State v. Shorter

[Cite as State v. Shorter, 2012-Ohio-2701.]

STATE OF OHIO, MAHONING COUNTY

IN THE COURT OF APPEALS

SEVENTH DISTRICT

STATE OF OHIO, )

)

PLAINTIFF-APPELLEE, )

)

V. ) CASE NO. 11 MA 42

)

DAROLD SHORTER, ) OPINION

)

DEFENDANT-APPELLANT. )

CHARACTER OF PROCEEDINGS: Criminal Appeal from Court of Common

Pleas of Mahoning County, Ohio

Case No. 10CR184

JUDGMENT: Affirmed

APPEARANCES:

For Plaintiff-Appellee Paul Gains

Prosecutor

Ralph M. Rivera

Assistant Prosecutor

21 W. Boardman St., 6th Floor

Youngstown, Ohio 44503-1426

For Defendant-Appellant Atty. J. Dean Carro

Appellate Review Office

University of Akron School of Law

Akron, Ohio 44325-2901

JUDGES:

Hon. Gene Donofrio

Hon. Cheryl L. Waite

Hon. Mary DeGenaro

Dated: June 12, 2012

[Cite as State v. Shorter, 2012-Ohio-2701.]

DONOFRIO, J.

{¶1} Defendant-appellant, Darold Shorter, appeals from a Mahoning County

Common Pleas Court judgment convicting him of murder, following a jury trial.

{¶2} On the morning of January 28, 2010, police discovered Lamont Brown’s

body inside his West Earl Street home in Youngstown. Brown had been stabbed to

death. A cell phone belonging to Lisa Shorter, appellant’s wife, was found at the

scene.

{¶3} Appellant, who was Brown’s friend and neighbor, was eventually

interviewed regarding the stabbing. He gave police several different versions of

where he was on the night in question and what he and Brown had done that night.

{¶4} Appellant first told police he had been “scrapping” (gathering scrap

metal to sell) all day, had come home around 11:45 p.m., and went to bed.

{¶5} Appellant next told police that on the night in question Brown drove him

to the Family Dollar and McDonald’s, but when he left Brown around midnight, Brown

was still alive.

{¶6} The police then confronted appellant with his hat that appeared to be

blood-stained. Appellant changed his story again and told police that after he and

Brown went to the Family Dollar and McDonald’s, he went to Brown’s house to set up

a drug deal with some “feens” (drug addicts). He stated that he fought in the street

with one feen and upon returning to Brown’s house, he found Brown sitting on a chair

bloody and gasping for air. This was how he explained the apparent blood stain on

his hat.

{¶7} Appellant then gave police one final version of what transpired on the

night in question. He stated that he and Brown had entered into a joint cocaine

purchase where each of them was to provide half of the money to purchase 28 grams

of cocaine, which they would then sell. Appellant used the $600 his wife had given

him to pay the rent to pay for his half of the drugs. But Brown had not paid the other

half. Appellant confronted Brown and told him he needed the money. He also told

Brown he wanted his wife’s cell phone back, which he had loaned to Brown.

Appellant stated that he and Brown began to argue and the argument turned into a

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“scuffle.” He stated that Brown grabbed a steak knife and, in response, he picked up

another knife that had been sitting on the table. Appellant stated that he stabbed

Brown once or twice and ran away. Brown actually suffered 35 stab wounds in

several different areas of his body.

{¶8} A Mahoning County Grand Jury indicted appellant on one count of

murder, a first-degree felony in violation of R.C. 2903.02(A)(D), and one count of

possession of cocaine, a fifth-degree felony in violation of R.C. 2925.11(A)(C)(4)(a).

On appellant’s motion, the trial court ordered separate trials on the two counts.

{¶9} The matter proceeded to a jury trial on the murder charge. The jury

found appellant guilty of murder. The state then dismissed the possession of cocaine

count. The trial court subsequently sentenced appellant to 15 years to life in prison.

{¶10} Appellant filed a timely notice of appeal on March 17, 2011.

{¶11} Appellant raises two assignments of error, the first of which states:

THE STATE FAILED TO PROVE BEYOND A REASONABLE

DOUBT THAT APPELLANT SHORTER PURPOSELY CAUSED THE

DEATH OF THE DECEDENT IN VIOLATION OF APPELLANT

SHORTER’S RIGHTS UNDER SECTION 16, ARTICLE I OF THE

OHIO CONSTITUTION AND THE DUE PROCESS CLAUSE OF THE

FOURTEENTH AMENDMENT.

