Court of Appeals of Ohio, Eighth District, Cuyahoga
Criminal Appeal from the Cuyahoga County Court of Common
Pleas Case No. CR-17-618543-B
Michael C. O'Malley, Cuyahoga County Prosecuting
Attorney, and Brian Kraft, Assistant Prosecuting Attorney,
A Rein, for appellant.
JOURNAL ENTRY AND OPINION
LASTER MAYS, JUDGE.
1} Defendant-appellant Marquez Williams appeals his
convictions for the death of Elante Johnson
("Johnson"). We affirm.
BACKGROUND AND FACTS
2} On April 9, 2017, at approximately 3:00 p.m. on a sunny
Sunday afternoon, customers were buying gasoline and
patronizing the market at the Speedy Grub Hub food market and
gas station ("Speedy") on Broadway Avenue in
Cleveland's Slavic Village neighborhood.
Twenty-one-year-old Johnson was walking out of the market
toward Broadway Avenue when a male jogged across the street
and, when he was just a few feet from Johnson, pulled out a
gun and fired.
3} Johnson turned and attempted to retrieve his weapon as he
began running in the opposite direction. The gunman followed
Johnson behind Speedy to the next block and shot Johnson
again. Johnson fell in the street and, as he attempted to
scoot backwards away from the shooter, the shooter walked
over to Johnson and shot him three times at point-blank
4} The shooter, followed by a second male who was talking on
a cell phone, began walking down the street. They were
promptly picked up by a blue Chevrolet Impala with
distinctive black wheels and left the scene as two officers
arrived to attend to Johnson.
Johnson suffered five gunshot wounds that resulted in his
death. Williams was indicted on June 24, 2017, three days
after the indictment of Williams's cousin and codefendant
Damon Chapman, Jr. ("Chapman"), the male who was
picked up by the Impala along with the shooter. Williams was
charged as a participant in Johnson's shooting, as the
driver of the Impala.
6} On April 11, 2018, the trial court granted Williams's
motion to sever the trials of Williams and Chapman and the
trial commenced the same date. At the close of the evidence,
Williams moved for judgment of acquittal pursuant to Crim.R.
29 on all counts. The prosecution voluntarily withdrew the
gang activity specifications. The trial court denied the
motion on the remaining counts as well as the renewed motion
for acquittal presented shortly thereafter.
7} The trial court instructed the jury on aiding and abetting
and complicity. Williams was convicted of aggravated murder,
murder, two counts of felonious assault and discharge of a
firearm in or near prohibited premises. Each count carried
one- and three-year firearm specifications.
8} The state requested that the murder and felonious assault
charges merge into the aggravated murder conviction for
sentencing, and requested a separate sentence for discharge
of a firearm in or near prohibited premises. Williams was
sentenced to 20 years to life on the aggravated murder
charge; three-years on the discharge of a firearm charge to
run concurrent with the aggravated murder; and consecutive
terms of three years each for two firearm specifications to
be served prior to the primary sentence, for a total of 26
years to life with a possibility of parole after 26 years,
and a mandatory five-year period of postrelease control.
9} Williams appeals the convictions.
ASSIGNMENTS OF ERROR
10} Williams proffers seven assigned errors for our review:
I. The trial court erred by failing to grant a judgment of
acquittal, pursuant to Crim.R. 29(A), on the charges, and
thereafter entering a judgment of conviction of that offense
as those charges were not supported by sufficient evidence,
in violation of defendant's right to due process of law,
as guaranteed by the Fourteenth Amendment to the United
II. Appellant's convictions are against the manifest
weight of the evidence.
III. Appellant was denied a fair trial by the homicide
detective's improper comments and conclusions while
IV. The trial court erred when it admitted other acts
testimony in violation of R.C. 2945.59, Evid.R. 404(B) and
Appellant's rights under Article I, Section 10 of the
Ohio Constitution and the Fourteenth Amendment to the United
V. The trial court denied Appellant's right to a fair
trial by not giving a complete jury instruction.
VI. Appellant was denied effective assistance of counsel as
guaranteed by Section 10, Article I of the Ohio Constitution
and the Sixth and Fourteenth Amendments.
VII. The trial court erred by ordering convictions and a
consecutive sentence for separate counts and specifications
because the trial court failed to make a proper determination
as to whether those offenses are allied offenses pursuant to
R.C. 2941.25 and they are part of the same transaction under
Sufficiency and Manifest Weight of the Evidence
11} We combine Williams's first and second errors
challenging the sufficiency and weight of the evidence for
ease of analysis. We find that these errors lack merit.
