State v. Powell

[Cite as State v. Powell, 2018-Ohio-3944.]

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

State of Ohio, :

Plaintiff-Appellee, :

No. 17AP-808

v. : (C.P.C. No. 16CR-7243)

Eric L. Powell, : (REGULAR CALENDAR)

Defendant-Appellant. :

D E C I S I O N

Rendered on September 27, 2018

On brief: Ron O'Brien, Prosecuting Attorney, and Sheryl L.

Prichard, for appellee.

On brief: Brian J. Rigg, for appellant.

APPEAL from the Franklin County Court of Common Pleas

DORRIAN, J.

{¶ 1} Defendant-appellant, Eric L. Powell, appeals from a judgment of conviction

and sentence entered by the Franklin County Court of Common Pleas, pursuant to jury and

bench verdicts, finding him guilty of one count of murder and numerous other felonies.

For the reasons that follow, we affirm.

I. Facts and Procedural History

{¶ 2} All charges against appellant arose out of incidents occurring on the night of

December 15, 2015, at 393 South Harris Avenue (the "South Harris house") in Columbus,

Ohio, a location identified by all who testified as a drug house. An escalating dispute

between appellant and several other persons present at the house culminated in the

shooting death of Michael Moreno as Moreno attempted to flee the house.

{¶ 3} In December 2016, the Franklin County Grand Jury returned a 20-count

indictment against appellant in connection with the shooting. The counts included 1 count

of aggravated burglary, 4 counts of aggravated robbery, 2 counts of kidnapping, 2 counts of

No. 17AP-808 2

aggravated murder, 2 counts of murder, 4 counts of attempted murder, 4 counts of

felonious assault, and 1 count of having a weapon while under disability. Because appellant

had a previous conviction for aggravated robbery, all counts carried an enhanced 54-month

firearm specification, pursuant to R.C. 2941.145(D) and 2929.14(B)(1)(a)(v), and all but the

weapon under disability count carried a repeat violent offender specification under R.C.

2941.149(A). Appellant waived jury trial on these specifications and the weapon under

disability count.

{¶ 4} Prior to hearing evidence before the jury on the principal offenses, the court

held a hearing outside the presence of a jury to determine if the defense could bifurcate the

case and have the firearm and recent repeat violent offender specifications tried to the court

and thereby preclude the jury from learning of appellant's prior convictions upon which

those specifications were based. The court concluded that prior cases holding that a

defendant does not have a right to bifurcate elements of an offense did not apply to preclude

bifurcation of separate firearm and repeat violent offender specifications acting as

enhancements to the underlying crime. The court therefore allowed appellant to waive his

right to a jury trial with respect to the repeat violent offender specification and enhanced

firearm specification found at R.C. 2941.145(D).

{¶ 5} The court then considered appellant's motion to suppress his statements

made when interrogated while in police custody. Plaintiff-appellee, State of Ohio, called

Detective Robert Cutshall of the Columbus Division of Police to described the

circumstances of his interrogation of appellant. The court also reviewed a video recording

of that interview.

{¶ 6} Appellant then testified that he had been drinking and smoking marijuana

before he was taken into custody. The police interview took place less than one hour after

he was apprehended. Appellant was sufficiently intoxicated and did not remember

anything about the interview until he reviewed the video recording himself. He stated that,

due to impairment from alcohol and drugs, he was unable to intelligently and knowingly

understand his rights and waive them during the course of the interview.

{¶ 7} After reviewing the video recording and comparing it to appellant's demeanor

at the suppression hearing, the court concluded there were no visible signs of significant

impairment and this was confirmed by Detective Cutshall's testimony. The court concluded

No. 17AP-808 3

appellant's waiver of his Miranda1 rights was voluntarily, knowingly, and intelligently given

and denied appellant's motion to suppress his statements made in the initial police

interview.

{¶ 8} At trial, the state presented testimony from investigating police officers, three

persons present in the house at the time of the shooting, and from a jailhouse informant

regarding statements made by appellant while incarcerated. In addition, the defense

stipulated to the testimony of a forensic pathologist regarding the autopsy results for the

victim, Moreno. The defense called no witnesses.

{¶ 9} Prior to trial, the state entered a nolle prosequi on 5 counts. At the close of

evidence, the court granted dismissal on a further 3 counts pursuant to appellant's Crim.R.

29 motion. Of the 11 counts that went to the jury, the jury acquitted appellant of 1 count of

aggravated murder, 1 count of murder, and 1 count of felonious assault. The jury returned

guilty verdicts on 1 count of aggravated burglary, 2 counts of aggravated robbery, 2 counts

of kidnapping, 1 count of murder, and 2 counts of felonious assault. In addition, the court

then found appellant guilty of 1 count of having a weapon while under disability and all

specifications as tried to the bench.

