State v. AlfordState v. Alford
Rendered on the 4th day of June, 2010.
Mathias H. Heck, Jr., Pros. Attorney; Michele D. Phipps, Atty. Reg. 0069829, Asst. Pros. Attorney, Montgomery County Courts Building, P.O. Box 972, 301 West Third Street, Dayton, OH 45422 Attorneys for Plaintiff-Appellee
Marshall G. Lachman, Atty. Reg. No. 0076791, 75 North Pioneer Boulevard, Springboro, OH 45066 Attorney for Defendant-Appellant
GRADY, J.:
{¶ 1} Defendant, Antonio Alford, appeals from his convictions and sentence for felonious assault, murder, having weapons while under disability, and tampering with evidence.
{¶ 2} On May 11, 2008, Laquan Sanford was shot multiple times
{¶ 3} On September 9, 2008, the Montgomery County Grand Jury indicted Defendant on two counts of felonious assault in violation of
{¶ 4} Defendant filed a motion to suppress his statement to the police. (Dkt. 10). Following an evidentiary hearing, the trial court overruled the motion to suppress. (Dkt. 16). After a jury trial, Defendant was found guilty as charged in the indictment, except for a not guilty verdict on count 6 of the
{¶ 5} On March 11, 2009, the trial court sentenced Defendant to eight years for the count of felonious assault in violation of
{¶ 6} “The merged sentence in Counts 3, 4, and 5 are to be served CONSECUTIVELY to count 2 and 10; the sentence in Count 7 and the merged sentence in Counts 8 and 9 are to be served CONCURRENTLY to each other and CONSECUTIVELY with Counts 2, 3, 4, 5, and 10. The Court hereby imposes . . . an additional term of THREE (3) years ACTUAL INCARCERATION on the Firearm Specification, which shall be served CONSECUTIVELY to and prior to the definite term of imprisonment for a TOTAL COMBINED TERM OF IMPRISONMENT THIRTY-SIX (36) YEARS TO LIFE.” (Dkt. 52).
{¶ 7} Defendant filed a timely notice of appeal.
{¶ 8} “THE TRIAL COURT ERRED IN OVERRULING THE APPELLANT‘S MOTION TO SUPPRESS.”
{¶ 9} In Miranda v. Arizona (1966), 384 U.S. 436, 478-479, 86 S.Ct. 1602, 16 L.Ed.2d 694, the Supreme Court held that a defendant who is subjected to custodial interrogation must be advised of his or her constitutional rights and make a knowing and intelligent waiver of those rights before statements obtained during the interrogation will be admissible. The warnings required by Miranda are satisfied where, prior to the initiation of questioning, the police fully apprise the suspect of the State‘s intention to use his statements to secure a conviction and inform him of his rights to remain silent and to have counsel present if he so desires. State v. Dailey (1990), 53 Ohio St.3d 88, 90, citing Moran v. Burbine (1986), 475 U.S. 412, 420, 106 S.Ct. 1135, 89 L.Ed.2d 410.
{¶ 10} In a pretrial suppression hearing, when the admissibility of a confession is challenged by the accused, the burden is upon the prosecution to prove compliance with Miranda; that a knowing, intelligent, and voluntary waiver of Defendant‘s rights was obtained or occurred and that the inculpatory statement was voluntary. State v. Kassow (1971), 28 Ohio St.2d 141. However, once a case for the above elements is established, the
{¶ 11} Detective Brad Daugherty of the Montgomery County Sheriff‘s Office questioned Defendant after he was taken into custody. Detective Daugherty testified that he informed Defendant of his Miranda rights prior to questioning him and that Defendant stated that he understood his rights. Detective Daugherty advised Defendant of his Miranda rights using the Sheriff Office‘s standard pre-interview form. Detective Daugherty testified that after he read each of the rights on the form to Defendant, he then obtained an oral acknowledgment from Defendant that Defendant understood each of his rights. (Tr. 17-18). Defendant also read the waiver of rights portion of the form to Detective Daugherty. Although Defendant refused to sign a written waiver of his rights, he orally waived his rights and consented to speaking to Detective Daugherty without an attorney. (Tr. 19, 29). Defendant told Detective Daugherty that “he did not want an attorney and that he would speak with [Detective Daugherty] without one.” (Tr. 19). Detective Daugherty testified that Defendant appeared to understand all of Detective Daugherty‘s questions and never requested an attorney or invoked his right to remain silent. (Tr. 21-22).
