State v. AmmonsState v. Ammons
STATE OF OHIO Appellee v. JAMAL AMMONS Appellant
DECISION AND JOURNAL ENTRY
Dated: June 6, 2022
TEODOSIO, Judge.
{1} Appellant, Jamal Ammons, appeals from his convictions in the Lorain County Court of Common Pleas. This Court affirms.
I.
{2} Mr. Ammons and S.W. lived together at 2915 Apple Avenue in Lorain. In March of 2019, S.W. was shot in the upper chest and neck area while two doors down from the couple‘s home, in front of the residence at 2903 Apple Avenue. A security camera from a nearby club captured surveillance footage from a distance of the incident and its aftermath. The surveillance footage showed two people emerging from the 2915 Apple house, one after the other, and heading to the porch at 2903 Apple. S.W. was then shot around this time and remained in front of 2903 Apple, while the other individual began going back and forth between the front of 2903 Apple and inside the residence at 2915 Apple. Alerted by the gunshot, neighbors soon gathered around S.W. and called police. The police arrived soon thereafter and ordered Mr. Ammons and other
{3} Following an investigation, Mr. Ammons was ultimately charged with attempted murder, two counts of felonious assault, and tampering with evidence, all with attendant firearm specifications. The matter proceeded to a jury trial on those counts. He was also charged with having weapons while under disability, but the matter proceeded to a bench trial on that count. Following his trial, Mr. Ammons was convicted of all counts and specifications. Both felonious assault charges were found to be allied offenses and were merged with the attempted murder charge for purposes of sentencing. The firearm specifications all merged into the firearm specification for the attempted murder charge. The trial court sentenced Mr. Ammons to 8 to 12 years in prison, consecutive to a 3-year mandatory term for the firearm specification.
{4} Mr. Ammons now appeals from his convictions and raises three assignments of error for this Court‘s review.
II.
ASSIGNMENT OF ERROR ONE
THE JURY ERRED IN FINDING APPELLANT GUILTY OF ATTEMPTED MURDER, TWO (2) COUNTS OF FELONIOUS ASSAULT, AND TAMPERING WITH EVIDENCE, AND FIREARM SPECIFICATIONS FOR EACH COUNT, AS THE APPELLEE FAILED TO PRESENT SUFFICIENT EVIDENCE OF GUILT.
{5} In his first assignment of error, Mr. Ammons argues that the State did not present sufficient evidence to convict him of the offenses of attempted murder, felonious assault, tampering with evidence, and the attendant firearm specifications. We disagree.
{6} Whether a conviction is supported by sufficient evidence is a question of law, which this Court reviews de novo. State v. Thompkins, 78 Ohio St.3d 380, 386 (1997). “A challenge to
{7} First off, it is undisputed that Mr. Ammons and S.W. were in a relationship and lived together at 2915 Apple Avenue in Lorain. It is also undisputed that S.W. suffered a gunshot wound to the upper chest and neck area on March 29, 2019, just after 5:00 P.M., while she was in front of the residence at 2903 Apple. It is also apparent from the record that S.W. never testified at trial. Detective John Dougherty testified, however, that S.W. had ended her interview with police and was later charged with obstructing official business and making false statements, but those charges were later dismissed by the prosecutor.
{8} A next-door neighbor (“T.D.“), who lives in the house located between 2915 Apple and 2903 Apple, testified at trial that she can hear everything that happens in S.W. and Mr. Ammons’ house through her bathroom window. She testified that she was taking a shower that day around 5:00 P.M. when she heard arguing, fighting, yelling, and screaming coming from inside of the couple‘s house. According to T.D., the argument continued outside of their house and she soon heard a gunshot as she was getting out of the shower and drying her hair. The resident of 2903 Apple (“E.“) was also in T.D.‘s house at that time, and T.D. testified that “maybe a minute” after hearing the gunshot the two women went outside and over to 2903 Apple, where they found
{9} T.D. testified that the police soon arrived and told everyone: “Nobody move. Don‘t nobody move anywhere. Don‘t nobody go in the house. Everyone stand right where you are.” She testified that Mr. Ammons nevertheless got into a white vehicle and left, so she informed the police. Officer Jared Nighswander testified that he responded to an emergency call regarding a female who had been shot near the corner of Apple Avenue and East 29th Street. He was the first officer to arrive at the scene and assisted some civilians who had already started administering first aid. He testified that someone told him the victim‘s boyfriend, later identified as Mr. Ammons, was standing near the roadway. The officer testified: “[Mr. Ammons] was attempting to get into a vehicle. I told him that I needed him to come over here until I can figure out what‘s going on. You can‘t leave. You‘ve got to come over here. I actually told him to sit down, to have a seat at the house next door.” Officer Nighswander testified that Mr. Ammons “started walking over and started sitting down,” but once the officer resumed administering first aid to the victim, he heard a neighbor say, “Hey, there he goes. He got in the car.”
