State v. Johnson

[Cite as State v. Johnson, 2014-Ohio-1226.]

STATE OF OHIO, JEFFERSON COUNTY

IN THE COURT OF APPEALS

SEVENTH DISTRICT

STATE OF OHIO, )

) CASE NO. 13 JE 5

PLAINTIFF-APPELLEE, )

)

VS. ) OPINION

)

ANTONIO JOHNSON, )

)

DEFENDANT-APPELLANT. )

CHARACTER OF PROCEEDINGS: Criminal Appeal from Common Pleas

Court, Case No. 12CR119.

JUDGMENT: Affirmed in part; Reversed and Vacated

in part.

APPEARANCES:

For Plaintiff-Appellee: Attorney Jane Hanlin

Prosecuting Attorney

16001 State Route 7

Steubenville, Ohio 43952

For Defendant-Appellant: Attorney Eric Reszke

Suite 810, Sinclair Building

Steubenville, Ohio 43952

JUDGES:

Hon. Joseph J. Vukovich

Hon. Gene Donofrio

Hon. Mary DeGenaro

Dated: March 24, 2014

[Cite as State v. Johnson, 2014-Ohio-1226.]

VUKOVICH, J.

{¶1} Defendant-appellant Antonio Johnson appeals his conviction and

sentence that was entered in the Jefferson County Common Pleas Court for

attempted murder, felonious assault, weapons under disability, improper handling of

a firearm in a motor vehicle and the attendant firearm, criminal gang and discharge

firearm from a vehicle specifications. Johnson assigns three errors in this case.

First, he argues that the discharge a firearm from a vehicle (“drive-by”) specification

should be set aside because the evidence introduced at trial did not indicate that he

was in the vehicle when he was allegedly shooting the firearm. Second, he argues

that the guilty verdicts for attempted murder and felonious assault are against the

manifest weight of the evidence. Third, he argues that the trial court abused its

discretion when it qualified Detective John Lelless as an expert on the issue of

criminal gangs.

{¶2} For the reasons discussed below, the second and third arguments are

meritless. As to the first argument, this argument has merit. Accordingly, the

conviction and sentence for the drive-by specification is reversed and vacated. All

other convictions and sentences are hereby affirmed.

Statement of the Facts and Case

{¶3} In the afternoon of July 2, 2012, Johnson, aka Smiley, allegedly driving

a white car followed a car being driven by Trystn Hampton. In Hampton’s vehicle,

De’Lesha Thorn was sitting in the front passenger seat and Stedmund Creech, C.J.

and Rolland “Buster” Owens were sitting in the back seat. It is claimed that when the

car being driven by Hampton stopped on Orchard Street, a residential neighborhood,

to let Creech, C.J. and Owens out of the car, Johnson used the driver’s door as a

shield and opened fire at Creech, C.J., and Owens. He allegedly shot 17 rounds

from an AK-47 and Creech, C.J. and/or Owens allegedly returned fire. Bullets

penetrated two different houses, but, fortunately no one was harmed during this mid-

day shooting.

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{¶4} Allegedly Johnson is a member of the Blue Devil gang, a subset of the

Crips. Creech, C.J. and Owens are allegedly members of a rival gang, the Grape

Street gang, which is also a subset of the Crips.

{¶5} As a result of those alleged actions, Johnson was indicted for attempted

murder, in violation of R.C. 2923.02 and R.C. 2903.02, a first-degree felony; felonious

assault, in violation of R.C. 2903.11, a second-degree felony; weapons under

disability, in violation of R.C. 2923.13, a third-degree felony; and improper handling of

a firearm in a motor vehicle, in violation of R.C. 2923.16, a fourth-degree felony. The

attempted murder and felonious assault offenses each contained three attendant

specifications - a R.C. 2941.145 firearm specification, a R.C. 2941.142 criminal gang

specification, and a R.C. 2941.146 discharge of firearm from a motor vehicle

specification (“drive-by” specification).

{¶6} The jury found him guilty of all charges and specifications. 02/07/13

Verdicts. The trial court sentenced Johnson to an aggregate sentence of 24½ years.

The attempted murder and felonious assault convictions merged for purposes of

sentencing and Johnson received a 10 year sentence. For the firearm specification,

he received a mandatory 3 year term. For the gang specification, he received a

mandatory 2 year term. For the “drive-by” specification, he received a mandatory 5

year term. For the weapons under disability conviction, he received a 3 year term,

and for mishandling a firearm in a motor vehicle he received an 18 month prison

term. 02/14/13 J.E.

{¶7} Johnson appeals from his conviction and sentence.

First Assignment of Error

{¶8} “The trial court committed reversible error in overruling appellant’s

motion to set aside the ‘drive by’ specifications pursuant to Criminal Rule 33(A)(4).”

{¶9} At the close of the state’s case, Johnson moved for an acquittal

pursuant to Crim.R. 29. The argument supporting the motion was a general

argument that the state did not prove its case. The trial court denied the motion.