Standard of Review
12} "A Crim.R. 29(A) motion for acquittal tests the
sufficiency of the evidence." State v. Capp,
8th Dist. Cuyahoga No. 102919, 2016-Ohio-295, ¶ 19.
Crim.R. 29 mandates that the trial court issue a judgment of
acquittal where the state's evidence is insufficient to
sustain a conviction for an offense. Accordingly, an
appellate court reviews a trial court's denial of a
defendant's motion for acquittal using the same standard
it applies when reviewing a sufficiency-of- the-evidence
State v. Hoskin-Hudson, 8th Dist. Cuyahoga No.
103615, 2016-Ohio-5410, ¶ 7, citing State v.
Capp, 8th Dist. No. 102919, 2016-Ohio-295, ¶ 19.
13} "The legal concepts of sufficiency of the evidence
and weight of the evidence are both quantitatively and
qualitatively different." State v. Thompkins,
78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). A challenge to
the sufficiency of the evidence is a question of law that
asks whether the state met its burden of production. A
manifest weight challenge is a question of fact and asks
whether the state met its burden of persuasion. State v.
Jackson, 8th Dist. Cuyahoga No. 88028, 2007-Ohio-823,
¶ 11, citing Thompkins at 386.
14} Thus, a sufficiency inquiry is not whether the
prosecution's evidence "is to be believed, but
whether, if believed, the evidence admitted at trial
supported the conviction." State v. Rudd, 8th
Dist. Cuyahoga No. 102754, 2016-Ohio-106, ¶ 32, citing
State v. Starks, 8th Dist. Cuyahoga No. 91682,
2009-Ohio-3375, ¶ 25. We view the evidence in a light
most favorable to the prosecution and determine whether
"'any rational trier of fact could have found the
essential elements of the crime proven beyond a reasonable
doubt.'" State v. Leonard, 104 Ohio St.3d
54, 2004-Ohio-6235, 818 N.E.2d 229, ¶ 77,
quoting State v. Jenks, 61 Ohio St.3d 259, 574
N.E.2d 492 (1991), paragraph two of the syllabus.
15} "A manifest weight inquiry looks at whether the
evidence was substantial enough for a jury to reasonably
conclude that all of the elements of the alleged crime have
been proved beyond a reasonable doubt. We sit 'as a
thirteenth juror.'" Thompkins, 78 Ohio
St.3d at 387, 678 N.E.2d 541, quoting Tibbs v.
Florida, 457 U.S. 31, 42, 102 S.Ct. 2211, 72 L.Ed.2d 652
(1982); State v. Newett, 8th Dist. Cuyahoga No.
103518, 2016-Ohio-7605, ¶ 39.
[w]e review the entire record, consider the credibility of
the witnesses, weigh the evidence and all reasonable
inferences, and determine whether the jury clearly lost its
way and created such a manifest miscarriage of justice that
the conviction must be reversed and a new trial ordered.
State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d
717 (1st Dist.1983); State v. Leonard, 104 Ohio
St.3d 54, 2004-Ohio-6235, 818 N.E.2d 229, ¶ 81.
"Weight is not a question of mathematics, but depends on
its effect in inducing belief." Black's Law
Dictionary 1594 (6th Ed.1990). Thompkins at
387. The discretionary power to grant a new trial should be
exercised only in the exceptional case in which the evidence
weighs heavily against the conviction. Martin at
Newett at ¶ 40.
17} Williams admits that his vehicle is depicted in the
surveillance video and that he was present at the gas station
when the shooting occurred. However, Williams denies that he
had anything to do with the shooting.
18} Cleveland Police Department ("CPD") Detectives
Kathy Cruz ("Det. Cruz") and Raymond Diaz
("Det. Diaz") testified that they arrived at the
scene at 4:00 p.m. The detectives requested that Forensic
Video Specialist Tom Ciula ("Ciula") retrieve
multiple videos from four businesses and a residence in the
area of the incident. Ciula prepared a report, photographs,
and a video compilation of the events that transpired prior
to, during, and shortly after the shooting. The evidence was
viewed by the jury.
19} The videos depict the Impala circling the area near
Speedy prior to entering the gas station and initially
appears to contain four individuals. Johnson is seen walking
down Broadway toward Speedy. The Impala circles back into
camera view on Broadway and now appears to have only two
occupants. A male alleged to be Chapman is observed walking
along the route behind Johnson while talking on his cell
phone. The Impala pulls into the second of two rows of gas
station pumps with its tank on the opposite side of the pumps
that parallel Broadway Avenue facing west toward Hinde
Avenue, while Johnson is inside of Speedy.
