State v. HayesState v. Hayes
WHITMORE, Judge.
{¶1} Defendant-Appellant, Daniel Hayes, appeals from his convictions in the Summit County Court of Common Pleas. This Court affirms.
I
{¶2} At approximately 7:00 a.m. on October 7, 2010, members of the SWAT team entered one of the ground-level apartments at 582 Talbot Avenue to execute a search warrant there. The apartment building at 582 Talbot Avenue consists of four apartments, two of which are ground-level and two of which are directly above the ground-level apartments. All of the apartments share a common entryway at the front of the building and the apartments on each of the two floors share a common hallway. The ground-level apartment the SWAT team members entered was located on the south side of the apartment building.
{¶3} Hayes and a female companion were present at the apartment when the SWAT team executed the warrant. Numerous SWAT team members and one of the apartment‘s
{¶4} A grand jury indicted Hayes on each of the following counts: (1) three counts of felonious assault, in violаtion of
{¶5} Hayes now appeals and raises three assignments of error for our review. For ease of analysis, we reorder the assignments of error.
II
Assignment of Error Number Two
THE TRIAL COURT‘S DECISION TO FIND THE ACCUSED GUILTY OF FELONIOUS ASSAULT, IN VIOLATION OF R.C. 2903.11, IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
{¶7} In determining whether a 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.
State v. Otten, 33 Ohio App.3d 339, 340 (9th Dist.1986). A weight of the evidence challenge indicates that a greater amount of credible evidence supports one side of the issue than supports the other. State v. Thompkins, 78 Ohio St.3d 380, 387 (1997). Further, when reversing a conviction on the basis that the conviction was against the manifest weight of the evidence, the appellate court sits as the “thirteenth juror” and disagrees with the factfinder‘s resolution of the conflicting testimony. Id. Therefore, this Court‘s “discretionary power to grant a new trial should be exercised only in the exceptional сase in which the evidence weighs heavily against the conviction.” State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist.1983). See also Otten at 340.
{¶8} The felonious assault statute provides, in relevant part, that “[n]o person shall knowingly * * * [c]ause or attempt to cause physical harm to another * * * by means of a deadly weapon or dangerous ordnance.”
{¶10} Several members of the SWAT team that executed the wаrrant at 582 Talbot Avenue testified at trial about their observations at the time they served the warrant. Officers Zachary Magaw and Brian French and Detective Patrick Leonard were all members of the team that entered the apartment from the rear. All three testified that the entire SWAT team yelled “Akron Police search warrant” multiple times while one of the officers banged on the door. After repeatedly announcing themselves, Officer Magaw testified that he used a battering ram to open the door. The door required three hits with the ram, as items had been propped аgainst the door from the inside to help keep it closed. Officer Magaw testified that the SWAT team continued to loudly announce themselves throughout the entry process.
{¶12} After he deployed the FND, Detective Leonard testified that he heard a pop, but nevertheless proceeded into the apartment directly behind Officer French. Officer French testified that he heard two pops just after the FND detonated, but assumed the SWAT team members at the front door had fired a weapon. At the point when he heard the two pops, Officer French stated that he was in the apartment‘s kitchen, preparing to enter the living room.
{¶13} Officer Ted Male testified that he was one of the SWAT team members stationed at the apartment building‘s front door/common entryway. He testified that he breached the front door with a ram after he heard the SWAT team members at the back door yelling “Akron Police search warrant.” He further testified that he and the other two officers at the front door were yelling “Akron Police search warrant” as he brеached the front door. After Officer Male opened the door, he and the other two officers with him held at the door‘s threshold, outside the common hallway shared by the individual apartments. Officer Male testified that it was uncommon for SWAT members to hold at a door rather than proceed inside, but that he had been instructed to wait at the door on that particular day. From his position at the front door, Officer Male testified that he heard two distinct gunshots come from inside the apartment.
{¶15} A few seconds after he heard two pops, Officer French (the first inside the apartment by way of the rear entrance) testified that he heard glass breaking. He quickly approached the apartment‘s bedroom and saw Hayes with his back to him and his right hand out of the bedroom window. He then commanded Hayes to show him his hands and Hayes surrendered. From his position outside the apartment, Officer Gottas testified that, after he heard three gunshots, he saw Hayes come through the bedroom window with his arms and upper body. Officer Gottas observed that Hayes had a gun in his hand. He then yelled “police,” saw Hayes drop the gun onto the ground, and watched as Hayes pulled himself back inside the apartment.
{¶16} Detective Anna Romito testified that she responded to the apartment as part of the crime scene unit after the breach concluded. Detective Romito testifiеd that the police found three shell casings at the bottom of the bed in the apartment as well as three bullet holes. Although the police only removed one of the three bullets for testing, Detective Romito testified
{¶17} Detective Romito testified that none of the bullets the police located had been fired into the ground or ceiling. Instead, two of the gunshots were approximately at waist-level and the third was at head level. Former Supervisor Sergeant Terrence Hudnall verified that all three bullet holes “were within the height of a person” and, given his training and experience, none of the shots appeared to have been warning shots. Ballistics testing later confirmed that the one bullet and three casings the police had tested were all consistent with having been fired from the .9mm Luger caliber Astra semi-automatic that the police recovered from the ground outside the apartment‘s bedroom window. Further, gunshot residue testing confirmed that the swab the police collected from Hayes had particles on it thаt were highly indicative of primer shot residue.
