State v. McClendonState v. McClendon
Rendered on December 6, 2011
Ron O‘Brien, Prosecuting Attorney, and Seth L. Gilbert, for appellee.
Blaise G. Baker, for appellant.
APPEAL from the Franklin County Court of Common Pleas.
DORRIAN, J.
{¶1} Defendant-appellant, Virgil H. McClendon, III (“appellant“), appeals from jury verdicts convicting him on charges of aggravated murder, murder, attempted murder, and felonious assault, with firearms and criminal gang specifications attached to each charge. For the reasons that follow, we affirm.
{¶2} This case arose from a shooting that occurred on June 14, 2009 at Mock Park in Columbus, Ohio. On that day, there were several parties being held in the park, including graduation parties and children‘s birthday parties; a large group of people were in attendance at these various parties. Late in the day, multiple gunshots were fired in the
{¶3} Appellant was arrested in connection with the shooting and indicted on charges of aggravated murder, murder, attempted murder, felonious assault, and having a weapon while under disability. The aggravated murder, murder, attempted murder, and felonious assault charges included additional specifications based on use of a firearm during the crimes and criminal gang activity. These charges were tried to a jury and appellant was convicted on all charges and specifications. The charge of having a weapon while under disability was tried by the court, and appellant was also convicted of that charge.
{¶4} Appellant appeals the jury verdicts, setting forth the following assignments of error for this court‘s review:
Assignment of Error No. 1: The trial court erred in that Appellant‘s convictions were against the manifest weight of the evidence and were not supported by the sufficiency of the evidence in violation of the due process clause of the Fourteenth Amendment to the United States Constitution and Article 1, Sections 1, 10, and 16 оf the Ohio Constitution.
Assignment of Error No. 1(a): The trial court erred in that the evidence was legally insufficient to support Appellant‘s convictions of murder and felonious assault and the verdict was against the manifest weight of the evidence.
Assignment of Error No. 1(b): The trial court erred in that the evidence was legally insufficient to support Appellant‘s conviction on the criminal gang specification and the verdict was against the manifest weight of the evidence.
{¶6} “Sufficiency of the evidence is a legal standard that tests whether the evidence introduced at trial is legally sufficient to support a verdict.” State v. Cassell, 10th Dist. No. 08AP-1093, 2010-Ohio-1881, ¶36, citing State v. Thompkins, 78 Ohio St.3d 380, 386, 1997-Ohio-52. In reviewing a challenge to the sufficiency of the evidence, an appellate court must determine “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 (1991), 61 Ohio St.3d 259, paragraph two of the syllabus, superseded by constitutional amendment on other grounds as recognized in State v. Smith, 80 Ohio St.3d 89, 102, 1997-Ohio-355.
{¶7} “While sufficiency of the evidence is a test of adequacy regarding whether the evidence is legally sufficient to support the verdict as a matter of law, the criminal manifest weight of the evidence standard addresses the evidence‘s effect of inducing belief.” Cassell at ¶38, citing State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, citing Thompkins at 386. “When a court of appeals reverses a judgment of a trial court on the basis that the verdict is against the weight of the evidence, the appellate court sits as a ‘thirteenth juror’ and disagrees with the factfinder‘s resolution of the conflicting testimony.”
{¶8} In his first assignment of error, referred to in appellant‘s brief as assignment of error number “1(a),” appellant argues that his сonvictions for murder and felonious assault were not supported by sufficient evidence and were against the manifest weight of the evidence. Appellant was convicted of aggravated murder, a felony in violation of
{¶9} The aggravated murder statute provides, in relevant part, that “[n]o person shall purposely, and with prior calculation and design, cause the death of another.”
{¶10} Appellant does not argue that the state failed to establish the substantive elements of the crimes charged against him. Rather, appellant‘s argument focuses on the issue of identification and argues that the identification evidence failed to establish that he was the individual who committed these acts. Although appellant purports to challenge both the sufficiency and the manifest weight of the evidence presented against him, his arguments focus primarily on the weight of the evidence. However, we will first consider whether the verdicts wеre supported by sufficient evidence.
