STATE OF OHIO, Plаintiff-Appellee, v. LORENZO HESTER, JR., Defendant-Appellant.
No. 108207
COURT OF APPEALS OF OHIO EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
December 26, 2019
2019-Ohio-5341
EILEEN T. GALLAGHER, J.
JOURNAL ENTRY AND OPINION; JUDGMENT: AFFIRMED; RELEASED AND JOURNALIZED: December 26, 2019; Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-18-626585-A
Appearances:
Michael C. O‘Malley, Cuyahoga County Prosecuting Attorney, and Brad Meyer, Assistant Prosecuting Attorney, for appellee.
Patrick S. Lavelle, for appellant.
EILEEN T. GALLAGHER, J.:
{¶ 1} Defendant-appellant, Lorenzo Hester, Jr. (“Lorenzo“), appeals his convictions and claims the following two errors:
- The jury determination in the lower court in regards to Counts 1, 2, 3, 4, and 6, and all gun specifications was against the manifest weight of the evidence.
There was no sufficient evidence presented to the trier of fact in the lower court proceeding to convict appellant of Counts 1, 2, 3, 4, 6, or any gun specifications.
{¶ 2} We find that Lorenzo‘s convictions are supported by sufficient evidence and are not against the manifest weight of the evidence. We, therefore, affirm the trial court‘s judgment.
I. Facts and Procedural History
{¶ 3} Lorenzo was charged with four counts of felonious assault, one count of improperly handling firearms in a motor vehicle, and one count of discharging of a firearm on or near a prohibited premises. All counts included one- and three-year firearm specifications, and Counts 5 and 6, which alleged improper handling of firearms in a motor vehicle and discharging a firearm on or near a prohibited premises, included five-year drive-by shooting specifications. The state alleged that Lorenzo fired several gunshots at Jaleesa Allums (“Jaleesa“) and her three children in an effort to collect a drug debt owed by Jaleesa‘s cousin, Clarence Cooper (“Clarence“).
{¶ 4} Jaleesa testified at trial that an unidentified man known as “Birdman” claimed that Clarence purchased $400 worth of crack cocaine from him but never paid for it. (Tr. 595.) Janet Cooper (“Janet“), Clarence‘s aunt, testified that Clarence had recently been thrown out of a group home and had come to live with her shortly before Birdman came to her house to collect the drug debt. Clarence is on disability, and when he became a resident of Janet‘s home, Janet became the payee of his social security checks.
{¶ 6} Janet called the police and reported the threat. Officers Benji Gonzalez and Orlando Rivera of the Cleveland Police Department responded to Janet‘s house. Officer Gonzalez testified that while they were talking in Janet‘s front yard, two men showed up at the corner of East 123rd Street and Phillips Avenue. Janet identified one of the men as Birdman, but did not know the identity of the second man, who was wearing a gray hoodie. (Tr. 869.) According to Officer Gonzalez, the unidentified man in the gray hoodie “extended his right arm out in front of him as if he had gun and pointed it toward us.” (Tr. 869.) Janet and the officers took cover, Officer Rivera ordered the man to drop the gun, and the two men ran away. (Tr. 887.)
{¶ 8} On June 3, 2017, Janet, her son Brett Allums (“Brett“), and her tenant, Walter Lucky, decided to leave the house to avoid the danger posed by Lorenzo and Birdman. Janet was packing her things for an extended stay at hеr daughter Jaleesa‘s house. (Tr. 593, 601.) Jaleesa and her three children came to Janet‘s house to help her pack. Janet‘s sister, Jesse Cooper, and her adult children, Dashae Cooper (“Dashae“) and Devin Cooper (“Devin“), were also present. Devin testified that when he arrived at Janet‘s house, shortly before dark, he heard people yelling threats from the convenience store at the corner of Phillips Avenue and East 123rd Streеt. Devin heard them say: “It‘s going to go down, it‘s almost time, going to light that bitch up, and things like that.” (Tr. 587.) According to Jaleesa, Lorenzo and Birdman warned that “at midnight my mother and my brother [were] going to be dead.” (Tr. 599.)
{¶ 9} Sometime around 11:00 p.m., Janet and her family were ready to leave the house, and Jaleesa and her three children were the first to go. Jaleesa pulled out of Janet‘s driveway, turned onto Ingomar Avenue, drove to Lakeview Road, and circled back to East 123rd Street to check on her family. (Tr. 604.) She stopped at a stop sign for three to four minutes and texted her mother, Janet, to find
It continued to back up. And then I moved around it and got to the corner and that‘s when I kind of, like, looked ovеr because I heard gunshots too, and I kind of, like, — when I hit the corner, I saw him running and shooting.
