State v. McCraryState v. McCrary
{¶1} Defendant-appellant Deandre McCrary appeals after being convicted of aggravated murder, aggravated robbery, and a firearm specification. Appellant, who was fifteen years old at the time of the offense, argues that the juvenile court abused its discretion in binding him over to be tried as an adult. As to his subsequent adult trial, appellant contends that the trial court abused its discretion in allowing a witness to testify about an incident that occurred a few hours before the shooting. He also asserts that the court should have granted his motion to suppress regarding the photographic lineups. Finally, he claims that the verdict was contrary to the manifest weight of the evidence. For the following reasons, the judgment of the trial court is affirmed.
STATEMENT OF THE CASE
{¶2} At approximately 11:42 p.m. on Saturday, June 19, 2011, sixteen-year-old Brandon Adkins was shot and killed in a driveway on South Avenue in Youngstown, Ohio. He had been at a party on Mistletoe Avenue earlier in the evening; appellant and seventeen-year-old co-defendant Rayshawn Royal were also at that party. Brandon arrived at his home on Philadelphia Avenue around 10:30 p.m. Seventeen-year-old Keyoshia then called Brandon to ask if he could walk her and her one-year-old baby home from the South Avenue residence of their fourteen-year-old friend Nautica. Brandon walked over and waited in the drive. Keyoshia, Nautica, and fourteen-year-old Miranda came out to the front porch.
{¶3} Two male juveniles (said to be fifteen-year-old appellant and seventeen-year-old Rayshawn Royal) approached Brandon with guns drawn and ordered him to lift his shirt and empty his pockets. The gunmen soon fired three or four shots at Brandon, who died at the scene after suffering three separate gunshot wounds to the back, abdomen, and forearm. The gunmen fled on foot. It is said that appellant briefly ran back to collect his shells and Royal was nearly hit by a car which was driving down South Avenue as he fled the scene.
{¶4} Keyoshia left the scene with her child, who had been on the porch in a stroller at the time of the shooting. Nautica and Miranda were brought to the police
{¶5} Nautica provided the descriptions of the assailants as well and also provided the names Boosie and Ray Royal (without the officers first mentioning any names). Nautica explained that she had seen the shooters around before. (Testimony demonstrated appellant was known as both Little D and Boosie.)
{¶6} On Monday, Keyoshia was brought in for questioning. She provided descriptions and was argumentative when the police insisted that she knew the shooters’ names. She eventually stated that one was named “D something.” She then picked out appellant and Royal from photographic lineups. The other girls viewed the photo lineups on Monday as well. Miranda identified appellant, but Nautica could not identify him from the photographs.
{¶7} That day, a delinquency complaint for murder was filed in the juvenile Court against Rayshawn Royal and appellant. Royal was subject to mandatory bindover, but appellant was subject only to discretionary bindover due to his age and lack of serious prior adjudications. After a probable cause hearing and an amenability hearing, appellant was bound over to the adult system.
{¶8} Appellant was thereafter indicted for aggravated murder and aggravated robbery with firearm specifications. Just before trial, appellant filed a motion to suppress evidence derived from the photographic lineup, alleging the requirements of the photographic array statute were not satisfied, the procedure was unduly suggestive, and the identifications were unreliable. On June 5, 2012, a suppression hearing was conducted, and the trial court denied the motion to suppress.
