STATE OF OHIO v. ABLINE CANNON
C.A. No. 19CA011536
IN THE COURT OF APPEALS NINTH JUDICIAL DISTRICT
July 20, 2020
2020-Ohio-3765
SCHAFER, Judge.
APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF LORAIN, OHIO CASE Nо. 17CR095687
Dated: July 20, 2020
SCHAFER, Judge.
{¶1} Defendant-Appellant, Abline Cannon, appeals from his convictions in the Lorain County Court of Common Pleas. This Court affirms.
I.
{¶2} During the middle of the night, two armed men broke into D.B.‘s apartment. When they broke in, D.B. was in his bedroom and his twin brother was sleeping on the living room couch. The twin brother attempted to jump from the couch, but one of the intruders struck him on the head. Gunfire then erupted and shots were exchanged between the two men and D.B. After the exchange, the two men fled, and the twin brother briefly chased them. When he returned to the apartment, he found D.B. lying on his bedroom floor and called 911. Paramedics were unable to resuscitate D.B., and he died from his injuries.
{¶3} Dark conditions in the apartment made it impossible for D.B.‘s twin brother to identify the intruders by sight, but he advised the police that one of them had left a bloodstain on
{¶4} The police spoke with Cannon at the hospital, and he denied any involvement in the break-in at D.B.‘s apartment. Although the police secured a warrant for his arrest, Cannon left the hospital against medical advice before the warrant could be served. The police then experienced several setbacks when they tried to find him. Cannon‘s family members changed their stories several times when asked for information about his whereabouts. Additionally, someone set fire to and destroyed the vehicle that had brought him to the hospital. Cannon managed to elude the police for almost four weeks. He was eventually captured while attempting to hide under a pile of clothes at the apartment of a lady friend. DNA testing conducted after his arrest confirmed that he could not be excluded as the source of the blood trail found at D.B.‘s apartment.
{¶5} A grand jury indicted Cannon on one count of aggravated murder, one count of murder, one count of felony murder, one count of kidnapping, two counts of aggravated robbery, two counts of aggravated burglary, three cоunts of felonious assault, one count of tampering with evidence, and two counts of having weapons under disability. Of those fourteen counts, eleven counts also contained an attendant firearm specification. The matter proceeded to trial and, at its conclusion, a jury found Cannon guilty of thirteen counts and the specifications linked to those counts. The jury found him not guilty of murder.
{¶7} Following our dismissal, the trial court issued an “amended judgment entry of conviction and sentence nunc pro tunc,” as well as a “second amended judgment entry of conviction and sentence nunc pro tunc.” The amended entries set forth the terms of Cannon‘s original sentence and addressed the Count 11 specification, as well his other firearm specifications. Specifically, the entries sentenced Cannon on the firearm specification linked to his aggravated murder count and merged his remaining firearm specifications with that sentеnce. Cannon once again appealed from his convictions, but this Court dismissed his second appeal as untimely. See State v. Cannon, 9th Dist. Lorain No. 19CA011506 (June 3, 2019). Following our second dismissal, he moved to file a delayed appeal, and we granted his motion.
{¶8} Cannon now appeals from his convictions and raises three assignments of error. To facilitate our review, we consolidate two of his assignments of error.
II.
{¶9} Before turning to the merits of Cannon‘s assignments of error, we pause to address a motion that the State has filed herein. The State has moved to dismiss the appeal on the basis
{¶10} For a sentencing entry to comply with
{¶11} This Court has jurisdiction to hear appeals from final judgments pursuant to
Assignment of Error I
The trial court‘s denial of [Cannon‘s]
Assignment of Error III
[Cannon‘s] convictions for the gun specifications are not supported by sufficient evidence where the state failed to present evidence that [Cannon] shared the same mens rea as the principal offender(s).
{¶12} In his first and third assignments of error, Cannon argues that his convictions and their attendant firearm specifications are based on insufficient evidence. We do not agree.
{¶13} This Court reviews the denial of a defendant‘s
{¶15} As with any other element, “[t]he identity of a perpetrator must be proved by the State beyond a reasonable doubt.” State v. Moorer, 9th Dist. Summit No. 27685, 2016-Ohio-7679, ¶ 24. “[I]dentity may be proved by direct or circumstantial evidence, which do not differ with respect to probative value.” State v. Taylor, 9th Dist. Summit No. 27273, 2015-Ohio-403, ¶ 9.
{¶16} “A person need not be the principal offender to be convicted of a crime.” State v. Davis, 9th Dist. Summit No. 26660, 2013-Ohio-5226, ¶ 11.