{¶12} Appellant argues that the state failed to prove the element of

“purposely” beyond a reasonable doubt. He contends that his taped police

confession and the testimony of Dr. Joseph Ohr demonstrated circumstances

inconsistent with his having a purposeful intent to cause Brown’s death. Appellant

points out that none of the state’s witnesses were present during the altercation

between Brown and him. The only evidence of what happened at Brown’s house

was relayed by appellant’s taped confession, which was played for the jury.

Appellant asserts that his confession revealed that he did not go to Brown’s house

with the intent to kill him. Instead, he went there to work out how the two would pay

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off their debt from the drug deal. He states that his confession further revealed that

he and Brown got into an argument and Brown pulled a steak knife on him, which

caused him to reach for the knife that had been sitting on the coffee table. Appellant

further argues that Dr. Ohr’s testimony evidenced a frenzied stabbing consistent with

a sudden passion or fit of rage, not a purposeful plan.

{¶13} Sufficiency of the evidence is the legal standard applied to determine

whether the case may go to the jury or whether the evidence is legally sufficient as a

matter of law to support the verdict. State v. Smith, 80 Ohio St.3d 89, 113, 684

N.E.2d 668 (1997). In essence, sufficiency is a test of adequacy. State v.

Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). Whether the evidence

is legally sufficient to sustain a verdict is a question of law. Id. In reviewing the

record for sufficiency, the relevant inquiry is whether, after viewing the evidence in a

light most favorable to the prosecution, any rational trier of fact could have found the

essential elements of the crime proven beyond a reasonable doubt. Smith, 80 Ohio

St.3d at 113.

{¶14} The jury convicted appellant of murder in violation of R.C. 2903.02(A),

which provides that “[n]o person shall purposely cause the death of another.”

{¶15} Pursuant to R.C. 2901.22(A):

A person acts purposely when it is his specific intention to cause a

certain result, or, when the gist of the offense is a prohibition against

conduct of a certain nature, regardless of what the offender intends to

accomplish thereby, it is his specific intention to engage in conduct of

that nature.

{¶16} One may deduce the intent to kill from the surrounding circumstances,

including the means or weapon used, its tendency to destroy life if designed for that

purpose, the manner in which the wounds are inflicted, and any other facts and

circumstances in evidence. State v. Simpson, 10th Dist. No. 01AP-757, 2002-Ohio-

3717, ¶93, citing State v. Robinson, 161 Ohio St. 213, 218-219, 118 N.E.2d 517

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(1954). A jury may infer a defendant’s purpose to cause death when the defendant

inflicts a wound with a deadly weapon in a manner that appears to be calculated to

destroy life or inflict great bodily harm. State v. Stallings, 89 Ohio St.3d 208, 291,

731 N.E.2d 159, 2000-Ohio-164.

{¶17} Thus, we must determine whether the state produced sufficient

evidence to prove that appellant acted purposely in killing Brown.

{¶18} The evidence as to this point was as follows.

{¶19} Appellant’s videotaped police interview/confession was played for the

jury. Appellant referred to Brown as his “buddy.” (Interview Tr. 4). He described

how Brown fed him after he lost his job, how Brown let his wife and son bathe at

Brown’s house after their water was turned off, and how Brown drove him places he

needed to go. (Interview Tr. 4-6).

{¶20} Appellant first told police that on the day in question, he was scrapping

with a man called “EB.” (Interview Tr. 6). He returned home between 11:45 p.m. and

midnight and went to sleep until 5:30 the next morning. (Interview Tr. 7-8).

{¶21} Appellant next told police that he was in Brown’s house on the night in

question. (Interview Tr. 15). He stated that Brown took him to the Family Dollar and

to McDonald’s and dropped him off at home between 8:00 and 9:00 p.m. (Interview

Tr. 15). He stated that he then stayed at home the rest of the night. (Interview Tr. 17-

18).

{¶22} The police then told appellant they had recovered his hat and it

appeared to have a blood stain on it and they had information he had gone home,

changed clothes, put the clothes in a plastic bag, and stayed at another house that

night. (Interview Tr. 22).