{¶9} The case against appellant and his co-defendant was tried to a jury. The details of the trial are further discussed infra within the pertinent assignments of error. Both defendants were found guilty as charged. The trial court sentenced
ASSIGNMENT OF ERROR NUMBER ONE
{¶10} Appellant‘s first assignment of error alleges:
{¶11} “THE JUVENILE COURT JUDGE ABUSED HIS DISCRETION BY RELINQUISHING JURISDICTION AND BINDING THE DEFENDANT-APPELLANT‘S CASE OVER TO THE COMMON PLEAS COURT BY FAILING TO ADEQUATELY CONSIDER ALL THE APPLICABLE FACTORS FOR TRANSFER PURSUANT TO
{¶12} Appellant was subject to discretionary bindover. See
{¶13} The first step is thus the preliminary hearing, which was held on October 19, 2011. At the hearing, the court accepted stipulations as to the cause of death and that appellant was fifteen at the time of the charged act and heard Keyoshia‘s testimony. She said that she knew the two defendants from school and the neighborhood and had become friends with them in the six months before the incident. (Tr. 12-13, 28-29). She testified that the two defendants approached the victim in the driveway, pulled out guns, told him he had five seconds to empty his pockets, and then both defendants started shooting. (Tr. 12-15).
{¶15} The juvenile court found probable cause to believe appellant committed murder. Appellant suggests that this witness‘s testimony lacked certainty. However, that was a credibility issue best left for the fact-finder. Regardless, appellant does not specifically argue against the finding of probable cause here. Rather, he assigns as error the juvenile court‘s weighing of the factors in making the subsequent amenability decision.
{¶16} After a finding of probable cause is made at the preliminary hearing, the court shall continue the proceeding for a full investigation, which shall include a mental examination, after which the amenability hearing shall be held.
{¶17} The factors weighing against a transfer include: (1) the victim induced or facilitated the act; (2) the child acted under provocation; (3) the child was not the principal actor or was under the negative influence or coercion of another; (4) the child did not cause physical harm to any person or property or have reasonable cause to believe that such harm would occur; (5) the child has not been adjudicated delinquent previously; (6) the child is not emotionally, physically, or psychologically mature enough for transfer; (7) the child has a mental illness or is mentally handicapped; and (8) there is sufficient time to rehabilitate the child within the juvenile system and the level of security available in the juvenile system provides reasonable assurance as to public safety.
{¶18} These factors are non-exclusive, and any other relevant factor can be considered.
{¶19} A mental examination was completed and offered as evidence at the amenability hearing. At that hearing, the court advised that it had reviewed the psychologist‘s report. (Tr. 5). The report stated that appellant disclosed that he had been previously detained at the juvenile justice center eight times due to grand theft auto and probation violations and that he had been on probation for “many years.” He specified that he likely failed his junior year in high school because he was incarcerated for so much of it (prior to this offense). Appellant was said to be familiar with court terminology and procedure. He had no problems with understanding
{¶20} The state presented the following arguments in favor of bindover: the victim was a juvenile; appellant was friends with the victim; the relationship facilitated the offense; appellant not only had and brandished a gun, but he also fired it; he was not only on probation, but he was also awaiting disposition of a probation violation at the time of the incident; the result of prior juvenile sanctions and programs indicate that rehabilitation would not occur in the juvenile system as he had been before the court with several probation violations; he was emotionally, physically, and psychologically mature enough for transfer; and there was insufficient time to rehabilitate him within the juvenile system before his twenty-first birthday. (Tr. 3-5). The state acknowledged that he had no prior commitments to the Department of Youth Services (DYS) and that the gang factor was inapplicable. (Tr. 3-4).
{¶21} The defense admitted that this was a very serious offense and recognized appellant‘s prior felony adjudication for grand theft auto but emphasized that his subsequent interactions with the court were for probation violations that arose out of that one felony. With regards to the topic of rehabilitation in the juvenile system, the defense opined that appellant had been ill-served by the juvenile probation system but that DYS will be better equipped to meet his vocational and psychological needs. The defense emphasized that a major point was that appellant has never been in the custody of DYS. The defense also stated that appellant is now sixteen, suggesting that five years should be sufficient time for DYS to address his issues. (Tr. 6-8).