{¶17} D.B.‘s twin brother testified that, sometime around 11:00 p.m., he called D.B. to let him know that he would be coming to stay with him for the evening. D.B. was already in bed when his brother arrived, so the brother let himself in, bolted the apartment door, and eventually fell asleep on the living room couch. He testified that he was heavily asleep when he heard a noise and opеned his eyes. He then saw a figure standing over him and tried to jump up from the couch. His attempt was unsuccessful, however, as the figure struck him in the head. The twin brother testified that the room was dark, but the injuries he sustained were consistent with his having been struck by a gun. After someone struck him, a voice he did not recognize exclaimed, “Oh, sh*t,” and gunfire broke out in the apartment.
{¶18} The twin brother testified that, when the shooting started, the person who was standing over him ran toward D.B.‘s bedroom. Multiple shots were then fired with bullets “flying from the back of the [apartment],” and glass from the stove exploding in the hail of gunfire. As the twin brother watched, he saw a person run from the apartment, followed by a second person “tripping over his own feet.” He testified that the second person was bleeding and left his blood on the wall next to the door when he hit the wall on his way out of the apartment. Though the twin brother briefly chased after the two intruders, he came to his senses when he realized that he did not have a weapon and D.B. likely needed help. He then ran back up to the apartment, found his brother, and called 911.
{¶20} A man from a neighboring apartment testified that he, his girlfriend, and their children were sleeping when they were awoken by the sound of gunshots. The neighbor‘s bedroom window faced the parking lot for the apartment complex and, as he dialed 911, he looked outside. The neighbor testified that he saw two men running. The first man ran toward a sports utility vehicle and jumped into the passenger‘s seat as the vehicle pulled out. Meanwhile, the second man ran along the right side of a smaller building that housed the complex‘s dumpster. The neighbor testified that the vehicle drove out onto the main roadway, but stopped briefly in a spot near the dumpster. He could not say exactly how many people were in the vehicle, but acknowledged that there must have been at least three: the two men he saw running and the driver.
{¶21} A registered nurse from the emergency room at Elyria Medical Center testified that he received a phone call from the police at 3:10 a.m. The police notified the nurse that a shooting had occurred in the city and asked thаt the hospital contact the department if any individuals sought treatment for a gunshot wound. Less than twenty minutes later, Cannon arrived at the emergency room with a gunshot wound to his right elbow. The nurse testified that Cannon had extremely low
{¶22} Officer Brent Payne was at D.B.‘s apartment for no more than fifteen minutes when he received notice that a male was seeking treatment for a gunshot wound at Elyria Medical Center. He testified that it took him about fifteen minutes to drive there, as Elyria Medical Center was not the closest hospital. When he arrived, Cannon was being treated in one of the emergency rooms and he was able to speak with him. Cannon told Officer Payne that he had been drinking at a bar in Lorain when several unknown males attempted to rob him. He indicated that one of the men had shot him and a good Samaritan had driven him to the hospital. A security guard was present when Cannon arrived and was able to provide Officer Payne with a description of the vehicle that had brought Cannon to the hospital. The officer then advised law enforcement to be on the lookout for that vehicle.
{¶23} Detective Buddy Sivert also responded to Elyria Medical Center and spoke with the security guard and Cannon. He learned from the security guard that one male had dropped off Cannon at the drive-up entrance to the emergency room. He then spoke with Cannon, who repeated his claim that he had been shot at a bar in Lorain when two men tried to rob him. Cannon indicated that he was not sure who had brought him to the hospital, and he specifically denied that he had been shot at D.B.‘s apartment. In addition to taking Cannon‘s statement, Detective Sivert
{¶24} The State introduced evidence that Cannon was transferred to Cleveland Medical Center for additional treatment at 5:01 a.m. and left against medical advice at 9:15 a.m. Detective Kurt Graupmann testified that, by the time the police secured a warrant for Cannon‘s arrest, he had already left the hospital. The detective spoke with Cannon‘s mother and sister several times in an effort to locate him, but they changed their stories each time he spoke with them. In fact, Cannon‘s mother denied knowing anything about Cannon leaving the hospital until the detective confronted her with a surveillance video, showing that she was the one who picked him up. The detective testified that Cannon managed to elude the police for almost four weeks, at which point they received a tip that he was staying at an apartment in Kent. Members of the fugitive task force then found Cannon inside the apartment, hiding beneath a pile of clothes, and arrested him.