One day after trial, Johnson filed a timely Crim.R. 33(A)(4) motion to set aside the

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conviction for the R.C. 2941.146 “drive-by” specification asserting that the verdict is

not supported by sufficient evidence. The trial court also denied that motion.

{¶10} Appellate courts have concluded that when a motion for new trial is

based on division (A)(4), the appellate court uses the same standard of review that it

does when reviewing a sufficiency of the evidence argument and the denial of a

Crim.R. 29 motion for acquittal. State v. Hogg, 10th Dist. No. 11AP-50, 2011-Ohio-

6454, ¶ 14; State v. Stephens, 11th Dist. No. 2001-T-0044, 2002-Ohio-2976, ¶ 26.

Thus, as the reviewing court, we must determine whether a rational factfinder,

viewing the evidence in a light most favorable to the prosecution, could have found

the essential elements were proven, beyond a reasonable doubt. State v.

Thompkins, 78 Ohio St.3d 380, 386, 687 N.E.2d 541 (1997) (sufficiency standard of

review).

{¶11} The “drive-by” specification is found in R.C. 2941.146. Section (A)

indicates that a five-year prison term is imposed when a defendant commits a felony

that includes the element of purposely or knowingly causing or attempting to cause

the death of or physical harm to another, if the crime “was committed by discharging

a firearm from a motor vehicle other than a manufactured home.”

{¶12} Johnson argues that since he was not in the vehicle when the shots

were being fired, the R.C. 2941.146 “drive-by” specification is inapplicable to him.

His position is based on the Ohio Supreme Court’s decision in State v. Swidas, 133

Ohio St.3d 460, 2012-Ohio-4638, 979 N.E.2d 254.

{¶13} In Swidas, the Court held that R.C. 2941.146 is not applicable when a

defendant is standing outside his vehicle. Id. at ¶ 14. In forming the issue presented

for it to decide, the Court stated:

The crux of this case is determining what the word “from” means

in the phrase “from a motor vehicle.” The court of appeals stated that

R.C. 2941.146 is not limited to “drive-by” shootings. But does it apply to

a “stand-by” shooting?

Id. at ¶ 16.

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{¶14} In deciding the case, the Court looked at dictionary definitions of the

word “from.” Id. at ¶ 18-19. It explained that those definitions refer to a point or place

where something departs. Id. at ¶ 20. It then looked at the statute and explained

that the point or place is “a motor vehicle;” the statute requires the starting point of

the activity to be the motor vehicle itself. Id. It then explained:

But a motor vehicle cannot fire a weapon; the statute applies to

people. That does not obviate the statutory requirement that the locus

of the discharge of the weapon is the motor vehicle itself. For the locus

of the discharge to be the motor vehicle, then, the person discharging

the weapon must have a substantial physical connection to the vehicle.

If a person were in or on a vehicle to the extent that the vehicle was

providing substantial support to the person, the locus of that person's

firing of the weapon would be the motor vehicle. Without a substantial

physical connection to the vehicle, a shooter cannot be said to have

fired a shot that commenced from the motor vehicle.

Id. at ¶ 21.

{¶15} In the case at hand, testimony from Thorn indicates that Hampton and

Thorn were at the Maryland Market when Creech, C.J. and Owens asked them for a

ride to “the other side of the hill,” meaning the Pleasant Heights section of

Steubenville. Tr. 151-153. While en route to their destination, they crossed the

Lawson Avenue Bridge and passed a white car that Johnson was allegedly driving;

Thorn testified that she knew the driver as Smiley. Tr. 154. They arrived at Orchard

Street in the Pleasant Heights section of Steubenville and let the men out of the car.

As the men were getting out of the car, Thorn noticed the white car that they passed

on the bridge come up behind them. She testified that Smiley got out of the car and

using the driver’s door as a shield, fired shoots at the men getting out of the car she

was in. Tr. 157.

{¶16} Her specific testimony as to Johnson’s relationship to the car is as

follows:

A. And the individual gets out of the car with a shotgun.

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Q. Okay. And could you see the individual who got out of the

car with the – what you refer to as the shotgun?

A. Yes, Ma’am.

Q. And who was that?

A. Smiley.

Q. All right. Any doubt in your mind that the individual who got

of that white car with the gun is the individual who is seated here in the

courtroom today?

A. No, there’s no doubt.

Q. Okay. And when you see him this time what do you see?

A. I see him behind like the driver’s door with the gun.

Q. When you say behind the driver’s door was he behind the

driver’s door of the car that he had been driving?

A. Yes.

Q. Does – do you ever see him come completely away from the

car at all?

A. Like – he’s like – it’s like a shield. That’s how he was with the

gun, just behind –

Q. Using his own car door as a shield?

A. Yes.

Q. And he’s behind that.

A. Yes.

Tr. 157-158.

{¶17} Testimony also shows that following the shooting, Johnson drove the

white car away from the scene of the shooting. Thorn testified that a little after they

drove away they saw the white car again and it was wrecked into another vehicle. Tr.