{¶ 12} Defendant‘s refusal to sign a waiver form is not conclusive evidence that his waiver was involuntary. State v. Scott (1980), 61 Ohio St.3d 155, 161; North Carolina v. Butler (1979), 441 U.S. 369, 373, 99 S.Ct. 1755, 60 L.Ed.2d 286.
{¶ 13} The first assignment of error is overruled.
SECOND ASSIGNMENT OF ERROR
{¶ 14} “THE JURY‘S VERDICTS SHOULD BE REVERSED AS THEY WERE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.”
{¶ 15} A weight of the evidence argument challenges the believability of the evidence in relation to the reasonable doubt standard, and asks which of the competing inferences suggested by the evidence is more believable or persuasive. State v. Hufnagle (Sept. 6, 1996), Montgomery App. No. 15563. The proper test to apply to that inquiry is the one set forth in State v. Martin (1983), 20 Ohio App.3d 172, 175:
{¶ 16} “The 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 lost its way
{¶ 17} The credibility of the witnesses and the weight to be given to their testimony are matters for the trier of facts to resolve. State v. DeHass (1967), 10 Ohio St.2d 230. In State v. Lawson (Aug. 22, 1997), Montgomery App. No. 16288, we observed:
{¶ 18} “Because the factfinder . . . has the opportunity to see and hear the witnesses, the cautious exercise of the discretionary power of a court of appeals to find that a judgment is against the manifest weight of the evidence requires that substantial deference be extended to the factfinder‘s determinations of credibility. The decision whether, and to what extent, to credit the testimony of particular witnesses is within the peculiar competence of the factfinder, who has seen and heard the witness.”
{¶ 19} This court will not substitute its judgment for that of the trier of facts on the issue of witness credibility unless it is patently apparent that the trier of facts lost its way in arriving at its verdict. State v. Bradley (Oct. 24, 1997), Champaign App. No. 97-CA-03.
{¶ 20} In arguing that his conviction is against the manifest weight of the evidence, Defendant claims that “the testimony of all the witnesses who claim to have been at the scene the night of the shooting conflicted greatly . . . [and] [w]hen all the conflicting testimony is weighed, it is clear that the jury lost its
{¶ 21} Defendant confessed to Detective Daugherty that he shot Sanford in the chest. J‘Leone Harraway and Pamela Burns both testified that they saw Defendant shooting at Sanford. Although there may have been minor conflicts in the testimony regarding the precise details of the clothing worn by the person who shot Sanford, Defendant‘s counsel brought these discrepancies to the jury‘s attention. Based on Defendant‘s confession and the eyewitness testimony, the jury could reasonably conclude that Defendant committed the offenses of which he was convicted. The trier of facts did not lose its way in choosing to believe the State‘s witnesses, which it had a right to do. State v. DeHass (1967), 10 Ohio St.2d 230.
{¶ 22} Reviewing the record as a whole, we cannot say that the evidence weighs heavily against a conviction, that the trier of facts lost its way in choosing to believe the State‘s witnesses, or that a manifest miscarriage of justice occurred. Defendant‘s convictions are not against the manifest weight of the evidence.
{¶ 23} The second assignment of error is overruled.
THIRD ASSIGNMENT OF ERROR
{¶ 24} “THE TRIAL COURT ERRED BY OVERRULING APPELLANT‘S MOTION FOR ACQUITTAL SINCE THE STATE FAILED TO SUPPLY SUFFICIENT EVIDENCE AS TO ALL THE ELEMENTS NECESSARY TO SUPPORT THE CHARGES AGAINST THE DEFENDANT.”
