STATE OF OHIO v. BRYAN DURHAM
No. 102654
Court of Appeals of Ohio, Eighth Appellate District, County of Cuyahoga
February 25, 2016
2016-Ohio-691
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 102654
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
BRYAN DURHAM
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED IN PART,
REVERSED IN PART, AND REMANDED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-14-585105-A
BEFORE: Laster Mays, J., Keough, P.J., and Blackmon, J.
RELEASED AND JOURNALIZED: February 25, 2016
Stephen L. Miles
20800 Center Ridge Road, Suite 405
Rocky River, Ohio 44116
ATTORNEYS FOR APPELLEE
Timothy McGinty
Cuyahoga County Prosecutor
By: Andrew J. Santoli
Assistant County Prosecutor
Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
I. INTRODUCTION
{¶1} Defendant-appellant Bryan A. Durham (“Durham”) appeals his conviction and sentence of life with parole eligibility at 30 years for aggravated murder with a consecutive 36-month sentence for the 3-year firearm specification, and a concurrent 36-month sentence for having a weapon while under disability. Durham argues that his counsel was ineffective for failure to file motions to suppress his videotaped interview and evidence derived from the seizure of his automobile. Durham also challenges the sufficiency and manifest weight of the evidence. We vacate the aggravated murder conviction and sentence, and remand for resentencing.
II. BACKGROUND AND FACTS
{¶2} In May 2014, Durham was indicted by the Cuyаhoga County Grand Jury for the following counts relating to the death of Herman Coleman (“Coleman”):
(1) aggravated murder (R.C. 2903.01(A)) with a 1-year firearm specification (R.C. 2941.141(A)) and a 3-year firearm specification (R.C. 2941.145(A));
(2) murder (R.C. 2903.02(B)) with a 1- and 3-year firearm specification;
(3) felonious assault (R.C. 2903.11(A)(1)) with a 1- and 3-year firearm specification, a notice of prior conviction (R.C. 2929.13(F)(6)), a repeat violent offender specification (R.C. 2941.149(A)) in CR-92-283608, and a notice of prior conviction and repeat violent offender specification in CR-92-278596;
(4) felonious assault (R.C.2903.11(A)(2)) with a 1- and 3-year firearm specification, 2 notices of prior conviction, and 2 repeat violent offender specifications; and
(5) having a weapon while under disability (R.C. 2923.13(A)(2)).
{¶4} On January 28, 2015, the parties agreed at the sentencing that counts 1, 2, 3, and 4 are allied offenses and that the 1- and 3-year firearm specifications merged. The state elected to have Durham sentenced on the aggravated murder count with 3-year firearm specification, for which Durham was sentenced to life with parole at 30 years plus a consecutive 3 years for the firearm specification. He received a concurrent 36-month sentence on count 5, having a weapon while under disability, with postreleаse control advisement. Defendant timely appeals his convictions for aggravated murder, murder, and felonious assault.
{¶5} At the trial, the state called approximately 29 witnesses and introduced several hundred exhibits. We summarize the evidence relevant to the issues raised in this appeal.
{¶6} On April 15, 2014, the body of Herman Coleman (“Coleman”) was discovered by his ex-wife, Darlene Ware-Coleman (“Darlene”), and friends Anthony Henderson (“Henderson”), and Jay Dempsey (“Dempsey”). The body was located behind a commercial building with a fenced yard, located at 16826 Miles Avenue, Cleveland, Ohio (“the property”). Coleman purchased the property in 2013 to start a tow truck business to supplement his regular income as a pharmacy technician and to support him during retirement. The coroner determined that Coleman was killed by a close range gunshot to the lower left jaw and calculated the time of death to be less than 24 hours from the coroner’s arrival at the scene at 12:20 p.m. on April 15, 2014.
{¶7} According to Darlene, a 30-year postal service employee, though divorced, she and Coleman maintained a close relationship. After leaving the pharmacy, Coleman’s habit was to have dinner at Darlene’s house with Darlene and their daughter.
