STATE OF OHIO, v. DAWAN FULLER
CASE NO. 12 MA 185
IN THE COURT OF APPEALS SEVENTH DISTRICT STATE OF OHIO, MAHONING COUNTY
March 27, 2014
2014-Ohio-1351
CHARACTER OF PROCEEDINGS: Criminal Appeal from Court of Common Pleas of Mahoning County, Ohio Case No. 11CR1359A. JUDGMENT: Affirmed in part. Reversed in part and Remanded.
For Plaintiff-Appellee Paul Gains Prosecutor Ralph Rivera Assistant Prosecutor 21 W. Boardman St., 6th Floor Youngstown, Ohio 44503
For Defendant-Appellant Attorney Rhys Cartwright Jones 42 North Phelps Street Youngstown, Ohio 44503-1130
JUDGES:
Hon. Gene Donofrio Hon. Joseph J. Vukovich Hon. Cheryl L. Waite
{¶1} Defendant-appellant, Dawan Fuller, appeals from a Mahoning County Common Pleas Court judgment convicting him of two counts of attempted murder, with accompanying firearm specifications, follоwing a bench trial.
{¶2} In the early evening of November 23, 2011, Robert Shaffer and his mother, Michele Holmes, were each shot several times while in their home on Youngstowns west side. They both survived the assault.
{¶3} According to Shaffer and Holmes, two men came into their home and shot them. They identified one of the men as Sherrick Jackson. They both knew Jackson. Shaffer later identified appellant in court as the other man, although he could not positively identify appellant in a photo lineup.
{¶4} According to Shaffers next-door neighbors, Brandon Randall and Jamie Seaman, apрellant and Jackson were visiting at their house just prior to the shooting along with appellants son and Jacksons girlfriend. And when Seaman heard gunshots, Randall went to Shaffers house and saw appellant and Jackson standing over Shaffer and Holmes.
{¶5} According to Jackson, however, he acted alone in the shooting. He claimed that appellant did not even go with him to Shaffers house. Appellant is Jacksons younger brother.
{¶6} A Mahoning County Grand Jury indicted both appellant and Jackson on two counts of attempted murder, first-degree felonies in violation of
{¶7} Jackson eventually entered a guilty plea just prior to trial to all counts in the indictment.
{¶8} The case against appellant proceeded to a bench trial. The trial court found appellant guilty of all charges and specifications. At a later sentencing hearing, the court merged the felonious assault counts with the attempted murder counts and
{¶9} Appellant filed a timely notice of appeal on October 16, 2012.
{¶10} Appellant raises three assignments of error, the first of which states:
THE TRIAL COURT ERRED IN ENTERING JUDGMENTS OF CONVICTION ON THE COUNTS OF THE INDICTMENT, INSOFAR SUFFICIENT EVIDENCE DID NOT SUPPORT THE ELEMENTS OF IDENTITY, AND THE MANIFEST WEIGHT OF THE EVIDENCE DID NOT SUPPORT THE ELEMENT OF IDENTITY.
{¶11} Appellant argues his conviction is against the manifest weight of the evidence because the trial court ignored the testimony of the only eyewitness. He asserts Jackson was the only person who actually saw what happened on the night in question and he testified that appellant was not there.
{¶12} Additionally, appellant asserts that Jacksons testimony is the only testimony that makes sense in this case. He contends that to believe Randall, one would have to believe that Randall was in Shaffers house or that he saw the exchange through draped windows. And appellant contends that to believe Shaffer, one would have tо account for the fact that he was unable to identify appellant until he was in court, after having read articles implicating appellant.
{¶13} In determining whether a verdict is against the manifest weight of the evidence, an appellate court must review the entire record, weigh the evidence and all reasonable inferences and determine whether, in resolving conflicts in the evidence, 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. State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 668 (1997). Weight of the evidence concerns the inclination of the greater amount of credible evidence, offered in a trial,
{¶14} Yet granting a new trial is only appropriate in extraordinary cases where the evidence weighs heavily against the conviction. State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). This is because determinations of witness credibility, conflicting testimony, and evidence weight are primarily for the trier of the facts who sits in the best position to judge the weight of the evidence and the witnesses credibility by observing their gestures, voice inflections, аnd demeanor. State v. Rouse, 7th Dist. No. 04-BE-53, 2005-Ohio-6328, ¶49, citing State v. Hill, 75 Ohio St.3d 195, 205, 661 N.E.2d 1068 (1996); State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967), paragraph one of the syllabus. Thus, [w]hen there exist two fairly reasonable views of the evidence or two conflicting versions of events, neither of which is unbelievable, it is not our province to choose which one we believe. State v. Dyke, 7th Dist. No. 99-CA-149, 2002-Ohio-1152.
