STATE OF OHIO, PLAINTIFF-APPELLEE vs. JOSE L. MONTANEZ II, DEFENDANT-APPELLANT
No. 100013
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
RELEASED AND JOURNALIZED: April 24, 2014
[Cite as State v. Montanez, 2014-Ohio-1723.]
Celebrezze, J., Boyle, A.J., and E.T. Gallagher, J.
JOURNAL ENTRY AND OPINION; JUDGMENT: AFFIRMED; Criminal Appeal from the Cuyahoga County Court of Common Pleas, Case No. CR-12-569439-A
Rick L. Ferrara
Rick L. Ferrara, Esq.
2077 East 4th Street
Second Floor
Cleveland, Ohio 44114
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Scott Zarzycki
Mary Weston
Assistant Prosecuting Attorneys
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
{¶1} Defendant-appellant, Jose L. Montanez II, appeals the judgment of the Cuyahoga County Court of Common Pleas following a bench trial, wherein the trial court found appellant guilty of felony murder, attempted murder, grand theft, and three counts of felonious assault. After a careful review of the record and relevant case law, we affirm appellant’s convictions.
I. Procedural History
{¶2} On December 4, 2012, the state indicted appellant on 15 counts in Cuyahoga C.P. No. CR-12-569439-A. The indictment alleged seven counts as to victim Jamelro Hicks: aggravated murder in violation of
{¶3} The state also alleged offenses as to victim Shannon Hinton, including: attempted murder in violation of
{¶4} Finally, the state alleged offenses as to victim Maurice Kimmie, including: attempted murder in violation of
{¶5} Appellant waived his right to a jury trial and tried his case to the bench. At the conclusion of the state’s case-in-chief, the trial court dismissed Counts 11, 14, and 15. At the conclusion of trial, the court found appellant guilty of murder (Count 2), felonious assault (Count 4), felonious assault (Count 5), grand theft (Count 7), attempted murder (Count 12), and felonious assault (Count 13). The trial court further found appellant guilty of the attendant one- and three-year firearm specifications.
{¶6} Appellant was found not guilty of Count 1, aggravated murder; Count 3, involuntary manslaughter; Count 6, kidnapping; Count 8, attempted murder; Count 9, felonious assault; and Count 10, felonious assault.
{¶7} At sentencing, the trial court made certain findings on the record on the issue of merger. The court found that Count 2, murder, involved the shooting death of the
{¶8} With respect to the offenses involving victim Maurice Kimmie, the trial court merged Count 12, attempted murder, with Count 13, felonious assault.2
{¶9} Subsequently, the trial court imposed an aggregate sentence of 31 years to life.3
II. Factual History
{¶10} On December 2, 2011, Shannon Hinton was picked up by his lifelong friend, Jamelro Hicks, in Hicks’s white van, and they went out for the evening. At approximately 4:00 a.m., they picked up Maurice Kimmie, who was just getting off work at the
{¶11} When they arrived at Apple Avenue, Hicks, Hinton, and Kimmie waited in the van for a short time until appellant pulled up behind them in a small dark vehicle. According to Hinton and Kimmie, appellant exited his vehicle and immediately proceeded to the driver’s side of the van to speak with Hicks. Hinton and Kimmie testified that they heard a dispute over the quality of the “kush” appellant was selling. After just a few words, appellant opened up the driver’s side door, pulled Hicks from the van, and pointed a gun at him. Once Hicks was outside the van, a struggle over the gun ensued. Hinton and Kimmie testified that Hicks managed to knock the gun out of appellant’s hand, and the gun hit and slid down the van’s windshield.
{¶12} Hinton testified that, believing appellant was now disarmed, he felt it was safe to exit the van. Once outside the van, Hinton attempted to locate the firearm while Hicks continued to struggle with appellant in the street. When Hinton was unable to find the firearm, he began to run toward appellant and Hicks. However, Hinton testified that as soon as he turned toward them, appellant shot him in the upper chest. Despite being
{¶13} Hinton testified that he did not witness anyone else get shot, and he believed the gun appellant used to shoot him was the same gun appellant originally pointed at Hicks when he removed Hicks from the van. After the shooting, Hinton was taken to the hospital where he remained for three to four days.