{¶18} Two different officers testified that they interviewed Hayes at the police station. Detective James Palmer testified that he interviewed Hayes with regard to the heroin the police found in the apartment, but also asked him whether he had a gun when the SWAT team entered. Hayes told Detective Palmer that he never saw a gun. Detective Bertina King testified that she specifically interviewed Hayes about the shooting incident and that Hayes denied ever touching a gun. Detective King testified that she even suggested to Hayes that he might have fired a gun if
{¶19} Hayes testified in his own defense. Hayes testified that he spent the night at the apartment at 582 Talbot Street with a female friend and that the two were still sleeping in the apartment‘s bedroom when he was awoken by a “big bang” that sounded like someone was kicking in the door. He testified that he then heard a scraping sound, which he identified as the sound of certain items he had placed against the back door being moved across the floor. Hayes explained that he had propped several items against the back door to the apartment before going to bed because he was always concerned that someone might break in. Knowing that there was a gun on the floor next to the bed, Hayes testified that he grabbed it. Hayes then heard the FND detonate, but testified that he thought it was a gunshot. According to Hayes, he never heard the SWAT team members announce themselves, so he thought a robbery was occurring. Hayes testified that he fired the gun he picked up from the floor three times in an effort to scare off any intruder. He further testified that he fired the three shots without aiming in any particular direction. After he fired the gun, Hayes stated that he heard the front door get hit and the police announce themselves. He then threw the gun out the bedroom window because he did not want to appear armed and risk getting shot when the police got to him.
{¶20} Shakendra Hill testified that she slept at the apartment with Hayes the night before the SWAT team arrived. Hill testified that she was still asleep in the morning when she heard a “big boom.” Because she thought someone was breaking into the apartment, Hill then climbed out of bed and hid in between the oрen door of the adjacent room (labeled “Solarium” on the diagram attached to the appendix) and the bedroom wall. Subsequently, Hill testified that she saw a flash from the FND, heard gunshots, and ran into the adjacent room. According to
{¶21} One resident from each of the apartment building‘s other three apartments also testified at trial. Belinda Phinnessee testified that she lived directly above the apartment the SWAT team entered and was awake when the breaсh began. According to Phinnessee, she heard a window shatter, a big boom, someone say “get down,” and multiple gunshots, but never heard the SWAT team announce themselves or the battering rams being used. Phinnessee agreed that, had a battering ram been used, she would have heard it.
{¶22} Darnella Cameron testified that she lived in the apartment on the ground floor directly across the hall from the apartment the SWAT team entered. Cameron testified that she was sleeping on the morning the SWAT team entered the building and was awoken by the sound of her dogs barking. Much like Phinnessee, Cameron testified that she heard glass breaking, someone say “get down,” and shooting, but never heard the SWAT team announce themselves or the battering rams being used. As to the gunshots, Cameron testified that she heard a few shots, but could not recall how many because she “wasn‘t paying [] attention.” Cameron also admitted that she suffered from poor hearing in one ear and memory loss due to a disability.
{¶23} Christopher Batte testified that he lived in the upstairs apartment across the hallway from the apartment the SWAT team entered. Batte testified that he was awake getting ready for school when he heard the police identify themselves “in very audible tones.” Batte testified that he then heard some “very loud distinct booms” and walked out over the back door balcony to see what was happening. Batte testified that he could not recall if he heard any gunshots.
{¶25} To the extent Hayes argues that he fired a gun because he thought a robbery was occurring, there was extensive testimony that the SWAT team members loudly announced themselves multiple times at both the front and rear of the apartment building before entering it. Indeed, the resident of the upstairs apartment on the opposite side of the hallway heard the police identify themselves “in very audible tones.” Several officers testified that they continued to announce themselves after they breached the apartment. Hill also testified that she was able to see the flash from the FND, a device available solely to law enforcement, when she was hiding in the bedroom. While Hayes claimed not to hаve heard any of the officers announce
Assignment of Error Number Three
THE TRIAL COURT ERRED BY ALLOWING THE JURY TO VIEW A VIDEO OF THE DEFENDANT‘S INTERROGATION, AS THE VIDEO WAS UNDULY PREJUDICIAL.
{¶26} In his third assignment of error, Hayes argues that the trial court erred by allowing the jury to view an interrogation video. Specifically, he argues that the court erred by allowing the jury to view the video becаuse its probative value was substantially outweighed by its prejudicial effect. We disagree.