{¶8} Coleman hired Durham in 2013 to repair and rehabilitate the property in exchange for allowing Durham use of the warehouse to store his commercial construction vehicles and equipment. Coleman began to express his disappointment with Durham’s conduсt in March 2014 when Durham and his friend, Marcel Caver (“Caver”), went to a warehouse owned by a longtime friend of Coleman, James “Boochie” Willis (“Willis”), alleging that Caver’s stolen truck was there (“truck incident”). The police were called but
{¶9} Coleman also complained to Darlene that Durham and his friends would hang out at the property all hours of the day and night drinking alcohol. On April 14, 2014, Coleman told Darlene that he was going to ask Durham to move out, a decision embraced by Darlene. Coleman left Darlene’s house about 7:30 p.m. to meet with Durham at the property.
{¶10} Darlene and Coleman normally telephoned each other at bed time and in the mornings; however, Darlene was unable to reach Coleman that evening and her attempts throughout the next morning were unfruitful. She left work early to go to the property. Darlene saw Coleman’s white pick-up truck behind the locked building gate and called Coleman’s brother, John Coleman (“John”).
{¶11} John called Dempsey, and John went to check Coleman’s house while Dempsey headed to the property to meet Darlene. Henderson was at the property when Dempsey arrived.
{¶12} On his way to the property, Henderson called Durham to ask if he had seen Coleman and to request that Durham open the locked gate, advising him that Darlene could sеe Coleman’s truck behind the fence. Durham said he had seen Coleman the night before but that Coleman left when it began raining. He also said that he was unable to come to unlock the fence because he was going to pick up his drain snake at a pawn shop.
{¶14} John arrived at the scene concurrently with Cleveland Police Department (“CPD”) Officer Lee Davis (“Officer Davis”), and another officer. They climbed the fence and went to the back of the property where Coleman’s body was lying. Lаter at the scene, John saw Durham sitting in the back of a police car and told him that they needed to talk. Durham focused on his cell phone and shook his head. John testified on cross-examination that his brother and Durham had keys to the property and he did not know if a third individual, Brian Gregory (“Gregory”),1 had a key also.
{¶15} Officer Davis went to high school with Coleman, and Durham was the half-brother of Officer Davis’s deceased cousin. Officer Davis heard a “man down” dispatch broadcast and recognized the property address and responded with his partner. Durham called Officer Davis while he was on the way to the scene and told him something had happened at the shop. Officer Davis said he and John arrived concurrently and together ran to the area. He observed snow on Coleman’s truck and body, but his primary focus was to prevent John, who was very emotional, from disturbing the scene.
{¶17} Officer Davis also testified regarding the truck incident that transpired several weeks earlier involving Durham, Caver, Gerome Hardy (“Hardy”), who is also a relative of Officer Davis, and an unknown man. Officer Davis called a zone car from the CPD Third District who arrived at the scene and said there was nothing they could do except make a report. Officer Davis left them at the location with the zone car. He did not know why Caver thought his vehicle was there, did not know who owned the property, and there was no mention of Coleman.
{¶18} Thomas Ciula (“Ciula”), a forensic video specialist with CPD, accompanied CPD Detective Tom Lynch (“Detective Lynch”) to the O’Reilly Auto Parts Store located at the corner of Lee Road and Miles Avenue on April 22, 2014, to download and view the security video for April 14, 2014 from 4:00 to 10:00 p.m. that depicted the Lee and Miles intersection (“Lee and Miles”).
{¶19} Ciula said that the fact the video clock was 4 years, 258 days, 3 hours and 47 minutes behind was not an unusual occurrence and his computer software was designed to sync the information to provide an accurate time reference for video review. Ciula walked through the processing and chain of custody. He delivered the results to Detective Lynch that depicted traffic activities at Lee and Miles from 7:55 to 8:03 p.m. on April 14, 2014. Ciula had not been given information about the case.
{¶21} Durham accompanied Officer McMahon to the police car to wait due to the cold weather. Officer McMahon said Durham entered voluntarily and was driven downtown to meet with homicide detectives. After the interview, Durham was driven to the Fourth District police station and released.
{¶22} Gerald Welker (“Welker”) testified that he had known Coleman for three years and Durham for one and one-half. He had been to the property several times to work on equipment and perform bulldozing services. Welker became aware of issues between Coleman and Durham a couple of weeks before the murder. Coleman told Welker that he and Durham were in conflict about the clutter posed by Durham’s dumpsters, rock piles, and foliage. Welker advised Coleman to give Durham 30-days to clean up or move out. He was also aware that Coleman did not like Durham and his friends drinking and hanging out at the property.
