson "a couple of
times," but eventually appellant "is not defending
himself anymore, he is trying to get away so I just left him
alone." (Tr. Vol. I at 127.)
7} Johnson then "started arguing" with his
son. (Tr. Vol. I at 128.) Johnson "smacked" his son
and told him to get inside the truck. D.J. "does get in
the car," and Johnson began "walking back to the
car." (Tr. Vol. I at 129.) Johnson testified that
"the people who were there in the yard are arguing with
me, but I guess they are pretty much warning me to get out of
there, I better hurry up and go and I am walking back to the
car kind of slow." (Tr. Vol. I at 129-30.)
8} Johnson testified that appellant then began
shooting at him, striking him in the femur. Johnson related:
"I wind up on the ground, then I look up, I catch a
bullet in the back of my hand, shrapnel sparked my face, * *
* catch a shrapnel in my finger, my index finger. I look up,
I see him shooting me. I start rolling backwards because he
gets to dumping on me." (Tr. Vol. I at 130.) Johnson
stated the shooting stopped when appellant "emptied a
clip." (Tr. Vol. I at 132.) Appellant was shooting at
him from "[u]p on the porch." (Tr. Vol. I at 136.)
Johnson further stated: "The screen was wide open and he
was higher up than me so I am looking up, but he was, like,
right in the doorway. He was pretty much shooting from the
doorway." (Tr. Vol. I at 137.)
9} After the shooting ceased, Johnson's son
assisted him to the truck. When Johnson got up from the
ground, appellant "was still in the door and when I
stood up, he was shocked, surprised, I guess, more scared, I
guess, that I stood up. And then he kind of took off, and I
tried to just make it to my truck because I didn't know
if he was going to get another gun or -- but I just got in my
truck and drove off." (Tr. Vol. I at 132.) Johnson drove
to a nearby gas station, and medics subsequently arrived and
transported him to a hospital.
10} Police detectives spoke with Johnson at the
hospital. Detectives showed him a photo array, and he
selected a photograph from the array. At trial, Johnson
identified appellant as the individual who shot him.
11} On the evening of August 21, 2016, Susan
Schultz, who resides on Wiltshire Avenue, was sitting outside
in her front yard when she heard some individuals
"arguing." The voices were "coming from the
house at the end of Wiltshire and Sullivant," located
approximately six houses from Schultz's residence. (Tr.
Vol. I at 156.)
12} At one point the arguing stopped, and Schultz
"saw somebody run up the back steps, they pulled open
the back door and they ran in the house, and almost
instantaneously they came back out the front -- out the back
door of the same door, they stood on the stoop and they
pointed a hand down in a motion like this (indicating) and
fired three to five shots." (Tr. Vol. I at 158.) Schultz
described the person firing a weapon from the porch area as a
white male who was "bald" or with "very close
shaven hair," and "wearing white and black
clothing." (Tr. Vol. I at 159.) The man "was
pointing the gun down towards the * * * sidewalk area."
(Tr. Vol. I at 161.) At the moment of the shooting, Schultz
observed "just the one person" on the porch
standing at the door. (Tr. Vol. I at 162.)
13} After the shooting stopped, Schultz observed
"multiple people dispersed, jumped in cars, took
off." She also observed the individual on the porch
"just running." (Tr. Vol. I at 162.)
14} The next witness, T.H., testified during
plaintiff-appellee, State of Ohio's, case-in-chief, but
was made a court's witness during his testimony. On
August 21, 2016, T.H., a nephew of Peck, was staying at
Peck's residence with Peck and her four sons. On that
date, T.H. was in his room when someone "came up there
and said someone is out there fighting, so I went out there
and looked to see." T.H. stated that he had "vision
problems." (Tr. Vol. I at 173.)
15} T.H. then testified: "I ran down the steps.
I was looking for a minute and I seen them fighting and then
out of no where, some girl came out of no where and just
started shooting. I didn't tell -- the day I didn't
tell the detectives because I was scared and I didn't
know what was going on." (Tr. Vol. I at 175.)