{¶25} A DNA analyst from the Bureau of Criminal Identification (“BCI“) testified that the police asked him to test four blood samples they сollected from D.B.‘s apartment, the stairwell, and the parking lot. He initially tested the samples without a standard for comparison and concluded that all four swabs contained the same male profile. Once the police obtained Cannon‘s DNA, the analyst performed additional testing using Cannon‘s standard. He then was able to determine that Cannon could not be excluded as the source of the male profile he uncovered on the blood samples taken from D.B.‘s apartment and the surrounding area.
{¶26} Detective Christopher Kovach testified that, the same dаy as the shooting, the Cleveland Police Department recovered the vehicle that had brought Cannon to Elyria Medical Center. The vehicle was “engulfed in flames” when the Cleveland Police found it and investigators determined that the fire had been set intentionally. Detective Kovach testified that the police were
{¶27} Detective Kovach testified that the police only recovered one handgun inside D.B.‘s apartment. That handgun was a .40 caliber semi-automatic, and it was found at D.B.‘s feet when officers arrived on scene. The police found a total of eleven casings inside the apartment and, among those eleven casings, three different bullet brands. Detective Kovach specified that the police found (1) seven .45 caliber Hornady brand casings, (2) thrеe .40 caliber Winchester casings, and (3) one .40 caliber Federal brand casing. The Federal brand casing was discovered just behind the couch in the living room, and the three Winchester casings were discovered inside D.B.‘s bedroom. Meanwhile, one Hornady casing was found in the living room, and the remaining six were found on the floor of a back bedroom that D.B. used as a music studio. Detective Kovach testified that it was impossible to determine the order in which the bullets had been fired. Yet, the police were able to determine that three shots had been fired from D.B.‘s bedroom (the Winchesters), seven had been fired from the music studio room and/or hallway outside D.B.‘s bedroom (the Hornadys), and one had been fired in the living room (the Federal). Detective Kovach indicated that he was ultimately able to account for ten of those bullets, as there was evidence that they had either struck D.B. or were lodged in walls, floors, or other areas of the apartment. Though he could not account for the eleventh bullet that had been fired, there was testimony that the police were never able to test the bullet that lodged itself in Cannon‘s right arm.
{¶28} A firearms analyst from BCI tested the bullets, bullet fragments, and casings recovered from the scene. He testified that all three Winchester rounds had been fired from the
{¶29} Viewing all of the evidence in a light most favorable to the State, a rational trier of fact could have concluded that the State proved, beyond a reasonable doubt, that Cannon either perpetrated the offenses herein or aided and abetted another in perpetrating those offenses. See Jenks, 61 Ohio St.3d 259 at paragraph two of the syllabus. The State produced evidence that two men broke into D.B.‘s apartment, one of those men was shot before he fled, and that man was Cannon. The twin brother testified that he saw both intruders run from the back of the apartment where D.B. was located, and the evidence showed that three handguns were fired that evening: D.B.‘s handgun and two others. The jury, therefore, reasonably could have concluded that Cannon brought a gun with him to the apartment, fired it at least once during the affray, and took it with him when he fled. Moreover, the jury reasonably could have concluded that his actions demonstrated a consciousness of guilt. Cannon was not forthcoming about the events that transpired and attempted to evade aрprehension. There was testimony that he repeatedly lied about having been shot elsewhere, left the hospital against medical advice, concealed his whereabouts for almost four weeks, and attempted to hide in a pile of clothing when the police finally came to arrest him. See State v. Hand, 107 Ohio St.3d 378, 2006-Ohio-18, ¶ 167 (flight and concealment are evidence of consciousness of guilt); State v. Thomas, 9th Dist. Summit No. 27435, 2015-Ohio-2379, ¶ 14 (“Lying tends to show consciousness of guilt.“). Even if Cannon did not act as the principal herein, the State produced a wealth of evidence tending to show that he shared the principal‘s criminal intent and actively supported or assisted the principal in the commission of his crimes. See Johnson, 93 Ohio St.3d 240 at syllabus; see also Lollis, 2014-Ohio-684, at ¶ 21, quoting Scott, 61 Ohio St.2d at 165. We, therefore, cannot conclude that his convictions are based on insufficient evidence. Cannon‘s first and third assignments of error are overruled.