{¶15} The trial court found appellant guilty of two counts of attempted murder in violation of
{¶16} The testimony was uncontroverted that Shaffer and Holmes were shot multiple times and that Jackson was one of the shooters. The only question at trial was whether appellant was with Jackson at the time and also shot the victims. The evidence at trial was as follows.
{¶17} Youngstown Police Officer Ronald Jankowski was one of the first responders to the scene. (Tr. 23). He stated that when he arrived he found Shaffer and Holmes on the floor bleeding. (Tr. 24-25). He also saw Randall there. (Tr. 24).
{¶18} Michele Holmes testified that on the day in question she was about to go out the back door to get her dog when a man put his hand around her mouth and brought her into the kitchen. (Tr. 38). She stated that she called to Shaffer, who was in the dining room, and he came to see what was happening. (Tr. 39-40). Holmes testified that the two men, one of whom she identified as Jaсkson, pulled out their guns and started shooting Shaffer. (Tr. 40-41). Holmes knew Jackson. (Tr. 53). She stated that Jackson shot her and both Jackson and the other man shot Shaffer. (Tr. 41). She was shot four times. (Tr. 46). Holmes stated that both men were wearing dark coats or hoodies. (Tr. 42).
{¶19} Shaffer testified that earlier that day Jackson and appellant had been to his house talking about a woman, who had been at Shaffers house to buy drugs, stealing their wallet. (Tr. 64-65). He stated that the two men then left his house. (Tr. 67). Shaffer testified that less than an hour later, the two men came back. (Tr. 67-68). Shaffer stated that when they came back, he wаs doing a line of cocaine, his mother was taking the dog out, and his brother, William Shaffer, was in the house. (Tr. 68-69). He heard his mother cry for help from the kitchen and went to see what was going on. (Tr. 69-70). Shaffer found Jackson holding Holmes with one hand and a gun with the other hand. (Tr. 71). He also saw appellant in the kitchen. (Tr. 73). Shaffer testified that when he walked into the kitchen, appellant shot him repeatedly. (Tr. 74). He stated the neighbors began coming to his house, so appellant and Jackson ran out. (Tr. 76). Shaffer testified they stole approximately $1,000 worth of marijuana, $1,000 worth of cocaine, and over $1,000 cash from his house. (Tr. 76-77).
{¶20} On cross examination, Shaffer stated that he learned appellants name
{¶21} William Shaffer corroborated Shaffers account of what happened earlier that day. He stated that Shaffer had a woman over eаrlier in the day and then appellant and Jackson came over and told Shaffer that the woman stole their money. (Tr. 128). William stated that appellant and Jackson then left. (Tr. 129). Later, while he was upstairs, William heard a knock at the door, followed by an argument, and then gunshots. (Tr. 129-130). When he came downstairs, William stated he saw someone with a hat and black coat shooting at the ground. (Tr. 130-131). He then found his mother and brother on the ground. (Tr. 132). He grabbed some rags and put pressure on their wounds. (Tr. 132). William stated that he did not have a gun and no guns were in the house. (Tr. 133).
{¶22} Brandon Randall testified that on the day in question, appellant and Jackson, whom he referred to as his God-brothers, were at his house hanging out along with appellants son, Jacksons girlfriend, and Randalls girlfriend and their children. (Tr. 144-145). Randall stated that eventually he fell asleep on the couch until he was awoken by his girlfriend telling him she heard gunshots next door at Shaffers house. (Tr. 145). He testified that he ran to Shaffers house and opened the door. (Tr. 146). Randall saw appellant and Jackson standing over Shaffer and Holmes. (Tr. 146). He then went back to his house, waited a few minutes, and then went to see if Shaffer and Holmes were okay. (Tr. 147). When hе returned, Shaffer found William, who asked to use his phone. (Tr. 148). When the police arrived and asked Shaffer who shot him, Randall testified, Shaffer told the police to ask Randall because they was his brothers. (Tr. 148). Randall stated that he initially resisted identifying appellant and Jackson because they were his family. (Tr. 149).