16} T.H. spoke with a detective that evening at 9:47
p.m. He told the detective he went to the door and observed
two individuals fighting, and that one of the individuals was
not doing well during the fight. At trial, the state played a
recording of an interview of T.H. conducted by the detective.
T.H. told the detective: "I hear some noises outside and
someone came in and said that two dudes out here fighting. I
don't care. I can't even go out there. So I look out
the door a little bit on the balcony and look out here and I
see fighting and I just see one dude, he runs -- he runs
somewhere and he come back out shooting, and that is when I
ran inside again." (Tr. Vol. I at 180.) When asked by
the detective who was fighting, T.H. responded: "Some
black dude and he might have been like a Mexican, light skin,
just like a little bit shorter than me and fat." (Tr.
Vol. I at 181.)
17} During direct examination, T.H. acknowledged
telling the detective that he saw two individuals fighting
that evening, and that one of the individuals ran away and
then returned and started shooting. He also acknowledged
giving a description of the shooter as a light-skinned
Mexican male, approximately 5 foot 8 inches or 5 foot 9
inches tall. T.H., who was incarcerated at the time of trial,
further admitted that Peck's son, D.H., had visited him
in jail approximately 30 times, and that [T.H.] had
"[p]ossibly" discussed the case with D.H. (Tr. Vol.
I at 185.) On cross-examination, T.H. testified that a female
named "Perez" fired the weapon. (Tr. Vol. I at
18} On August 21, 2016, Columbus Police Officer
Matthew Lausch and his partner were dispatched to 2847
Sullivant Avenue following a report of shots fired. The
officers found five or six .45 caliber shell casings near the
southeast side of the residence. Police officers found no
weapons inside the Sullivant Avenue residence.
19} On August 21, 2016, Columbus Police Officer
Edward Chung was dispatched to Sullivant Avenue. The officer
drove to a gas station near the scene of the shooting, where
he "observed the vehicle that was described in the run,
and I saw the door was open and there was a man that was
bleeding." (Tr. Vol. II at 271.) The officer called for
medics and secured the scene.
20} Following the state's case-in-chief, an
attorney appointed by the court to represent a potential
witness, Jesusa Rebecca Perez, conducted a voir dire of Perez
outside the presence of the jury. During the voir dire, Perez
indicated she had been advised by appointed counsel to invoke
her Fifth Amendment privilege and to refuse to answer any
questions if called to testify.
21} The first witness for the defense was Peck, who
resides at 2847 Sullivant Avenue. Peck and appellant are in a
dating relationship, and appellant has resided with Peck at
the Sullivant Avenue address for the past two years. Peck is
acquainted with Johnson, and his teenage son D.J. is a friend
of her sons. In August 2016, D.J. was staying at Peck's
residence; T.H., was also staying there and he was required
to wear an ankle monitor arising out of a juvenile court
proceeding. Perez is appellant's sister.
22} On the afternoon of August 21, 2016, Peck was at
her home with appellant, her sons, and several other
individuals, including D.J. and T.H. Regarding the events
that day, Peck testified that appellant was sitting outside
the residence in his truck when "Johnson pulled up on
the wrong side of the road and he pulled up real fast and
slammed on the brakes." (Tr. Vol. II at 291.) Johnson
"opened up the door, he didn't get all the way out
of the truck, but he put half the body out of the truck, his
legs, and he started screaming stuff at [appellant] and I am
like, what is up [Johnson], do you want [D.J.]?" Peck
then "ran up the fire escape where all the boys were and
I said, [D.J.], you need to come outside, your dad is out
here and I think there is about to be a fight." (Tr.
Vol. II at 291.)
23} Peck then saw "[appellant] and [Johnson] in
the middle of the street and they start fighting. [Johnson]
beats up [appellant] pretty bad. And my oldest son, [D.H.],
come running out around that same time and he went to break
it up." (Tr. Vol. II at 292.) Johnson then began cussing
at [D.H.], and Peck "ran out in the middle of the street
and I pushed [Johnson]." At that point, appellant
"had ran." (Tr. Vol. II at 293.)