{¶27} A trial court has broad discretion in admitting evidence, and this Court will not overturn its decision on appeal absent an abuse of discretion that materially prejudices a defendant. State v. Wade, 9th Dist. No. 02CA0076-M, 2003-Ohio-2351, ¶ 8, quoting State v. Long, 53 Ohio St.2d 91, 98 (1978). Accord State v. Allen, 73 Ohio St.3d 626, 633 (1995). An
{¶28} Hayes argues that the interrogation video the State played here was prejudicial because: (1) in it, he discussed “previous unrelated and unindicted drug activity“; and (2) the video depicted him shirtless and wearing rеstraints. At trial, the State sought to play two interrogation videos. The first recorded the interrogation between Detective Palmer and Hayes. The objection to which Hayes cites in his brief as the objection to his having discussed “previous unrelated and unindicted drug activity” was entered with regard to the interrogation between Detective Palmer and Hayes. The record reflects, however, that after defense counsel objected, the State agreed not to play the interrogation recording. Instead, Detective Palmer was questioned strictly from the written report he generаted as a result of the interrogation. The video of the interrogation between Detective Palmer and Hayes was not played or admitted. The jury, therefore, did not view it.
{¶29} The second video at issue recorded the interrogation that Detective King conducted shortly after Hayes’ arrest. The video depicts Hayes shirtless with his left wrist cuffed to the table in the room. Hayes argues that the video prejudiced him because it portrayed him as a violent offender who required restraints. He further argues that the State could have simply played the audio from the video to avoid its prejudicial implications. Even assuming that to be true, however, Hayes has failed to explain how the admission of the video prejudiced him in light of all the other evidence produced at trial. See
Assignment of Error Number One
THE TRIAL COURT ERRED IN SENTENCING THE ACCUSED ON ALL THREE COUNTS OF FELONIOUS ASSAULT AS THE CHARGES SHOULD HAVE BEEN MERGED FOR SENTENCING.
{¶30} In his first assignment of error, Hayes argues that the trial court erred by sentencing him to allied offenses of similar import. Specifically, he argues that all of his felonious assault convictions should have merged. We disagree.
{¶31} Ohio‘s allied offense statute provides as follows:
(A) Where the same conduct by defendant can be construed to constitute two or more allied offenses of similar import, the indictment or information may contain counts for all such offenses, but the defendant may be convicted of only one.
(B) Where the defendant‘s conduct constitutes two or more offenses of dissimilar import, or where his conduct results in two or more offenses of the same or similar kind committed separately or with a separate animus as to each, the indictment or information may contаin counts for all such offenses, and the defendant may be convicted of all of them.
{¶32} “When determining whether two offenses are allied offenses of similar import subject to merger under
{¶33} “Since Johnson, courts have identified the discharge of multiple gunshots in quick succession as the ‘same conduct’ under the multiple-count statute.” State v. Hodges, 1st Dist. No. C-110630, 2013-Ohio-1195, ¶ 9. See also State v. McClendon, 2d Dist. No. 23558, 2011-Ohio-5067, ¶ 27-31. Nevertheless, “[w]here a defendant commits the same offense against different victims during the same course of conduct, a separate animus exists for each victim such that the offenses are not allied, and the defendant can properly be convicted of and sentenced on multiple counts.” State v. Chaney, 8th Dist. No. 97872, 2012-Ohio-4934, ¶ 26. Accord State v. Tapscott, 7th Dist. No. 11 MA 26, 2012-Ohio-4213, ¶ 46. As the Legislative Service Commission Note to
[A] thief who commits theft on three separate occasions or steals different property from three separate victims in the space, say, of 5 minutes, can be charged with and convicted of all three thefts. In the first instance the same offense is committed three different times, and in the second instance the same offense is committed against three different victims, i.e. with a different animus as to each offense.
{¶35} As the diagram attached to the appendix shows, Hayes fired three shots in three distinct directions. One shot penetrated across the living room in the space directly next to the entryway from the kitchen. Another shot penetrated the space between the front door entryway to the apartment and the entryway to the living room. The final shot penetrated through the bedroom wall into the common hallwаy leading to the apartment building‘s front door. Accordingly, despite Hayes’ assertion that he fired without aiming, the three shots covered three key entry areas. There was also testimony that the SWAT team members at both the back door and the front door of the apartment yelled loudly and repeatedly announced themselves before then ramming both doors open with battering rams. Per their testimony, therefore, a significant amount of noise was generated at both the back and front of the apartment. Hayes did not fire the gun at the ground or simply discharge it three times in the same directiоn. Instead, he fired in three distinct directions, one of which covered the back entrance, one of which covered the front, and one of which could have covered either, depending on how far a person had walked. The record supports the conclusion that Hayes fired the gun three separate times with a separate animus. As such, the trial court did not err by sentencing Hayes on all three felonious assault counts. Hayes’ first assignment of error is overruled.
III
{¶36} Hayes’ assignments of error are overruled. The judgment of the Summit County Court of Common Pleas is affirmed.
There were reasonable grounds for this appeal.
We order that a sрecial mandate issue out of this Court, directing the Court of Common Pleas, County of Summit, 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.
Costs taxed to Appellant.
BETH WHITMORE
FOR THE COURT
CARR, J.
CONCURS.
BELFANCE, P. J.
CONCURRING IN JUDGMENT ONLY.
{¶37} I concur in the majority‘s judgment; however, I would analyze the allied offense issue differently. The evidence establishes that there were three shots fired in rapid succession, thus suggesting one course of conduct. However, where one criminal act has been committed