{¶ 10} After consideration of the pre-sentence investigation, the trial court

sentenced appellant to a term of 15 years to life for murder, a term of 11 years for each of

the aggravated burglary, aggravated robbery, and kidnapping counts, and a term of 8 years

each of the felonious assault counts. The court added a 3-year term for the weapon under

disability count. After imposition of the repeat violent offender and firearm specifications

and running certain terms and specifications concurrently, the court imposed an aggregate

sentence of 36 years to life.

II. Assignments of Error

{¶ 11} Appellant appeals and brings the following two assignments of error:

[I.] THE TRIAL COURT ERRED WHEN IT DENIED

DEFENDANT-APPELLANT'S CRIMINAL RULE 29 MOTION

FOR ACQUITTAL.

[II.] THE VERDICTS OF GUILTY TO AGGRAVATED

BURGLARY, AGGRAVATED ROBBERY, KIDNAPPING,

MURDER AND FELONIOUS ASSAULT ARE AGAINST THE

MANIFEST WEIGHT OF THE EVIDENCE.

1 Miranda v. Arizona, 384 U.S. 436 (1966).

No. 17AP-808 4

III. Discussion

{¶ 12} Appellant's first assignment of error asserts the trial court should have

granted his Crim.R. 29(A) motion for acquittal based on the deficient evidence presented

by the state. Appellant's second assignment of error asserts the judgments of conviction

and sentence are against the manifest weight of the evidence presented at trial. The two

assignments of error present overlapping issues requiring review of the testimony and other

evidence presented at trial and will therefore be considered together.

{¶ 13} The standard applied to a Crim.R. 29 motion is that applied by an appellate

court when reviewing the sufficiency of the evidence. State v. Turner, 10th Dist. No. 04AP-

364, 2004-Ohio-6609, ¶ 8. The legal concepts of sufficiency of the evidence and weight of

the evidence involve different determinations. State v. Thompkins, 78 Ohio St.3d 380, 386

(1997). As to sufficiency of the evidence, " 'sufficiency' is a term of art meaning that legal

standard which is applied to determine whether the case may go to the jury or whether the

evidence is legally sufficient to support the jury verdict as a matter of law." Id., citing Black's

Law Dictionary 1433 (6 Ed.1990). A determination as to whether the evidence is legally

sufficient to sustain a verdict is a question of law. Id. When we review the sufficiency of

the evidence on appeal, we construe the evidence in the light most favorable to the

prosecution to determine whether a rational trier of fact could have found the essential

elements of the offense proven beyond a reasonable doubt. State v. Jenks, 61 Ohio St.3d

259 (1991), paragraph two of the syllabus. As a result, when we review the sufficiency of

the evidence, we do not on appeal reweigh the credibility of the witnesses. State v.

Yarbrough, 95 Ohio St.3d 227, 2002-Ohio-2126, ¶ 79.

{¶ 14} The relevant inquiry on review of the sufficiency of the evidence is whether,

"after viewing the evidence in the light most favorable to the prosecution, any rational trier

of fact could have found the essential elements of the crime beyond a reasonable doubt."

(Emphasis sic.) Jackson v. Virginia, 443 U.S. 307, 319 (1979). A reversal based on

insufficient evidence has the same effect as a not-guilty verdict because such a

determination "means that no rational factfinder could have voted to convict the

defendant." Tibbs v. Florida, 457 U.S. 31, 41 (1982).

{¶ 15} As opposed to the concept of sufficiency of the evidence, the court in

Thompkins noted:

No. 17AP-808 5

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.' It indicates clearly to the

jury that the party having the burden of proof will be entitled to

their verdict, if, on weighing the evidence in their minds, they

shall find the greater amount of credible evidence sustains the

issue which is to be established before them. Weight is not a

question of mathematics, but depends on its effect in inducing

belief.

(Emphasis in Thompkins.) Id. at 387, quoting Black's at 1594. As the finder of fact, the jury

is in the best position to weigh the credibility of testimony by assessing the demeanor of

witnesses and the manner in which they testify, their connection or relationship with the

parties, and their interest, if any, in the outcome. The jury can accept all, a part, or none of

the testimony offered by a witness, whether it is expert opinion or eyewitness fact, whether

it is merely evidential or tends to prove the ultimate fact. State v. McGowan, 10th Dist. No.

08AP-55, 2008-Ohio-5894, ¶ 13, citing State v. Antill, 176 Ohio St. 61, 67 (1964); see also

State v. Raver, 10th Dist. No. 02AP-604, 2003-Ohio-958, ¶ 21.

{¶ 16} When a court of appeals reverses a judgment of a trial court on the basis that

the verdict is against the weight of the evidence, the appellate court sits as a "thirteenth

juror" and disagrees with the fact finder's resolution of the conflicting testimony.