{¶23} On cross examination, Randall admitted that during his police interview
{¶24} Jamie Seaman is Randalls girlfriend. She corroborated Randalls testimony about appellant and Jackson hanging out at their house that day. (Tr. 177). She stated that Jackson left briefly and went to Shaffers to talk about money missing from his wallet and then he returned to her house. (Tr. 179). Seaman testified that Randall fell asleep and appellant and Jackson put on their black jackets and hats and left. (Tr. 180). She did not ask where they were going. (Tr. 181). Approximately half an hour later, Seaman heard gunshots and woke Randall. (Tr. 181-182). She stated Randall got up and went out the back door, came back in, аnd then went out once more. (Tr. 182). Detective-Sergeant Ronald Rodway administered the photo lineups to Shaffer and Holmes. He testified that when Shaffer looked at appellants photograph, Shaffer stated that it looked like him a little bit. (Tr. 204). Det. Rodway stated that Holmes failed to make any identification of appellant. (Tr. 205).
{¶25} Jackson testified in appellants defense. He stated that on the day in question, he was at appellants house with appellant and appellants son when he called Randall for a ride to go get drugs. (Tr. 222). Randall picked Jackson up and brought him to Randalls house. (Tr. 222). Jackson stated that he hung out at Randalls house for a while and they smoked some marijuana. (Tr. 224). He then went to Shaffers house to buy some cocaine, which he had bought from Shaffer in the past. (Tr. 225, 227). He stated he knocked on the door and Shaffer answered. (Tr. 227). Jackson and Shaffer went into the dining room and were talking about business. (Tr. 227). Jackson thought that the cocaine Shaffer was selling him was not the correct weight for the price. (Tr. 227-229). He testified this led to a verbal argument between him and Shaffer. (Tr. 229). While they were yelling at each other, Jackson stаted, William came down the steps shooting. (Tr. 229). Consequently,
{¶26} Jackson testified that appellant was never with him at Shaffers house. (Tr. 231). He stated appellant was home with his son during the entire incident. (Tr. 231).
{¶27} The state and defense also entered a stipulation that five of the six shells recovered by the police were fired from the same gun, while the sixth shell did not matсh the other five. (Tr. 207-208). Additionally, they stipulated that a gunshot residue test performed on William was positive. (Tr. 207).
{¶28} The weight of the evidence supports appellants conviction. Appellant claims that Jackson was the only eyewitness to testify, so we should believe his version of the events. But that is not accurate. Both Shaffer and Holmes were eyewitnesses. And while they were not able to identify appellant in the photo lineup, they were both certain that two men came into their home and shot them. If we were to believe Jackson, who stated that he went to Shaffers house alone, then both Shaffer and Holmes would have to have been lying when they told the police that two men shot them. Moreover, when Shaffer saw appellants photograph in the lineup, he stated that it looked a little bit like the shooter.
{¶29} Additionally, Shaffers identification of appellant at trial was further bolstered by Randalls and Seamans testimony. Both Randall and Seaman stated that appellant and Jackson were hanging out at their house prior to the shooting. They both stated that Randall fell asleep. Seaman stated that appellant and Jackson then left together. Within a half an hour later, she heard gunshots and woke Randall. Randall stated he ran to Shaffers house where he saw appellant and Jackson standing over Shaffer and Holmes. There was some inconsistency between Randalls initial statement to police and his testimony in court as to whether he actually entered Shaffers house or just looked through the door. But his testimony was consistent with his statement to police just after the shooting that the culprits
{¶30} Jacksons testimony, however, was inconsistent with the testimony of all of the other witnesses. According to Jackson, appellant never left home on the day in question, not even to go to Randalls house. This contradicts Randalls and Seamans testimony that appellant and Jackson were at their house for some time that day before the shooting. Additionally, Jackson stated that William began shooting, which caused him to open fire. This contradicts Williams testimony. William testified he did not have a gun and he did not come downstairs until the shooting was almоst over. And according to Jackson he went alone to Shaffers house. This contradicts Shaffers and Holmes testimony that two men entered their house and shot them.
{¶31} As an appellate court, we are permitted to independently weigh the credibility of the witnesses when determining whether a conviction is against the manifest weight of the evidence. State v. Wright, 10th Dist. No. 03AP-470, 2004-Ohio-677, ¶11. But we must give great deference to the fact finders determination of witnesses credibility. Id. The policy underlying this presumption is that the trier of fact is in the best position to view the witnesses and observe their demeanor, gestures, and voice inflections, and use these observations in weighing the credibility of the proffered testimony. Id.
{¶32} In this case, the trier of fact must have found Jacksons testimony lacked credibility. This is likely because the great majority of the evidence weighed against his testimony. Appellants conviction is supported by the weight of the evidence.