{¶23} Officer Martin Tate (“Officer Tate”) accompanied Officer McMahon to the scene and assisted with securing the location. Officer Tate was sitting in the front seat of
{¶24} Officer Tate overheard Durham telling someone via cell phone that Durham believed Coleman had been shot in the neck. The statement attracted Officer Tate’s attention becausе he had been informed of the cause of death about 30 minutes earlier. Prior to that point, it had not been established.
{¶25} Officer Tate asked Durham how he knew that Coleman had been shot in the neck. Durham said he overheard a male talking about it, but he did not know who and could not identify the person. At that point, Durham had been in the car for approximately 15 to 20 minutes and was not under arrest. There was no further conversation between Officer Tate and Durham.
{¶26} Detective James Raynard (“Detective Raynard”) with CPD Crime Scene Unit took a number of crime-scene photos that were introduced as evidence. He described the content of the photos including the presence of snow covering the decedent. A close up of the decedent’s head showed suspected blood on the face, clothing, and snow. He testified the temperature dropped from 72 degrees on April 14, 2014, to 32 degrees on April 15, 2014.
{¶27} A copper bullet shell was located two feet north and three feet and ten inches east of the decedent’s ankle and a plastic tipped cigar was on the ground near the body. Close-up photos of the decedent’s face showed injuries to the left side of his face and neck. A cell phone was in the decedent’s pocket and a ball cap was discovered under
{¶28} Detective Raynard also took photos on April 21, 2014, as a result of a search warrant for Durham’s impounded 2001 green Ford Taurus. The car contained a number of items. Detective Raynard also conducted the gunshot residue collection (“GSR”). He explained the process and chain of custody but did not participate in the testing of collected particles.
{¶29} Gregory Parker (“Parker”) testified that he knew Durham and a number of his friends. Parker met Coleman about two years before the incident. On April 14, 2014, Parker went to the property to pick up Clarence “Pudgie” Bryant (“Bryant”) who was driving Parker’s white truck. Parker planned to drop the truck off at Bryant’s house. Afterwards, Bryant was to ride with Parker to a westside car lot owned by Parker.
{¶30} Parker arrived at the property about 5:00 p.m. Bryant was already there. Several people were аround, talking and drinking alcohol, but Parker could not recall who. Parker left after about 40 minutes to meet Bryant who left to play the lottery.
{¶31} They dropped the white truck off and returned to the property in Parker’s black truck at about 6:00 p.m. Parker believed Durham was driving his 2001 Taurus that day. There were more people at the property by that time. Tiant Nobles (“Nobles”) and Wayne Ivory (“Ivory”) were driving a red pick-up truck. Uncle Charlie Durham (“Uncle Charlie”) was driving a red dump truck, and Hardy was driving a red pick-up truck.
{¶32} Parker testified that he pulled into the driveway behind Coleman who was just exiting his white truck. Coleman had Bryant pull Coleman’s truck further into the
{¶33} Parker was having a beer and a drink also and entered into the first one of the four truck bays at the property. He saw Nobles and Ivory talking outside by their pick-up truck.
{¶34} While Parker was walking around, he noticed that he could no longer see Durham and Coleman. He believed they went behind the property. Parker walked back inside and was standing with Bryant, Uncle Charlie, and Hardy when he heard a sound that he thought was a wooden board cracking or something falling, but Bryant said, “I know a gunshot when I hear it. That was a gunshot.” (Tr. 1054.)
{¶35} The group walked out to the driveway and, as they began walking to the back of the property, Durham emerged from the back and walked toward them. Parker asked Durham twice whаt was going on and Durham did not respond. Bryant also said something to Durham who still did not respond. Bryant then said “let’s get the hell out of here,” and everyone proceeded to leave. (Tr. 1055.)
{¶36} Parker confirmed that the only people behind the property were Durham and Coleman and that he did not see Coleman emerge from behind the property. He saw Durham lock the gate as he and Bryant were preparing to pull off. Coleman’s truck was the only vehicle left inside the locked gate except for Durham’s Chevy Suburban that was already parked there.