{¶22} The court took the matter under advisement, and then ordered bindover to the common pleas court in a November 28, 2011 judgment entry. As to the factors favoring retention in
{¶23} Appellant contends that the trial court abused its discretion in weighing the applicable factors and failed to adequately consider all of the applicable factors. He notes that the juvenile court must state its reasons for transfer and characterizes the findings in the court‘s entry as mere “lip service,” stating that the findings were a mere recap of the state‘s arguments from the amenability hearing. Appellant believes the court ignored defense counsel‘s focus on the fact that appellant had never previously been committed to DYS. He reiterates that the five years before he turned twenty-one would have provided sufficient time for the juvenile system to address his issues. He also complains that the bindover hearing was brief.
{¶24} However, the state presented the arguments in favor of bindover, the psychological report was submitted, and appellant was not prohibited from setting forth any information that he believed would help his cause. See State v. Carmichael, 35 Ohio St.2d 1, 3-4, 298 N.E.2d 568 (1973). Thus, the length of the hearing does not assist appellant‘s argument. Although a more detailed entry could have been drafted, the court‘s entry is not deficient. The bindover entry states the reasons for the transfer and contains the applicable factors that the court weighed.
{¶25} Notably, it is the applicable factors the court must outline, not the inapplicable factors.
{¶26} In conducting our own review of the factors, we conclude that the juvenile court‘s discretionary bindover decision was not unreasonable, unconscionable, or arbitrary. The physical harm the victim suffered was death. See
{¶27} The victim was a sixteen-year-old juvenile. See
{¶28} At the time of the shooting, appellant was not only on community control but had a pending probation violation. See
{¶29} The psychological report also expressed concern with appellant‘s ability to be treated and provided insight into his maturity, understanding, and intelligence. From this report and considering the fact that he has dealt with the juvenile system many times and spent many nights in the justice center in the past, it was not unreasonable to conclude that appellant was emotionally, physically, and psychologically mature enough for transfer. See
{¶30} The only factor which was not applicable in division (D) was the one concerning commission of the act for hire or as part of a gang or other organized criminal activity. See
{¶32} Under the totality of circumstances, we conclude that the trial court did not abuse its discretion in weighing the factors and concluding that appellant “is not amenable to care or rehabilitation within the juvenile system and the safety of the community may require that the child be subject to adult sanctions.” See
ASSIGNMENT OF ERROR NUMBER TWO
{¶33} Appellant‘s second assignment of error provides:
{¶34} “THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT AND ABUSED ITS DISCRETION BY PERMITTING AT TRIAL WITNESS TESTIMONY OF AN EXCITED UTTERANCE, OVER APPELLANT‘S OBJECTION, INADMISSIBLE HEARSAY EVIDENCE, WHEN THE EVIDENCE DID NOT FALL WITHIN THE EXCITED UTTERANCE EXCE[P]TION AND WAS ALSO CONTRARY TO THE OHIO RULES OF EVIDENCE 402 AND 403(A), WHEN SUCH EVIDENCE WAS NOT RELEVANT AND ITS ADMISSION OUTWEIGHED THE DANGER OF PREJUDICE TO APPELLANT RECEIVING FAIR TRIAL.”
{¶35} Nineteen-year-old Shaquala testified about a party she held at her house on Mistletoe Avenue in the hours prior to the shooting. She collected a $1 cover charge while Brandon‘s job was to make sure no one went anywhere in the
{¶36} In this assignment of error, appellant raises four Rules of Evidence in support of his argument that this testimony should have been excluded:
{¶37} Appellant only contests the application of the fourth prong of this test, arguing that the cousin may not have personally observed the matters asserted in the declaration. The issue is thus whether the trial judge reasonably found that the declarant had an opportunity to observe personally the matters asserted in the declaration existing in this case. See State v. Taylor, 66 Ohio St.3d 295, 300-301, 612 N.E.2d 316 (1993). See also Jones, 135 Ohio St.3d 10, at ¶ 173 (fourth prong helps ensure reliability of declarant‘s statement; holding that the confession was the event that startled the declarant even though she did not personally observe the events described in that confession).