{¶23} Appellant subsequently told police his third story. He stated that Brown

took him to the Family Dollar and McDonald’s. (Interview Tr. 32). Then later that

evening, he went to Brown’s house to sell cocaine with him. (Interview Tr. 34). The

two made a drug sale to some “feens”, but it turned out that the drugs were

counterfeit. (Interview Tr. 34). The “feens” returned to Brown’s house and appellant

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got into a “scuffle” with one of them in the street. (Interview Tr. 35). He then went

into Brown’s house and found him “bloody.” (Interview Tr. 38). After further prodding

by the police, appellant elaborated by stating that he found Brown “grasping” and he

moved him to the couch. (Interview Tr. 51-52).

{¶24} The police then spent some time trying to convince appellant that his

stories did not add up and it would be better for him if he told the truth.

{¶25} Appellant finally told the police his fourth story. He once again stated

that Brown took him to the Family Dollar and McDonald’s. (Interview Tr.82). He then

went back to Brown’s house where he emphasized to Brown that he needed the

money the two owed on their drug purchase because he was about to be evicted

from his house. (Interview Tr. 82). He then asked Brown to return his wife’s cell

phone so that he could sell it and use the money to pay his rent. (Interview Tr. 87).

The two then got into a verbal argument and appellant expressed to Brown that he

had used his rent money to fund their joint drug venture and that he needed Brown’s

share of the money to take care of his family. (Interview Tr. 88-90). The argument

turned into a “scuffle.” (Interview Tr. 91). Brown then pulled out a steak knife so

appellant grabbed another knife that was sitting on the nearby table. (Interview Tr.

91-92). He stabbed Brown “once or twice” and then he ran. (Interview Tr. 93). He

stated that both knives should still be in Brown’s house. (Interview Tr. 93-94).

{¶26} Throughout the interview, before appellant gave his final story to the

police, appellant repeatedly stated that the last time he saw Brown, Brown was alive

(Interview Tr. 15, 16, 26) and that he did not kill Brown (Interview Tr. 37, 42, 45, 57).

{¶27} Detective-Sergeant Pat Kelly investigated the murder scene. Detective

Kelly testified that there was no sign of a struggle at Brown’s house. (Tr. 414-415).

He noted that the items on the coffee table were undisturbed. (Tr. 415). He also

stated that the police searched the house and did not locate a knife, let alone two

knives. (Tr. 374, 410).

{¶28} Dr. Joseph Ohr, a forensic pathologist for the Mahoning County

Coroner’s Officer, performed the autopsy on Brown’s body. Dr. Ohr testified that the

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best count he could get of Brown’s stab wounds was 35. (Tr. 457). Stab wounds

were located on Brown’s cheek, under his chin, his neck, both sides of his chest, his

stomach, his shoulder, and his back. (Tr. 462-473). Dr. Ohr testified that the fatal

wound was one of several wounds along the right side of Brown’s neck, which cut his

carotid artery. (Tr. 464). He further stated that he did not find any defensive wounds

on Brown’s body. (Tr. 475). And the doctor did not find any injuries consistent with a

physical fight such as black eyes, fat lips, broken teeth, scraped knees, bruised

elbows, or punches in the stomach. (Tr. 481-482). Dr. Ohr also testified that several

of the stab wounds on Brown’s back all came in at the same angle, which indicated to

him that Brown’s body was not moving when those wounds were inflicted. (Tr. 473).

Dr. Ohr additionally described some of the wounds as “chaotic,” meaning that the

way the wounds entered the skin indicated that Brown was moving about as they

were inflicted, and other wounds as “parallel,” meaning that the wounds were in an

orderly fashion. (Tr. 493-494).

{¶29} “The number and location of a victim's stab wounds, and the manner in

which they were inflicted, may support an inference of a specific intent to kill.” State

v. Du, 2d Dist. No. 2010-CA-27, 2011-Ohio-6306, ¶15, citing State v. Hayden, 10th

Dist. No. 95APA05–559 (Sept. 16, 1997).

{¶30} In this case, Brown suffered 35 stab wounds. Some of the stab wounds

were to his neck and chest, areas where one would aim if attempting to cause the

death of another. And appellant simply left Brown to die instead of seeking medical

help after he stabbed Brown, who appellant claimed was his “buddy.” Even if

appellant did not go to Brown’s house with the intent to kill him, he could have formed

that intent upon speaking with Brown. It is hard to imagine that a person would stab

another person 35 times without intending to kill them.