24} Peck then testified: "I was getting [D.H.]
up into the yard and [Johnson] was threatening everybody,
I'll do this to everybody, you know, and I heard a couple
shots go off. And I looked over by the porch, I'm in the
yard, and I see [Perez] with a silver gun shooting like
towards the ground." (Tr. Vol. II at 293.) Peck
testified that appellant had run inside the house.
25} During the state's cross-examination of
Peck, the prosecution played a recording of an interview of
Peck conducted by a police detective. During the interview,
Peck told the detective: "I didn't see anything. I
looked out the damn window and the cops were pointing damn
guns on the house." (Tr. Vol. II at 306.) She further
stated: "I don't know what the hell happened out
here." When asked by the detective if she heard a shot,
Peck responded: "No, I didn't pay attention. If I
did, I didn't pay attention." (Tr. Vol. II at 307.)
When asked who her boyfriend was, she told the detective
"Jesse," and that his last name was
"Perez." (Tr. Vol. II at 310.) When asked if his
last name was Salazar, Peck responded: "He got - - his
last name has changed." (Tr. Vol. II at 313.) Peck told
the detective that her boyfriend "lives on Parsons with
his mom but he comes and stays with me too; both." (Tr.
Vol. II at 310.) She informed the detective they had been
dating "[a] few months." (Tr. Vol. II at 311.) Peck
denied she was outside when the shooting began. When asked
who was shot, Peck responded: "I don't know."
(Tr. Vol. II at 312.)
26} On cross-examination, Peck acknowledged lying to
the detective about whether appellant lived at her residence.
Peck also acknowledged telling the detective that appellant
was not at the residence when the incident occurred.
27} D.B., the son of Peck, resides at 2847 Sullivant
Avenue. On the date of the incident, D.B. was at the
residence along with D.H. (his brother), Peck, D.J., T.H.,
and Perez. D.B. has known appellant three or four years. D.B.
described D.J. as his best friend.
28} Johnson was at the house that day, and D.B.
observed Johnson and appellant "out there
fighting." D.B. testified that "[appellant] ran
into the house, then I seen -- I heard gunshots and I looked
over and I seen [Peck]." (Tr. Vol. II at 325.) D.B. then
observed "[Peck] run out and [appellant] was behind her
in the alley, like trying to catch up with her." (Tr.
Vol. II at 325.) D.B. heard "four or five" shots.
(Tr. Vol. II at 325.) Later that evening, D.B. was
interviewed by a detective. D.B. told the detective he did
not see or hear anything.
29} On cross-examination, D.B. acknowledged lying to
the detective about whether appellant resided at Peck's
house. D.B. also told the detective he did not see appellant
at the house that day.
30} D.H., age 19, resides at 2847 Sullivant Avenue
with his mother, Peck. On the date of the incident, D.H. came
outside and observed Johnson fighting with appellant. D.H.
testified: "I tried to get in between them and tried to
stop and Michael turned around and elbowed me in my face and
we started arguing, and then me and him almost got in a fight
and my mom broke it up. And that is when [appellant] was
running, trying to get back to the house, stumbling around
and his face was bleeding." (Tr. Vol. II at 351.) D.H.
subsequently heard gunshots, but did not see who was firing
the weapon. D.H. testified that appellant "was stumbling
back towards the back door and that is when the shots were
let off." (Tr. Vol. II at 352.) D.H. stated that Perez
was at the residence that day.
31} Following deliberations, the jury returned
verdicts finding appellant guilty of felonious assault, with
the firearm specification, and the trial court separately
found appellant guilty of having weapons while under
disability. The trial court sentenced appellant by entry
filed November 8, 2017, imposing a term of incarceration of 6
years as to Count 1, and 3 years as to Count 2, with the
sentences to be served concurrently with each other. The
court also imposed a mandatory, consecutive 54-month sentence
for the firearm specification.