{¶14} Kimmie testified that he also exited the van to help Hicks once he saw the gun leave appellant’s hands. However, Kimmie testified that by the time he managed to get out of the van, the gun was no longer on the windshield. According to Kimmie, appellant then “pistol whipped” Hicks, causing him to fall to the ground. Kimmie testified that appellant then shot Hicks approximately three times while he was lying on the ground. Contrary to Hinton’s testimony, Kimmie testified that appellant shot Hicks before he turned and shot Hinton.
{¶15} Kimmie further testified that once appellant shot Hicks and Hinton, he walked toward Kimmie and pulled the trigger approximately five times, but the gun had no more bullets. At that time, appellant stopped to look for his car keys and money, which had fallen out of his pockets during the “tussle” with Hicks. Kimmie testified that he tried to help Hicks get back into the van so that they could drive to a nearby hospital. However, appellant forced them to exit the van before Kimmie managed to get Hicks inside, and appellant fled the scene in Hicks’s van.
{¶17} Shumney testified that he witnessed the man in the Michigan jacket engage in a scuffle with one of the other men in the middle of the street. According to Shumney, the man in the Michigan jacket was more aggressive and had the upper hand in the scuffle. During the altercation, Shumney witnessed the man in the Michigan jacket shoot the other man once while both men were standing and again when the injured man was on the ground. Although uncertain, Shumney believed he counted two or three gunshots during the scuffle. Shumney further stated that he did not see anyone other than the man with the Michigan jacket holding a gun.
{¶18} Shumney testified that the man in the Michigan jacket then opened the driver’s door of a “dark colored” vehicle parked behind the white van. The man appeared to be looking for something inside the vehicle and then quickly exited the vehicle with the firearm still in his possession. He then walked back over to the man lying on the ground and kicked him in the head. At that point, the man in the Michigan jacket approached the second man, who was standing on the tree lawn near the parked
{¶19} Shumney recalled that, in the midst of the incident, the man in the Michigan jacket stopped to pick up what appeared to be shell casings or money from the ground. After the man left in the van, Shumney and his crew pulled the victim of the shooting out of the street and waited for paramedics to arrive.
{¶20} On December 2, 2011, Curtis Lovell was visiting his sister at her home on Apple Avenue when he heard “popping noises.” Lovell testified that he immediately looked out the front window and observed a tall man beating another man on the ground. He described it as “pounding” and “kicking,” and “making sure he didn’t get up.” Lovell stated that the altercation took place on the tree lawn near a white van.
{¶21} Danny Ray lived on Apple Avenue and also heard what he believed to be gunshots. Ray testified that when he looked out his window, he observed a Hispanic man with a ponytail attempting to shoot another man with a gun. According to Ray, the man being shot at tried to get into the passenger side of a white van while the shooter was attempting to prevent him from entering the van by stomping and kicking him. Ray stated that the Hispanic man was the only person he witnessed holding a gun.
{¶23} Johanna Herandez testified that at approximately 3:30 p.m. on December 2, 2011, she heard popping sounds that could have been gunshots. She looked outside and saw a white van parked on the street. She saw a man dragging another man on the ground and stomping him vigorously in the chest area. She described the assailant as a tall man with frizzy hair and a ponytail. Hernandez testified that the assailant then got into the van and drove away.
{¶24} Officer James Thomas of the Cleveland Police Department responded to West 44th Street and Lorain Avenue, where he observed Shannon Hinton with a gunshot wound to the chest. Hinton told the officers another person was shot around the corner on Apple Avenue. Officer Thomas left Hinton with other officers and went to Apple Avenue where he observed Hicks lying on the tree lawn. Officer Thomas secured the scene and checked Kimmie and Hicks for weapons. Officer Thomas testified that he was unable to locate any weapons on their persons. Furthermore, Officer Thomas was unable to locate any weapons in the general area of the shooting.