159. Marie Zumpana testified at trial that she was involved in a hit and run accident

with a white car with the partial license plate number FOY on Plum Street in the

Pleasant Heights section of Steubenville. Tr. 237-238. She stated that the driver

was a black male with light skin and had on a white T-shirt. Tr. 238. Her car was

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disabled, however, the white car was still working and the driver continued on driving

to Union Street. Tr. 238. Also, Kevin Bickford, a worker from Digital Dish, was

working on State Street in Steubenville on July 2, 2012, and testified at trial. He

indicated he heard gunshots and then saw a car traveling at a high rate of speed and

crash at the bottom of the street where there is a park. Tr. 243-244. He said the car

was white. Tr. 243. He then saw a man get out of the car, take off, then come back

and get something, and then take off again. Tr. 244.

{¶18} The state’s position focuses on the following facts. Johnson took the

overt act to turn the car around after passing the car driven by Hampton that

contained Creech, C.J. and Owens, and followed them. He used the car door as a

shield, and according to the state, had to lift the semi-automatic assault rifle over the

window to begin shooting. He then used the car to drive off. The state maintains that

this is substantial physical connection to the vehicle.

{¶19} Johnson disagrees. He argues that the above facts are not enough to

establish a substantial physical connection.

{¶20} After reviewing the Swidas case in its entirety, we agree with Johnson.

In Swidas, testimony established that he was standing behind a car door when firing

at the victim. Swidas, 2012-Ohio-4638, ¶ 4. The victim testified that Swidas was

between the door and the vehicle and was using the door as a shield. Id. at ¶ 5. In

discussing the facts the Court made the following statement:

Our parsing of prepositions continues in determining whether

Swidas had a substantial physical connection to the motor vehicle when

he shot Altizer; the key to this analysis is the victim's use of the word

“over.” Altizer testified, “He was over the windshield of the car a little

bit, pointing a gun at me, shooting.” He did not testify that any part of

Swidas was on the vehicle. The appellate court incorrectly stated that

Swidas was “leaning on the vehicle as he discharged his weapon.” The

state cites nothing in the record that supports the appellate court's

statement; no testimony even suggests that Swidas was on the car.

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Indeed, the state does not rely on physical contact to make its

case; instead, it basically argues that the vehicle was the

instrumentality, the sine qua non, of the crime. That is the same

reasoning that the trial court used in denying Swidas's motion to

dismiss the R.C. 2941.146 specification. The state argues that the

vehicle was “the starting point from which Appellant staged his attack,”

that it was “the origin from which Appellant retrieved his gun,” that it

provided “protection and concealment” for Swidas, and that it was the

means by which Swidas “was able to make a rapid escape from the

crime scene.” All those statements are true, all supported by testimony,

but none are relevant to R.C. 2941.146. The key to a violation under

R.C. 2941.146 is the location of the shooter at the time of the shooting.

In this case, there is no evidence suggesting that Swidas had even

incidental contact with the vehicle when he fired his weapon. The “from”

in this case is a spot next to the motor vehicle.

Swidas, 2012-Ohio-4638, ¶ 22-23.

{¶21} Here, Thorn is the only person who testified that she saw Johnson

shooting. She said he got out of the car with a shotgun and was using the door as a

shield. She does not state he is leaning on the car or indicate that he had any

contact with the car. Thus, the facts in this case are similar to Swidas.

{¶22} Therefore, on the basis of Swidas, the conviction and sentence for the

“drive-by” specification must be reversed and vacated. This assignment of error has

merit.

Second Assignment of Error

{¶23} “The jury verdict of guilty to the offenses of attempted murder and

felonious assault was against the manifest weight of the evidence.”

{¶24} When reviewing a judgment under a criminal manifest weight standard

of review, “[t]he court reviewing the entire record, weighs the evidence and all

reasonable inferences, considers the credibility of witnesses and determines whether

in resolving conflicts in the evidence, the jury clearly lost its way and created such a

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manifest miscarriage of justice that the conviction must be reversed and a new trial

ordered.” State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997).

{¶25} This court's discretionary power to reverse on manifest weight grounds

and grant a new trial is exercised only in the exceptional case where the evidence

weighs heavily against conviction. Thompkins at 387. This standard is a high one

because the trier of fact was in a better position to determine credibility issues, by

having personally viewed the demeanor, voice inflections and gestures of the

witnesses. State v. Ali, 154 Ohio App.3d 493, 2003–Ohio–5150, 797 N.E.2d 1019, ¶

36 (7th Dist.); State v. DeHass, 10 Ohio St.2d 230, 231, 227 N.E.2d 212 (1967). A

reviewing court therefore should not interfere with the witness credibility and factual

determinations of the jury, unless the record demonstrates that a reasonable juror

simply could not have found the witness to be credible. State v. Mock, 187 Ohio

App.3d 599, 2010–Ohio–2747, 933 N.E.2d 270, ¶ 40 (7th Dist.).