{10} Officer Nighswander radioed the description of the vehicle, a white Chevy Equinox, to his fellow officers who then stopped the vehicle down the road. Officer Robert Gnagy testified that he conducted a traffic stop of the vehicle approximately one block from the scene.
{11} The parking lot of the American Slovak Club, located across the street from the residences at 2903 and 2915 Apple Avenue, was monitored by a security camera. The police recovered video surveillance footage from that camera, which was introduced at trial. The quality of the security video footage is somewhat poor and grainy, to the extent that the actual shooting cannot be seen and the faces of individual persons cannot be clearly discerned, as they are filmed at some distance. Detective Sergeant Buddy Sivert testified, however, that just after 5:00 P.M.1 a person carrying a white bag, later identified through the investigation as Mr. Ammons, can be seen in the video walking from the house at 2915 Apple to the front porch of 2903 Apple. A second person, later identified as S.W., emerges from the house at 2915 Apple and runs toward the porch of 2903 Apple. The detective testified that some kind of altercation occurs, which then carries over onto the front lawn and front walkway of 2903 Apple. One of the two figures then disappears from sight at the same spot where the injured S.W. was later found, while the other person runs back into the house at 2915 Apple. Eight seconds later, a person emerges from 2915 Apple and runs back to the porch at 2903 Apple. He starts to leave again, heading toward 2915 Apple, but hesitates briefly and returns to 2903 Apple as other people begin to arrive at the scene. He then goes back to 2915 Apple once more and meets with
{12} Detective Christopher Colon testified that he assisted in executing the search warrant issued for 2915 Apple Avenue. Although no gun was discovered during the search, the detective testified that a plastic bag was found in the house, which had blood on it and contained some broken Bud Ice beer bottles. He also testified that the rear sliding door of the residence was open. Detective Brian Denman testified that while processing the scene he found some broken Bud Ice beer bottles on the front porch and steps of 2903 Apple Avenue.
{13} Detective John Dougherty was the lead detective in this case. He testified that police were able to determine from their investigation which person in the security video was Mr. Ammons; he was the individual first carrying a white bag to the front porch at 2903 Apple and then carrying that bag back inside the residence at 2915 Apple. The detective testified that the white bag found in Mr. Ammons’ house contained Bud Ice bottles, some of which were broken, while broken Bud Ice bottles were also found on the front porch of 2903 Apple. He testified that another individual can be seen in the video at the 2915 Apple residence when Mr. Ammons is going back and forth between the two houses. Although no gun was ever found in this case, the detective testified that the back door of Mr. Ammons’ house was open when the house was searched.
{14} Mr. Ammons does not challenge the sufficiency of the evidence as to his conviction for having weapons while under disability, and we will likewise limit our analysis and decline to address that particular count. Mr. Ammons’ sufficiency argument instead focuses mostly on his convictions for attempted murder and felonious assault.
{15} Mr. Ammons was also convicted of two counts of felonious assault.
{17} The identity of a perpetrator must be proved by the State beyond a reasonable doubt, and it may be proved by direct or circumstantial evidence, which do not differ with respect to probative value. State v. Tyler, 9th Dist. Summit No. 29225, 2019-Ohio-4661, ¶ 31. Although there were no eyewitnesses to the actual shooting, the State introduced sufficient circumstantial evidence to identify Mr. Ammons as the shooter. T.D. testified that she heard arguing, fighting, yelling, and screaming coming from S.W. and Mr. Ammons’ home, which continued outside of the home, just prior to the sound of a gunshot. When T.D. went outside, the only two people she recalled seeing in the area were S.W. bleeding on the ground and Mr. Ammons standing above her screaming. The surveillance video, while indeed grainy and shot from a distance across a parking lot, also shows a person leaving the house at 2915 Apple and going to the front porch at 2903 Apple. Another person leaves the house at 2915 Apple and runs to the porch at 2903 Apple, just before S.W. is purportedly shot. Detective Dougherty testified that the investigation determined that those two people were S.W. and Mr. Ammons. Mr. Ammons even concedes that he was the
{18} Mr. Ammons also argues that insufficient evidence was introduced to convict him of tampering with evidence, primarily because no gun was ever found in this matter.