{¶25} Officer Joseph Bovenzi of the Cleveland Police Department testified that he responded to Apple Avenue after hearing a dispatch for two males shot. On arrival, he
{¶26} Detective Dale Moran responded to the Claasen Avenue home to assist Officer Bovenzi. Inside the upstairs unit, Det. Moran noticed a garbage can containing a blue Michigan jacket and some boots. The area was secured to await the arrival of a crime scene detective.
{¶27} Detective John Reidthaler testified that he processed the Apple Avenue crime scene. He took photos and collected evidence. He processed the black Honda for prints and collected money from the street. Det. Reidthaler further discovered eyeglasses underneath a nearby truck, a black hat, a GM car key, a Honda car key, and a pile of the victim’s clothing that had been removed from Hicks by EMTs. Det. Reidthaler went to the Claasen Avenue address where appellant lived. He photographed the van in the driveway and the location of the firearm on the windshield. Inside appellant’s apartment,
{¶28} Detective James Kooser conducted a forensic comparison of the .38-caliber revolver discovered on the white van and the morgue bullet and hospital bullet removed from Hicks. Det. Kooser determined that the bullets retrieved from Hicks could not have been fired from the recovered firearm.
{¶29} Amber Riley testified that she was living in the downstairs unit at 6818 Claasen Avenue. She knew appellant because he lived in the upstairs unit. Riley further stated that she frequently purchased heroin from appellant. On the afternoon of December 2, 2011, appellant came home in a white van Riley had never seen before. He sped into the backyard, jumped out of the van, and walked upstairs. Riley heard appellant on the phone saying, “Help a brother out, I just shot somebody. I think he’s dead. They tried to rob me.” Later, appellant came downstairs with two plastic bags containing drug scales. Appellant gave Riley the drug scales to hold and told her that the police were looking for him.
{¶30} Dr. Thomas Gilson performed Hicks’s autopsy on December 3, 2011. In the course of establishing the cause and manner of Hicks’s death, Dr. Gilson discovered three gunshot wounds. He identified gunshot wound A in the armpit area and discussed the black discoloration around the wound. The area was singed or burned, indicating the
{¶31} Lisa Przepszny examined the jacket worn by Hicks during the homicide and found defects or holes in the jacket that corresponded with the victim’s gunshot wounds. She found a fourth defect from an additional gunshot that grazed through two parts of the jacket without hitting the victim.
{¶32} Detective Arthur Echols testified to his investigation in the case. He introduced a video that was turned over to Detective Dale Moran from a witness named Lee Moore. Both parties stipulated to the authenticity of the video. The video was taken from 4300 Apple Avenue and captured a portion of the incident.
{¶33} Appellant testified on his own behalf and maintained that he acted in self-defense during the altercation with Hicks, Hinton, and Kimmie. Appellant testified
{¶34} Appellant testified that while Hicks’s left hand was still inside his coat pocket, he attempted to grab the gun from Hicks’s right hand. Appellant and Hicks struggled over control of the weapon. Appellant stated that, during the struggle, he managed to turn Hicks’s wrist and fire two shots, one of which struck Hicks near his right armpit. Once shot, Hicks pushed appellant away, and appellant fell to the ground. According to appellant, Hicks dropped his gun during the struggle, and it landed on the tree lawn near the passenger’s side of the van. Appellant stated that Hicks attempted to dive toward the gun, but he managed to “put his left leg out and push [Hicks],” causing Hicks to “flip over” into the street. Appellant then picked up the gun and shot Hicks two times while Hicks was lying on the ground. Appellant stated that he shot Hicks two
{¶35} Appellant stated that, after seeing movement to his right, he turned and shot Shannon Hinton, who was running toward him. Appellant testified that he did not know if Hinton had a weapon but “was not taking any chances.” Appellant stated that he then turned back to Hicks and, after exchanging words, kicked him in the head and hit him with the butt of the gun.