{¶31} Other courts have found that the fact of multiple stabbing and other

circumstances similar to those in this case led to the conclusion that the killings were

purposeful. For instance, in State v. Yoder, 10th Dist. No. 10AP-653, 2011-Ohio-

3308, the court found that the extent of the victim’s stab wound allowed the jury to

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infer that the defendant had a purpose to kill. The court pointed out that the victim

was stabbed 18 times, and three of his stab wounds were independently fatal. Id. at

¶31. It further found that it was reasonable for the jury to infer that the defendant had

a purpose to kill the victim because he stabbed the victim in the neck. Id. Finally, the

court noted that the defendant showed no concern for the victim's well-being after the

stabbings. Id. And in State v. Hendrickson, 4th Dist. No. 08 CA 12, 2009-Ohio-4416,

¶44, the court observed that the defendant’s “act of killing Blankenship by stabbing

her 14 times demonstrates a purposeful killing, not an impulsive one.” Moreover, in

State v. Carter, 89 Ohio St.3d 593, 602, 734 N.E.2d 345 (2000), the Ohio Supreme

Court found that the trial court properly denied the defendant’s request for a voluntary

manslaughter instruction because “the evidence, including that the victim was

stabbed eighteen times, fully supported a purposeful killing.”

{¶32} Viewing the evidence in the light most favorable to the state, as we are

required to do here, there was sufficient evidence from which the jury could conclude

that appellant acted purposely when he stabbed Brown 35 times.

{¶33} Accordingly, appellant’s first assignment of error is without merit.

{¶34} Appellant’s second assignment of error states:

THE VERDICT WAS AGAINST THE MANIFEST WEIGHT OF

THE EVIDENCE UNDER THE OHIO CONSTITUTION SINCE THE

EVIDENCE OF VOLUNTARY MANSLAUGHTER WAS

UNCONTRADICTED, THEREBY WARRANTING APPELLANT’S [sic.]

SHORTER’S CONVICTION FOR MURDER TO BE REVERSED

PURSUANT TO THIS COURT’S AUTHORITY UNDER SECTION

3(B)(3), ARTICLE IV, OF THE OHIO CONSTITUTION.

{¶35} Here appellant argues that the statements he made to the police were

not contradicted by the state and did not support the crime of murder. Instead, he

asserts that the evidence demonstrated that he acted under a sudden fit of rage,

which would only support a conviction for voluntary manslaughter. He points out that

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the evidence demonstrated that he went to Brown’s house on the night in question to

try to collect the $600 Brown owed him for the cocaine they had purchased together.

When Brown refused to pay, appellant demanded that Brown return the cell phone

he had borrowed. Brown refused to return the phone and the two men began to

argue. The argument turned into a “scuffle” and appellant noticed that Brown had a

steak knife. Appellant then reached for another knife that was sitting on a nearby

table and fatally stabbed Brown.

{¶36} Appellant argues that it was not until Brown produced a steak knife that

he was provoked to use deadly force. Up until that point, the “scuffle” had not

involved deadly weapons. Thus, he argues that the evidence demonstrated that he

was guilty of voluntary manslaughter, not murder.

{¶37} In determining whether a verdict is against the manifest weight of the

evidence, an appellate court must review the entire record, weigh the evidence and

all reasonable inferences and determine whether, in resolving conflicts in the

evidence, 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. Thompkins, 78

Ohio St.3d at 387. “Weight of the evidence concerns ‘the inclination of the greater

amount of credible evidence, offered in a trial, to support one side of the issue rather

than the other.’” Id. (Emphasis sic.) In making its determination, a reviewing court is

not required to view the evidence in a light most favorable to the prosecution but may

consider and weigh all of the evidence produced at trial. Id. at 390.

{¶38} Yet granting a new trial is only appropriate in extraordinary cases where

the evidence weighs heavily against the conviction. State v. Martin, 20 Ohio App.3d

172, 175, 485 N.E.2d 717 (1983). This is because determinations of witness

credibility, conflicting testimony, and evidence weight are primarily for the trier of the

facts who sits in the best position to judge the weight of the evidence and the

witnesses' credibility by observing their gestures, voice inflections, and demeanor.

State v. Rouse, 7th Dist. No. 04-BE-53, 2005-Ohio-6328, ¶49, citing State v. Hill, 75

Ohio St.3d 195, 205, 661 N.E.2d 1068 (1996); State v. DeHass, 10 Ohio St.2d 230,

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227 N.E.2d 212 (1967), paragraph one of the syllabus. Thus, “[w]hen there exist two

fairly reasonable views of the evidence or two conflicting versions of events, neither

of which is unbelievable, it is not our province to choose which one we believe.”

State v. Dyke, 7th Dist. No. 99-CA-149, 2002-Ohio-1152.