Thompkins at 387. An appellate court should reverse a conviction as against the manifest

weight of the evidence in only the most "exceptional case in which the evidence weighs

heavily against conviction," instances in which 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 (1st Dist.1983).

{¶ 17} Officer Travis Tucker of the Columbus Division of Police testified regarding

his response to the scene of the shooting. On the night in question, he was working second

shift on the west side of Columbus and responded to the call of a body found in the alley

between Harris and Hague Avenues. He located the body lying in the snow a short distance

north of the South Harris house. There was a considerable amount of blood around the

body and, along with other responding officers, Officer Tucker determined there was more

blood directly behind the South Harris house. Officer Tucker also identified photographs

taken of the location of the body on the night in question and verified these accurately

depicted the scene.

No. 17AP-808 6

{¶ 18} Officer Tucker testified police were aware the South Harris house was a drug

house. The initial officers responding to the scene secured the alley and house and

determined that persons were still present inside the house, whereupon they summoned a

SWAT team to make entry to the house because of the nature of known drug activity at the

location. Although Officer Tucker was aware that an arrest was made after the SWAT team

entered the house, Officer Tucker did not participate in that arrest.

{¶ 19} Officer Richard Dean Criner, Jr. of the Columbus Division of Police testified

regarding his response to the crime scene as a member of the crime scene search unit

("CSSU"). He described a series of photographs taken at the crime scene, although he had

not personally taken the pictures. These included photographs of the blood trail leading

from the back of the South Harris house. CSSU was initially unable to locate any spent shell

casings because of the snow and did not locate the shell casings until several days later when

the snow had melted. These spent shell casings were located on the north side of the South

Harris house near the front porch. On cross-examination, Officer Criner conceded the

scene was not secured in the interval between the initial investigation on the night of the

15th to 16th and the subsequent search that located the shell casings. On the night of the

initial search, CSSU did use a metal detector searching for shell casings but had no success.

{¶ 20} Rayshawn Taylor, one of the occupants of the house on the night in question,

testified regarding those events. At the outset of his testimony, he explained he was dressed

in jail clothes because of a pending felony drug abuse charge. He also conceded he had a

prior criminal record for a burglary conviction and was presently on probation.

{¶ 21} Rayshawn testified he was living at the South Harris house around the time

of the shooting and used the house to sell drugs. Also present that night were his cousin

Dorrell Taylor, Dominic Pleasant, Keshawn Pittman, Fuwaad Reynolds, Shane Keys, and

the eventual victim, Moreno. Dorrell was Rayshawn's cousin, and Rayshawn had known

the others, including Moreno, for varying amounts of time. Rayshawn identified appellant

in open court and stated he had known him for about one and one-half years, seeing him

almost every day at the South Harris house. Rayshawn testified appellant socialized with

the group and cut the hair of several members of the group on a regular basis.

{¶ 22} Rayshawn testified regarding tension between appellant and himself. He

stated that a night or two preceding the shooting, they were all at a club called Rachel's and

an altercation seemed imminent with another group. Most of the members of Rayshawn's

No. 17AP-808 7

group left to avoid the conflict, but appellant remained behind. Although appellant had not

arrived at the club with Dorrell and Rayshawn, he was socializing with them while there.

Dorrell and Rayshawn left when they learned that a member of the group which they had

words with might have a gun. After the fact, Rayshawn did not consider that they had

abandoned appellant on this occasion or left him in a difficult position.

{¶ 23} The next day, at 10:30 or 11:00 p.m., the group were socializing at the South

Harris house when appellant appeared. Appellant was allowed to come through the front

door, which was an entry reserved for persons known to those in the house. Persons not

personally known and simply coming to purchase drugs would enter through the back door.

A person known as the "doorman" would generally be stationed at the back door to control

entry and would be compensated for this duty with money or drugs. On the night in

question, the doorman was Moreno, the victim.

{¶ 24} At this point in his testimony, Rayshawn was shown and identified various

pictures taken of the South Harris house. These included pictures of the living room, dining

room, front porch, and back porch.

{¶ 25} Rayshawn first became aware of appellant's presence in the house when he

heard appellant screaming at Dorrell in the front room. Appellant was upset because

Dorrell and Rayshawn had left appellant "hanging" at the club the previous night. (Tr. Vol.

II at 129.)

{¶ 26} There was a sheet hanging and separating the front living room from the

dining area. Also in the living room was a gaming console and a large television screen used

for observing the four outside surveillance cameras, two in front and two in back.

{¶ 27} When Rayshawn entered the living room area, he observed appellant yelling

"[w]e about to fight" and holding a gun. (Tr. Vol. II at 131.) Dorrell, Pittman, and Pleasant

were in the living room, and Reynolds was on the staircase observing through an opening.