Assignment of Error II
The conviction of [Cannon] is against the manifest weight of the evidence such that reversal is required consistent with substantive and procedural due process and the
{¶30} In his second assignment of error, Cannon argues that his convictions are against the manifest weight of the evidence. He argues that the greater weight of the evidеnce showed that he was merely present in D.B.‘s apartment when the shooting occurred. Because the jury lost its way when it was persuaded by the State‘s evidence, Cannon argues, his convictions must be reversed. We disagree.
{¶31} When considering an argument that a criminal conviction is against the manifest weight standard, this Court is required to
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.
State v. Otten, 33 Ohio App.3d 339, 340 (9th Dist.1986). Courts are cautioned to only reverse a conviction on manifest weight grounds “in exceptional cases,” State v. Carson, 9th Dist. Summit, 2013-Ohio-5785, ¶ 32, citing Otten at 340, where the evidence “weighs heavily against the conviction[,]” Thompkins, 78 Ohio St.3d at 387.
{¶33} Cannon testified that C.H. made it out of the door first and, just before he (Cannon) mаde it out, someone shot him. He stated that he kept moving, but slowed down as he grew dizzy. As he slowed, A.P. and R.B. came down the stairwell, rushed past him, and ran out of the apartment complex before he did. Cannon then made his way outside and saw his vehicle backing out. According to Cannon, he was hesitant to get inside the vehicle because, at that point, he was not sure who had shot him. Nevertheless, he decided to get inside when A.P. swung open the back door and motioned for him to climb in. The group then sped away from the apartment complex.
{¶34} Cannon testified that, at some point, C.H. and R.B. got out of the vehicle and A.P. drove him to an emergency room. Cannon conceded that he lied to the nurse and several police officers when they questioned him at the hospital, but testified that he only lied because he was afraid that they would detain him and would not believe that he was not involved with the shooting. Cannon claimed that he never carried a gun, as he had a prior conviction and did not want to incur
{¶35} As noted, one of thе State‘s witnesses was D.B.‘s neighbor, a man who testified that he saw two men running through the parking lot as he was calling 911. During its case-in-chief, the defense called the man‘s girlfriend as a witness. Much like her boyfriend, she testified that she was asleep when gunshots rang out and startled her. She indicated that the incident happened extremely fast and, within seconds, she, her boyfriend, and their children were startled from sleep, her boyfriend placed a call to 911, and she looked out the apartment‘s window. Unlike her boyfriend, the girlfriend recalled seeing three men running through the parking lot. She testified that two of the men ran toward a vehicle and the third ran around the smaller building that housed the dumpster. She readily admitted on cross-examination, however, that she only saw the men in the parking lot. As such, it was not her testimony that she saw three men emerge from D.B.‘s apartment.
{¶36} Having reviewed the record, we cannot conclude that the jury clearly lost its way when it found that Cannon either perpetrated the offenses herein or aided and abetted another in perpetrating those offenses. See Otten, 33 Ohio App.3d at 340. Cannon‘s testimony that two men broke into D.B.‘s apartment while he and C.H. were already inside directly contradicted the twin brother‘s testimony that his brother was in his bedroom and he was asleep when the break-in occurred. His testimony also contradicted the physical evidence, as it showed that D.B. was shot and killed in his bedroom, clothed only in a pair of boxer shorts. The jury heard testimony that Cannon repeatedly lied about his involvement in the shooting and evaded apprehension for almost four weeks. The jury, therefore, could have chosen to believe the State‘s witnesses and disregarded Cannon‘s version of the events. See State v. Johnson, 9th Dist. Summit No. 25161, 2010-Ohio-3296, ¶ 15 (“This Court has repeatedly held that the trier of fact is in the best position to determine the credibility of witnesses and evaluate their testimony accordingly.“) “A verdict is not against the manifest weight of the evidence because the finder of fact chose to believe the State‘s witnesses rather than the defendant‘s version of the events.” State v. Martinez, 9th Dist. Wayne No. 12CA0054, 2013-Ohio-3189, ¶ 16. Upon review, Cannon has not shown that this is the exceptional case where the jury lost its way by convicting him. See Otten at 340. Accordingly, his second assignment of error is overruled.
III.
{¶37} Cannon‘s assignments of error are overruled. The judgment of the Lorain County Court of Common Pleas is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Cоmmon 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
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.
JULIE A. SCHAFER
FOR THE COURT
CALLAHAN, P. J.
CARR, J.
CONCUR.
APPEARANCES:
GREGORY SCOTT ROBEY, Attorney at Law, for Appellant.
DENNIS P. WILL, Prosecuting Attorney, and LINDSEY C. POPROCKI, Assistant Prosecuting Attorney, for Appellee.