32} On appeal, appellant sets forth the following
four assignments of error for this court's review:
[I.] WHEN A WITNESS REFUSES TO TESTIFY AND INVOKES HER FIFTH
AMENDMENT RIGHT AGAINST SELF INCRIMINATION, THE TRIAL COURT
ERRED WHEN IT DOES NOT PERMIT DEFENSE COUNSEL TO PROFFER HIS
QUESTIONS ON THE RECORD.
[II.] APPELLANT'S CONSTITUTIONAL RIGHTS WERE VIOLATED
WHEN THE JURY DID NOT RENDER A VERDICT ON THE FIREARM
SPECIFICAITON THAT HE HAD A PRIOR FIREARM CONVICTION TYPE
DESCRIBED IN § 2941.141, 2941.144, 2941.145, 2941.146 OR
2941.1412 OF THE REVISED CODE.
[III.] THE TRIAL COURT ERRED WHEN IT DENIED
DEFENDANT-APPELLANT'S CRIMINAL RULE 29 MOTION FOR
[IV.] THE VERDICT OF GUILTY TO FELONIOUS ASSAULT IS AGAINST
THE MANIFEST WEIGHT OF THE EVIDENCE.
33} Under the first assignment of error, appellant
contends the trial court erred in failing to permit defense
counsel to proffer questions on the record with respect to a
witness who refused to testify. Specifically, appellant notes
that defense counsel sought to call his sister, Perez, as a
witness. Appellant further notes the trial court appointed
counsel for Perez, and appointed counsel, following a
discussion with Perez, advised her to refuse to testify and
to invoke her Fifth Amendment rights. When counsel for
appellant sought to proffer into the record the questions he
would have asked this witness had she been called to testify,
the trial court refused to allow the proffer. Appellant
challenges the trial court's ruling, asserting the court
should have permitted defense counsel to proffer the
questions outside the presence of the jury.
34} By way of background, the record indicates the
state filed a pre-trial motion in limine regarding the fact
appellant had filed a supplemental witness list on July 12,
2017, which included his sister, Perez. In its motion, the
state represented in part: "It is the State's
understanding that the defense wishes to present evidence
identifying Jesusa Perez as the shooter instead of
[appellant]. Further, it is the State's understanding
that [appellant] wishes to call his sister as a witness for
the purpose of accusing her of the offense." (Mot. in
Limine at 2.)
35} The state requested the trial court to determine
the admissibility of Perez's testimony outside the
presence of the jury. According to the state, although Perez
could simply deny the allegations, "it is more likely
that she will either confess or invoke her Constitutional
Rights." Further, the state argued, "[d]ue to the
legal ramifications, Ms. Perez should be advised of her right
to counsel before making such a statement." Finally, the
state asserted that defense counsel should not be permitted
to call Perez "for the purpose of invoking her Fifth
Amendment rights in front of the jury." (Mot. in Limine
36} Appellant filed a response to the state's
motion in limine, arguing the jury should be permitted to
hear from all witnesses. Appellant agreed that "Perez
should be advised of her rights under the Fifth and Sixth
Amendments," and that "[i]f she is indigent the
Court will be asked to appoint counsel for her prior to her
being called as a witness." (Def.'s Response to Mot.
in Limine at 1.)
37} On August 16, 2017, appellant filed a motion for
appointment of counsel to represent Perez. In the
accompanying memorandum in support, counsel for appellant
stated in part: "Counsel has talked to witnesses who
have indicated that it was Defendant's sister, Jesusa
Rebecca Perez, who shot Michael Johnson. Those witnesses will
testify at trial." Counsel represented that he would
"issue a subpoena to Jesusa Rebecca Perez to appear as a
witness at trial." Further, counsel for appellant
observed, "Ms. Perez obviously has rights pursuant to
the Fifth Amendment to the United States Constitution,"
and "[t]here may be questions which she chooses not to
answer on the basis that her answers might incriminate
her." (Mot. for Appointment of Counsel at 2.)
38} On the first day of trial, outside the presence
of the jury, the trial court addressed the ...