(Tr. 608-609.) Jaleesa testified that Lorenzo ran after her car while shooting. (Tr. 666.) The KIA stopped briefly near Lorenzo before continuing to pursue her. (Tr. 667.) Jaleesa did not see whether Lorenzo got into the car, but additional gunshots were fired from the car as it followed her. (Tr. 667-668.)
{¶ 10} Dashae testified that Jaleesa called her during the chase. According to Dashae, Jaleesa wаs screaming “They‘re trying to kill me, they‘re shooting at my car.” Dashae asked Jaleesa who was shooting, and Jaleesa replied: “Lorenzo.” (Tr. 711.) Dashae testified that she could hear gunshots through the phone while Jaleesa was talking. Dashae told Jaleesa to drive to the McDonald‘s at the corner of East 105th Street and St. Clair Avenue because it had surveillance cameras and the parking lot was well-lit. (Tr. 713.) Jaleesa heeded her cousin‘s advicе and made it safely to the McDonald‘s. The KIA did not follow her to the McDonald‘s.
{¶ 11} During the chase, Jaleesa also spoke briefly on the phone with Janet and Brett, who were together in Janet‘s car. Janet testified that she was the last to leave her house on the night of June 3, 2017. She did not hear any gunshots when she left the house, but she “heard the gunshots on the phone.” (Tr. 826, 829.)
{¶ 12} Lorenzo disappeared in a dark alley leading to Ingomar Avenue. Janet drove onto Ingomar looking for Lorenzo and fired two gunshots into the air to let Lorenzo know that she knew he shot at her daughter and grandchildren. (Tr. 845.) Thereafter, Janet and Brett received a call that the family was congregating at the McDonald‘s in East 105th Street and St. Clair Avenue. When they arrived at the McDonald‘s, Jaleesa and her six-, eight-, and nine-year-old children were crying. (Tr. 634, 849.)
{¶ 13} Officer Rivera and Sergeant Michael Schwebs spoke with the family at the McDonald‘s. Sergeant Schwebs testified that he met Dashae before reaching the McDonald‘s because she wаs driving “frantically,” and he was going to pull her over but she saw him and flagged him down. She told him that someone was chasing and shooting at her cousin. Sergeant Schwebs followed Dashae to the McDonald‘s where he met Jaleesa, who was “frantic” and “short of breath.” (Tr. 913.) Sergeant Schwebs testified that Jaleesa “definitely appeared to be scared” and her children were crying. (Tr. 913.) The statements of Jaleesa and other members of the family
{¶ 14} Janet did not tell police that she and Brett fired shots at Lorenzo, in part, because Brett was under disability and was prohibited from possessing a firearm. Nevertheless, Jaleesa is heard in the video telling police that “a dude” was shooting at her. Later in the video she identifies “the dude” as Lorenzo. When asked if Jaleesa was sure it was Lorenzo who shot at her, Officer Rivera responded: “Thеre was no doubt.” (Tr. 908.) Dashae showed police a photograph she had taken of Lorenzo on Janet‘s tree lawn earlier that day, and Jaleesa identified the person depicted in the photograph as Lorenzo. (Tr. 621; state‘s exhibit No. 11.)
{¶ 15} The jury found Lorenzo guilty of four counts of felonious assault and the one- and three-year firearm specifications attendant to each of those counts. He was acquitted of the improper hаndling of a firearm charge alleged in Count 5, but found guilty of discharging a firearm at or near a prohibited premises as alleged in Count 6. He was also acquitted of the accompanying five-year “drive-by shooting” specification attendant to that count. The trial court sentenced Lorenzo to eight years on each of the felonious assault convictions plus three years on attendant firearm specifications for a total of 11 years on each count. The court also sentenced him to three years on his discharging a firearm on or near a prohibited premises conviction. The court ordered two of the 11-year prison terms on the felonious assault convictions to be served consecutively and the remaining sentences to be
II. Law and Analysis
{¶ 16} In the first assignment of error, Lorеnzo argues his convictions, including the gun specifications, are against the manifest weight of the evidence. In the second assignment of error, he argues that neither his convictions nor the gun specifications are supported by sufficient evidence. Although the terms “sufficiency” and “weight” of the evidence are “quantitatively and qualitatively different,” we address these issues together because they are closely related, while applying the distinct standards of review. State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997).