{¶38} Appellant emphasizes that Shaquala could not definitively state that her cousin watched the event take place. Still, a witness who hears an excited utterance will not always know with certainty that the declarant was watching the event about which the declaration was made; this is often assumed by the witness due to the declarant‘s excited state, especially where that listener then runs upstairs and views the aftermath of the event described by the declarant who retrieved her. Importantly, the trial court can use circumstantial evidence and make reasonable inferences that a declarant had an opportunity to observe personally the matters asserted in their statements; for instance the court can view the statement itself, the excited state of the declarant, the proximity of the declarant to the event, and the other pertinent surrounding circumstances. See, e.g., City of Columbus v. Bishop, 10th Dist. No. 08AP-300, 2008-Ohio-6964, ¶ 10-12; State v. Holdbrook, 12th Dist. No. CA2005-11-482, 2006-Ohio-5841, ¶ 42-52; State v. Johnson, 6th Dist. No. L-05-1001, 2006-Ohio-1232, ¶ 21; State v. Moorman, 7 Ohio App.3d 251, 252-253, 455 N.E.2d 495 (1st Dist.1982).
{¶39} In sum, the cousin was scared and she was acting as if she had seen the shocking event. She rushed Shaquala out of the house and brought her to the scene in the front yard from which vantage point Shaquala herself viewed the aftermath of the incident: Cedrick standing by appellant holding two guns and
{¶40} Relevant evidence is defined as “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.”
{¶41} Relevant evidence is admissible unless prohibited by another rule, statute, or the constitution.
{¶43} Pursuant to the harmless error doctrine, “Any error, defect, irregularity, or variance which does not affect substantial rights shall be disregarded.”
{¶44} In this case, three eyewitnesses placed appellant with a gun pointing at the victim. Two of these witnesses testified that appellant fired shots at the victim; the other witness had just turned away in order to inform her mother that a robbery was taking place out front. One witness also testified that she saw appellant run back down the driveway to collect the empty shells. This evidence diminishes any prejudicial effect to a non-reversible value. See also Assignment of Error Number Four (manifest weight of the evidence). Accordingly, this assignment of error is overruled.
ASSIGNMENT OF ERROR NUMBER THREE
{¶45} Appellant‘s third assignment of error provides:
{¶46} “THE TRIAL COURT ERRED AS A MATTER OF LAW AND TO THE PREJUDICE OF APPELLANT AND VIOLATED HIS RIGHT TO DUE PROCESS OF LAW UNDER THE FOURTEENTH AMENDMENT BY OVERRULING APPELLANT‘S MOTION TO SUPPRESS AND ADMITTING INTO EVIDENCE APPELLANT‘S PHOTOGRAPHIC LINE UP IDENTIFICATIONS.”
{¶48} The trial court watched the videotaped interviews and line-ups and heard testimony at the suppression hearing. The court found that Captain Foley did not take part in the questioning of the witnesses but merely entered the room briefly during Keyoshia‘s interview to encourage her cooperation. The court concluded that knowledge of a case does not preclude an administrator from being considered blinded. Captain Foley testified that he considered himself a blinded administrator, surmising that a blind administrator knows nothing about the case and he knew the names of the suspects. (Supp.Tr. 73, 84). He did not create the ten folders or otherwise assist in preparing the line-up. (Supp.Tr. 63). He remained unaware of which folder contained appellant‘s photograph. He did not know which set of ten folders involved appellant and which set of ten involved co-defendant Royal. (Supp.Tr. 64). The detective who prepared the folders did not indicate to the administrator who was in them or what order they were in. (Supp.Tr. 29). And, pursuant to the statutory procedure, the administrator shuffled the folders and read the instructions to the witnesses including the statement that they should not show him the photographs. (Supp.Tr. 64-65).
{¶50} As appellant acknowledges, a failure to comply with
{¶51} This is because the statute provides that the failure to comply with
{¶52} As appellant concedes, we continue our analysis by evaluating the two-prong test to assess the constitutionality of a line-up.
