State v. CraigState v. Craig
JUDGMENT: AFFIRMED
RELEASED: April 29, 2010
JOURNALIZED:
ATTORNEY FOR APPELLANT
Thomas A. Rein
526 Superior Avenue
Cleveland, Ohio 44114
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
BY: Edward G. Lentz
Assistant Prosecuting Attorney
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
N.B. This entry is an announcement of the court‘s decision. See
{¶ 1} Defendant-appellant, Devon Craig (“appellant“), appeals his conviction for murder. Based on our review of the record and pertinent case law, we affirm.
{¶ 2} On the morning of March 4, 2008, the victim, Kameron Witherow (“Witherow“), was awakened by the daughter of his roommate, Monica Brown (“Brown“). Brown‘s daughter informed Witherow that appellant and Brown, who were dating at the time, were having an altercation and requested Witherow‘s assistance. Asia Elder (“Asia“), one of Brown‘s many roommates, testified that appellant had Brown pinned against Brown‘s bedroom door and would not let her go. Witherow and appellant argued and Witherow suggested the two go outdoors before engaging in any sort of physical altercation. After appellant walked outside, Witherow closed and locked the door behind him. Witherow, Brown, and the other individuals remaining in the apartment proceeded to laugh at appellant‘s misfortune.
{¶ 3} After appellant was locked outside, Thomas Elder (“Thomas“), who was also living in the apartment, realized that appellant had his cell phone. Witnesses testified that Thomas asked Witherow to retrieve his cell phone and, once outside, Witherow and appellant engaged in a short physical altercation. Thomas testified that Witherow kept backing away from
{¶ 4} A short while later, appellant returned to the apartment accompanied by a male identified as his brother. According to Asia, appellant‘s brother intended to fight Witherow until she explained the circumstances surrounding the morning‘s events. Appellant‘s brother then left; appellant became enraged and punched the front door to the apartment, breaking the glass. Asia, who was Witherow‘s girlfriend and the mother of his child, testified that appellant then indicated that he would return later with a group of friends.
{¶ 5} According to the testimony of Asia and Thomas, who is Asia‘s brothеr, appellant did in fact return to the apartment the evening of March 5, 2008. While there, he spoke to both Asia and Thomas. According to Asia, appellant hugged her, apologized for the previous day‘s occurrence, and then requested that she feel what was in his pocket. Uрon doing so, Asia realized that appellant was carrying a handgun. She asked him if he intended to use the gun on Witherow, but appellant indicated that he did not.
{¶ 6} Thomas testified that appellant arrived at the apartment with a couple of his friends or cousins and apologized for the argument between himself and Witherow the previous day. Thomas then testified that appellant showed him a firearm that was in his pocket and indicated that he
{¶ 7} Brown testified that on the evening of March 5, 2008, she and her friend Jahonna Perryman (“Perryman“) intended to run various errands, including a trip to Ace Hardware to get the front window fixed and a trip to The Rose, a store that sells hair accessories.1 Thе women were traveling in Perryman‘s red Ford Taurus. Before entering The Rose, Brown and Perryman were approached by Witherow, who was carrying a bag and a monkey wrench. Witherow placed his bag in Perryman‘s car. The women testified that they saw both appellant and Witherow in the vicinity of thе shopping plaza‘s parking lot before entering The Rose. According to Perryman, an unidentified male was with appellant at this time.
{¶ 8} Thomas testified that he received a phone call from Brown, who called to check on her children and to inform Thomas that she believed appellant and Witherow were about to fight. While in The Rose, Perryman and Brown heard gunshots. They left The Rose a few moments later but saw nothing. On their way back to Brown‘s apartment, they picked up DeMario
{¶ 9} The group returned to Brown‘s apartment and told Asia and Thomas that Witherow had been shot. Perryman, Brown, Asia, and Thomas returned to the plaza in Perryman‘s car. By this point, the police and EMS had arrived at the scene. After speaking with the authorities and being told that Witherow had already been taken to the hospital, the group left.
{¶ 10} Officer Michael Shay with the Cleveland Police Department testified that when he arrived at the plaza, EMS personnel were tending to Witherow, and thus he and his partner, Scott Sieger, began canvassing the area for spent shell casings or any physical evidence. Officer Shay was then approached by a young man, later identified as Michael Stewart (“Stewart“), who informed Officer Shay that he was looking in the wrong area for the shell casings. Stewart showed Officer Shay where the shooting had occurred. After looking in that area, Officer Shay discovered five spent shell casings that were in the snow and would have been diffiсult to find without Stewart‘s assistance.
{¶ 11} Officer Shay then put Stewart in the back of his police cruiser. Stewart was beginning to tell Officer Shay what he had witnessed when a red
{¶ 12} According to Officer Shay, the vehicle was occupied by Asia, Brown, Perryman, and Thomas. Officer Shay spoke with the three women while his рartner interviewed Thomas. After being informed that appellant may have some involvement in the shooting, Officer Shay ran a search on his computer for appellant‘s name. When appellant‘s photo appeared on the computer screen, Stewart, who was still in thе back of the police cruiser, indicated to Officer Shay that appellant was the shooter.
