STATE OF OHIO, Plaintiff-Appellee, v. DESHUN LEWIS, Defendant-Appellant.
No. 107875
COURT OF APPEALS OF OHIO EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
September 12, 2019
2019-Ohio-3660
FRANK D. CELEBREZZE, JR., J.
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case Nos. CR-17-616415-A and CR-18-626037-A
JUDGMENT: AFFIRMED IN PART, VACATED IN PART, AND REMANDED
RELEASED AND JOURNALIZED: September 12, 2019
Appearances:
Michael C. O‘Malley, Cuyahoga County Prosecuting Attorney, and Caitlin E. Monter and Yasmine M. Hasan, Assistant Prosecuting Attorneys, for appellee.
Joseph V. Pagano, for appellant.
FRANK D. CELEBREZZE, JR., J.:
{¶ 1} Defendant-appellant, Deshun Lewis (“appellant“), brings the instant appeal challenging his conviction and sentence. Specifically, appellant argues his conviction for having a weapon while under disability was not based on sufficient
I. Factual and Procedural History
{¶ 2} Appellant appeals from two criminal cases. In Cuyahoga C.P. No. CR-17-616415-A (“616415“), on June 12, 2017, appellant pled guilty to carrying a concealed weapon, a fourth-degree felony, receiving stolen property, a fourth-degree felony, trafficking — heroin, a fourth-degree felony, drug possession — cocaine, a fifth-degree felony, and possessing criminal tools, a fifth-degree felony. On July 18, 2017, the trial court sentenced appellant to community control sаnctions for a period of two years.
{¶ 3} On February 21, 2018, appellant was charged in a seven-count indictment for the following offenses in Cuyahoga C.P. No. CR-18-626037-A (“626037“): four counts of felonious assault, in violation of
{¶ 4} The seven-count indictment in 626037 related to a shooting on Cleveland‘s near west side in the area of West 65th Street and Gutherie Avenue. On the night of February 11, 2018, Jose Rosario dropped his girlfriend, Jordan Massey,1 off at her house. As Massey was on the front porch, two individuals rushed up towards Massey, and fired several shots at her. As Massey heard the gunshots, she fled back to Rosario‘s vehicle. Rosario and Massey then drove off from the area. Neither Massey nor Rosario were struck by any bullets. However, a two-year-old child, asleep in her bedroom, was struck and grazed in the buttocks by one of the bullets. The bullet entered through the exterior wall of the child‘s home, and struck the toddler as she lay in bed. Responding officers recovered the bullet on the toddler‘s bed. Officers searching the scene of the shooting also retrieved shell casings a few houses down from Massey‘s home.
{¶ 5} Massey called 911 and stated to dispatch that a “black guy ran out from three houses down and starting shooting.” Massey indicated that two black males were shooting at her, each dressed in all-black clothing.
{¶ 6} Cleveland Police Officer Steve Sistak responded to the scene of the shooting and spoke with Rosario and Massey. Massey told Officer Sistak that she
{¶ 7} Rosario and Massey knew “D” to drive around in three vehicles and they provided descriptions of each of these vehicles to Officer Sistak. One of the vehicles, a Ford Taurus, had a “1-800” decal on the rear window of the vehicle. Officer Sistak provided descriptions of the three vehicles to dispatch so that a “be on the lookout” would be broadcasted relating to the three vehicles.
{¶ 8} Appellant‘s Ford Taurus was spotted on Cleveland‘s east side approximately thirty minutes after the shooting was reported. Cleveland officers initiated a traffic stop of the vehicle. Arresting officers described appellant as wearing “[a] black — a jacket kind of a puffyish jacket, black hat, a scarf, and I believe it was black pants as well.” (Tr. 599-600.) Appellant also had two cell phones in his possession. Appellant was the sole occupant of the vehicle.