{¶38} Bryant testified to knowing Durham and Uncle Charlie for about 20 years, Parker for six years, Nobles and Ivory about 35 years, Hardy about six months, and Coleman for about six or seven months. Bryant frequently visited Durham at the property.
{¶39} Bryant arrived at the property about 9:00 or 10:00 a.m. on April 14, 2014, and worked with Durham to grease equipment and to break up old wooden pallets to burn. Bryant left to run an errand, returning about noon or 1:00 p.m. He, Durham, and Uncle Charlie began drinking a bottle of liquor, a six pack of beer, and eating lunch. Bryant was in and out of the property and so were various others. Several people stopped by around 4:00 and 5:00 p.m. Bryant drove Parker’s white pick-up truck to the property about 4:30 p.m. and later left to play the lottery while Parker was still at the shop. Parker met him at the store; they dropped off the white truck and returned to the property.
{¶40} Bryant’s description of those in attendance, and their vehicles, echoed those of Parker, except Bryant added that someone named Darryl was also present who he did not know. Another variance in recollection was that Bryant believed they returned to
{¶41} Bryant said Coleman arrived about fifteen minutes later and pulled his truck by Parker’s. Coleman walked inside, shook everyone’s hand, and then he and Durham began talking and walked outside. Bryant said he was not drunk at that time but “was feeling good.” (Tr. 1116.) The entire group was drinking, except for Coleman.
{¶42} Coleman and Durham were standing where everyone was parked when Coleman asked Bryant to, “move my truck right quick, and I’m going to holler at Bryan [Durham], so I ain’t blocking and my truck to get hit [sic]. I just got the truck.” (Tr. 1118.) Coleman and Durham were talking but not arguing. They moved into the doorway of the property and then went back outside. A few minutes later Bryant and the others “heard a pop” (tr. 1121) and were discussing whether it was the wood that was being broken and burned, or a gunshot. Bryant believed it sounded like a gunshot. Bryant went outside towards Parker’s truck and said, “I’m the eff out of here.” (Tr. 1123.)
{¶43} Bryant also confirmed Parker’s account of Durham coming from the back of the property after the shot, and failing to respond to inquiries by the group about what was going on. He also saw everyone leaving and Durham close the gate.
{¶44} Bryant reviewed a crime scene video of the property. He recognized Coleman’s truck but said he had not pulled the truck that far forward onto the property, that Durham’s trailer should have been behind Coleman’s truck, and stated the trailer was on the property when he left the night of the incident.
{¶46} Bryant gave statements to FBI Special Agent Doug Williams shortly after learning of Coleman’s death on April 15, 2014, Detective Lynch on April 15, 2014, and a second statement to Detective Lynch in June 2014. Bryant testified that his statements were consistent.
{¶47} On cross-examination, Bryant said he helped Durham work on the property. He corrected his earlier testimony that he went directly home after the incident because he and Parker went to Parker’s car lot first, when he began calling Coleman. Bryant said the time was around 8 or 9:00 p.m.
{¶48} Bryant was questioned about “Meathead” and “Boochie”2 who he mentioned in his written statements. He replied that he ran into Meathead in May who told Durham he had been at the property on April 14, 2014, but Meathead was not there that evening and Bryant did not see him at any point that day.
{¶50} Officеr Todd Wiles (“Officer Wiles”), a certified crime analyst, analyzes police reports and 911 calls mapping crimes for patterns and trends analyses. He performed an analysis of the data secured from Detective Lynch and the records subpoenaed from Verizon for Durham’s cell phone, which included an itemized list of incoming and outgoing calls as well as cell tower information. From 5:53 p.m. forward, including the 7:34 p.m. incoming call from Coleman, the calls were picked up by the same cell tower, indicating the phone was stationery. After 8:24 p.m., the calls were handled by a different tower.
{¶51} Stefan Boseman (“Boseman”) is co-owner of Uptown Towing & Recovery with Gregory. Boseman called Coleman “Uncle Herman.” He met Coleman through the church whеn Boseman was a child, and said that Coleman was a positive influence and role model.
{¶52} Boseman met Durham when Coleman purchased the property. Durham would call Boseman to help him out at the property. He was there often and lived nearby. Boseman was given a key but was told to give it to Gregory because he was not responsible about locking up when he was away from the property.