{¶26} In this assignment of error, Johnson argues that his convictions for

felonious assault, in violation of R.C. 2903.11(A)(2), and attempted murder, in

violation of R.C. 2923.02(A) and R.C. 2903.02(A), were against the manifest weight

of the evidence. R.C. 2903.11(A)(2) defines felonious assault as “no person shall

knowingly * * * cause or attempt to cause physical harm to another * * * by means of

a deadly weapon or dangerous ordnance.” Attempted murder is defined in R.C.

2923.02 and R.C. 2903.02(A) as no person shall purposely attempt to cause the

death of another.

{¶27} It is undisputed that the shooting at the car which contained Thorn,

Hampton, Creech, C.J. and Owens meets the elements of felonious assault and

attempted murder. The only element contested in this case is appellant’s identity as

the perpetrator of the shooting. It is well settled that in order to support a conviction,

the evidence must establish beyond a reasonable doubt the identity of the defendant

as the person who actually committed the crime at issue. State v. Collins, 8th Dist.

No. 98350, 2013–Ohio–488, ¶ 19, citing State v. Lawwill, 12th Dist. No. CA2007–01–

014, 2008–Ohio–3592, ¶ 11.

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{¶28} As aforementioned, Thorn testified that she was a passenger in a car, a

Gray Camry, driven by Hampton and that while they were at Marland Market in the

LaBelle section of Steubenville, Creech, C.J. and Owens asked for a ride to the

Pleasant Heights section of Steubenville. Tr. 151-153. Hampton’s own testimony

confirmed these facts. Tr. 187-188. While en route to their destination, they crossed

the Lawson Avenue Bridge and passed a white car that Thorn avowed Johnson was

driving; Hampton testified that while they were passing the car, Thorn said, “There

goes Smiley.” Tr. 154, 190.

{¶29} The men in Hampton’s car directed her to Orchard Street in the

Pleasant Heights section of Steubenville and the women proceed to attempt to let the

men out of the car. Tr. 156. As the men were getting out of the car, Thorn noticed

the white car that they passed on the bridge come up behind them. Tr. 157. She

testified that Smiley got out of the car, used the driver’s door as a shield, and started

shooting. Tr. 157. She indicated that both Owens and C.J. were able to get out of

the car and run, but Creech remained in the car. Tr. 159. At trial, she identified

Johnson as Smiley, the shooter/driver of the white car. Immediately upon hearing the

shots, Thorn told Hampton to drive and Thorn called 911.

{¶30} The 911 call was played for the jury. In that call, Thorn indicated that

there was a shooting and she identified the shooter as driving an older white Ford

Taurus. Tr. 162. She told the 911 operator that the shooter/driver was a mixed race,

light skinned male with an Afro named Smiley. Tr. 162-163.

{¶31} Hampton confirmed much of Thorn’s testimony, such as Thorn telling

her to drive once Thorn heard the shots and that Creech remained in the car but the

other two were able to get out and run for cover. Tr. 192-194. However, Hampton

did not see who was shooting at them and did not see the driver of the white car; she

was not even sure where the shooting was coming from. Tr. 192-193. At trial,

however, she testified that the person she knows as Smiley is Johnson. Tr. 196, 198.

{¶32} Both Thorn and Hampton viewed photographic lineups. Hampton was

asked to identify the person she knows as Smiley. She quickly picked Johnson in

that lineup and indicated that she was 100 percent sure that that was the person she

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knows as Smiley. Tr. 196-198, 383. Thorn was asked to identify the shooter. She

also quickly picked Johnson as the shooter and as the person she knows as Smiley.

Tr. 170-172, 353-356. However, she stated she was only 50 percent sure that that

was him when she was viewing the lineup. Tr. 171-172, 353. When asked about

this, she explained that she was really nervous at the viewing and that she was a 100

percent sure, not 50 percent sure. Tr. 172. She was then asked a couple times if

she was sure Johnson is the person she knows as Smiley and if he was the shooter.

Tr. 172. She indicated that she was 100 percent sure it was him. Tr. 172. The

videotape of the photo identification was played for the jury and the officer who

conducted that lineup testified. In the video, after identifying Johnson, she asked if

she had to testify and indicated that she was nervous because of the shooting. Tr.

353-354. She also indicated that his hair was different from the picture. Tr. 354.

The officer testified that she had no problem in identifying the individual and that she

identified Johnson in a matter of seconds. Tr. 356.

{¶33} Thorn is the only witness to identify Johnson as the shooter. As stated

above, Hampton did not see who was shooting. There was one other witness to the

shooting, Stephanie Luke. Luke is Owens’ cousin and she lives at 1526 Orchard

Street in Steubenville. Tr. 219, 221. She was outside with her great grandson when

Owens and his friends arrived at her house. Tr. 219. She indicated as soon as the

men got out of the car shooting started. Tr. 222. At that point, she grabbed her

grandson, went into the house and called the police. Tr. 222. She testified that

Owens had a gun and Creech and the “other boy” had a gun. Tr. 229. Her testimony

was that all three men got out of the Camry driven by Hampton. Tr. 229.