{19} After reviewing the evidence in a light most favorable to the State, this Court concludes that a rational trier of fact could have found that the essential elements of attempted murder, felonious assault, and tampering with evidence were proved beyond a reasonable doubt. Although the surveillance footage is somewhat grainy and no eyewitnesses actually saw the shooting occur, the State introduced ample circumstantial evidence which demonstrated that Mr. Ammons was the individual who shot S.W. that day and then gave the gun to someone else to remove it from the scene and make it unavailable for the impending investigation.
{20} Mr. Ammons’ first assignment of error is overruled.
ASSIGNMENT OF ERROR TWO
APPELLANT‘S CONVICTIONS OF ATTEMPTED MURDER, TWO (2) COUNTS OF FELONIOUS ASSAULT, AND TAMPERING WITH EVIDENCE, AND FIREARM SPECIFICATIONS FOR EACH COUNT ARE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE IN VIOLATION OF ARTICLE IV, SECTION 3, OF THE OHIO CONSTITUTION.
{21} In his second assignment of error, Mr. Ammons argues that his convictions are against the manifest weight of the evidence. We disagree.
{22} A challenge to the manifest weight of the evidence concerns the State‘s burden of persuasion. State v. Klafczynski, 9th Dist. Medina No. 18CA0084-M, 2020-Ohio-3221, ¶ 7. This Court has stated:
In determining whether a criminal conviction is against the manifest weight of the evidence, an appellate court must review the entire record, weigh the evidence and all reasonable inferences, consider the credibility of witnesses and determine whether, in resolving conflicts in the evidence, the trier of fact clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.
{23} Mr. Ammons first argues that his convictions are against the manifest weight of the evidence because “there was no physical evidence or eyewitness testimony of the shooting * * *” To that extent, his argument sounds in sufficiency rather than weight. See, e.g., State v. Betts, 9th Dist. Summit Nos. 29575, 29576, and 29577, 2020-Ohio-4800, ¶ 34. See also State v. Vincente-Colon, 9th Dist. Lorain No. 09CA009705, 2010-Ohio-6242, ¶ 20 (“[S]ufficiency and manifest weight are two separate, legally distinct arguments.“). We have already determined above that the State presented sufficient evidence at trial to support Mr. Ammons’ convictions, and we need not engage in that analysis again. See State v. Daniels, 9th Dist. Wayne No. 17AP0036, 2020-Ohio-1176, ¶ 26.
{24} Mr. Ammons also contends that the evidence in this case weighs heavily in his favor, directing us once more to Detective Dougherty‘s statement that S.W. told him Mr. Ammons was not the shooter. However, Mr. Ammons again neglects to acknowledge the prosecutor‘s sustained objection to that same testimony and the trial court‘s immediate instruction to the jury to disregard it. The detective‘s statement was therefore not evidence to be considered in Mr. Ammons’ trial.
{26} Notwithstanding the above arguments, upon review, we conclude that the weight of the evidence supports the conclusion that Mr. Ammons shot S.W. during an argument, gave the gun to the unknown acquaintance seen in the video for removal from the scene, and then attempted to flee the scene after police arrived and instructed him not to leave. A neighbor heard fighting coming from within S.W. and Mr. Ammons’ residence, which continued outside of the couple‘s home. After the neighbor heard a gunshot, she went outside to investigate, finding Mr. Ammons and S.W. as the only two people around. Although the surveillance video is not the best quality, no one else can be seen around S.W. and Mr. Ammons in the video during the time of the shooting. The video shows Mr. Ammons going back and forth between the two houses and meeting with an unknown person on his front porch. When the police arrived, an officer instructed Mr. Ammons to stay put, but Mr. Ammons chose instead to immediately leave the scene in a vehicle before jumping out of that vehicle when it was stopped down the road.
{27} After reviewing the entire record, weighing the evidence and all reasonable inferences, and considering the credibility of witnesses, we cannot say that the jury, in resolving conflicts in the evidence, clearly lost its way and created such a manifest miscarriage of justice that Mr. Ammons’ conviction must be reversed and a new trial ordered. See Otten at 340. Mr. Ammons has also not demonstrated that this is the exceptional case in which the evidence weighs heavily against the conviction. See Thompkins at 387.
ASSIGNMENT OF ERROR THREE
THE TRIAL COURT ERRED IN GIVING A FLIGHT INSTRUCTION TO THE JURY BECAUSE THERE WAS NO EVIDENCE SHOWING THE APPELLANT TOOK AFFIRMATIVE STEPS TO EVADE DETECTION AND APPREHENSION BY THE POLICE.