{¶ 28} At this point, appellant again expressed his anger over being left at the club

the night before. Appellant threatened Dorrell with the gun. As this occurred, the front

door opened and one of appellant's friends came in, a person that Rayshawn did not know

by name but had seen a couple times before. Rayshawn described this individual as a light-

skinned African-American male. Appellant pushed Dorrell onto the couch, turned around

and grabbed Rayshawn, and declared "[a]s a matter of fact, y'all give me the money and all

No. 17AP-808 8

that. Give me your money and everything. Just give me everything." (Tr. Vol. II at 138.)

The newly arrived individual also brandished a gun and threatened the others.

{¶ 29} Appellant turned his attention to Rayshawn, grabbed him by the neck with

the gun to the back of his head, began counting, and threatened to "blow his head off" if the

others did not give up their valuables by the count of ten. (Tr. Vol. II at 139.) Rayshawn

further testified no one else had a gun on his person, but there was a "house gun" on the

premises that no one could reach at the time.

{¶ 30} When appellant's counting reached seven, Dorrell and Rayshawn threw their

money on the table. Appellant demanded more, and Dorrell indicated the location where

approximately $600 of marijuana could be found in the house. Appellant and his

accomplice went into the dining room to retrieve those drugs. The bed sheet that separated

the rooms closed behind them, leaving Rayshawn, Pleasant, Reynolds, and Pittman in the

living room area. Rayshawn looked at them and indicated that they should "go. Get out

the house." (Tr. Vol. II at 146.) Pleasant removed a two-by-four used to brace the front

door against forced entry and handed it to Pittman, who dropped it. Pleasant and Pittman

ran out the front door as appellant and his accomplice, alerted by the noise of the falling

wood, re-entered the living room and pursued them onto the front porch. Rayshawn

remained in place, uncertain what to do.

{¶ 31} Rayshawn observed the surveillance system display in the living room as

appellant began shooting from the porch at Pleasant who was running out to the street.

Shown a picture of the house, Rayshawn explained the location of the front camera, which

in the crime scene photograph was obscured by a tree. With the two assailants now outside

the house, Rayshawn closed the door and locked it and went back to again observe the view

from the outside cameras using the security system monitors. He saw Pleasant fall in the

street as he made his escape. The camera allowed Rayshawn to observe appellant standing

on the porch firing from the front of the house out in the street and then move to the side

of the porch leaning around the north side of the house to shoot at the back of the house.

This was because Dorrell and Moreno had taken the opportunity to escape out the back

door when appellant and his accomplice rushed to the front porch. The camera with the

view of the backyard allowed Rayshawn to see Dorrell and Moreno.

{¶ 32} Rayshawn testified that appellant and his accomplice never re-entered the

South Harris house. The departure of appellant, his accomplice, Dorrell, Pleasant, Pittman,

No. 17AP-808 9

and Moreno, left only three persons in the house: Rayshawn, Keys, and Reynolds. Reynolds

remained on the stairway observing the living room through an aperture, and Rayshawn

later determined that Keys spent the entire episode upstairs. Using the monitors,

Rayshawn observed Reynolds attempting to jump out the upstairs window and ran upstairs

to prevent this while assuring Reynolds the assailants had left the premises.

{¶ 33} Rayshawn testified that at no time did he observe appellant's accomplice

actually fire a gun. After about five minutes, Dorrell re-appeared and Rayshawn let him in

the front door. At this time, Keys appeared from upstairs and announced he had concealed

himself in the bathtub during the incident.

{¶ 34} As those still present consulted as to what to do next, they noticed what

seemed to be blood in the backyard visible on the security camera. Rayshawn, Dorrell, and

Reynolds left the house, but Keys stayed behind. At this point, none of them knew Moreno

had been shot.

{¶ 35} On cross-examination, Rayshawn took the Fifth Amendment as to certain

specific aspects of his prior activity as a drug dealer but admitted that the South Harris

house was a drug house where he dealt drugs on the night in question. After the shooting,

Reynolds, Dorrell, and Rayshawn left with Dorrell's girlfriend in her car. He denied on

cross-examination that the three of them concocted a story to implicate appellant during

that car ride. He admitted the photos taken by police of the front of the house did not depict

a surveillance camera on the front of the house in the location he had indicated. When

confronted with a summary of his interview with detectives on December 22nd, seven days

after the shooting, Rayshawn admitted to certain inconsistencies. The detective's notes

indicated Rayshawn had described appellant as pulling a gun out of his waistband upon

entering the house, whereas his trial testimony was that when Rayshawn moved from the

back of the house to the front and first saw appellant, the gun was already in appellant's

hand. He also conceded the detective's notes indicated that his description during the

interview was that appellant's light-skinned accomplice took a gun from Pleasant's person.