{¶34} As can be seen, her testimony is in partial conflict with Thorn and

Hampton’s testimony on an inconsequential detail in this case – whether Creech

remained in the Camry driven by Hampton or if he got out of the car. This could

create a credibility question as to who to believe. As previously indicated, the jury is

in the best position to judge credibility. It is free to believe all, part or none of a

witness’s testimony. State v. Helman, 7th Dist. No. 03CO55, 2004–Ohio–4867, ¶ 12.

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{¶35} Furthermore, although Thorn’s identity of Johnson at the lineup was

only 50 percent certain, the jury could have believed her trial testimony that she was

100 percent certain it was him. Her identification of him along with Hampton’s

identification that Johnson is the person she knows as Smiley could have been

enough for the jury to find that he was the perpetrator of the shooting.

{¶36} That said, that was not the only evidence that provided identification in

this case. There was also circumstantial evidence of identification.

{¶37} Following the shooting, Marie Zumpana was involved in a hit and run

accident with a white car with the partial license plate number FOY on Plum Street in

the Pleasant Heights section of Steubenville. Tr. 237-238. She stated that the driver

was a black male with light skin and had on a white T-shirt. Tr. 238. Her car was

disabled, however, the white car was still working and the driver continued driving to

Union Street. Tr. 238. Thorn testified that after the shooting when they came back

around, they saw that the white car Johnson was driving had wrecked into another

vehicle. Tr. 159.

{¶38} Kevin Bickford, a worker from Digital Dish was working on State Street

in Steubenville on July 2, 2012 and he heard gunshots and then saw a car traveling

at a high rate of speed and crash at the bottom of the street where there is a park.

Tr. 243-244. He said the car was white. Tr. 243. He then saw a man get out of the

car, take off, then come back and get something, and then take off again. Tr. 244.

{¶39} Patrolman Rob Cook testified that there was a white vehicle wrecked at

the end of State Street. Tr. 251. In the weeds behind a house in that area he found

an AK-47 assault rifle, specifically a Norinco 7.62 caliber semiautomatic rifle. Tr. 260.

It was loaded with live 7.62 rounds and one live round in the chamber. Tr. 255.

Edward Lulla from the Ohio Bureau of Criminal Identification and Investigation (BCI)

testified that he searched the white vehicle with license plate number FOY 8818. Tr.

268. In the trunk, he found a 7.62 by 39 live cartridge. Tr. 270. Sergeant Robert

Gotschall, who was the first officer to arrive at the scene of the shooting at Orchard

Street, found shell casings in the alley that were collected as evidence. Tr. 140-146.

There were 17 casings found. Tr. 146. Andrew Chappell, a forensic scientist

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assigned to the firearms section of BCI, tested the casings, cartridges and the

Norinco rifle. Tr. 452-452, 454. He stated that the Norinco rifle was operable and the

17 casings found at the scene of the shooting were fired from the Norinco rifle. Tr.

459-460. Although the gun, casings and cartridges were swabbed for DNA, it could

not be determined whose DNA was found on it because there was not enough DNA

found. Tr. 467, 506.

{¶40} Lulla, also in searching the car, found a white shirt, a Dairymen’s brand

lemonade drink, a water bottle, and a .40 caliber Taurus Millennium, Model PT 140

Pro. Tr. 273. The gun was loaded and had a live cartridge in the chamber. Tr. 273,

278-279. There was also a bullet hole in the windshield of the car and a bullet was

removed from the back seat of the car. Tr. 270.

{¶41} Starting with the Millennium gun, it was determined to be operable and

it was swabbed for DNA. Tr. 465, 504. There was a DNA type or profile generated

from this sample, however, there was a mixture of DNA that was not suitable for

comparison. Tr. 505-506. This means there was five, six or more contributors to the

DNA mixture that was found on this gun. Tr. 505.

{¶42} The bullet that was found in the back seat of the car was examined. It

was not fired from the Norinco rifle. Tr. 463. It was determined to be a .38 caliber

class bullet that would include calibers like .9 millimeter Luger, .38 Special, .357

Magnum and .357 Sig. Tr. 462-463.

{¶43} Out of the remaining evidence, two fingerprints found on the lemonade

drink were identified as coming from Johnson. Tr. 492. Furthermore, his DNA was

also found on that drink bottle; the expected frequency of the DNA profile on this

bottle is 1 in 9,533,000,000,000,000,000 unrelated individuals. Tr. 503, 510. His

DNA and the DNA of two other individuals was found on the white T-shirt; the

frequency for this DNA profile is 1 in 1,060,000 unrelated individuals. Tr. 505, 510.

{¶44} Upon his arrest, cellular telephones were seized from the house where

he was found. Tr. 516. A picture sent to one of the phones showed a bracelet that

said “I ♥ Smiley.” Tr. 533; State’s Exhibit 57. There were also messages sent to one

of the phones about “swat” being in town. Tr. 536-537; State’s Exhibit 59.