{¶ 17} “[T]he test for sufficiency requires a determination of whether the prosecution met its burden of production at trial.” State v. Bowden, 8th Dist. Cuyahoga No. 92266, 2009-Ohio-3598, ¶ 13. “The relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt.” State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus.
{¶ 18} In contrast to sufficiency, “[w]eight of the evidence [involves] ‘the inclination of the greater amount of credible evidence.‘” (Emphasis sic.) Thompkins at 387, quoting Black‘s Law Dictionary 1433 (6th Ed.1990). While “sufficiency of the evidence is a test of adequacy as to whether the evidence is legally
{¶ 19} In conducting such a review, the Ohio Supreme Court has stated that the appellate court “sits as a ‘thirteenth juror’ and disagrees with the factfinder‘s resolution of conflicting testimony.” Id. at 546-547, quoting Tibbs v. Florida, 457 U.S. 31, 42, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982). The Supreme Court‘s characterization of the apрellate court as a “thirteenth juror” refers to the appellate court‘s “‘discretionary power to grant a new trial.‘” Id. at 347, quoting Martin at 175. As a “thirteenth juror,” the appellate court may disagree with the factfinder‘s resolution of the conflicting evidence and, in effect, create a deadlocked jury, which requires a new trial.
{¶ 20} However, our status as a “thirteenth juror” is not equal to the other twelve jurors, who are uniquely positioned to view the witnesses’ demeаnor, gestures, facial expressions, and voice inflections. These outward behaviors are not
{¶ 21} “‘Because the trier of fact sees and hears the witnesses and is particularly competent to decide “whether, and to what extent, to credit the testimony of particular witnesses;” we must afford substantial deference to its determinations of credibility.‘” Barberton v. Jenney, 126 Ohio St.3d 5, 2010-Ohio-2420, 929 N.E.2d 1047, ¶ 20, State v. Konya, 2d Dist. Montgomery No. 21434, 2006-Ohio-6312, quoting State v. Lawson, 2d Dist. Montgomery No. 16288, 1997 Ohio App. LEXIS 3709, 4 (Aug. 22, 1997).
{¶ 22} Although we have the discretionary power of a “thirteenth juror” to grant a new trial, that power “‘should be exercised only in the exceptional case in which the evidence weighs heavily аgainst the conviction.‘” Thompkins at 547, quoting Martin at 175. “[A] finding that a conviction [was] supported by the manifest weight of the evidence necessarily includes a finding of sufficiency.” State v. Robinson, 8th Dist. Cuyahoga No. 96463, 2011-Ohio-6077.
{¶ 23} Lorenzo was convicted of four counts of felonious assault in violation of
{¶ 24} The jury further found Lorenzo guilty of the one- and three-year firearm specifications, in violation of
{¶ 25} Finally, Lorenzo was convicted of discharging a weapon on or near a prohibited premises in violation of
{¶ 26} In order to maintain a conviction for felonious assault by shooting a gun as alleged in the indictment and for discharging a weapon on or near a prohibited premises, the state had to prove that Lorenzo used an operable firearm.1
{¶ 27} Lorenzo argues there is no evidence, much less credible evidence, that he fired a gun at the victims because there was no testimony that Jaleesa ever saw a gun in Lorenzo‘s possession. He contends his convictions are “dependent upon the victim‘s testimony that she heard what she believed to be gunshots.” (Appellant‘s brief at 6.) He also asserts there were no bullet holes in Jаleesa‘s car and that “it is just as likely that the Appellant fired a cap gun as it is that he fired an actual firearm.” (Appellant‘s brief at 6.)
{¶ 28} Despite Lorenzo‘s argument to the contrary, Jaleesa testified that she saw Lorenzo fire the gun at her. She stated, in relevant part: “I hear a gunshot, and as I‘m going up 123rd, I see Lorenzo shooting at my car right behind my car.” (Tr. 606.) Jaleesa later stated: “I kind of, like, looked over, because I heard gunshots too, and I kind of, like — when I hit the corner, I saw him running and shooting.” (Tr. 609.) Therefore, there was direct evidence that Jaleesa saw Lorenzo fire the gun at her car, which was occupied by herself and her three children. Therefore, there was also direct evidence that the firearm was operable.