{¶11} At trial, Darez Harris (“Harris“) testified that he went to Mock Park on June 14, 2009 with Darwan Stone (“Stone“) and appellant in Stone‘s Chevrolet TrailBlazer. Harris stated that, at some point after arriving at the park, he witnessed appellant shooting a gun in the parking lot. Harris testified that appellant fired nine or more shots from what he believed to be a .40 caliber Smith & Wesson pistol. On cross-examination, he testified that he had seen the gun in appellant‘s lap while they were driving to the park. Harris stated that, after the shooting, appellant got into Stone‘s TrailBlazer and left the park. Harris testified that appellant was wearing a white shirt and
{¶12} Other witnesses who were at Mock Park on the day of the shooting provided testimony tending to corroborate Harris‘s testimony. Although Stone testified that he did not see the shooter, he also admitted that he was not with appellant when he heard the shots fired. Stone‘s description of appellant‘s attire was similar to Harris‘s testimony, stating that appellant wore a plain white t-shirt, basketball shorts, and possibly a hat. Stone testified that he drove a silver Chevrolet TrailBlazer to the park and that after the shooting, appellant got into the passenger seat and they drove away.
{¶13} Keysha Pruitt (“Pruitt“) testified that she heard gunshots and saw the shooter but did not get a good look at his face. However, Pruitt testified that the shooter was an African-American male wearing a white shirt and a hat. Pruitt further testified that, after the shooting, the man who fired the shots got into a silver-colored SUV and left the park. Similarly, Brian Granger (“Granger“), described the shooter as a tall, slender African-American male, wearing a white t-shirt, blue jeans, and possibly a light-colored ball cap. He stated that the shooter fired a chrome pistol. Granger testified that the shooter got into the passenger side of a silver or tan Chevrolet TrailBlazer and sped off after the shooting. Granger identified photos of Stone‘s car as being the same make and color of the vehicle that he saw the shooter get into.
{¶14} The stаte presented evidence from the crime scene tending to corroborate Harris‘s testimony regarding the type of weapon appellant used to commit the shooting. Detective Kevin Jackson (“Detective Jackson“) testified that shell casings from a .40 caliber Smith & Wesson were recovered from the scene of the shooting. Mark Hardy (“Hardy“), a forensic scientist with the Columbus Division of Police, testified that he tested
{¶15} There was also evidence establishing the injuries inflicted on the victims, Hawkins and Whitehead. The parties stipulated to the coroner‘s report indicating that Hawkins was killed by a gunshot wound to the head. The parties also stipulated that the bullet fragment submitted into evidence was the same fragment removed from Hawkins’ skull by the coroner. Aliceona Bell (“Bell“) testified that, after the shooting, she and a friend picked up Whitehead and others in a car and drove Whitеhead to the hospital. Bell testified that Whitehead had been shot in the hip. Officer Stephen Oboczky (“Officer Oboczky“), testified that he spoke to Whitehead at the hospital and observed that he had been shot in the leg.
{¶16} Finally, Charles Walker (“Walker“) testified that appellant admitted that he had shot at Hawkins and Whitehead before fleeing the park with Stone. Walker testified that appellant told him the shooting arose from a dispute between rival gangs. Walker claimed that appellant said he was the “shot caller” for his gang and that he had declared “shoot on sight” against members of the rival gang. Walker stated that appellant shared this information with him while they were serving time in thе same cell in the Franklin County jail.
{¶18} With respect to the charge of felonious assault against Whitehead, there was sufficient evidence for the jury to conclude that appellant caused physical harm, in the form of a gunshot wound to the hip, by means of a handgun, which is a deadly weapon. The law provides that “[a] person acts knowingly, regardless of his purpose, when he is aware that his conduct will probably cause a certain result or will be of a certain nature.”