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{¶45} All of the above testimony provides circumstantial evidence that

Johnson was the shooter. His DNA and fingerprints are found on a lemonade bottle

in the white Taurus with license plate FOY 8818 that had come to a stop at the end of

State Street in Steubenville. Shortly after the shooting, a white car with partial plate

FOY with a light skinned black male in it was involved in a hit and run. Shortly after

hearing shots, one witness saw this car wreck at the end of State Street and a male

exit the car and run off. Near the resting spot of the white car, a Norinco rifle was

found. Testing on that rifle confirmed that the bullets found at the scene of shooting

were from that rifle. The phone also found at the residence where Johnson was

apprehended had the picture of the bracelet that said I love Smiley. Hampton’s

identification indicated that Johnson is the person she knows as Smiley. All of this

evidence taken together, if believed, indicates that Johnson is the shooter.

Circumstantial evidence has the same probative weight as direct evidence. State v.

Nicely, 39 Ohio St.3d 147, 151, 529 N.E.2d 1236 (1988); State v. Terlesky, 7th Dist.

No. 05MA237, 2007-Ohio-3402, ¶ 90.

{¶46} As previously stated, the jury was in the best position to determine

credibility and determine which evidence to believe. Considering the evidence, we

hold that the determination that Johnson was the shooter is supported by competent,

credible evidence. Therefore, the jury did not clearly lose its way and, as such, a

manifest miscarriage of justice was not created by the jury’s verdict. This assignment

of error is deemed meritless.

Third Assignment of Error

{¶47} “The trial court abuses [sic] it’s [sic] discretion qualifying Detective John

Lelless as an expert.”

{¶48} The admission or exclusion of evidence lies in the trial court's sound

discretion. State v. Sage, 31 Ohio St.3d 173, 510 N.E.2d 343 (1987). In order to find

an abuse of that discretion, we must determine that the trial court's decision was

unreasonable, arbitrary, or unconscionable; and not merely an error of law or

judgment. Blakemore v. Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140 (1983).

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{¶49} A large portion of Detective John Lelless’ testimony was discussing

Johnson’s tattoos and using that evidence as a basis for showing that Johnson is

part of the Blue Devil gang. This was the only testimony showing evidence that

Johnson is in a gang. Thus, if this testimony was not proper, the gang specification

would be based on insufficient evidence, i.e. the state would not have met its burden

of production. Johnson objected to Detective Lelless’ testimony about tattoos and

the fact that they showed Johnson was a member of a gang. Tr. 388-396.

{¶50} This assignment of error appears to be based on a false premise that

Detective Lelless was found to be an expert. The record is devoid of any request by

the state asking for him to be determined to be an expert. Furthermore, there is no

clear statement from the court finding him to be an expert. With all the BCI

witnesses, the prosecutor asked for them to be determined to be experts and the

court found that they were. Tr. 464, 468, 482, 496, 518. That was not done with

Detective Lelless.

{¶51} The state asserts that Detective Lelless’ testimony was proper under

Evid.R. 701, Opinion testimony by lay witnesses.

{¶52} Given the state’s position, our starting point for this assignment of error

is determining whether Detective Lelless’ testimony is opinion testimony by a lay

witness or if it is so specialized that it could only be given by an expert. As stated

above, Detective Lelless’ testimony concerns the tattoos on Johnson’s chest and

arms and how those tattoos identify Johnson as a member of the Blue Devil gang,

which is a subset of the Crips. He testified that a major way to identify members of

the Blue Devil gang is by body art/tattoos. Tr. 394. State’s Exhibit 36 contains

multiple pictures of Johnson’s tattoos. He has the word “Blue” across his right

shoulder and the word “Devil” across his left shoulder. Detective Lelless explained

how these tattoos identify him as a Blue Devil gang member:

A. * * * At the bottom of the “Blue” or the “B” in “Blue,” they don’t

always like to use the letter “B” because it represents a rival gang called

the Bloods. So, they’ll normally put a “K.” To the bottom there, you can

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barely distinguish it, it has a “K.” And to the Crips, that means “Blood

Killer.”

In the “D,” and some of the other pictures will clearly depict that,

there’s an “X.” What’s common within the Crip alphabet, they will place

an “X” in various letters within their alphabet, D’s, I’s, and various letters

like that.

What’s depicted is a prayer in the breast area on the right side of

Mr. Johnson should he die, he prays that the Lord takes him. And

conveniently to the left are the Gates of Hell.

These little handles are shaped in the letter C with a gangster on

his or her knees praying that he doesn’t enter the Gates of Hell, that he

would go to heaven, be with whatever God Mr. Johnson or fellow gang

members pray to.

Tr. 401-402.

{¶53} This is just a portion of his testimony that shows the knowledge that

Detective Johnson has in identifying tattoos that indicate gang affiliation and to what

gang that person might belong.

{¶54} Lay witness testimony is defined in Evid.R. 701 as:

If the witness is not testifying as an expert, the witness'

testimony in the form of opinions or inferences is limited to those

opinions or inferences which are (1) rationally based on the perception

of the witness and (2) helpful to a clear understanding of the witness'

testimony or the determination of a fact in issue.

Evid.R. 701.