{¶53} When a witness has been presented with a suspect before trial, due process requires a court to suppress the identification if the presentation was unnecessarily suggestive of the suspect‘s guilt and the identification was unreliable under all of the circumstances. State v. Waddy, 63 Ohio St.3d 424, 438, 588 N.E.2d 819 (1992), citing Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972).
{¶54} Appellant urges that the procedure was unnecessarily suggestive and/or the identification was unreliable because a detective mentioned the defendants’ names, the witnesses previously knew the defendants, and they may have known some of the other people whose photographs were used in the array. Miranda was interviewed first. She stated that she could see the suspects due to the streetlight. She described one as a skinny black male aged 15 or 16. The other suspect was described as a chubby black male aged 17 or 18. She initially denied knowing the shooters’ names. She was eventually told that the police already knew the names of the suspects, and a detective provided the names of Ray Royal and Little D. Miranda then said Little D was the skinny one who picked up the shell casing. During a photographic lineup nearly two days later, she identified appellant as a shooter.
{¶55} Testimony revealed that Nautica was not provided time to speak with Miranda between their interviews. (Tr. 928). Without being told the suspects’ names by police, Nautica said the chubby perpetrator was Ray Royal and the other was Boosie (said to be another nickname for appellant). Nautica did not later identify appellant from the photographic lineup. She noted that she knew another person in the array.
{¶57} The trial court watched the videos of the interviews and the line-ups and heard the suppression testimony. The trial court‘s decision that the identifications were not prompted by unduly suggestive procedures was within that court‘s province as the fact-finder who weighs the factual evidence and any inferences. See State v. Mills, 62 Ohio St.3d 357, 366, 582 N.E.2d 972 (1992) (on a suppression motion, trial court weighs evidence and makes credibility determinations). Although it took some minutes to convince Miranda to implicate appellant by name, questioning her for less than a half hour, mentioning that Little D was a suspect, and her agreement that he was the shooter did not render the subsequent lineup unusable. And although Keyoshia was initially very argumentative about her lack of knowledge of the shooters’ names, she was compliant in picking them out of a lineup.
{¶58} There is no rule that if the police release the name of a person of interest in a crime, any photographic array would be unduly suggestive because the witnesses learned this name prior to the viewing. In fact, a witness will often read about a suspect‘s arrest in the paper or on the news and sometimes even realize that they recognize the photograph displayed therein. See, e.g., State v. Jones, 7th Dist. No. 12MA181, 2013-Ohio-5915, ¶ 46 (witnesses did not identify defendant in photographic lineup {and chose a different photograph} but stated that they recognized the defendant on the news upon his arrest). This type of information on police suspects does not per se preclude a later identification. See State v. Davis, 76 Ohio St.3d 107, 113, 666 N.E.2d 1099 (1996) (“Even assuming [the detective] used Davis‘s name, that would not affect the reliability of Baker‘s identification.“).
{¶60} Finally, it is not the function of the police to somehow construct a line-up that does not include filler photographs of people whom the witnesses may end up knowing; as the trial court noted, such a line-up would have excluded the defendants themselves. The trial court could properly find that the procedure used in conducting the line-up was not unduly suggestive for the reasons urged by the defense.
{¶61} Appellant also states that the identifications were not reliable as Miranda named the suspects only after the police badgered her for half an hour, Nautica provided the names but then could not identify appellant‘s photograph in the lineup, and Keyoshia said that she did not know the names twenty-five times until Captain Foley intervened to request cooperation after which she picked the shooters from a lineup. Appellant points out that it was dark and the shooters may have been wearing hoods.
