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State v. Lanier

Court of Appeals of Ohio, Eighth District, Cuyahoga

September 5, 2019

STATE OF OHIO, Plaintiff-Appellant/ Cross-Appellee,
TERRENCE LANIER, JR., ET AL. Defendants-Appellees/ Cross-Appellants.

          Criminal Appeal from the Cuyahoga County Court of Common Pleas Case Nos. CR-17-623176-A and CR-17-623176-B


          Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Daniel T. Van, Brian D. Kraft, and Maxwell Martin, Assistant Prosecuting Attorneys, for appellant and cross-appellee.

          Mark A. Stanton, Cuyahoga County Public Defender, and Erika B. Cunliffe and John T. Martin, Assistant Public Defenders; Marein and Bradley, Steven L. Bradley and Cal E. Cumpstone, for appellees and cross-appellants.



         {¶ 1} In this consolidated appeal, we are called on to consider the trial court's rulings on posttrial motions that were rendered after a jury trial. Plaintiff-appellant the state of Ohio appeals the judgment granting the defendants-appellees Terrance Lanier ("Lanier") and Justin Robinson ("Robinson") a new trial, and defendants-appellees/cross-appellants appeal the denial of their motion for a post-verdict judgment of acquittal.[1] For the reasons that follow, we affirm the trial court's judgment granting the defendants' motion for a new trial, and we dismiss the defendants' cross-appeal.

         Procedural and Factual History

         {¶ 2} In November 2017, Lanier and Robinson were charged with the following crimes relative to a shooting that resulted in the death of Tyreese Neal ("Neal"): Count 1, murder of Neal; Counts 2 and 3, felonious assault of Neal; Count 4, felonious assault of John Doe; and Count 5, discharge of a firearm on or near prohibited premises. Count 6, which related solely to Robinson, was for having weapons while under disability. Counts 1 through 5 contained one-, three-, and five-year firearm specifications.

         {¶3} The jury trial commenced in May 2018 (except for the having weapons while under disability count against Robinson, which was tried to the bench). The following pertinent facts were adduced at trial. The victim, Neal, had been driving a vehicle in Cleveland, and Lanier and Robinson were passengers in it. As he was driving, Neal was shot in the head, on his left side, and later died from his injuries.

         {¶ 4} The Cleveland police processed the crime scene. The police found and retrieved a Kel-Tech model PLR-16 5.56 mm semiautomatic firearm, a cell phone, 15 9 mm cartridge cases, eight 40-caliber cartridge cases, one .223-caliber cartridge case, one damaged bullet, and two metal fragments. The firearm was swabbed for DNA (the trigger was not swabbed, however). Analysis of the swab demonstrated five sources of DNA on the weapon, two of which were Lanier's and Robinson's. The state's DNA expert testified that there was no way to determine when the defendants' DNA got on the weapon. He also testified that the presence of their DNA did not mean that they fired the weapon.

         {¶ 5} The vehicle was also processed. There were seven bullet defects to the vehicle, and one damaged spent bullet was located inside the vehicle. The defects on the vehicle suggested that the bullets had been fired into the vehicle, as opposed to them being fired from inside the vehicle. Only one shot was identified as being fired from the Kel-Tech weapon; according to the state's expert, the weapon jammed after one shot was fired.

         {¶ 6} The state's theory of the case was that Lanier and Robinson (along with the victim, Neal) were complicit in a "shootout." Specifically, the state believed that an individual shot at the subject vehicle, and then Lanier or Robinson fired back with the Kel-Tech weapon; Count 4 charged the defendants with felonious assault of this John Doe shooter, and Count 5 was for shooting on or near prohibited premises. Lanier and Robinson maintained that they were victims of this drive-by shooting, however.

         {¶ 7} After the presentation of the state's case, the defense made a Crim.R. 29 motion for judgment of acquittal as to all counts. The trial court denied the motion and the case was submitted to the jury. The jury returned not guilty verdicts on the murder, felonious assault, and attendant firearm specifications. It found the defendants guilty of a lesser included offense of Count 5, that is, discharging a firearm upon or over a public highway, causing a substantial risk of physical harm to another person or a substantial risk of serious physical harm to property; the jury also found the defendants guilty of the one- and three-year firearm specifications, but not guilty of the five-year drive-by shooting firearm specification.[1] The court found Robinson not guilty of Count 6, having weapons while under disability, stating that it could not "find beyond a reasonable doubt that [Robinson] had carried or used the firearm in question, that Kel-Tech weapon at the time of the offense."

         {¶ 8} Post-verdict, Lanier filed a motion for a new trial; Robinson joined in the motion. Lanier also filed a motion for judgment of acquittal based on insufficient evidence; Robinson joined in on that motion too. The trial court granted the motion for a new trial, stating that it was doing so on the ground that the conviction was against the manifest ...

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