{¶19} Under similar reasoning, the jury could conclude that appellant committed felonious assault toward Hawkins. Felonious assault is generally a felony of the second degree.
{¶20} Finally, there was sufficient evidence for the jury to conclude that appellant was the shooter. Harris testified that he saw appellant firing a gun in the parking lot of the park. Walker testified that appellant admittеd to being the shooter. This evidence, if believed, would permit the jury to conclude beyond a reasonable doubt that appellant was the shooter.
{¶21} For all these reasons, we conclude that appellant‘s convictions for aggravated murder, murder, attempted murder, and felonious assault were supported by sufficient evidence.
{¶22} Appellant‘s argument that his convictions for murder and felonious assault were against the manifest weight of the evidence relies mainly on attacking the credibility of Harris and Walker. “[A]lthough an appellate court must act as a ‘thirteenth juror’ when considering whether the manifest weight of the evidence requires reversal, it must give
{¶23} Appellant argues that Harris‘s testimony is unreliable because he was a close personal friend of Hawkins. However, the jury was aware of this relationship and could consider it in evaluating Harris‘s credibility. As this court noted in State v. Ruark, 10th Dist. No. 10AP-50, 2011-Ohio-2225, the jury could conclude that a personal relationship with the victim provided Harris with an extra incentive to correctly identify Hawkins’ killer, not merely to identify appellant as the shooter, regardless of whether he was actually guilty. Id. at ¶26. Appellant also asserts that Harris “inexplicably waited more than a year and a half to come forward.” (Appellant‘s brief, 19.) However, the trial transcript indicаtes that this was not inexplicable at all; in fact, Harris explained the reason that he had not come forward earlier on direct examination and was further questioned about it on cross-examination. Harris testified that he did not come forward because of the “code of the streets.” (Tr. 236.) Again, the jury was aware of this explanation and had the opportunity to determine if it found Harris to be credible. We cannot find that the jury clearly lost its way in believing Harris‘s testimony.
{¶24} Similarly, appellant asserts that Walker‘s testimony was “extremely unreliable” because he did not personally witness the events in the park and because Walker admitted that he had testified as a witness, or a “snitch,” in other criminal cases. In State v. Coleman, 10th Dist. No. 10AP-265, 2011-Ohio-1889, this court considered a claim that a conviction was against the manifest weight of the evidence in part based on challenges to the credibility of “jailhouse informants.” Id. at ¶37. We noted that “it was
{¶25} Appellant‘s counsel sought to impeach Walker‘s credibility through several methods on cross-examination, including suggesting that Walker learned the details of appellant‘s case by going through appellant‘s documents while appellant was out of the jail cell. Appellant‘s counsel also established that Walker had previously testified as an informant in other cases and suggested that appellant would have been unlikely to talk about his case with a known snitch. Appellant‘s counsel also attacked Walker‘s credibility by raising an issue of whether Walker might receive beneficial treatment in another prosecution as a result of testifying against appellant. In State v. Hunter, 10th Dist. No. 10AP-599, 2011-Ohio-1337, we rejected a similar attempt to discredit the testimony of a co-defendant who testified against the appellant in that case. We noted that “the jury was fully apprised of [the] alleged motivation for testifying against appellant and could assess his credibility accordingly.” Id. at ¶33. The same conclusion applies here because the jury heard testimony about the alleged benefit Walker might receive and could consider it accordingly in weighing Walker‘s testimony.