{¶ 26} A Crim.R. 29 motion challenges the legal sufficiency of the evidence. A sufficiency of the evidence argument challenges whether the State has presented adequate evidence on each element of the offense to allow the case to go to the jury or sustain the verdict as a matter of law. State v. Thompkins (1997), 78 Ohio St.3d 380. The proper test to apply to such an inquiry is the one set forth in paragraph two of the syllabus of State v. Jenks (1991), 61 Ohio St.3d 259:
{¶ 27} “An appellate court‘s function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant‘s guilt beyond a reasonable doubt. 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.”
{¶ 29} We note that Defendant did not identify any particular element of the offenses of which he was charged and convicted that the State failed to prove beyond a reasonable doubt. Moreover, Defendant does not challenge his conviction on the one count of tampering with evidence, so that particular conviction will not be addressed in this assignment of error.
{¶ 30} To prove the two counts of felonious assault charged, the State was required to prove beyond a reasonable doubt that Defendant “(1) [c]ause[d] serious physical harm to another or to another‘s unborn” and “(2) [c]ause[d] or attempt[ed] to cause physical harm to another or to another‘s unborn by means of a deadly weapon or dangerous ordnance.”
{¶ 31} To prove the three counts of murder charged, the State was required to prove beyond a reasonable doubt that Defendant “purposely cause[d] the death of another or the unlawful termination of another‘s pregnancy” and “cause[d] the death of another as a proximate result of the offender‘s committing or attempting to commit an offense of violence that is a
{¶ 32} To prove the three counts of having weapons while under disability charged, the State was required to prove beyond a reasonable doubt that Defendant “knowingly acquired, [had], carr[ied], or use[d] any firearm or dangerous ordnance” and was “a fugitive from justice” or was “under indictment for or has been convicted of any offense involving the illegal possession, use, sale, administration, distribution, or trafficking in any drug of abuse . . . .”
{¶ 33} Defendant confessed to intentionally shooting Sanford in the chest, and there is eyewitness testimony that Defendant shot Sanford. There also is testimony that Sanford died as a direct result of the gunshot wounds inflicted by Defendant. Further, evidence was presented at trial that Defendant was a fugitive from justice and had two prior convictions for possession of cocaine at the time of the shooting. Viewing the evidence in a light most favorable to the State, as we must, we conclude that a rational trier of facts could find all of the essential elements of felonious assault, murder, and having weapons while under a disability proven beyond a reasonable doubt. Therefore, Defendant‘s convictions are supported by legally sufficient evidence.
{¶ 34} The third assignment of error is overruled.
FOURTH ASSIGNMENT OF ERROR
{¶ 36}
{¶ 37} “(A) Where the same conduct by defendant can be construed to constitute two or more allied offenses of similar import, the indictment or information may contain counts for all such offenses, but the defendant may be convicted of only one.
{¶ 38} “(B) Where the defendant‘s conduct constitutes two or more offenses of dissimilar import, or where his conduct results in two or more offenses of the same or similar kind committed separately or with a separate animus as to each, the indictment or information may contain counts for all such offenses, and the defendant may be convicted of all of them.”
{¶ 39} ”
{¶ 40} In determining whether offenses are allied offenses of similar
{¶ 41} In State v. Harris, 122 Ohio St.3d 373, 2009-Ohio-3323, Defendant Cornelius Harris shot Demon Meatchem twice during a robbery. A grand jury indicted Harris on three counts of aggravated robbery, three counts of robbery, and two counts of felonious assault in violation of
{¶ 42} Similar to the facts in Harris, Defendant was convicted of two counts of felonious assault in violation of
{¶ 43} Defendant‘s fourth assignment of error is sustained. The case will be remanded to the trial court to merge Defendant‘s two offenses of felonious assault, merge the surviving felonious assault offense with Defendant‘s offense of murder, and to resentence Defendant accordingly. Otherwise, the judgment of the trial court will be affirmed.
DONOVAN, P.J. and RINGLAND, J. concur.
Hon. Robert P. Ringland, 12th District Court of Appeals, sitting by assignment of the Chief Justice of the Supreme Court of Ohio.)
Copies mailed to:
Michele D. Phipps, Esq. Marshall G. Lachman, Esq. Hon. Barbara P. Gorman