{¶55} Under Evid.R. 702 a witness may testify as an expert if all of the

following applies:

(A) The witness' testimony either relates to matters beyond the

knowledge or experience possessed by lay persons or dispels a

misconception common among lay persons;

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(B) The witness is qualified as an expert by specialized

knowledge, skill, experience, training, or education regarding the

subject matter of the testimony;

(C) The witness' testimony is based on reliable scientific,

technical, or other specialized information. * * *

Evid.R. 702(A)-(C).

{¶56} The Fifth and Twelfth Appellate Districts have explained the distinction

between lay person opinion testimony and expert opinion testimony. State v.

Russell, 12th Dist. No. CA2012-08-156, 2013-Ohio-3079, ¶ 36; State v. Lewis, 192

Ohio App.3d 153, 2011-Ohio-187, ¶ 23 (5th Dist.). Lay person opinion testimony

“results from a process of reasoning familiar in everyday life, while expert opinion

testimony results from a process of reasoning that only specialists in the field can

master.” Russell, quoting Lewis.

{¶57} Appellate courts have determined that some testimony offered by

officers/detectives is lay person witness testimony even though it is based on the

officer/detective’s specialized knowledge. State v. McClain, 6th Dist. No. L-10-1088,

2012-Ohio-5264, ¶ 13 (Detective’s testimony that quantities of narcotics recovered

during the execution of the search warrant suggested that they were for sale as

opposed to personal use was admissible under Evid.R. 701 as lay person opinion

testimony. Detective’s testimony was based on fact that 16 year veteran officer who

has been assigned to narcotics and vice unit for 12 years; testimony was based on

his perception and experience as a police officer.); State v. Primeau, 8th Dist. No.

97901, 2012-Ohio-5172, ¶ 71-75 (Officer, without medical expertise, was permitted to

testify about his observation of the lacerations on appellant’s hand. The court stated

that description was based on his previous investigations of assaults and his

perception of appellant’s lacerations at that time. Thus, the testimony was proper

under Evid.R. 701.); State v. Williams, 9th Dist. No. 25716, 2011-Ohio-6604, ¶ 11

(Officer’s testimony that place definitely was a methamphetamine lab was based on

personal observation from items taken from garbage and found in the house. It was

proper testimony under Evid.R. 701.); State v. Cooper, 8th Dist. No. 86437, 2006-

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Ohio-817, ¶ 18 (In forgery case, detective permitted under Evid.R. 701 to testify

based on his experience as a police officer, his pervious investigations of forgeries

and his perception of the handwriting samples at issue.).

{¶58} The Ohio Supreme Court has even observed that courts have permitted

lay witnesses to express their opinions in areas in which it would ordinarily be

expected that an expert must be qualified under Evid.R. 702 and that such

permission was not necessarily incorrect. State v. McKee, 91 Ohio St.3d 292, 2001-

Ohio-41, 744 N.E.2d 737. The Court also confirmed that a drug user is permitted to

testify about the identity of drugs if the proper foundation is first laid. Id. It explained:

Although these cases are of a technical nature in that they allow

lay opinion testimony on a subject outside the realm of common

knowledge, they still fall within the ambit of the rule's requirement that a

lay witness's opinion be rationally based on firsthand observations and

helpful in determining a fact in issue. These cases are not based on

specialized knowledge within the scope of Evid.R. 702, but rather are

based upon a layperson's personal knowledge and experience.

Id.

{¶59} That said, the Sixth Appellate District has stated that an officer’s

testimony that it is common for victims of sexual assault to delay reporting the

incident to authorities is not knowledge that the average juror has and, as such, is

properly categorized as expert testimony under Evid.R. 702. State v. Solether, 6th

Dist. No. WD-07-053, 2008-Ohio-4738, ¶ 65 (Officer was permitted to testify under

Evid.R. 702).

{¶60} The above is illustrative as to what type of testimony can be lay witness

testimony and what has to be expert witness testimony. When the topic is narrowed

to gang activity, the case law is sparse. The cases do not discuss both Evid.R. 701

and Evid.R. 702 and indicate what type of gang testimony falls under Evid.R. 701

versus Evid.R. 702. Rather, the cases focus on one of the rules and discuss whether

the officer’s testimony qualifies under that rule.

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{¶61} For example, the Ohio Supreme Court has concluded that an officer

was qualified as an expert to testify to gang related activity; testimony showed that

the officer possessed specialized knowledge about gang symbols, cultures, and

traditions beyond that of the trier of fact. State v. Drummond, 111 Ohio St. 3d 14,

2006-Ohio-5084, 854 N.E.2d 1038, ¶ 116. The Ninth Appellate District has stated

that an officer’s testimony about gang activities qualified as expert testimony and was

admissible under Evid.R. 702. State v. Jefferson, 9th Dist. No. 20156, 2001 WL

276343 (Mar. 21, 2001). The officer’s knowledge was not possessed by the average

trier of fact because it included the significance of gang graffiti and seemingly

meaningless phrases, the typical structure of a gang, and alliances among gangs.