{¶39} In addition to the evidence set out above, the following testimony must

also be considered.

{¶40} Quatoyia Williams is the mother of Brown’s child. She testified that

Brown spoke of appellant as someone who had moved into the neighborhood and

whom Brown was “helping out.” (Tr. 295).

{¶41} Officer Samuel Mosca responded to the 911 call and, along with his

partner, was the first emergency responder to the scene. He found Brown’s body

face down in the living room covered in blood. (Tr. 307).

{¶42} Janeraro Brown, Brown’s brother, testified that he was on the phone

with Brown sometime between 12:45 and 1:00 a.m. when Janeraro heard the

doorbell ring at Brown’s house, interrupting their conversation. (Tr. 326-327). Brown

said over the phone, “oh, here’s this MF’er.” (Tr. 327). Janeraro testified that he

knew/assumed it was appellant who was at Brown’s door because appellant was

constantly “bugging” Brown to help him with food, water, and transportation. (Tr.

327-328).

{¶43} Lisa Shorter is appellant’s wife. She testified that on the night in

question appellant came home at approximately 2:30 a.m. with blood on his coat.

(Tr. 340). She also testified that appellant and Brown were friends. (Tr. 349).

{¶44} Appellant argues that the evidence only proved that he was guilty of

voluntary manslaughter because he was “provoked” into a “sudden fit of rage” by

Brown’s refusal to pay for a portion of the drugs or to return the borrowed cell phone.

The voluntary manslaughter statute provides: “No person, while under the influence

of sudden passion or in a sudden fit of rage, either of which is brought on by serious

provocation occasioned by the victim that is reasonably sufficient to incite the person

into using deadly force, shall knowingly cause the death of another.” R.C.

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2903.03(A). Appellant’s argument, as it was above, is basically that he did not act

purposely in killing Brown.

{¶45} In order for provocation to be reasonably sufficient, it must arouse an

ordinary person’s passions beyond his control. State v. Bickerstaff, 7th Dist. No. 09-

JE-33, 2011-Ohio-1345, ¶17, citing State v. Shane, 63 Ohio St.3d 630, 635, 590

N.E.2d 272 (1992). Additionally, on a subjective level, the emotional and mental

state of the defendant and the surrounding circumstances must also be considered.

Id., citing State v. Deem, 40 Ohio St.3d 205, 211, 533 N.E.2d 294 (1988).

{¶46} There are several problems with appellant’s argument, however. The

biggest problem is appellant’s lack of credibility. He contends that the jury should

have believed his fourth story to the police. But appellant demonstrated through his

multiple stories and denials that he could not be trusted to tell the truth. In order to

find that appellant was guilty of voluntary manslaughter, instead of murder, the jury

would have to have believed appellant’s fourth statement to the police that Brown

provoked him into a sudden fit of rage by pulling a knife on him. Given appellant’s

demonstrated propensity to lie, it was within the jury’s province to disbelieve

appellant when he stated that Brown produced a knife.

{¶47} Another problem is that even appellant’s fourth story is contradicted by

the physical evidence. Appellant told police that he stabbed Brown once or twice.

But Dr. Ohr found 35 stab wounds on Brown’s body. Additionally, appellant claimed

that he and Brown got into a physical “scuffle.” However, Detective Kelly testified

that there was no sign of a struggle at Brown’s house and Dr. Ohr testified that there

were no signs on Brown’s body that he had been involved in a physical fight. And

appellant stated that police would find two knives in Brown’s house, the one that he

used and one that Brown pulled on him. But the police did not find any knives in

Brown’s house. This casts further doubt on whether Brown even had a knife.

{¶48} Finally, appellant focuses his argument on his contention that he acted

in a sudden fit of rage in stabbing Brown. But in order to find appellant guilty of

voluntary manslaughter, in addition to finding that he acted in a sudden fit of rage, the

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jury also had to find that the fit of rage was brought on by serious provocation by

Brown that was reasonably sufficient to incite appellant into using deadly force. It was

within the jury’s province to find that there was not sufficient provocation to support a

finding of voluntary manslaughter.

{¶49} Considering all of the evidence and appellant’s lack of credibility, the

jury did not lose its way in finding appellant guilty of murder. As such, their verdict

was not against the manifest weight of the evidence.

{¶50} Accordingly, appellant’s second assignment of error is without merit.

{¶51} For the reasons stated above, the trial court’s judgment is hereby

affirmed.

Waite, P.J., concurs.

DeGenaro, J., concurs.