{¶53} It was Boseman’s experience that, whenever there was a difference of
{¶54} Boseman was not at the property on April 14, 2014. Durham called at about 6:00 p.m. that day to invite him to the property tо hang out and drink but he did not go. His cousin called him the morning of April 15, 2014 and told him about Coleman’s death. Boseman called Durham several times but was unable to reach him. Durham called him back and said Coleman had been murdered at the shop.
{¶55} Durham was usually at the property in the evenings where he and others would eat and drink alcohol. Gregory was there frequently along with Uncle Charlie, Durham, Bryant, and Pete Durham (“Pete”). Coleman sometimes arrived after his day job, but did not stay long and did not drink.
{¶56} Gregory testified that he began storing his tow truck at the property about 18 months prior to the incident. Durham gave the property keys to Gregory as the result of an “altercation” between Durham and Boseman since Gregory did most of the tow truck driving. Coleman and Durham had door openers that рrovided access to the property. The keys only provided access to the gate to get into the yard. Gregory had a good relationship with Coleman and would sometimes ride to towing jobs with him or respond to calls in his own truck in Coleman’s stead.
{¶57} Gregory went to the property on April 14, 2014 to retrieve tools from his truck at about 2:00 or 3:00 p.m. Durham was there with two men whose names Gregory did not know but who he identified from a photo exhibit as Nobles and Ivory. Durham
{¶58} As substantiated by cell phone records, Gregory and Coleman talked several times that morning about resolving the issues between Durham and Coleman and how to move forward. Gregory advised Coleman tо have a talk with Durham, and Coleman responded he was going to the property later that day. Gregory told Coleman to call him before he went to the property, but Coleman did not. Gregory returned to the property some time between 5:00 and 7:00 p.m. to return his tools. He was there for about five minutes and did not see Coleman.
{¶59} At 4:00 or 5:00 a.m., Gregory rode his son’s bicycle to the property to get his tools because his wife had a flat tire and needed to drive to work. It was raining lightly. Both locks were on the gate. He unlocked the gate and started his truck that was in between the dumpsters and the back wall. He saw Coleman’s truck, which he thought was odd, but he did not see Coleman’s body. Gregory thought Coleman may have towed a car to Canton, which he had done before, though Coleman usually called Gregory to ride with him.
{¶60} Gregory put his bike onto the tow truck and left, relocking the gate. He did not see Coleman and did not look for him. He fixed the tire, went to bed, and was awakened by phone calls telling him that Coleman was dead. Gregory said he was shocked, and recalled receiving a call from Durham who asked if he knew Coleman was dead.
{¶62} The truck situation was a point of dispute between Durham and Coleman. Durham allegedly called Coleman after “they apparently or supposedly tried to barge their way into Boochie’s establishment, Mr. Durham supposedly had called Herman afterwards and asked Herman to call your friend Boochie, and tell him to let my friend have his truck.” (Tr. 1339.) Gregory later informed John of the situation.
{¶63} Lisa Przepszny (“Przepszny”) worked in the Trace Evidence Department of the Cuyahoga County Regional Forensic Science Laboratory. Przepszny examined the decedent’s hands, body, clothing, and other crime scene evidence and issued a report. She determined that, based on the wound, the decedent was in close proximity to the weapon, and there was no evidence that his hands were in contact with a metal object such as a gun. There was blood consistent with the decedent’s injuries on his clothing. DNA sample swabs were taken and forwarded to the DNA Department.
{¶64} Przepszny also tested the GSR samples from Durham’s vehicle. Spherical, molten particles containing lead, barium, and antimony are indicative of gunshot residue and were located on the driver’s interior armrest, door handle, door release, and upper panel. Residue was also located from other areas including the driver’s seat, headrest, and arm rest samples. Other sources for the presence of the chemicals were considered but ruled out based on the chemical
constituent combination and shape of the particles. The Trace Evidence Department also
{¶65} Przepszny testified on cross-examination that the samples were tested between June 18 and June 27, 2014. She had been informed that the suspect worked with vehicles at a garage and was involved with construction but not of his involvement with the scrapping business. There was also no indication or information that the car had been driven and parked by a police officer at some point or entered into by a tow truck driver. Przepszny reiterated on redirect that the shape of the particles and combination of chemicals indicated that the particles were gunshot residue.