{¶36} Appellant then walked over to Kimmie, who was standing near the white van. Appellant admitted to pointing the gun at Kimmie and depressing the trigger six times; however, the gun had no more bullets. Appellant briefly looked for his keys and money that had fallen to the ground. When he was unable to find his keys, he walked to the white van, removed Hicks, who was also trying to get into the van, and drove off in the van.
{¶37} Appellant identified the unloaded firearm found on the windshield of the white van as the firearm that was in his pocket at the time of the incident. He admitted that he did not know how the gun ended up on the windshield of the van, but believed it may have fallen out during the struggle with Hicks. Finally, appellant admitted that he was wearing a blue Michigan jacket and had his hair in a ponytail during the incident.
{¶38} Appellant brings this timely appeal, raising four assignments of error for review:
- The trial court erred in failing to merge all allied offenses of similar import at sentencing.
The manifest weight of the evidence did not support appellant’s conviction for murder, attempted murder, or felonious assault. - Insufficient evidence supported appellant’s convictions.
- The trial court committed plain error in applying the self-defense theory and felony murder charge.
For the purposes of judicial clarity, we consider appellant’s assignments of error out of order.
III. Law and Analysis
A. Manifest Weight of the Evidence
{¶39} In his second assignment of error, appellant argues that his felony murder, attempted murder, and felonious assault convictions are against the manifest weight of the evidence.
{¶40} “A manifest weight challenge * * * questions whether the prosecution met its burden of persuasion.” State v. Ponce, 8th Dist. Cuyahoga No. 91329, 2010-Ohio-1741, ¶ 17, quoting State v. Thomas, 70 Ohio St.2d 79, 80, 434 N.E.2d 1356 (1982). The manifest-weight-of-the-evidence standard of review requires us to review the entire record, weigh the evidence and all reasonable inferences, consider the credibility of the witnesses, and determine whether, in resolving conflicts in the evidence, the trier of fact clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. State v. Penque, 8th Dist. Cuyahoga No. 99209, 2013-Ohio-4696, ¶ 49. Reversing a conviction as being against the manifest weight of the evidence and ordering a new trial is reserved for only those
{¶41} In challenging the weight of the evidence supporting his felony murder, attempted murder, and felonious assault convictions, appellant argues that the testimony presented at trial demonstrated that Hicks, Kimmie, and Hinton were the initial aggressors and that he acted in self-defense.5
{¶42} After reviewing the record in its entirety, it is evident that the trial court gave very little weight to the testimony of Hinton and Kimmie concerning the circumstances that gave rise to the altercation between Hicks and appellant. In fact, the trial court found appellant’s testimony regarding who was at fault in creating the situation to be more credible, stating, “I believe, an altercation actually started by the actions of the people in the white car, and that to a large extent, [appellant] did operate in self-defense.” Nevertheless, the trial court determined that, while appellant may have acted in self-defense to an extent, he also exceeded the scope of the defense as it related to his conduct towards Hicks and Kimmie.6
{¶44} To establish self-defense through the use of deadly force, defendants must prove (1) they were not at fault in creating the situation giving rise to the affray, (2) they had a bona fide belief that they were in imminent danger of death or great bodily harm and their only means of escape from such danger was the use of such force, and (3) they must not have violated any duty to retreat or avoid the danger. State v. Owens, 8th Dist. Cuyahoga No. 98165, 2012-Ohio-5887, ¶ 12, citing State v. Williford, 49 Ohio St.3d 247, 551 N.E.2d 1279 (1990). Further, the elements of self-defense are cumulative and, if the defendant failed to prove any one of the elements by a preponderance of the evidence, he failed to demonstrate that he acted in self-defense. Id.
{¶45} After a careful consideration of the record in its entirety, we find that the trier of fact reasonably could have concluded that appellant exceeded the scope of any self-defense privilege he may have had in this matter.