{¶26} Appellant called a witness, Clifton Jefferson (“Jefferson“), who had been in the same jail cell with appellant and Walker. Jefferson testified that he never heard appellant discuss his case with Walker and that he saw Walker go through another inmate‘s possessions. Jefferson further testified that he had never discussed his own case with Walker but that Walker appeared as a witness against him in his criminal case. Although this testimony may be sufficient to raise questions about Walker‘s credibility, we
{¶27} Finally, appellant argues that his convictions were against the manifest weight of the evidence because there was only one eyewitness who testified against him. Appellant cites to three recent decisions of this court, State v. Johnson, 10th Dist. No. 07AP-538, 2008-Ohio-590, State v. Grisson, 10th Dist. No. 08AP-952, 2009-Ohio-5709, and State v. Donaldson, 10th Dist. No. 09AP-399, 2009-Ohio-6988, in which we upheld convictions against sufficiency and manifest weight challenges. Appellant argues his case is distinguishable from those decisions because there was only one eyewitness who testified at trial identifying him as the shooter; whereas, the convictions in Johnson, Grisson, and Donaldson were each based on the testimony of multiple witnesses. Similar to the present case, Johnson involved a gang-related shooting. In Johnson, we overruled the appellant‘s sufficiency and manifest weight challenges, noting that there were two eyewitnesses to the shooting, as well as numerous other witnesses whose testimony corroborated the eyewitnesses’ testimony. Johnson at ¶33. Grisson involved a drive-by shooting, and again we noted that several witnesses were able to identify the appellant as the shooter. Grisson at ¶36. In Donaldson, this court rejected sufficiency and manifest weight challenges to a burglary conviction. In that case, only one eyewitness identified the appellant as the individual who had entered the burglarized residence, but there was additional corroborating testimony from the investigating police officer and the owner of the stolen items. Donaldson at ¶18. However, the fact that the convictiоns in these prior decisions were based on testimony from multiple witnesses does not, in itself, invalidate appellant‘s conviction.
{¶29} After reviewing the evidence presented at trial, we find that there was sufficient evidence to allow a reasonable jury to conclude that appellant committed the
{¶30} In his second assignment of error, referred to in appellant‘s brief as assignment of error number “1(b),” appellant argues that his convictions on the criminal gang specifications attached to his convictions for murder, aggravated murder, attempted murder, and felonious assault were not supported by sufficient evidence and were against the manifest weight of the evidence.
{¶31} At the time of appellant‘s conviction,
{¶32}
(A) “Criminal gang” means an ongoing formal or informal organization, association, or group of three or more persons to which all of the following apply:
(1) It has as one of its primary activities the commission of one or more of the offenses listed in division (B) of this section.
(2) It has as a common name or one or more common, identifying signs, symbols, or colors.
(3) The persons in the organization, association, or group individually or collectively engage in or have engaged in a pattern of criminal gang activity.
(B)(1) “Pattern of criminal gang activity” means, subject to division (B)(2) of this section, that persons in the criminal gang have committed, attempted to commit, conspired to commit, been complicitors in the commission of, or solicited, coerced, or intimidated another to commit, attempt to commit, conspire to commit, or be in complicity in the commission of two or more of any of the following offenses:
(a) A felony or an act committed by a juvenile that would be a felony if committed by an adult;
(b) An offense of violence or an act committed by a juvenile that would be an offense of violence if committed by an adult;
(c) A violation of section 2907.04, 2909.06, 2911.211, 2917.04, 2919.23, or 2919.24 of the Revised Code, section 2921.04 or 2923.16 of the Revised Code, section 2925.03 of the Revised Code if the offense is trafficking in marihuana, or section 2927.12 of the Revised Code.
(2) There is a “pattern оf criminal gang activity” if all of the following apply with respect to the offenses that are listed in division (B)(1)(a), (b), or (c) of this section and that persons in the criminal gang committed, attempted to commit, conspired to commit, were in complicity in committing, or solicited, coerced, or intimidated another to commit, attempt to commit, conspire to commit, or be in complicity in committing:
(a) At least one of the two or more offenses is a felony.
(b) At least one of those two or more offenses occurs on or after January 1, 1999.
(c) The last of those two or more offenses occurs within five years after at least one of those offenses.
(d) The two or more offenses are committed on separate ocсasions or by two or more persons.