{29} In his third assignment of error, Mr. Ammons argues that the trial court erred in giving the jury a “flight” instruction because no evidence was presented that he took affirmative steps to evade detection or apprehension by the police. We disagree.
{30} “[A] trial court must fully and completely give the jury all instructions which are relevant and necessary for the jury to weigh the evidence and discharge its duty as the fact finder.” State v. Comen, 50 Ohio St.3d 206 (1990), paragraph two of the syllabus. “This Court reviews a trial court‘s decision to give or not give jury instructions for an abuse of discretion under the particular facts and circumstances of the case.” State v. Calise, 9th Dist. Summit No. 26027, 2012-Ohio-4797, ¶ 68. An abuse of discretion implies the court‘s decision is arbitrary, unreasonable, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983). When applying this standard, a reviewing court is precluded from simply substituting its own judgment for that of the trial court. Pons v. Ohio State Med. Bd., 66 Ohio St.3d 619, 621 (1993).
{31} Evidence of flight is admissible as it tends to show consciousness of guilt, and a jury instruction on flight is appropriate if there is sufficient evidence in the record to support the charge. State v. Johnson, 9th Dist. Lorain No. 18CA011329, 2020-Ohio-4178, ¶ 64. Thus, the record must contain evidence from which reasonable minds might reach the conclusion sought by the instruction. Id.
{32} The trial court provided the jury in this matter with the following instruction over Mr. Ammons’ objection:
Testimony has been admitted indicating that the defendant fled the scene. You‘re instructed that leaving the scene alone does not raise a presumption of guilt, but it may tend to indicate the defendant‘s consciousness of guilt. If you find that the facts do not support that the defendant left the scene or if you find some other motive prompted the defendant‘s conduct or if you are unable to decide what the defendant‘s motivation was, then you should not consider this evidence for any purpose.
However, if you find that the facts support that the defendant engaged in such conduct, if you decide that the defendant was motivated by a consciousness of guilt, you may, but you‘re not required to consider that evidence in deciding whether the defendant is guilty of the crimes charged. You alone will determine what weight, if any, to give this evidence.
{33} Mr. Ammons concedes that he left the scene of the shooting, but he argues that he first remained at the scene until police arrived and then “merely left” in an SUV after speaking with Officer Nighswander. He cites the Eighth District‘s decisions in State v. Jackson, 8th Dist. Cuyahoga No. 100125, 2014-Ohio-3583, and State v. Halstead, 8th Dist. Cuyahoga No. 102723, 2016-Ohio-290, and contends that he did not take affirmative steps to avoid detection and apprehension beyond simply not remaining at the scene. The fact-pattern in Jackson is distinguishable from Mr. Ammons’ case, however, because the police made no effort to locate Jackson once he was identified as a suspect, and he was arrested two days after the murder without fleeing, resisting, or protesting in any way. See Jackson at ¶ 48. There was no evidence “that Jackson fled to a location where he could not be located or that he evaded police once detected.” Id. The fact-pattern in Halstead is also distinguishable, as Halstead robbed the victim, slashed his throat, and left the scene prior to any police involvement. Halstead at ¶ 5. As our sister court noted: “Halstead‘s leaving the scene was not deliberate flight in the sense of evading police and detection.” Id. at ¶ 15.
{34} We find the fact-pattern in Mr. Ammons’ case to be more akin to the facts in this Court‘s recent decision in State v. Johnson, 9th Dist. Lorain No. 18CA011329, 2020-Ohio-4178,
{35} In the case sub judice, T.D. testified that the police arrived at the scene and told everyone not to go anywhere. Officer Nighswander testified that Mr. Ammons was trying to get into a vehicle, so he specifically instructed Mr. Ammons that he could not leave and that he needed to sit down at the house next door. Despite clear instructions to not go anywhere, both Officer Nighswander and T.D. testified that Mr. Ammons got into the vehicle anyway and attempted to leave the scene. Additional police units had to conduct a traffic stop of the vehicle down the road. The witnesses’ testimony is also corroborated by the surveillance video entered into evidence. The video shows Officer Nighswander calling Mr. Ammons away from the vehicle and speaking to him, although no audio is available. Once the officer returns next door to attend to the victim, Mr. Ammons waits merely seconds before jogging back over to the vehicle, entering it, and leaving the scene.
{36} Upon review, we conclude that the State presented sufficient evidence at Mr. Ammons’ trial to allow a reasonable person to conclude that Mr. Ammons fled the scene of the shooting after being instructed not to do so by police. See id. at ¶¶ 64-67. Consequently, the trial court did not err in giving a flight instruction to the jury.