{¶62} Because we concluded the procedure was not unduly suggestive, reliability need not be reached. State v. Adams, 7th Dist. No. 08MA246, 2011-Ohio-5361, ¶ 24, citing e.g. State v. Gross, 97 Ohio St.3d 121, 2002-Ohio-5524, ¶ 19. In any event, the trial court reviewed the videos of the interviews and line-ups and the transcript from the juvenile bindover where Keyoshia explained her identification and her initial reluctance. She expressed that she was positive that these defendants were the shooters. The interviews of Miranda and Nautica occurred within two hours of the shooting. The interview with Keyoshia and the lineups occurred less than two days after the shooting. The witnesses were near the shooters at the time of the
{¶63} Appellant next urges that the failure to call the three eyewitnesses to testify at the suppression hearing constituted ineffective assistance of trial counsel. We review a claim of ineffective assistance of counsel under the two-part test articulated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984): deficient performance falling below an objective standard of reasonable representation and prejudice arising from the lawyer‘s serious error. State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), ¶ 1 of syllabus. In evaluating the claim of deficient performance, the reviewing court must be highly deferential to counsel‘s tactics. Strickland, 466 U.S. at 689. The court should not focus on what, in hindsight, may have been a more appropriate course of defense. See State v. Phillips, 74 Ohio St.3d 72, 85, 656 N.E.2d 643 (1995). There is a strong presumption that counsel‘s conduct falls within the wide range of reasonable professional assistance. Strickland, 466 U.S. at 689; State v. Hamblin, 37 Ohio St.3d 153, 524 N.E.2d 476 (1988). Even if there is deficient performance, the defendant must also establish prejudice and show that, but for his lawyer‘s errors, a reasonable probability exists that the result of the proceedings would have been different. Bradley, 42 Ohio St.3d 136 at ¶ 2 of syllabus. To establish that reasonable probability, the facts must be sufficient to undermine a court‘s confidence in the outcome. Strickland, 466 U.S. at 694.
{¶64} In reviewing the suppression motion, the trial court read Keyoshia‘s testimony from the juvenile court‘s probable cause hearing. She testified that she knew the two defendants from school and the neighborhood and had become friends with them in the six months before the incident. (Tr. 12-13, 28-29). She testified that the two defendants approached the victim in the driveway, pulled out guns, told him he had five seconds to empty his pockets, and then both defendants started shooting. (Tr. 12-15). She insisted that it was appellant who perpetrated the shooting with Royal, later adding that she was positive that these two defendants
{¶65} Moreover, the trial court reviewed the videotaped statements of the three witnesses and the videotaped line-ups in making its suppression decision. There is no indication that the trial court‘s decision on suppression would have been different had counsel called the witnesses to testify at the suppression hearing. Thus, appellant‘s argument on ineffective assistance in failing to call the three witnesses to testify at the suppression hearing is overruled.
{¶66} We also note that the trial testimony given a few days after the suppression hearing shows that the witnesses would not have furthered appellant‘s arguments. See State v. West, 7th Dist. No. 11MA33, 2012-Ohio-2758, ¶ 29 (can view trial transcript to see if failing to call witnesses to testify in support of suppression motion was ineffective assistance of counsel). Distinguished from State v. Wright, 7th Dist. No. 03MA112, 2004-Ohio-6802, ¶ 30 (cannot use later trial testimony to argue against court‘s suppression ruling itself). They were cross-examined as to any police pressure involved in repeatedly asking them the same question and in mentioning the suspects’ names. Miranda and Keyoshia explained their reasons for hesitancy and their ultimate decision to tell what they knew. They were nervous and scared (at ages 14 and 17). Keyoshia expressed her current level of certainty as positive and said she was sure of her photo identification. Nautica explained that she could not pick out the defendants from the lineup due to differences in their hair in the photographs.
{¶67} In addition, the house sat very close to the sidewalk on the main thoroughfare of South Avenue, and the driveway was not long. The witnesses were on the front porch, the victim was steps away, and the shooters were close to the victim while they ordered him to empty his pockets. A witness saw appellant run back to collect his shell casings. As to darkness, it was explained that a bright street light was directly across the street from the house. Some lighting is also implicated in the testimony that at least one vehicle on South Avenue was approaching the scene, the one Royal crashed into as he fled. The defense delved into all these subjects on
{¶68} Finally, appellant briefly raises ineffective assistance counsel in questioning the captain (rather than the detective who assembled the array) concerning the details on the filler photographs. This revolves around the trial court‘s refusal to permit co-defendant‘s counsel to ask the captain about whether the filler photos resembled Royal. (Supp.Tr. 94-95). The state objected on the grounds that the suppression motion failed to raise a contention as to the photographs used to compose the line-up. (Tr. 95-96). The trial court agreed. Thus, it would not have mattered whether counsel questioned the detective instead of the captain.