{¶46} Assuming, as the trial court ultimately determined, that appellant was not at fault in creating the situation giving rise to the affray, whether appellant had a bona fide belief that he was in imminent danger of death or great bodily harm and that his only means of escape from such danger was the use of force, remained as questions for the trier of fact to consider. As trier of fact, the trial court was free to believe or disbelieve
{¶47} Under the totality of the circumstances presented herein, we are unable to conclude that the trial court lost its way in rejecting appellant’s bona fide belief that he was in imminent danger of death or great bodily harm at the time he fired the second and third shots into Hicks and when he attempted to shoot an unarmed Kimmie. While appellant may have presented credible evidence that he was in imminent danger of death or great bodily harm at the time he and Hicks struggled over the firearm, he was unable to sufficiently demonstrate that Hicks continued to pose such a danger at the time he fired the second and third shots into Hicks. Appellant’s own testimony established that, at the moment he fired those shots, Hicks was lying on the ground unarmed and badly injured. Similarly, there is no basis in the record for appellant to argue that he was in fear of imminent harm at the time he approached Kimmie and pulled the trigger. In fact, appellant described Kimmie as “cowering” behind the van at the time he approached him. Such a statement evidences Kimmie’s intent to avoid any further interaction with appellant, while simultaneously evidencing appellant’s vengeful state of mind once he gained the upper hand in the altercation.
{¶48} Moreover, the testimony presented at trial reasonably established that appellant had other means of escape besides the use of deadly force, particularly where appellant gained control over the weapon and had the apparent ability to flee the scene at
{¶49} In our view, the trial court reasonably determined that the death of Hicks and the attempted murder of Kimmie were not created by appellant’s inability to escape without using deadly force, but instead were created by appellant’s admitted anger over their unsuccessful attempt to rob him. Thus, the record contains credible evidence that appellant had the means to safely retreat once he successfully retrieved the gun from Hicks’s possession.
{¶50} Because the trial court was in the best position to determine the credibility of each witness by taking into account inconsistencies, as well as the manner and demeanor of the witnesses, we cannot conclude that this record presents a scenario where the trier of fact clearly lost its way in rejecting appellant’s claim of self-defense. Accordingly, appellant’s convictions are not against the manifest weight of the evidence.
{¶51} Appellant’s second assignment of error is overruled.
B. Sufficiency of the Evidence
{¶52} In his third assignment of error, appellant argues that his murder conviction was not supported by sufficient evidence.
{¶53} When reviewing a challenge of the sufficiency of the evidence, a reviewing court examines the evidence admitted at trial and determines whether such evidence, if believed, would convince the average mind of the defendant’s guilt beyond a reasonable
{¶54} Under
{¶55} Under
{¶57} Here, there is no dispute that appellant fired the shots that struck and ultimately killed Hicks. However, appellant argues that because he acted in self-defense, there can be no murder or underlying felonious assault conviction. We disagree.
{¶58} As discussed, the trial court ultimately did not accept appellant’s position that he acted in self-defense with respect to the shooting death of Hicks. While the court acknowledged that the incident was likely created by Hicks’s attempt to rob appellant and that the first gunshot may have been made during the struggle over the weapon, the court clearly indicated that the second and third shots fired into Hicks exceeded the scope of self-defense.
{¶59} In light of the above, after viewing the evidence in a light most favorable to the prosecution, we conclude that any rational trier of fact could have found the essential elements of murder and felonious assault proven beyond a reasonable doubt.
{¶60} Appellant’s third assignment of error is overruled.
{¶61} In his fourth assignment of error, appellant argues that the trial court committed plain error in misapplying the self-defense doctrine. Because appellant merely incorporates the arguments previously raised in his sufficiency and manifest weight assignments of error, we find no merit to appellant’s position that the trial court misapplied the self-defense doctrine. As discussed, the trial court properly considered the actions of Hicks, Hinton, and Kimmie in reaching its verdict and determined that, in some instances, appellant’s conduct went well beyond the scope of self-defense.
{¶62} Appellant’s fourth assignment of error is overruled.