Id. The Second Appellate District stated that the officer would qualify as an expert

because his testimony demonstrated that he possessed specialized knowledge

beyond that of lay persons on that topic. State v. Lewis, 2d Dist. No. 96 CA 12, 1997

WL 156596 (Apr. 4, 1997). The Tenth Appellate District has found that an officer and

eye witnesses could testify about gang activity under Evid.R. 701 as a lay witness. In

the Matter of Jones, 10th Dist. No. 98AP-152, 1998 WL 680979 (Sept. 30, 1998).

These witnesses personally observed gang behavior in general and appellant’s gang

involvement.

{¶62} Here, although Detective Lelless did not testify that he personally

observed Johnson’s gang activity, his testimony could be proper lay witness opinion

testimony under Evid.R. 701, if the proper foundation was laid. The Ohio Supreme

Court’s decision in McKee supports this conclusion because although his knowledge

is specialized as to body art and tattoos that identify an individual as a member of the

Blue Devil gang, that is based on his personal knowledge and experience in the field.

{¶63} The foundation for his testimony establishes his personal knowledge

and experience in the field. Detective Lelless testified that he has been a police

officer for 23 years and for the past 18 years he has been a detective. Tr. 378. He

explained that for the past 20 years he has taught at Eastern Gateway Community

College in the police academy. Tr. 386. He indicated that one of courses he has

taught is gang identification and investigation. Tr. 386. He stated that everyday he is

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learning about gang identification, tattoos, and markings and he has testified in

numerous cases on the issue of gang activity and whether the offender/victim is a

gang member. Tr. 386-387. He indicated that he has done research in the area of

gang activity and is in the field gathering intelligence on gang activity in the local area

almost daily; he talks to informants, gang members that have been arrested and uses

the internet, FaceBook and Twitter. Tr. 392-393. He indicated that in the

Steubenville Police Department, he has been involved in gang intelligence since

1992. Tr. 393. He also indicated that there are some specific types of tattoos that

members of the Blue Devil gang have and that he recognizes them when he sees

them. Tr. 394. He testified that the Blue Devil gang has been in existence in

Steubenville since late 1999, early 2000 and that while he could not identify who was

the founding member of the gang he could narrow it to the main individuals, who go

by the last names of “Wise, Wook and Michael Taylor.” Tr. 395. However, he could

not state how many members of the Blue Devil gang he has arrested, prosecuted or

testified against as to their involvement in gang activity and/or about their body art.

Tr. 395-396. He would not even give an estimate. Tr. 396.

{¶64} Consequently, given the above the proper foundation was laid and this

foundation established that he could testify as a lay witness.

{¶65} That said, the above foundation also establishes that he is an expert.

His testimony relates to matters beyond the knowledge or experience possessed by

lay persons; he is qualified by his specialized skill, knowledge and experience, and

his testimony is based on specialized information. Evid.R. 702(A)-(C). The Ohio

Supreme Court has explained:

Evid.R. 702(B) provides that a witness may qualify as an expert

by reason of his or her specialized knowledge, skill, experience,

training, or education. Neither special education nor certification is

necessary to confer expert status on a witness. The witness offered as

an expert need not have a complete knowledge of the field in question,

as long as the knowledge he or she has will aid the trier of fact. State v.

Baston (1999), 85 Ohio St.3d 418, 423, 709 N.E.2d 128.

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State v. Hale, 119 Ohio St.3d 118, 2008-Ohio-3426, 892 N.E.2d 864, ¶ 54. See also

Drummond, 2006-Ohio-5084 at ¶ 116 (“Neither special education nor certification is

necessary to confer expert status upon a witness. The individual offered as an

expert need not have complete knowledge of the field in question, as long as the

knowledge he or she possesses will aid the trier of fact in performing its fact-finding

function.”).

{¶66} Therefore, had the state asked, the trial court could have found

Detective Lelless to be an expert; that decision would not have amounted to an

abuse of discretion. Dunn v. Ransom, 4th Dist. No. 10CA806, 2011-Ohio-4253, ¶ 40

(Trial court have properly qualified witness as expert under Evid.R. 702.); State v.

McGlown, 6th Dist. No. L-07-1163, 2009-Ohio-2160, ¶ 43 (Although trial court did not

expressly determine the detective to be an expert, the trial court did not abuse its

discretion in allowing him to testify as an expert witness.); State v. Lewis, 2d Dist. No.

96 CA 12, 1997 WL 156596 (Apr. 4, 1997) (Officer could have properly qualified as

expert and trial court would not have excluded the officer’s testimony.)

{¶67} In short, the trial court did not abuse its discretion in allowing Detective

Lelless to testify about body art and tattoos that potentially identified Johnson as a

Blue Devil gang member. Detective Lelless’ testimony qualified either under Evid.R.

701 or under Evid.R. 702. This assignment of error is meritless.

Conclusion

{¶68} For the foregoing reasons, the first assignment of error has merit. The

second and third assignments of error are meritless. The conviction and sentence for

the R.C. 2941.146 “drive-by” specification is reversed and vacated. All other

convictions and sentences are affirmed.

Donofrio, J., concurs.

DeGenaro, P.J., concurs.