{¶ 29} Circumstantial evidence corroborates Jaleesa‘s testimony. Dashae told Sergeant Schwebs that someone was chasing and shooting at Jaleesa. When he encountered Jaleesa at the McDonald‘s a few minutes later, “she was very
{¶ 30} Dashae and Janet also testified that they spoke with Jaleesa on the phone while Lorenzo was chasing her and shooting at her. They both testified that they heard gunshots through the phone. Dashae stated that Jaleesa was screaming: “They‘re trying to kill me, they‘re shooting at my car.” (Tr. 711.) When Dashae asked who was shooting, Jaleesa replied: “Lorenzo.” (Tr. 711.) And Janet testified that she saw Lorenzo running with “a long-nosed revolver in his hand.” (Tr. 839.) Therefore, at least two witnesses testified that they saw Lorenzo in possession of a gun, Jaleesa tеstified that she saw Lorenzo shoot the gun at her and her children, and three witnesses testified that they heard gunshots.
{¶ 31} Although the two shell casings found at the scene belonged to Janet‘s 9 mm semiautomatic handgun and no other shell casings were found at the scene, two witnesses experienced with firearms testified that revolvers do not expel shell casings when they are fired. Therefore, the fact that police did not find any shell casings expelled from Lorenzo‘s gun is of no consequence. Witness testimony provided competent, credible evidence to support the jury‘s finding that Lorenzo fired a gun across the roadway at Jaleesa‘s car while she was driving. There was, therefore, competent credible evidence to support Lorenzo‘s four felonious assault
{¶ 32} The first and second assignments of error are overruled.
{¶ 33} Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution. The defendant‘s conviction having been affirmed, any bail pending is terminated. Case remandеd to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
EILEEN T. GALLAGHER, JUDGE
MICHELLE J. SHEEHAN, J., CONCURS IN JUDGMENT ONLY;
MARY EILEEN KILBANE, A.J., CONCURS IN JUDGMENT ONLY WITH SEPARATE ATTACHED OPINION
MARY EILEEN KILBANE, A.J., CONCURRING IN JUDGMENT ONLY:
{¶ 34} I concur with the majority‘s disposition of Hester‘s assignments of error. I agree that there is sufficient evidence to support his convictions and the convictions are not against the manifest weight of the evidence. In light of this court‘s recent opinion in State v. Metz, 8th Dist. Cuyahoga Nos. 107212, 107246,
{¶ 35} In Metz, the concurring in part and dissenting in part opinion by Judge Sean C. Gallagher noted that:
The majority and concurring decisions to overrule the defendants’ weight-of-the-evidence argument, based on the claim that the finder of fact “was in the best position to assess [the witnesses‘] credibility,” is misplaced — the incorrect standard is being used. By deferring to the trier of fact‘s credibility determinatiоns, which weighed in the state‘s favor in light of the verdict, the majority is essentially performing a sufficiency-of-the-evidence review in which all credibility determinations are found in favor of the state. It may well be time that the Ohio Supreme Court review the continued use of DeHass, or a similar sufficiency case, within the weight-of-the-evidence standard of review. Regardless, the majority and concurring decisions ignore the Thompkins standard and simply defer to the trial court‘s weighing of the evidence and credibility determinations.
{¶ 36} In the instant case, the majority states that our status as a “thirteenth juror” is not equal to that of the 12 jurors, “who are uniquely positioned to view the witnesses’ demeanor, gestures, facial expressions, voice inflections.” While I agree that these observations are not readily evident in the cold transcript and we must afford deference to the trier of fact‘s credibility determinations, appellate courts do not dеfer to the trier of fact when reviewing the weight of the evidence. Rather, this deference is applicable when reviewing the sufficiency of the evidence. In a manifest weight review, we sit as the thirteenth juror with the ability to disagree with the factfinder‘s resolution of the conflicting testimony. State v. Thompkins, 78 Ohio St.3d 380, 546-547, 678 N.E.2d 541 (1997).
{¶ 38} For these reasons, I disagree with the manifest weight standard of review applied by the majority. Metz at ¶ 121-129. Nonetheless, I agree that the convictions should be affirmed. After reviewing the record, weighing the evidence and all reasonable inferences, and considering the credibility of the witnesses, I cannot conclude the “jury lost its way” and created a manifest miscarriage of justice to warrant a reversal. I concur with the remainder of the majority‘s opinion.