{¶ 36} The next witness for the state was Reynolds. He stated he had been to the

South Harris house over ten times and used it for his musical productions with his friend

Delano Royster's mobile studio. He had known Rayshawn for some time before going in

the house on the night in question and about the same time for Dorrell. He had met Moreno

several months after meeting the others. He had known Pleasant for a shorter time and

No. 17AP-808 10

Pittman not at all until the night of the shooting. Reynolds identified appellant in open

court.

{¶ 37} Reynolds testified when he got to the house on the night of the shooting, those

present were himself, Rayshawn, Dorrell, Pleasant, Pittman, and Moreno. The group had

been relaxing and smoking marijuana when appellant came to the door and was allowed in.

Accompanying appellant were another friend whom Reynolds did not recognize and

Delano Royster. Appellant's demeanor was unremarkable at first. When appellant first

entered the house, Rayshawn was playing a videogame on the television, and there was a

gun resting on the table next to him. Appellant then took the gun that was resting next to

Rayshawn and cocked it. Appellant became agitated and began "venting." (Tr. Vol. II at

192.)

{¶ 38} Reynolds became concerned about the direction of events and began to leave

the room via the upstairs staircase because he did not want to be involved in whatever was

about to happen. Appellant did not seem to be angry with Reynolds but was addressing

Dorrell. Reynolds went part way up the staircase to sit where he could observe the room.

{¶ 39} Appellant apparently wanted to fight Dorrell because of what had happened

at the club the night before. Dorrell was not interested in fighting, particularly with a gun

in appellant's hand. Appellant became more and more angry and grabbed Rayshawn by

the back of the neck, put the gun to Rayshawn's head, and demanded money. Appellant

began counting upwards to ten. Shortly before this, Dorrell attempted to make a move on

appellant with a gun and appellant took the gun right from Dorrell's hand. After appellant

took the gun from Dorrell he passed it to his accomplice. Appellant then "started asking for

money and stuff." (Tr. Vol. II at 204.) Reynolds heard someone, whom he could not

identify, yelling that the money was right there and appellant should take it. Appellant told

his accomplice to gather money and drugs from the others while he held a gun to

Rayshawn's head.

{¶ 40} During these events, Reynolds sat on the steps not knowing what to do.

Reynolds was aware of one gun that was kept in the house, but it was of such poor quality

that no one had confidence in it and he did not even know if it was loaded. He did see

Royster upstairs and told Royster he did not know what was going on but they needed to

get out of there.

No. 17AP-808 11

{¶ 41} Reynolds saw some of the occupants attempting to flee out the front door

knocking over the wooden brace that secured the door. Appellant stepped out on the porch

and said "[h]ey, get back here." (Tr. Vol. II at 208.) Reynolds then heard gunfire. It was

very cold and icy outside, and he thought that those fleeing would have trouble keeping

their footing. Reynolds identified the two individuals who ran out the front door as Pittman

and Pleasant. When Reynolds heard the first shot, he also heard people trying to run out

the back door and then more shots. The first shots he heard came from the front porch, the

others sounded as though they came from the side or backyard. He never directly observed

appellant shooting. The first volley of three or four shots was directed toward the street,

and the second volley of shots, five or six, was toward the back. Reynolds did not observe

what appellant's accomplice was doing during the shooting. He did not see the accomplice

out on the porch. After further reflection, Reynolds clarified that the second volley of shots

could not have been fired in the backyard proper, because at that time he was hanging out

the back upstairs window debating whether to jump.

{¶ 42} After the shooting began, Reynolds could not find a way out of the house and

considered exiting through the upstairs window but noticed somebody sitting in appellant's

car, which he recognized. When the shooting subsided, Reynolds came downstairs and

found only Rayshawn and Royster downstairs.

{¶ 43} He wanted to go out the back door but could hear an engine revving in the

back alley and did not know who it might be. Instead, he went to the basement and called

his sister to tell her the house had been robbed and he needed her to come pick him up as

quickly as possible. After about five or ten minutes had elapsed after the shooting, he left

the basement and saw that no one else had returned to the house and was therefore less

concerned that appellant would return and continue shooting. When Reynolds eventually

left the South Harris house, he saw that appellant had gathered up money and drugs that

had previously been lying on the table.

{¶ 44} At this point, Reynolds saw Rayshawn's girlfriend "Bubbles" enter the house,

apparently unaware of what had just transpired. He told her to leave and asked that she

drive him to a gas station nearby. From there he went home and watched the news to see

what would be said. He was unaware that anyone had been hit by gunfire until he saw a

news broadcast indicating that Moreno had been killed.

No. 17AP-808 12

{¶ 45} On cross-examination, Reynolds confirmed he had not spoken with police

until July 2017, long after the shooting. He denied he had told police at that time that he

did not recognize the person arrested in connection with the crime. He then admitted he

had lied when talking to police about that detail. He stated he was not certain whether he

and Bubbles had left alone in her car or if there had been another person in the car.