{¶66} Sandra Pankey testified that she met Durham in December 2013, when he was sent to her home by the previous owner to repair her plumbing. They ultimately began an intimate relationship and he stopped by to visit a few times a week. Her residence was located near Judson and Lee Roads, a few blocks from Miles and Lee.
{¶67} On April 14, 2014, Pankey went to bed early at around 7:00 p.m. She was awakened by her children about 8:43 p.m. because their paternal grandmother called, but she did not recall speaking with her and dozed back off. Durham was not at her home at that time.
{¶68} Durham arrived about 15 minutes later. Pankey had difficulty going back to sleep because Durham was in and out of the bathroom, located just a few feet from her bedroom, running water. Durham told her that he was not feeling well because he had been drinking with Uncle Charlie at the property. Pankey had no idea what Durham was doing in the bathroom.
A. Weight and Sufficiency of the Evidence
{¶125} We begin our analysis with assignment of error Nos. 2 and 3, which we combine for purposes of efficiency, challenging the sufficiency and manifest weight of the evidence. Durham does not challenge the conviction for having a weapon while under disability.
{¶126} For the reasons that follow, we find (1) that the evidence is sufficient to support, beyond a reasonable doubt, the convictions for murder and felonious assault and (2) the convictions for murder and felonious assault are not against the manifest weight. We further find that the evidence was not sufficient to prove beyond a reasonable doubt that Durham murdered Coleman with “prior calculation and design” and the conviction for aggravated murder under R.C. 2901.03(A) is reversed.
{¶127} The Ohio Supreme Court has explained that “[t]he legal concepts of sufficiency of thе evidence and weight of the evidence are both quantitatively and qualitatively different.” State v. Thompkins, 78 Ohio St.3d 380, 386, 1997-Ohio-52, 678 N.E.2d 5411 (1997). “Sufficiency of the evidence is a test of adequacy as to whether the evidence is legally sufficient to support a verdict as a matter of law, but weight of the evidence addresses the evidence’s effect of inducing belief.” State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, ¶ 25, citing Thompkins at 386-387. An appellate court, “may determine that a judgment of a trial court is sustained by sufficient evidence, that court may nevertheless conclude that the judgment is against the weight of the evidence.” Thompkins at 386-387.
a. Sufficiency of the Evidence
{¶128} The question of “whether the evidence is legally sufficient to sustain a verdict is a question of law. State v. Robinson (1955), 162 Ohio St. 486, 55 Ohio Op. 388, 124 N.E.2d 148.” Thompkins at 386. It is “an inquiry about due process, * * * the resolution of which does not allow the court to weigh the evidence.” State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).
{¶129} In a sufficiency inquiry, an appellate court does not assess whether the state’s evidence is to be believed but whether, if believed, the evidence admitted at trial supported the conviction. State v. Starks, 8th Dist. Cuyahoga No. 91682, 2009-Ohio-3375, ¶ 25, citing Thompkins at 387. “The relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have
b. Weight of the Evidence
{¶130} After consideration of whether the evidence is sufficient as a matter of law, a manifest weight inquiry looks at whether the evidence was substantial enough for a jury to reasonably conclude that all of the elements of the alleged crime have been proved beyond a reasonable doubt. The appellate court sits “as a thirteenth juror.” Thompkins at 387, quoting Tibbs v. Florida, 457 U.S. 31, 42, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982). The appellate court reviews the entire record, considers the credibility of the witnesses, weighs the evidence and all reasonable inferences, and determines whether 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. Martin at 175; Leonard at 68.
2. Analysis
a. Sufficiency
{¶132} Durham argues that the evidence was insufficient to support a conviction of aggravated murder, murder, felonious assault. We find merit to the argument as to the aggravated murder charge. We do not find merit to the argument as to the remaining charges.
{¶133} The Ohio aggravated murder statutes provides in pertinent part that “[n]o person shall purposely, and with prior calculation and design, cause the death of another * * *.”
{¶134} Prior calculation and design “requires ‘more than a few moments of deliberation’ and ‘a scheme designed to implement the calculated decision to kill.’” State v. Conway, 108 Ohio St.3d 214, 2006-Ohio-791, 842 N.E.2d 996, ¶ 38, quoting State v. Cotton, 56 Ohio St.2d 8, 381 N.E.2d 190 (1978), paragraph one of the syllabus. “Prior calculation and design can be found even when the killer quickly conceived and executed the plan to kill within a few minutes.” State v. Coley, 93 Ohio St.3d 253, 264, 754 N.E.2d 1129 (2001).