{¶33} Accordingly, appellants first assignment of error is without merit.
{¶34} Appellants second assignment of error states:
THE TRIAL COURT ERRED IN TAKING EVIDENCE OF AN OVERLY-SUGGESTIVE IN-COURT IDENTIFICATION.
{¶36} We review a trial courts decision to admit an in-court identification for an abuse of discretion. State v. Mikolaj, 7th Dist. No. 05-MA-157, 2007-Ohio-1563, ¶14. Abuse of discretion connotes more than an error of law or of judgment; it implies the trial courts decision is unreasonable, arbitrary, or unconscionable. State v. Adams, 62 Ohio St.2d 151, 157, 404 N.E.2d 144 (1980).
{¶37} Det. Rodway testified that when he showed Shaffer the photo lineup with appellants picture Shaffer stated that it looks like him a little bit. (Tr. 198).
{¶38} Appellant does not take issue with the photo array nor did he argue that Shaffers ambiguous quasi-identification of him should have been suppressed.
{¶39} During his testimony, Shaffer identified appellant as the man that shot him. (Tr. 66, 124-125). Appellant objected. (Tr. 66, 124-125).
{¶40} Shaffer also identified appellant by name at trial. But he was not entirely clear how he had learned appellants name. When asked by defense counsel where he learned appellants name, Shaffer stated, I seen it in the paper. I identified him right off the grid before I knew his name. (Tr. 86). But later when defense counsel mentioned that Shaffer learned appellants name from the newspaper, Shaffer stated, I aint say the newspaper. I didnt see the newspaper. I seen it in the paper. My cousin showed me the paper. (Tr. 122). Shaffer stated it was not a newspaper but a paper I was seeing from my family where he knew who it was by his face. (Tr. 123).
{¶41} In addressing potentially tainted photo arrays, it has been held that witness exposure to photographs of the suspect shown on television prior to identification does not require suppression of the identification. State v. Monford, 190 Ohio App.3d 35, 2010-Ohio-4732, 940 N.E.2d 634 (10th Dist.), ¶55. Moreover, if no state action was involved in the pretrial exposure to a newscast showing the defendants picture, any suggestivenеss goes to the weight and credibility of the
{¶42} Here it is unclear exactly where Shaffer saw appellants picture or learned his name. But if it was from a newspaper article or other news source, this would not require the court to exclude his identification of appellant. Instead, it would go to the weight and credibility to be given to the identification.
{¶43} Moreover, the trial court, as the finder of fact in this case, was in the best position to observe Shaffer and judge the reliability of his identification. And given thаt this was a bench trial, we can presume the court, when considering the in-court identification, also took into consideration the fact that Shaffer failed to positively identify appellant in the photo lineup. Thus, we cannot find that the trial court abused its discretion in allowing Shaffers in-court identification of appellant.
{¶44} Accordingly, appellants second assignment of error is without merit.
{¶45} Appellants third assignment of error states:
THE TRIAL COURT ERRED PLAINLY IN MERGING FULLERS SENTENCES, RATHER THAN REQUIRING THE STATE TO ELECT THE CHARGE AS TO WHICH THE CONVICTION WOULD ATTACH, AND IN SENTENCING FULLER TO 10 YEARS ON HIS SECOND-DEGREE FELONY CONVICTIONS.
{¶46} Finally, appellant takes issue with his sentence. He argues that because he was convicted of allied offenses of similar import, the trial court was only to sentenсe him on one of the allied offenses instead of sentencing him on both and then merging the sentences. He claims this violated
{¶48} [F]or purposes of
{¶49} In this case, the offenses of attempted murder and felonious assault were allied offenses of similar import. The trial court made such a finding at sentencing. (Sen. Tr. 16). Thus, while the state was able to indict and bring appellant to trial on two counts of attempted murder and two сounts of felonious assault, appellant could only be convicted of one of each of the allied offenses.
{¶50} The trial court complied with
{¶51} The trial courts sentence, however, was not correctly set out in its judgment entry of sentence.