20} Chapman, still talking on the cell phone, is standing
near the sidewalk in the driveway of the business immediately
adjacent to Speedy. Chapman is facing Broadway Avenue and
gesturing to someone across the street. Chapman moves further
up the driveway and stands behind a small white commercial
vehicle parked where he can view the Speedy lot. Johnson
exits the Speedy market, walking toward Broadway, when a male
wearing a black-hooded sweatshirt and bright-white athletic
shoes jogs across Broadway Avenue toward Johnson, pulls out a
gun, and shoots Johnson who turns to run and drops a gun that
he attempts to pull from his pocket.
21} Speedy customers and individuals in the immediate area
begin to scramble when the shooting starts. Johnson runs
toward Hinde Avenue with the shooter in pursuit. Chapman
walks to the other side of the white commercial vehicle to
observe the incident without obstruction, then touches the
front of the white truck with both hands as he turns and
exits the driveway.
22} Concurrently, an unidentified male exits the back seat of
the Impala, begins walking toward the area where Chapman had
been standing but abruptly returns to the Impala. Williams,
the admitted driver, never exits the Impala. The Impala pulls
out, turns right onto Hinde Avenue and makes a second right
onto Broadway Avenue toward Morton Avenue as a police car
pulls into Speedy.
23} Johnson emerges from the area behind Speedy onto Morton
Avenue when he falls to the street, apparently hit from
behind by another round of gunfire. As Johnson sits up and
attempts to scoot backwards away from the oncoming shooter,
the shooter walks over to Johnson and shoots him several more
24} The shooter walks down Morton Avenue in the opposite
direction of Broadway Avenue followed by Chapman who is still
talking on the cell phone. The Impala approaches from
Broadway Avenue. Chapman and the shooter climb into the
Impala and exit the scene as police arrive to attend to
25} CPD Officers Friedrich Kaufmann and James Crivel
("Officer Crivel") testified that they were the
first responders to Speedy and were immediately directed to
Morton Avenue where Johnson was laying. Witnesses referred to
Johnson as "E" and Officer Crivel recalled that an
individual named "E" was reportedly involved in the
shooting of Chapman about six months earlier.
26} CPD Detective Darren Robinson of the crime-scene unit
recovered multiple Blazer Smith & Wesson .40 caliber
bullet casings in front of the Speedy market building, in the
gas station lot and on Morton Avenue. The 9 mm gun dropped by
Johnson contained eight live rounds with one jammed in the
27} Based on a witnesses' tip, Det. Diaz obtained a
photograph of Chapman and discovered that Johnson may have
been involved in a 2016 incident where Chapman was shot
several times. CPD Fingerprint Examiner Shelby McMullen
testified that the fingerprints taken from the hood of the
white commercial truck belonged to Chapman.
28} Several days after the shooting, detectives received
information that tied the Impala to Williams. A search of the
license-plate reader database revealed multiple photographs
of the Impala with the distinctive black wheels. Det. Diaz
compared the photographs to the surveillance videos and
Williams became a suspect. The Impala was registered to
Williams's mother and was located at an apartment
building in Euclid, Ohio. Crime Scene Detective Todd Clemens
processed the Impala.
29} Williams contacted Det. Cruz on June 12, 2017, and
requested to retrieve property from the vehicle. By that
time, a warrant for Chapman was pending but Williams was
still under investigation. On June 14, 2017, Williams
voluntarily appeared at the police station and a videotaped
interview was conducted by Det. Cruz and Det. Remington.
30} Though not under arrest, Williams was advised of his
rights at the beginning of the interview. Williams identified
his car in the video photographs, admitted that he was at
Speedy when the shooting started but claimed that he was not
involved and did not know who was. During the interview,
Williams voluntarily surrendered a Smith & Wesson .40
caliber revolver that was in the vehicle that he arrived in.
Williams was ultimately allowed to leave while police
continued their investigation. Police also learned that
Chapman and Williams were cousins.
31}Det. Diaz secured Williams's cell-phone and cell-tower
records and contacted Williams for a second interview.
Williams failed to appear. Chapman was arrested. Williams was
subsequently arrested. At the interview following his arrest,
Det. Diaz showed Williams the surveillance video but Williams
maintained his innocence.
32} County Forensic Scientist Kristen Koeth testified that
the seven Blazer .40 caliber cartridges located at the scene
were fired from the same weapon but were not from the gun
that police had recovered from Williams. County Deputy
Medical Examiner Forensic Pathologist Dr. Erica Armstrong