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State v. Salazar

Court of Appeals of Ohio, Tenth District

June 27, 2019

State of Ohio, Plaintiff-Appellee,
v.
Jesse C. Salazar, Defendant-Appellant.

          APPEAL from the Franklin County Court of Common Pleas No. 17CR-886

          On brief: Ron O'Brien, Prosecuting Attorney, and Michael P. Walton, for appellee.

          On brief: Brian J. Rigg, for appellant.

          DECISION

          BROWN, J.

         {¶ 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 Hague Avenues.

         {¶ 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 190.)

         {¶ 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 ACQUITTAL.
[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 at 2.)

         {¶ 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 ...


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