{¶69} Appellant also states that the trial court erred in prohibiting this questioning of the captain. However, the question dealt with Royal. Furthermore, the lineup was before the trial court, and its contents could be used to judge whether addendums to an already untimely motion would be permitted. Regardless, there are no allegations presented here as to why the photographs in the lineup itself are unduly suggestive. Lastly, we point out that photographs in a lineup need not be nearly identical. See Davis, 76 Ohio St.3d at 112 (even significant differences will not necessarily deny a defendant due process). This assignment of error is overruled.
ASSIGNMENT OF ERROR NUMBER FOUR
{¶70} Appellant‘s final assignment of error alleges:
{¶71} “THE TRIAL COURT DENIED APPELLANT DUE PROCESS UNDER THE FOURTEENTH AMENDMENT DUE TO THE FACT HIS CONVICTIONS FOR AGGRAVATED MURDER, AGGRAVATED ROBBERY WITH FIREARM SPECIFICATIONS WERE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AND THE JURY‘S VERDICT WAS INCONSISTENT WITH THE EVIDENCE AND TESTIMONY PRESENTED AT TRIAL.”
{¶72} Weight of the evidence deals with the inclination of the greater amount of credible evidence to support one side of the issue over the other. State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997). In reviewing a manifest
{¶73} A reversal on weight of the evidence is ordered only in exceptional circumstances. Id. In conducting our review, we proceed under the theory that when there are 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 should be believed. State v. Gore, 131 Ohio App.3d 197, 201, 722 N.E.2d 125 (7th Dist.1999). Rather, we defer to the fact-finder who is best able to weigh the evidence and judge the credibility of witnesses by viewing the demeanor, voice inflections, eye movements, and gestures of the witnesses testifying before it. See Seasons Coal Co. v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984); State v. DeHass, 10 Ohio St.2d 230, 231, 227 N.E.2d 212 (1967).
{¶74} This is because if there are two reasonable views of the evidence, it cannot be said that the jury clearly lost its way and created a manifest miscarriage of justice. The appellate court is especially deferential to a jury verdict as the elimination of such a verdict results in the reviewing court sitting as “the thirteenth juror.” See Thompkins, 78 Ohio St.3d at 387, 678 N.E.2d 541. In fact, only a unanimous three-judge panel can reverse a jury verdict on manifest weight grounds.
{¶75} Appellant argues that any finding that he was one of the two shooters was against the manifest weight of the evidence. He questions the credibility of the identification testimony given by the three eyewitnesses. He criticizes the police investigation, which he characterizes as stopping on the day of the photographic line-up (less than 48 hours after the shooting). He states that a lead on another suspect was not explored. He also complains that no ballistic tests were conducted, a gunshot residue kit was collected but never submitted for testing, and no search warrants were issued at the defendants’ residences.
{¶77} In many cases the defense criticizes the state‘s failure to run certain testing. However, the defense also had the ability to seek testing on the bullets or the gunshot residue kit. Additionally, testimony established that any potential gunshot residue on the victim‘s hands could be explained by the fact that he was shot from a close range. (Tr. 909). Plus, there was testimony that the victim was holding the gunshot wound to his abdomen as he died. (Tr. 652, 665, 777).
{¶78} As for an additional or a different suspect, the police received a tip alleging involvement by appellant‘s friend, who was at a party with appellant and Royal that night. Yet, this tip was not ignored. The lead detective testified that this suspect was interviewed and the police decided that he was not involved. (Tr. 909-911). Moreover, the three witnesses testified to only two shooters and identified appellant and Royal as those shooters.