{¶ 13} According to Stewart‘s trial testimony, he saw a red Ford Taurus occupied by two females and two males park in the plaza‘s parking lot. After the two females went into The Rose, Stewаrt observed the two males arguing with Witherow. Stewart then saw one of the men, later identified as appellant, pull something that looked like a gun from his pocket. Stewart then heard what he believed to be gunshots and began to run toward his house, which was located only a few blocks from the рlaza. Stewart did, however, take the time to look back and saw the two men who had emerged from the red Taurus running down Cain Avenue. According to Stewart, appellant still had something in his hand as he was running away.
{¶ 14} Stewart returned home and told his sisters, who knew Witherow, about the shooting. Stewart and his sisters returned to the plaza, and Stewart informed Officer Shay of what he had seen.
{¶ 15} Witherow was transported to the hospital where he was pronounced dead. According to Dr. Erica Armstrong, a forensic pathologist with the Cuyahoga County Coroner‘s Office, Witherow was shot in the back left thigh, the lower right buttock, and in the left arm. The bullet that went into Witherow‘s left arm exited through his armpit and reentered through the left chest cavity. According to Dr. Armstrong, appellant died as a result of these gunshot wounds and his death was ruled a homicide.
{¶ 16} Delonte Perry (“Perry“), one of appellant‘s close friends, tеstified that he saw appellant on the night of March 5, 2008. Perry was listening to music with his friends “Fruits” and Vince in Fruits‘s driveway when appellant arrived on foot. Perry and appellant left around 10:00 p.m. and went to the store. According to Perry, appellant admitted to shooting Witherow and asked for a plaсe to stay. Perry and appellant stayed at Perry‘s girlfriend‘s house that night, and Perry had not seen appellant since the following day.
{¶ 17} Asia and Thomas went to stay with their mother following the incident. Both testified that an unidentified individual fired a gun outside their mother‘s home. Immediately following the gunshots, Thomas said he received a threatening voice mail message from appellant. Thomas and Asia
{¶ 18} On March 15, 2008, the Garfield Heights Police Dеpartment (“GHPD“) received an anonymous tip that appellant would be traveling southbound on East 131st Street in a black SUV with chrome wheels. According to the testimony of Patrolman Eric Cornell with GHPD, another officer was in an undercover car and had a BMV photo of appellant. The undercover officer observed appellant in the black SUV, and a short pursuit involving approximately six GHPD cruisers ensued.
{¶ 19} Officer Richard Fogle with GHPD testified that after the vehicle came to a stop, appellant emerged from the passenger side and engaged the officers in а foot chase. When he exited the vehicle, appellant was carrying a black backpack. At some point, appellant threw the backpack and was apprehended approximately 70 yards from the street after running through a brush covered area and through а ditch. The backpack was found on the opposite side of the ditch from where appellant was apprehended. A search of the backpack revealed a change of clothes and a semiautomatic pistol. This pistol was not the same gun that was used in the shоoting on March 5, 2008.
{¶ 20} Paul Costello testified at trial that he and appellant were incarcerated in the county jail at the same time. Costello testified that,
{¶ 21} Appellant was indicted on one count of aggravated murder in violation of
Law and Analysis
{¶ 23} For ease of discussion, appellant‘s arguments will be addressed out of order.
Other Acts Evidence
{¶ 24} In his fourth assignment of error, appellant challenges the trial court‘s admission of other acts evidence. The admission or exclusion of evidence is within the discretion of the trial court, whose decision will not be disturbed absent an abuse of discretion. State v. Noling, 98 Ohio St.3d 44, 2002-Ohio-7044, 781 N.E.2d 88, at ¶43, citing State v. Issa, 93 Ohio St.3d 49, 64, 2001-Ohio-1290, 752 N.E.2d 904. An abuse of discretion “implies that
{¶ 25} With regard to the admissibility of other acts evidence, it is well established that “extrinsic acts may not be used to prove by inference that the accused acted in conformity with his other acts or that he has a propensity to act in such a manner. [State v. Smith (1990), 49 Ohio St.3d 137, 140]. Although Evid.R. 404(B) permits ‘оther acts’ evidence for certain enumerated issues, ‘the standard for determining admissibility of such evidence is strict.’ State v. Broom (1988), 40 Ohio St.3d 277, paragraph one of the syllabus. Furthermore, under Evid.R. 403(A), even relevant evidence which is admissible under ordinary circumstances must be excluded if the probative value of the evidence is outweighed by the danger of unfair prejudice.” State v. Chaney, Seneca App. No. 13-05-12, 2006-Ohio-6489, at ¶24.
{¶ 26}