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State v. Jackson

Court of Appeals of Ohio, Eighth District, Cuyahoga

August 15, 2019

STATE OF OHIO, Plaintiff-Appellee,
v.
TABITHA JACKSON, Defendant-Appellant.

          Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-17-621258-C

         JUDGMENT: AFFIRMED IN PART, REVERSED IN PART, AND REMANDED

          Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Gregory J. Ochocki, Assistant Prosecuting Attorney, for appellee.

          Mark A. Stanton, Cuyahoga County Public Defender, and Noelle A. Powell, Assistant Public Defender, for appellant.

          PATRICIA ANN BLACKMON, JUDGE

          JOURNAL ENTRY AND OPINION

         {¶ 1} Tabitha Jackson ("Tabitha") appeals her convictions for felonious assault, vandalism, menacing by stalking, and aggravated menacing by stalking and assigns the following errors for our review:

I. Tabitha Jackson's convictions for felonious assault are contrary to law and to the due process clause of the Fourteenth Amendment to the Constitution of the United States and Article I, Section 16 of the Ohio Constitution in that there was insufficient evidence to establish each and every element of the offenses beyond a reasonable doubt.
II. Tabitha Jackson's conviction for vandalism is contrary to law and to the due process clause of the Fourteenth Amendment to the Constitution of the United States and Article I, Section 16 of the Ohio Constitution in that there was insufficient evidence to establish each and every element of the offense beyond a reasonable doubt.
III. Tabitha Jackson's conviction for menacing by stalking is contrary to law and to the due process clause of the Fourteenth Amendment to the Constitution of the United States and Article I, Section 16 of the Ohio Constitution in that there was insufficient evidence to establish each and every element of the offense beyond a reasonable doubt.
IV. Tabitha Jackson's conviction for aggravated menacing by stalking is contrary to law and to the due process clause of the Fourteenth Amendment to the Constitution of the United States and Article I, Section 16 of the Ohio Constitution in that there was insufficient evidence to establish each and every element of the offense beyond a reasonable doubt.
V. Tabitha Jackson's convictions are against the manifest weight of the evidence and, accordingly, she was denied her fundamental right to a fair trial as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution.

         {¶ 2} Having reviewed the record and pertinent law, we reverse Tabitha's felonious assault convictions, affirm her remaining convictions, vacate her sentence and remand this case for resentencing.

         Facts and Procedural History

         {¶ 3} On September 19, 2017, Tabitha, along with her daughters Shanika Jackson ("Shanika") and Victoria Jackson ("Victoria"), was charged in an 11-count indictment with four counts of aggravated burglary, two counts of felonious assault, one count of vandalism, one count of menacing by stalking, one count of aggravated menacing, and one count of criminal damaging. The burglary and felonious assault charges included one- and three-year firearm specifications, and the menacing by stalking charge included a furthermore clause, alleging that the defendants trespassed on the land where the victim lives. The defendants waived their right to a jury trial, and the case proceeded to a bench trial.

         {¶ 4} The evidence showed that Shanika and Antonio Bland were, at one time, boyfriend and girlfriend, but Bland ended the relationship in April or May of 2017. After the breakup, Shanika repeatedly called Bland and sent him harassing text messages. Bland testified that Shanika also broke into his car, broke into his house, pulled a gun on him, and vandalized his property. Bland called the police several times and made police reports on seven different occasions. According to Bland, Shanika broke into his truck on June 26, 2017, and stole his license plates. The license plates were never recovered, and he had to purchase new ones. On July 3, 2017, Shanika broke into his house and stole an expensive pair of shoes she had previously given to him as a Father's day present.

         {¶ 5} Bland testified that Shanika sent him text messages threatening to attack his new girlfriend, Ivelyn Ortiz. He received text messages that read: "I see your girl" and "I see your bitch walking with your daughter. I should do something to her." Bland further testified that on August 20, 2017, Shanika, Tabitha, and other members of the Jackson family came to Bland's house "specifically to beat up [his] girlfriend." They arrived at the house yelling "Bring her outside!" Bland shut and locked the door because he "didn't want her to get hurt." He explained: "And because they could not get her, they started tearing up my truck."

         {¶ 6} Shanika and another unidentified woman smashed Bland's 2016 Dodge Journey with a golf club and a bat. Bland recorded the incident on his cell phone from inside his home. The video was played in open court during trial and admitted into evidence. Bland identified Shanika as one of the women depicted in the video smashing his truck and Tabitha as the person "with the golf club." Bland also identified Shanika's voice saying: "Bitch, you could still get your ass whooped." He testified that an unidentified woman depicted in the video wearing a blue bonnet flashed a gun at Bland before he started recording the scene. When asked what kind of damage the truck sustained, Bland replied that "it was destroyed" and "they broke all the windows." Bland obtained a civil protection order against Shanika following this August 20, 2017 incident.

         {¶ 7} Bland testified that Shanika nevertheless continued to harass him "over and over," and he authenticated numerous text messages he received from Shanika in August 2017, threatening and disparaging Bland and Ortiz.

         {¶ 8} On September 6, 2017, at approximately 7:00 p.m., Bland was cooking dinner for Ortiz because it was her birthday. While the food was cooking, Ortiz and Bland were sitting on the couch watching television when they observed Victoria coming down the street. Bland told Ortiz to call 911, and both Bland and Ortiz spoke to the dispatcher. A recording of the 911 call was played in open court and admitted into evidence. Bland watched Victoria through a glass storm door as he gave the dispatcher a description of her appearance. He noticed seven or eight people with Victoria on the corner of East 115th Street and Harvey Avenue. Bland's house is located near the intersection. Bland testified that he "panicked." He "thought [his] life was over," because Shanika's family members had previously smashed his truck and brandished a firearm.

         {¶ 9} According to Bland, Shanika approached the front door holding a golf club. Referring to Ortiz, Shanika screamed: "I want you!" and smashed the glass storm door with the golf club. Bland observed two other people, including Tabitha, trying to come through the door. He shot at them to keep them out and a bullet struck Shanika in the arm. Bland approached the doorway, and someone outside started shooting back at Bland. He explained: "I don't know who it was that was shooting, but I seen the flash and I start shooting some more." As a result of the incident, Shanika, Tabitha, and Victoria sustained nonfatal gunshot wounds.

         {¶ 10} Kristen Koeth, a firearms expert in the Regional Forensic Science Laboratory of the Cuyahoga County Medical Examiner's Office, testified that she examined cartridge cases found at the scene and determined they were produced by two different firearms, Bland's Glock and another unknown 9 mm gun. Thirteen of the cartridge cases came from Bland's Glock and five cartridge cases were fired by the other unidentified gun.

         {¶ 11} Detective Michael Hale of the Cleveland Police Department Crime Scene Investigation Unit testified that he collected evidence from the crime scene, including all the cartridge cases. He testified that he found one set of cartridge cases "right by the front doorway of the house." He found the other set by the intersection of East 115th Street and Harvey Avenue. Detective Hale explained that it is possible more than ...


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