{¶ 46} The next witness was Randy Lee Joseph Hunter. He stated he was currently

incarcerated in the Franklin County Jail awaiting jail on murder charges. He identified

appellant in open court. Hunter described a jailhouse conversation in which appellant

spoke to two other inmates and described going to a house where he was angry because

some persons had left him at a club. Appellant began shooting, and the occupants fled out

the back door. Appellant fired about five times and one of the bullets "hit the dude in the

neck." (Tr. Vol. II at 233.) Appellant also stated in that conversation that the witnesses

would not show up for trial. Hunter testified he had no knowledge about appellant's case

other than what he learned from the conversation. He further testified he had been offered

no deal in his own case in exchange for testimony in appellant's case.

{¶ 47} The next witness for the state was Pittman. He described the events as he

experienced them on the night in question. He was at the South Harris house with his

friend Pleasant. Also there were Dorrell and Royster, whom he knew, and Reynolds, whom

he had not met before. Pittman had never met appellant before that night. He identified

appellant in open court.

{¶ 48} Pittman also saw two people at the house who he later learned were Moreno

and Keys. He was playing Madden NFL on the videogame console in the house when he let

in three people. One of them was probably Royster, another was appellant, and the third

was someone that Pittman could not identify. This third person was a dark-skinned

African-American male. Right after the three entered, Pittman heard a gun cocked in the

next room. He heard an argument and heard someone say "[e]mpty out your pockets." (Tr.

Vol. II at 281.) He immediately got up and ran out. He did not hear anyone count to ten or

any response from the persons in the next room who were apparently threatened with the

gun. As he ran out with Pleasant, they did not have to remove a two-by-four or otherwise

unsecure the door. The wood was already placed to the side of the door and did not need

to be moved. As they ran out, they heard gunshots. He did not know who was firing and

did not turn around to look. They ran next door and jumped over a gate into the neighbor's

No. 17AP-808 13

yard. He then heard two or three more shots after he was already in the neighboring yard.

He did not know what direction the shots came from or where they were aimed.

{¶ 49} When the firing subsided, Pittman got up and began walking down Harris

Avenue. He did not speak to police until several months later. When confronted with a

summary of his prior interview with police, Pittman denied telling police he had seen

appellant grab a gun off a table. He reiterated that his accurate recollection was that he had

not seen appellant specifically holding a gun but had only overheard threats from the next

room. He conceded he had lied when he told police that appellant entered the residence

and grabbed Pleasant's Smith & Wesson handgun off a table. He stated he specifically

identified appellant as the person that grabbed the gun and cocked it because he did not

know the other two individual's names. He did not remember telling police he heard "[i]f

they move, shoot them." (Tr. Vol. III at 291.) He conceded that he had told police he

observed appellant robbing Dorrell of money. He revised his trial testimony to include this

detail. On cross-examination, he reiterated he had not seen appellant at any time with a

gun, but had seen appellant pick up money off the table after the threats were made.

{¶ 50} Detective Cutshall testified for the state. He described his response to the

scene at the time of the crime and how parole officers had set up a perimeter and called the

SWAT team when they ascertained someone was inside the house in a potential barricade

situation. Detective Cutshall was familiar with SWAT procedures and expected that SWAT

teams would knock down any exterior cameras using non-lethal ammunition. The

barricade situation ended when the individual inside the house voluntarily emerged. The

SWAT team entered to clear the residence and later turned the house over to investigators

to gather evidence.

{¶ 51} When shown pictures of the residence, Detective Cutshall identified them to

show that one of the security cameras on the front of the house had been knocked down

using non-lethal ammunition. Investigators had a good deal of trouble gathering evidence

that day because of the state of the extreme cold and snow-covered ground. He described

photographs showing the state of Moreno's body when recovered in the alley and evidence

that the body had been struck by a vehicle.

{¶ 52} The victim, Moreno, was initially misidentified as another person well known

to local police. The initial search recovered nothing of great evidentiary value. A flip phone

recovered near the body was identified through DNA analysis as belonging to Pittman.

No. 17AP-808 14

Investigators collected the security camera controller, but it was not set to record on the

night in question. Investigators discovered a .40 caliber Hi-Point pistol above the attic

access hatch in the house. Upon returning to the South Harris house after several days had

passed and the snow had melted somewhat, investigators were able to recover several shell

casings in the yard on the north side of the residence. These were spent 9-millimeter shell

casings. The location of the casings was consistent with someone standing on the side of

the porch firing around the north side of the house toward the backyard and having the

casing ejected upwards and to the right from an automatic pistol. Investigators did not

recover the projectile that struck and killed Moreno, so they were unable to further establish

the 9-millimeter casings were related to the shooting on the night in question. The detective

conceded there was no way to determine how long the shell casings had been on the ground

before they were recovered.