{¶135} “Neither the degree of cаre nor the length of time the offender takes to ponder the crime beforehand are critical factors in themselves,” but “momentary deliberation” is insufficient. Legislative Service Commission Comment to
{¶136} Methodologies the state may employ to prove prior calculation and design include proving:
(1) “evidence of a preconceived plan leading up to the murder;” (2) “evidence of the [defendant’s] encounter with the victim, including evidence necessary to infer that the defendant had a preconceived notion to kill regardless of how the [events] unfolded;” or (3) “evidence that the murder was executed in such a manner that circumstantially proved the defendant had a preconceived plan to kill,” such as where the victim is killed in a cold-blooded, execution-style manner. State v. Orr, 8th Dist. Cuyahoga No. 100841, 2014-Ohio-4680, ¶ 75, citing State v. Dunford, 11th Dist. Ashtabula No. 2009-A-0027, 2010-Ohio-1272, ¶ 53; State v. Trewartha, 165 Ohio App.3d 91, 2005-Ohio-5697, 844 N.E.2d 1218 (10th Dist.); State v. Hough, 8th Dist. Cuyahoga No. 91691, 2010-Ohio-2770, ¶ 19 (“[I]f the
{¶137} Additional factors to be considered are:
(1) Did the accused and the victim know each other, and if so, was that relationship strained?; (2) Did the accused give thought or preparation to choosing the murder weapon or murder site?; and (3) Was the act drawn out or “an almost spontaneous eruption of events?
State v. Taylor, 78 Ohio St.3d 15, 19, 1997-Ohio-243, 676 N.E.2d 82; State v. Shabazz, 8th Dist. Cuyahoga No. 100021, 2014-Ohio-1828, ¶ 26.
{¶138} Considering the Taylor factors, John testified that the Coleman family moved down the street from Durham when they were teenagers so they knew each other for more than 20 years. Thus, the first factor has been met.
{¶139} The next two factors are combined for consideration. There is no indication that Durham gave thought or consideration to choosing a murder weapon or location but does support “an almost spontaneous eruption of events.” Taylor at 19.
{¶140} Numerous witnesses testified that on the day of the incident: (1) they were at the property drinking and socializing; (2) Durham was at the property also; (3) at approximately 7:30 p.m., Durham was observed speaking with Coleman and did not appear to be arguing; (4) at some point, Durham and Coleman continued their conversation behind the property; (5) a gunshot or sound resembling a shot was heard; (6) Durham emerged from behind the property after the sound and Coleman did not; (7) everyone left the property; (8) Durham locked the gate and left concurrently; and (9) vehicles of the witnesses were observed in the O’Rеilly videotape at 7:55 p.m.
{¶142} Pankey testified that Durham arrived at her home about 9:00 or 9:30 p.m. and was in and out of the bathroom, running water. Durham had her wash his clothes at midnight or 1:00 a.m., something he had never requested, claiming they smelled like smoke. Pankey noticed that Durham’s coat was in the basement utility basin. Durham’s habit upon entering Pankey’s home was to hang his coat on the dining room chair and request that she prepare something for him to eat, ultimately followed by intimacy, but none of these activities occurred that evening. Durham also told Pankey not tо tell the police about washing his clothing and that if she told the police he arrived at 9:30 p.m., and not at 6:00 p.m. as he requested, he was “hit.”
{¶143} Forensic cell phone tower evidence and cell phone records confirmed Durham’s presence in the direct area of the property with an easterly tower shift that is the direction of the Lee and Miles intersection. There is also the answered phone call from Coleman to Durham at 7:34 p.m. and, after 8:00 p.m. that evening, no calls were made or answered by Coleman.
{¶144} The state argues that the conviction in this case meets the factors enumerated in Taylor, supra, and relevant case law: (1) Coleman and Durham knew each other and were in a business relationship where a rift had recently occurred; (2) Durham had a gun while he awaited Coleman’s arrival and received a call from Coleman at 7:34 p.m.; and (3) Durham lured Coleman out of site, behind the property, so there would be no