{¶ 9} Officers back at the scene of the shooting were informed that appellant was stopped driving a vehicle matching the descriptions providеd by Rosario and Massey. At this time, Detective Elliot Landrau, who was investigating the scene of the shooting, transported Rosario to the east side of Cleveland to perform a “cold
{¶ 10} Officers then arrested appellant and transported him to Cleveland city jail. Officers conducted a gunshot residue (“GSR“) test on both of appellant‘s hands in an effort to determine if he was the shooter. The GSR test kit came back positive for gunshot residue.
{¶ 11} Rosario and Massey were apparently uncoopеrative with the investigation and during the prosecution of the shooting. In order to secure Rosario‘s and Massey‘s testimony at trial, the trial court issued “material witness warrants.”
{¶ 12} On September 25, 2018, the matter proceeded to a jury trial. Appellant‘s counsel made an oral motion to the court on the morning of trial to bifurcate the having-weapons-while-under-a-disability count and elected to have that count tried to the bench. The trial court granted the oral motion. The remaining six counts were presented to the jury.
{¶ 13} On October 3, 2018, the jury returned not guilty verdicts on all six counts. The trial court found appellant guilty on the having-weapons-while-under-a-disability count. The trial court scheduled the matter for sentencing on October 9, 2018.
{¶ 15} Appellant thereafter filed the instant appeal from both his criminal matters and assigned three assignments of error for our review.
- Appellant‘s conviction was not supported by sufficient evidence and the trial court erred by denying his motion for acquittal and by finding it [constituted] a probation violation.
- The conviction was against the manifest weight of the evidence and the court erred by finding it constituted a probation violation
- Appellant‘s sentence is contrary to law because the record does not support the imposition of consecutive sentences.
II. Law and Analysis
A. Sufficiency
{¶ 16} In appellant‘s first assignment of error, he argues that his conviction for having weapons while under disability was not supported by sufficient evidence. Appellant similarly argues that the trial court erred when it denied his
A
Crim.R. 29 motion challenges the sufficiency of the evidence. The 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, ¶ 12. An appellate court‘s function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant‘s guilt beyond a reasonable doubt. Statev. Murphy, 91 Ohio St.3d 516, 543, 747 N.E.2d 765 (2001). “‘The relevant inquiry is whether, after viewing the evidencе 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. Walker, 150 Ohio St.3d 409, 2016-Ohio-8295, 82 N.E.3d 1124, ¶ 12, quoting State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus.State v. Keller, 8th Dist. Cuyahoga No. 106196, 2018-Ohio-4107, ¶ 19.
{¶ 17} In support of his sufficiency argument, appellant contends that the testimony was “full of inconsistences and the victim/eyewitnesses had no credibility.” To this end, appellant relies heavily on the lack of evidence identifying appellant as the shooter. This argument pertains to the manifest weight of the evidence, rather than the sufficiency of the evidence. See State v. Williams, 8th Dist. Cuyahoga No. 98528, 2013-Ohio-1181, ¶ 27 (this court does not consider the credibility of the witnessеs when reviewing a challenge to the sufficiency of the evidence). As such, we will disregard appellant‘s arguments in this regard.
{¶ 18} The only discernible argument presented by appellant that specifically addresses a sufficiency challenge relates to the GSR test and the fact that no gun was found. To this end, appellant argues that the “fact that appellant‘s hands tested positive for gunshot residue, standing alone, is insufficient to sustain the conviction beyond a reasonable doubt.” We do not agree.
{¶ 19} As a general matter, physical evidence is not required to sustain a conviction. State v. Lopez, 8th Dist. Cuyahoga No. 94312, 2011-Ohio-182, ¶ 62, citing Jenks, 61 Ohio St.3d 259, paragraph оne of the syllabus. “Proof of guilt may be made by circumstantial evidence as well as by real evidence
{¶ 20} Appellant was convicted of having weapons while under disability in violation of
{¶ 21} First, we note that the pаrties’ stipulated to appellant‘s prior conviction for drug trafficking in 616415. Thus, there was clearly sufficient evidence establishing that appellant was in fact under a disability prohibiting him from carrying a firearm.