{¶ 53} The stipulation regarding the forensic pathology report on Moreno's death

indicated that Moreno died from a single gunshot wound entering on the right side of his

upper back, transecting the right carotid artery, and then exiting under the right jaw.

{¶ 54} Appellant now asserts on appeal that the physical evidence, in conjunction

with the inconsistent and conflicting testimony of the three principal prosecution

eyewitnesses, are insufficient to support conviction for aggravated burglary, aggravated

robbery, kidnapping, felonious assault, murder, and having a weapon while under

disability. Appellant stresses that the witnesses' testimonies were inconsistent with each

other and with their prior statements to police.

{¶ 55} When Rayshawn first spoke to police about the case, he stated he saw

appellant pull a gun from his waistband and appellant's unidentified accomplice take a gun

from Pleasant's hip. At trial, he testified appellant had the gun in his hand when Rayshawn

first saw him and that the accomplice came in already holding a gun. Pittman initially told

police that appellant had a gun, but testified at trial he saw Dorrell with a gun but not

appellant. Appellant also points out that both Rayshawn and Reynolds testified that

Pittman and Pleasant had to remove a two-by-four bracing the front door in order to escape,

but Pittman's statement was that this was not necessary. Rayshawn testified that

appellant's accomplice entered the house holding a gun sometime after appellant had

entered, but Pittman testified he personally let three black males, including appellant, come

into the house as a group. Rayshawn testified that Dorrell never had a gun, but both

No. 17AP-808 15

Reynolds and Pittman described Dorrell as having a gun. The witnesses' testimonies also

differed on the spoken interaction between appellant and his victims: Rayshawn and

Reynolds both testified appellant held a gun to Rayshawn's head and counted up to ten

while demanding money from everyone, but Pittman did not hear any counting. Only

Reynolds testified that while the gun was held to Rayshawn's head, Rayshawn was pleading

and "really squealing." (Tr. Vol. II at 198.)

{¶ 56} In order to prove the charge of aggravated burglary, the state was held to

prove that appellant, by force, stealth, or deception, trespassed an occupied structure, when

another person other than an accomplice was present, with purpose to commit any criminal

offense therein, and appellant inflicted, attempted to inflict, or threatened physical harm,

and/or had a deadly weapon on his person or under his control. R.C. 2911.11(A). "Trespass"

is defined under R.C. 2911.21(A)(1) as knowingly and without privilege entering or

remaining on the premises of another. "Privilege" is "an immunity, license, or right

conferred by law, bestowed by express or implied grant, arising out of status, position,

office, or relationship, or growing out of necessity." R.C. 2901.01(A)(12).

{¶ 57} The state concedes appellant may have been privileged to initially enter the

South Harris house by invitation, but points out that "a privilege once granted may be

revoked." State v. Steffen, 31 Ohio St.3d 111, 115 (1987). This is consistent with the

definition of trespass, which specifies that either entering or remaining on the premises

constitutes trespass. R.C. 2911.21(A)(12); see also id. The trier of fact may determine from

the circumstances whether a privilege was revoked. Columbus v. Peoples, 10th Dist. No.

05AP-247, 2006-Ohio-1718, ¶ 32. In Steffen, the Supreme Court of Ohio concluded the jury

was justified in inferring from the evidence that the defendant's privilege to remain on the

premises terminated when he commenced criminal conduct, in the form of an assault,

against other persons. Id. at 115.

{¶ 58} The jury in the present case could conclude that, regardless of the

circumstances of appellant's initial entry into the house, his use of a gun to threaten and

then rob Rayshawn and Dorrell terminated whatever privilege attached to his entry.

Appellant's continued presence inside the residence, enforced by brandishing a firearm and

threats, establishes the trespass, criminal offense, threat to inflict physical harm, and

having a deadly weapon elements of R.C. 2911.11(A). Appellant's conviction for aggravated

No. 17AP-808 16

burglary was not against the manifest weight of the evidence nor supported by insufficient

evidence.

{¶ 59} The jury convicted appellant of robbing Rayshawn and Dorrell. R.C.

2911.01(A) defines aggravated robbery as:

No person, in attempting or committing a theft offense * * *

shall do any of the following: (1) [h]ave a deadly weapon on or

about the offender's person or under the offender's control and

either display the weapon, brandish it, indicate that the

offender possesses it, or use it; * * * (3) [t]o inflict, or attempt

to inflict, serious physical harm on another.

See also State v. Wade, 10th Dist. No. 16AP-674, 2018-Ohio-976, ¶ 43. Although the

witnesses' testimonies are inconsistent as to details, Rayshawn and Reynolds both testified

appellant held a gun to Rayshawn's head and counted to ten while demanding money and,

implicitly, drugs. The jury, as finder of fact, was free to assess the credibility of this

testimony and weigh it against the moderately inconsistent testimony offered by Pittman.