{37} Mr. Ammons’ third assignment of error is overruled.
THE TRIAL COURT ERRED IN PERMITTING TESTIMONY OF IMPEACHMENT TO VICTIM IN REGARD TO HER CRIMINAL CHARGES WITHOUT GIVING APPELLANT AN OPPORTUNITY TO CROSS-EXAMINE WITNESS ABOUT THE CHARGES IN VIOLATION OF EVIDENCE RULE 608(B), EVIDENCE RULE 611(B), AND IN VIOLATION OF APPELLANT‘S RIGHT TO CONFRONT WITNESSES UNDER THE SIXTH AMENDMENT OF THE UNITED STATES CONSTITUTION.
{38} In his fourth assignment of error, Mr. Ammons argues that the trial court erred in permitting testimony that S.W. was charged criminally as a result of the police investigation in this matter, in violation of
{39} “The admission or exclusion of relevant evidence rests within the sound discretion of the trial court.” State v. Sage, 31 Ohio St.3d 173 (1987), paragraph two of the syllabus. We therefore review a trial court‘s decision regarding the admission or exclusion of evidence for an abuse of discretion. State v. Powell, 9th Dist. Lorain No. 12CA010284, 2017-Ohio-4030, ¶ 16. “The term ‘abuse of discretion’ connotes more than an error of law or judgment; it implies that the court‘s attitude is unreasonable, arbitrary or unconscionable.” Blakemore, 5 Ohio St.3d at 219. When applying an abuse of discretion standard, a reviewing court is precluded from simply substituting its own judgment for that of the trial court. Pons, 66 Ohio St.3d at 621.
{40} Nevertheless, we need not reach the merits of this assignment of error, as we instead conclude that Mr. Ammons has not properly preserved his arguments for appeal. Pursuant to
{41} The following exchange occurred during the prosecutor‘s direct examination of Detective Dougherty:
Q: And did you take any steps in terms of criminal charges against [S.W.]?
A: Yes.
Q: And what was that?
A: Obstructing official business, making false statements.
MR. ALBENZE: I‘m going to object to the criminal charges related to the victim.
THE COURT: Overruled.
{42} As the record reflects, defense counsel did not state a specific ground for the objection, and the reason for the objection is not apparent from the context. See
{43} The body of this assignment of error also contains challenges to the sustained objection to Detective Dougherty‘s testimony on cross-examination that S.W. told him Mr. Ammons was not the shooter. Mr. Ammons’ captioned assignment of error only challenges the admitted testimony of S.W.‘s criminal charges, however, and not the excluded testimony regarding the identity of the shooter. “[A]n appellant‘s assignment of error provides this Court with a roadmap on appeal and directs this Court‘s analysis.” State v. Marzolf, 9th Dist. Summit No. 24459, 2009-Ohio-3001, ¶ 16. See also State v. Harlow, 4th Dist. Washington No. 13CA29, 2014-Ohio-864, ¶ 10 (stating that appellate courts review assignments of error, not mere arguments). Because Mr. Ammons’ challenge to the excluded testimony goes beyond the scope of his captioned assignment of error, we decline to address it. See State v. Duffy, 9th Dist. Lorain Nos. 18CA011342, 18CA011343, 18CA011344, 18CA011345, 18CA011346, 18CA011347, 18CA011348, and 18CA011349, 2020-Ohio-3137, ¶ 23.
{44} Mr. Ammons’ fourth assignment of error is overruled.
III.
{45} Mr. Ammons’ assignments of error are all overruled. The judgment of the Lorain County Court of Common Pleas is affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
THOMAS A. TEODOSIO
FOR THE COURT
SUTTON, J. CONCURS.
CARR, P. J. CONCURRING IN JUDGMENT ONLY.
{46} With respect to the majority‘s resolution of the fourth assignment of error, I concur in judgment only. Specifically, I would address the second portion of Ammons’ argument on the merits. Ammons’ stated assignment of error includes the assertion that he was not given the opportunity to cross-examine a witness about charges against the victim. I would conclude that
{47} As to the merits, even assuming there was error, I fail to see how the error impacted the outcome of the trial, nor has Ammons explained how he was prejudiced by it given the other evidence admitted at trial.
APPEARANCES:
ALISSA R. BARBOSKY, Attorney at Law, for Appellant.
J.D. TOMLINSON, Prosecuting Attorney, and BRIAN P. MURPHY, Assistant Prosecuting Attorney, for Appellee.