{¶52} The judgment entry states that appellant is sentenced to ten years in prison on count one (attempted murder), ten years in prison on count two (attempted murder), ten years in prison on count three (felonious assault), and ten years in prison on count four (felonious assault). It then states for sentencing рurposes counts three and four are to merge with counts one and two for a total of 20 years. Additionally, counts three and four of the gun specifications are to merge with counts
{¶53} There are two errors in the judgment entry. First, the court should have stated that the felonious assault counts merged with the attempted murder counts before setting out the sentence. Second, the court could not sentence appellant to ten years on felonious assault because it is а second-degree felony for which the maximum sentence is eight years, not ten. See
{¶54} These errors, however, are clerical in nature. This is because the sentencing judgment entry does not accurately reflect the merger by the trial court or the sentence it imposed at the sentencing hearing. At the sentencing hearing, the trial court correctly merged the offenses and entered a lawful sentence on only the attempted murder counts and specifications. Because the errors with the sentencing judgment entry are clerical errors, the trial cоurt may simply issue a new judgment entry to correct them. Crim.R. 36 provides that a court may correct clerical mistakes in judgments at any time.
{¶55} Appellant argues the trial court committed plain error by sentencing him to multiple sentences for allied offenses of similar import. He cites to decisions of this court in support of his position. See State v. Robinson, 7th Dist. No. 12-MA-128, 2012-Ohio-1686; State v. Gardner, 7th Dist. No. 10 MA 52, 2011-Ohio-2644. But those cases are distinguishable. In neither Robinson nor Gardner did the trial court correctly merge the allied offenses and impose the correct sentence at the sentencing hearing as the trial court did in the case at bar. Instead, they sentenced the defendants on both of the allied offenses and ordered the sentences to run concurrently. Thus, there could be no clerical error in those cases. But here, as stated above, the trial court complied with the merger statute at the sentencing hearing and sentenced appellant only on the attempted murder counts and accompanying specifications. It did not sentence him on the felonious assault counts and order the sentences to run concurrently.
{¶56} We are compelled, however, to raise a plain error with appellants
{¶57}
4) If multiple prison terms are imposed on an offender for convictions of multiple offenses, the court may require the offender to serve the prison terms consecutively if the court finds that the consecutive service is necessary to protect the public from future crime or to punish the offender and that consecutivе sentences are not disproportionate to the seriousness of the offenders conduct and to the danger the offender poses to the public, and if the court also finds any of the following:
(a) The offender committed one or more of the multiple offenses while the offender was awaiting trial or sentencing, was under a sanction imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised Code, or was under post-release control for a prior offense.
(b) At least two of the multiple offenses were committed as part of one or more courses of conduct, and the harm caused by two or more of the multiple offenses so committed was so great or unusual that no single prison term for any of the offenses committed as part of any of the courses of conduct adequately reflects the seriousness of the offenders conduct.
(c) The offenders history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender.
{¶58} Although the trial court is not required to recite the statute verbatim or utter magic or talismanic words, there must be an indication that the сourt found (1) that consecutive sentences are necessary to protect the public from future crime
{¶59} In sentencing appellant, the trial court stated:
Defendant Fuller was found guilty after a trial. The Court has also considered the principles and purposes of sentencing for Defendant Fuller, together with the recommendation cоntained in the pre-sentence investigation report that was prepared. The Court has considered both factors under 2929.11 and 2929.12.
* * * The Court finds the defendant should be sentenced to the Department of Rehabilitation and Corrections because he is not amenable to community control; that prison is consistent with the principles and purposes of sentencing.
(Sentencing Tr. 16-17).
{¶60} The judgment entry of sentence does not add any other findings by the trial court. It simply repeats the findings the court made at the sentencing hearing.
{¶61} The trial court failed to comply with
{¶62} We have found that even more comprehensive findings than those made here were insufficient to impose consecutive sentences. See Bellard, 2013-
{¶63} An appellate court may, but need not, recognize plain error if substantial rights are affected, even if the errоr was not brought to the courts attention. Crim.R. 52(B). Yet before an appellate court can recognize plain error, it must find obvious error affecting such substantial rights that the error was outcome determinative. State v. Noling, 98 Ohio St.3d 44, 781 N.E.2d 88, 2002-Ohio-7044, ¶62. The failure of the trial court to make the required statutory findings before imposing consecutive sentences is plain error. State v. Jirousek, 11th Dist. Nos. 2013-G-3128, 2013-G-3130 2013-Ohio-5267, ¶39; State v. Boynton, 10th Dist. Nos. 12AP-975, 12AP-976, 2013-Ohio-3794, ¶12.
{¶64} Accordingly, appellants third assignment of error has merit.
{¶65} For the reasons stated above, appellants conviction is hereby affirmed. Appellants sentence is reversed and the matter is remanded for a new sentencing hearing.
Vukovich, J., concurs.
Waite, J., concurs.