If believed, the testimony was sufficient to support a conviction for aggravated robbery of

Rayshawn and Dorrell, and establish these convictions were not against the manifest

weight of the evidence.

{¶ 60} The jury convicted appellant of kidnapping of Rayshawn and Dorrell. R.C.

2905.01(A)(2) defines kidnapping as follows: "[n]o person, by force, threat, or deception,

* * * shall remove another from the place where the other person is found or restrain the

liberty of the other person, for any of the following purposes: * * * [t]o facilitate the

commission of any felony or flight thereafter." See generally State v. Win, 121 Ohio St.3d

413, 2009-Ohio-1059, ¶ 14. The testimony of Rayshawn and Dorrell established that both

were restrained of their liberty in order to facilitate the commission of aggravated robbery.

Appellant physically restrained Rayshawn while holding a gun to his head, and appellant

ordered Dorrell about the house at gunpoint. The evidence is sufficient to support the

verdicts, and the verdicts are not against the manifest weight of the evidence.

{¶ 61} In order to establish the elements of murder under R.C. 2903.02(B) as

charged, the state was held to prove appellant caused the death of Moreno as a proximate

result of committing or attempting to commit aggravated burglary, aggravated robbery,

kidnapping, or felonious assault.

No. 17AP-808 17

{¶ 62} Appellant stresses on appeal that the state's case lacked certain direct and

circumstantial evidence. The fatal bullet was not recovered, nor was a gun recovered

matching the shell casings discovered outside. Moreover, these casings were not recovered

until several days had passed, and during this period of time the crime scene was unsecured.

{¶ 63} Balancing these alleged uncertainties, however, is the detailed testimony of

the eyewitnesses. Rayshawn watched on the house's security camera as appellant fired

from the front porch at the fleeing Pittman and Pleasant, then leaned around the side of the

house and fired into the backyard where Dorrell and Moreno were fleeing out the back door.

Reynolds testified he also heard two sets of shots from the direction of the porch, and after

some initial uncertainty in his testimony, specified the second volley of shots could not have

been fired from the backyard proper, because Reynolds was himself hanging out the

window at that time and had a direct view of the backyard. Reynolds also saw appellant

exit onto the porch with a gun just prior to shots being fired, although he did not observe

appellant shooting.

{¶ 64} The prison informant, Hunter, overheard appellant tell another inmate about

the incident, describing how he was upset that his friends had abandoned him at a club in

a dangerous situation, later argued with those friends, begun shooting, and hit a man in the

back of the neck.

{¶ 65} Testimony from Detective Cutshall and Officer Criner established that shell

casings ejected upwards and to the right from a weapon fired from the front porch, facing

west, and aimed around the north side of the house toward the backyard would have landed

in the vicinity in which the investigators recovered shell casings. The location of blood in

the backyard and alley was consistent with the fatal shot hitting Moreno in the backyard,

from where he ran into the alley and collapsed, later being struck by a vehicle and moved a

short distance northward. In sum, the evidence at trial, if believed, was sufficient to support

a conviction on the charge of murder and that conviction was not against the manifest

weight of the evidence.

{¶ 66} In order to establish the offense of felonious assault, the state was held to

prove appellant knowingly caused or attempted to cause physical harm to Dorrell and

Pittman by means of a deadly weapon. R.C. 2903.11(A)(2). Rayshawn testified he watched

appellant, by means of the security camera, discharge a weapon at the fleeing Pittman and

Dorrell after these two fled out the front and back doors respectively. This testimony alone

No. 17AP-808 18

could support conviction on the felonious assault counts, especially since one of the bullets

fired toward the backyard actually struck Moreno, who was fleeing through the same point

of egress as Dorrell.

{¶ 67} Finally, with respect to having a weapon while under disability count, the

firearm specifications to the other crimes, and the repeat violent offender specifications,

the evidence supported appellant's possession of an operable firearm and appellant does

not dispute he had a previous conviction for a felony of violence; appellant stipulated to a

prior conviction for robbery with specifications. The judge, as trier of fact, was free to

believe the state's witnesses as to the other circumstances regarding appellant's possession

and use of a weapon in commission of the crimes, and, therefore, the specifications and

weapon under disability counts were supported by the manifest weight of the evidence.

Appellant's first and second assignments of error are overruled.

{¶ 68} In conclusion, appellant's convictions were supported by sufficient evidence

and not against the manifest weight of the evidence. Appellant's first and second

assignments of error are overruled, and the judgment of the Franklin County Court of

Common Pleas is affirmed.

Judgment affirmed.

LUPER SCHUSTER and HORTON, JJ., concur.