{¶ 22} Furthermore, regarding whether there was sufficient evidence to prove that appellant knowingly had, acquired, carried, or used a firearm, we note that the state was not required to prove that appellant directly or actually possessed a firearm. State v. Robinson, 8th Dist. Cuyahoga No. 105667, 2018-Ohio-285, ¶ 22. “[T]he state may demonstrate an individual has dominion and control over the firearm by proving constructive possession of the firearm.” State v. Carson, 8th Dist. Cuyahoga No. 104998, 2017-Ohio-7243, ¶ 17, citing State v. Easterly, 8th Dist. Cuyahoga No. 94797, 2011-Ohio-215, ¶ 24, citing State v. Davis, 8th Dist. Cuyahoga No. 93844, 2010-Ohio-5123.
{¶ 24} Jones‘s testimony detailed his testing of the GSR kit submitted by the Cleveland Police Department. Jones testified that the GSR test revealed two particles that were indicative of “gunshot primer residue.” Jones stated that gunshot primer residue is a result of a gun having been fired. Jones further explained that,
Just that the two particles containing lead, barium, and antimony are characteristic of gunshot primer residue, and then the two particles containing the lead and antimony are indicative of gunshot residue. But the finding of multiple particles, both characteristic and indicative, allows the conclusion that the individual who samples were collected from either fired a gun, they were in close proximity to a gun at the time it was fired, or there was a transfer of residue from one surface to the person‘s hands secondarily.
An example being, the gun frоm previous firings will have gunshot primer residue on it already. So a person could pick up the gun, handle it, not shoot it, and have residue from a previous firing transferred from the gun to the hand collected by GSR analysis.
(Tr. 650-651.)
{¶ 25} In considering Jones‘s testimony in this regard, it appears that no single probability has any greater weight than the other probabilities. In this regard, it could be just as likely that appellant fired a gun, was simply in close proximity to a gun at the time it was fired, or the residue could have been transferred from one surface to appellant‘s hands. However, considering the additional evidence, we are
{¶ 26} During the investigation, two officers had personal contact with appellant and appellant‘s hands as he was handcuffed. It appears from these officers’ testimony that appellant was handcuffed and then uncuffed by both officers. Both of these officers testified that they had not fired a gun on that particular day. Additionally, the close proximity in time of the shoоting and appellant‘s arrest suggests that the probability that GSR was transferred to appellant is unlikely.
{¶ 27} Appellant was arrested on Cleveland‘s east side approximately 30 minutes after the shooting that occurred on Cleveland‘s west side. An approximate travel time between these two locations would be 15-20 minutes. Further, Rosario and Massey stated that the two males who rushed up on Massey were dressed in all black, and appellant was dressed in all black when officers conducted the traffic stop of his vehicle. As such, the evidence does not support appellant‘s contention that GSR wаs transferred to appellant‘s hands from another surface.
{¶ 28} Moreover, appellant‘s contention that two hours had passed from the time of the shooting until he was tested for GSR, does not necessarily support his contention that his conviction was based on insufficient evidence. Jones testified that “the longer the time period between the shooting event and the collection [of the GSR test kit] the less likely you are to recover gunshot primer residue.”
{¶ 29} Our conclusion is consistent with this court‘s previous opinion in State v. Ladson, 8th Dist. Cuyahoga No. 104091, 2016-Ohio-7781. In Ladson, this court noted that the defendant “tested positive for gunshot residue, which supports the inference that he fired the gun at the victim as she stood in the apartment[.]” Id. at ¶ 15. Thus, the presence of GSR in the instant case is an inference to be drawn by the trier of fact that suggests that the individual either (1) fired a gun, (2) was in close proximity to a gun at the time it was fired, or (3) the residue was transferred from one surface to the individual hands.
{¶ 30} After a review of the evidence, we note that GSR was found on appellant‘s hands, and appellant was stopped 30 minutes after the shooting and was wearing all-black clothing. Based on these facts, we find that there existed sufficient evidence from which to draw an inference that appellant, at the very least, had constructively possessed a firearm.