{¶33} Appellant argues that there was insufficient evidence to establish that he committed the crimes of murder and felonious assault “while participating in a criminal gang” as required under
{¶34} Officer Oboczky, who serves as a patrol officer in the neighborhood where the Windsor Terrace Posse operates, testified that he had frequently seen appellant interact with members of the Windsor Terrace Posse. The state also presented evidence from Detective Mitchell Seckman (“Detective Seckman“), a member of the criminal information unit, or “gang unit,” of the Columbus Division of Police‘s strategic response bureau. Detective Seckman explained how the gang unit identifies criminal gangs and documents members of criminal gangs using the criteria provided in the Ohio Revised
{¶35} Considering the evidence in a light most favorable to the prosecution, a reasonable jury could have concluded that appellant was a member of the Windsor Terrace Posse and that Hawkins and Whitehead were affiliated with the Short North Pоsse. The jury also could have found that these two gangs were involved in a conflict at the time of the shooting and that the shooting arose from that conflict. Thus, there was sufficient evidence for the jury to conclude that appellant committed these crimes while participating in a criminal gang.
{¶36} Appellant further asserts that the evidence was insufficient to establish that the Windsor Terrace Posse is a criminal gang as defined under
{¶37} “Under the ‘invited-error’ doctrine, a party may not take advantage of an error which he invited or induced.” State v. Griffin, 10th Dist. No. 10AP-902, 2011-Ohio-4250, ¶16, citing State v. Jennings, 10th Dist. No. 09AP-70, 2009-Ohio-6840, ¶75. Pursuant to this doctrine, a party cannot claim that a trial court erred by accepting the party‘s own stipulation. State v. J.G., 10th Dist. No. 08AP-921, 2009-Ohio-2857, ¶16, citing State v. Gilfillan, 10th Dist. No. 08AP-317, 2009-Ohio-1104, ¶91. At the trial in this case, appellant agreed to a stipulation that the charged offenses could form the predicate to satisfy the “pattern of criminal gang activity” requirement under the statute. The jury was instructed accordingly that the indicted offenses could be used to satisfy the “pattern of criminal gang activity” element. After appellant agreed to this stipulation, the state refrained from introducing additional testimony about other crimes committed by members of the Windsor Terrace Posse. Appellant‘s claim on appeal that the indicted offenses are insufficient to establish a pattern of criminal gang activity when he stipulated to the contrary at trial violates the invited-error doctrine. Accordingly, we reject appellant‘s claim that the evidence was insufficient to establish a pattern of criminal gang activity.
{¶38} Finally, appellant argues that the manifest weight of the evidence demonstrates that the shooting was not related to gang activity. Appellant bases this
{¶39} However, Walker testified that appellant admitted that the shooting was gang related. Walker also testified that appellant stated that the “W” and “T” tattoos on his arms stood for “Windsor Terrace” but that if asked he would tell people that they stood for his mother‘s and sister‘s names. The jury could have concluded that this testimony was corroborated by Stone, who testified that the tattoos on appellant‘s arms stood for the initials of appellant‘s mother and sister. As discussed above, appellant raised issues regarding Walker‘s credibility, and those issues were before the jury in determining whether to credit his testimony.
{¶40} The state‘s argument that the shooting was gang related was also supported by the testimony of Detective Seckman. In addition to explaining that appellant was a documented member of the Windsor Terrace Posse, Detective Seckman testified regarding a series of photographs of appellant. Detective Seckman explained that these photographs depicted appellant making various gang-related hand signals and, in some cases, wearing clothing that would indicate his affiliation with a gang. Some of these photographs also contained superimposed graphics bearing various gang-related sayings or slogans. This evidence tends to establish that appellant was an active member of a
{¶41} After reviewing the evidence presented, we find that there was sufficient evidence to support the criminal gang activity specifications. We cannot conclude that the jury clearly lost its way in finding that appellant committed the shootings while participating in a criminal gang. Accordingly, appellant‘s second assignment of error is without merit and is overruled.
{¶42} For the foregoing reasons, both of appellant‘s assignments of error are overruled, and the judgment of the Franklin County Court of Common Pleas is hereby affirmed.
Judgment affirmed.
BROWN and TYACK, JJ., concur.
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