{¶79} Appellant notes that the assisting detective testified that police initially gained appellant‘s nickname from hearsay in the crowd that gathered around the scene. (Tr. 923-924). This was said to be a standard police investigative tool, providing quick guidance as to where to begin an investigation. It does not detract from later identifications. The fact that the police did not then follow-up with this witness from the crowd does not negatively reflect on the police as she did not witness the event. She was utilized as a starting point.
{¶81} Nautica was not provided names by police during her interview, and she named Ray Royal and Boosie as the shooters. (Tr. 577-578). A detective testified that she had no chance to speak with Miranda after Miranda‘s interview. Nautica explained that she knew appellant as Boosie but others called him Little D. (Tr. 572). Even though she could not pick either defendant from the line-up, she explained that she believed this was due to their different hairstyles in the photos. (Tr. 580). Although she heard people in the crowd mentioning the defendants’ names as she sat in a police car waiting to be transported, she expressed that she was positive they were the gunmen. (Tr. 580, 585).
{¶82} Appellant emphasizes that Nautica did not see the actual shooting as she turned to call for her mom when she saw the defendants approach with guns and make demands on the victim. (Tr. 567). As appellant points out, Nautica has a bad eye and was not wearing her glasses at the time of the shooting because they were broken. (Tr. 604). However, she insisted that she could see distance, and the state
{¶83} Keyoshia had to be jailed on a material witness warrant due to her reluctance to testify. She called the victim to walk her home that night. She witnessed the robbery after exiting the house with her one-year-old in a stroller. (Tr. 470-471). She stated that both defendants fired shots. (Tr. 474). She testified that the light was bright and she also knew their voices. (Tr. 539-540). She was sure about identifying their photographs, and she was positive that these defendants shot Brandon. (Tr. 483).
{¶84} In explaining why she did not provide police with names during the interview, Keyoshia confusingly stated that she knew the names but was not sure about the names until she saw the photographs. (Tr. 480-481). She then explained that she knew these defendants from Facebook and because they all went to the same high school. (Tr. 482). She also said that they have been around the house on South Avenue many times in the past. (Tr. 485). Finally, she revealed that she did not initially provide the names to police because she was scared for her life. (Tr. 548).
{¶85} In sum, we have three witnesses who testified that they were on the porch talking to the victim who was standing just off the porch when appellant and his co-defendant approached and told the victim he had five seconds to empty his pockets. One witness added that the gunmen also told the victim to lift his shirt. They testified that the victim was shot before he could finish complying. Both defendants were said to have guns, and both were said to have fired. As aforementioned, appellant was even said to have briefly run back to collect the casings, which helps establish not only that he fired a shot but also provides another opportunity for the witnesses to view him.
{¶86} A jury view was conducted and photographs were submitted demonstrating how close the house and its porch were to the street, sidewalk, and
{¶87} Appellant asserts the existence of various discrepancies in these testimonials as set forth above and on issues such as whether the witnesses spoke to each other the day after the shooting and before the line-ups and whether the victim entered the house when he first arrived or whether that occurred when he was over earlier that day. Nevertheless, the jury heard what was presented to them by the witnesses, both the similarities and the discrepancies and claimed discrepancies. The credibility of the three witnesses was thoroughly tested on cross-examination. The jury could have disbelieved them, concluding that their identifications were not credible. However, the jury was not required to so find. The jury saw the two fifteen-year-olds and the eighteen-year-old testify about the shooting they witnessed (when they were fourteen and seventeen. The jury heard their voice inflections and witnessed their gestures. The jury was in the best position to ascertain whether the witnesses were lying, mistaken, or uncertain. We shall not sit as the thirteenth juror and disturb that conclusion. This assignment of error is overruled.
{¶88} For the foregoing reasons, the judgment of the trial court is affirmed.
Donofrio, J., concurs.
DeGenaro, P.J., concurs.