{¶ 31} After viewing the evidence in a light most favorable to the prosecution, we find that the collective evidence and testimony, if believed, was sufficient to establish that appellant had, acquired, carried, or used a firearm. As such, we find
{¶ 32} In his first assignment of error, appellant also contends that “[b]ecause the evidence was insufficient to convict appellant of having weapons while under [a] disability and because the jury found him not guilty of every other charge and specification, the trial court erred by finding appellant had violated his probation in [616415].” Appellant has not complied with
{¶ 33} Accordingly, appellant‘s first assignment of error is overruled.
B. Manifest Weight
{¶ 34} In his second assignment of error, appellant also contends that his conviction for having weapons while under disability was against the manifest weight of the evidence.
{¶ 35} A manifest weight challenge questions whether the state met its burden of persuasion. Bowden, 8th Dist. Cuyahoga No. 92266, 2009-Ohio-3598, at ¶ 12. A reviewing court “‘weighs the evidenсe and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts
{¶ 36} In support of his manifest weight argument, appellant essentially challenges again the credibility of the witnesses identifying him as the shooter. Howevеr, in order to convict appellant of having weapons while under disability, the state did not have to prove that appellant was the shooter. Indeed, the state had to prove that appellant knowingly had, acquired, carried, or used a firearm.
{¶ 37} Nevertheless, although this court reviews credibility when considering the manifest weight of the evidence, “[w]e are cognizant that determinations regarding the credibility of witnesses and the weight of the testimony are primarily for the trier of fact.” State v. Bradley, 8th Dist. Cuyahoga No. 97333, 2012-Ohio-2765, ¶ 14, citing State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967). The trier of fact is uniquely situated to view the witnesses’ demeanor, gestures, facial expressions, and voice inflections. “‘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, quoting State v. Konya, 2d Dist. Montgomery No. 21434, 2006-Ohio-6312, ¶ 6, quoting State v. Lawson, 2d Dist. Montgomery No. 16288, 1997 Ohio App. LEXIS 3709 (Aug. 22, 1997).
{¶ 38} Appellant also argues that the inconsistencies in Rosario‘s and Massey‘s testimony supports his argument that his conviction was against the manifest weight of the evidence. Undeniably, Rosario‘s and Massey‘s testimony was inconsistent with their initial statements to investigating officers. For instance, Rosario initially stated to officers that the shooting occurred in the middle of the street on Gutherie Avenue. However, officers did not recover shell casings in the street — casings were recovered a few houses down in a neighbor‘s front yard. Rosario initially stated to officers that he owed appellant money for marijuana. At trial, Massey testified that Rosario was buying heroin from appellant. Massey also told officers that “D” was shooting at her. However, she testified at trial that she never saw who was shooting at her. Massey also failed to identify appellant in a photo lineup.
{¶ 39} Regardless of these clear inconsistencies, the state prеsented sufficient evidence that a shooting occurred on the night of February 11, 2018. Officers searching the scene of the shooting were able to find shell casings in the front yard of a house a few doors down from Massey‘s home. Furthermore, as a result of the cold stand, Rosario identified appellant to responding officers as one of the two males who shot at Massey, stating to officers “that‘s D.”
{¶ 41} Appellant also argues that the lack of physical evidence connecting him to the shooting demonstrates that his conviction for having weapоns while under disability was against the manifest weight of the evidence. To this end, appellant specifically argues that “[n]o gun was found. There is no DNA or fingerprints linking appellant to the scene. [Appellant] did not have a gun in his possession. * * * two hours passed between the incident and the GSR test.” Appellant‘s brief at 21.
{¶ 42} To the extent that appellant argues that there existed no physical evidence, this is simply not true. The GSR particles on appellant‘s hand recovered from the GSR kit could undoubtedly be construed as physical evidence. Nevertheless, we again note that the state was not required to present physical evidence. Lopez, 8th Dist. Cuyahoga No. 94312, 2011-Ohio-182, at ¶ 62, citing Jenks, 61 Ohio St.3d 259, paragraph one of syllabus.
{¶ 44} Accordingly, appellant‘s second assignment of error is overruled.
C. Sentence
{¶ 45} In his third assignment of error, appellant argues that the trial court did not make the requisite findings in imposing consecutive sentences. Appellant also argues that the trial court failed to comply with the purposes and principles of sentenсing as required by
{¶ 46}
(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 , or2929.18 of the Revised Code, or was under postrelease 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 offender‘s conduct.
(c) The offender‘s history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender.
{¶ 47} Conformity with
{¶ 49} In the instant matter, the trial court made the following findings on the record at the sentencing hearing.
[Appellant], on [626037], a 36-month sentence consecutive to the time I‘m about to impose on [616415]. This is not disproportionate to the crime that occurred here. You were on community control in [616415], when you clearly were still involved in the drug trade and were involved in the shooting. That is going to run consecutive to 616415. On that case, I‘m going to sentence you on count 1, which is carrying a concealed weapon count, to 18 months. Receiving stolen property, run concurrent to count 1 for another 18 months. Drug trafficking I will run concurrent as well for 18 months. And the drug possession in count 6 and the possessing criminal tools I will sentence you to 12 months on all counts and run them consecutive. So 18 months on 616415 and 36 months on case 626037. You will be given credit for time served.
* * *
I do note that in case 594229, you pled guilty to receiving stolen property, a fifth-degree felony. I will factor that prior conviction into my sentencing consideration.
(Tr. 833-835.)
{¶ 50} Appellant argues that the trial court only made one finding under the “disрroportionate” prong. We agree.
{¶ 51} At the sentencing hearing, the trial court discussed appellant‘s criminal conduct, highlighting what the trial court believed to be appellant‘s involvement in the shooting based on the evidence presented at trial. The court also
{¶ 52} In our review, we find that the trial court also failed to find that consecutive sentences were necessary to protect the public from future crime or to punish appellant as required by
{¶ 53} Lastly, we note that the state contends that it can be inferred that the trial court meant to encompass the required finding, however, we are not persuaded by this contention. In support of its argument in this regard, the state further contends that the trial court need not use “magic words.” However, in the instant case, the trial court simply neglected to make the required findings. As this court has previously noted,
clearly requires specific findings for the imposition of consecutive sentences, those findings must be enterеd at the time the court orders sentences to be served consecutively. What we mean by this is that
regardless of what the trial judge might say during sentencing regarding the purposes and goals of criminal sentencing, compliance with R.C. 2929.14(C)(4) requires separate and distinct findings in addition to any findings relating to purposes and goals of criminal sentencing.
Venes, 2013-Ohio-1891, 992 N.E.2d 453, at ¶ 17. “If the word ‘findings’ is to have any meaning at all, it means nothing less than the court must ‘engage[ ] in the required analysis and select[ ] the appropriate statutory criteria’ before ordering sentences to be served consecutively.” Id., quoting Edmonson, 86 Ohio St.3d at 326. These required findings were not made in this case.
{¶ 54} Accordingly, appellant‘s sentences in 626037 and 616415 are vacated, and the case is remanded for resentencing for the trial court to consider whether consecutive sentences are appropriate under
{¶ 55} Appellant‘s third assignment of error is sustained.
{¶ 56} Appellant also argues that the trial court failed to comply with the purposes and principles of sentencing as required by
III. Conclusion
{¶ 57} Appellant‘s conviction for having weapons while under disability was not based on insufficient evidence and was not against the manifest weight of the
{¶ 58} Appellant‘s conviction is affirmed. The trial court‘s sentence is vacated, and the matter is remanded for sentencing in accordance with this opinion.
It is ordered that appellant and appellee share the 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.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
FRANK D. CELEBREZZE, JR., JUDGE
EILEEN T. GALLAGHER, P.J., and KATHLEEN ANN KEOUGH, J., CONCUR