D. Allied Offenses
{¶63} In his first assignment of error, appellant argues that the trial court erred in failing to merge all allied offenses of similar import at sentencing. Specifically, appellant contends that the trial court committed plain error in failing to merge Count 4, felonious assault, with Count 2, felony murder. We disagree.
{¶64} As stated, the trial court found appellant guilty of four counts involving Jamelro Hicks: felony murder in violation of
{¶65} At appellant’s sentencing hearing, the trial court addressed the issue of merger and determined that Count 5, felonious assault, and Count 2, felony murder, were
Now, by the Court’s analysis here, the court believes that Count 4, felonious assault, the court found the defendant guilty for the acts involving the physical beating that was rendered to the victim Mr. Hicks after the time that he was shot and that he was either near or in the vehicle or on the tree lawn. The court finds that that’s a separate animus and the court will sentence that count separately.
* * *
T]he court’s analysis is this, is that Count 4 is being considered separate because the defendant had already committed acts that would result in — end in the result of the murder of the [victim] as to Count 2. The fight had stopped. The defendant is then trying to flee the area. The defendant loses his keys in the fight, cannot find access to his car, and then takes the car that belonged to Mr. Hicks and Mr. Hicks was near — or on the vehicle, there is a resulting continuation of the fight once it had stopped. And that at that time he was severely kicked and beaten. The parties, witnesses described that act by the defendant as to this victim.
The Court believes that there is a separate animus as to Count 4.
{¶66} In challenging the trial court’s finding, appellant argues that all of his crimes were committed during a continuous course of conduct. Thus, appellant argues that his convictions for murder and felonious assault must merge. While we agree that appellant’s conviction for felonious assault pursuant to
{¶68} Thus, there is a two-part test to determine if offenses should be merged. First, the elements of the two crimes are compared. State v. Williams, 134 Ohio St.3d 482, 2012-Ohio-5699, 983 N.E.2d 1245, ¶ 17, citing State v. Blankenship, 38 Ohio St.3d 116, 117, 526 N.E.2d 816 (1988). The elements of the two offenses were previously considered only in the abstract but are now compared in the factual context of the defendant’s conduct. Id. at ¶ 20; State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061, syllabus, where a majority overruled State v. Rance, 85 Ohio St.3d 632, 1999-Ohio-291, 710 N.E.2d 699. If the crimes correspond to a sufficient degree, then crimes are allied offenses of similar import, and the court must proceed to the second step. See Williams at ¶ 17.
{¶69} In the second step, the defendant’s conduct is also reviewed, and only if the crimes were committed separately or there was a separate animus for each crime (or they are of dissimilar import under the first prong) can the defendant be sentenced for both.
{¶70} Thus, as the reviewing court, we first determine “whether it is possible to commit one offense and commit the other with the same conduct, not whether it is possible to commit one without committing the other.” Johnson at ¶ 48 (Brown, J., plurality). “If the multiple offenses can be committed by the same conduct, then the court must determine whether the offenses were committed by the same conduct, i.e., ‘a single act, committed with a single state of mind.‘” Id. (Brown, J., plurality), quoting State v. Brown, 119 Ohio St.3d 447, 2008-Ohio-4569, 895 N.E.2d 149. Due to the subjective nature of the analysis based on the facts of each case, some crimes may be allied offenses in certain cases, but not in another case under a different set of facts. Id. at ¶ 52.
{¶71} Here, the parties concede that felony murder and felonious assault in violation of
{¶72} In the instant case, the conduct supporting appellant’s convictions for felony murder and the felonious assault as indicted in Count 4 were separated by time and motive. Collectively, the testimony at trial established that once appellant completed the
{¶73} Thus, the facts set forth at trial support the trial court’s determination that the physical force used against Hicks following the actual shooting was separated in time and was committed with a separate state of mind, i.e., to flee the scene in the stolen van. As a result, the offenses do not merge for the purposes of sentencing. Accordingly, the trial court did not err in failing to merge these offenses at sentencing.
{¶74} Appellant’s first assignment of error is overruled.
{¶75} 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 convictions having
A certified copy of this entry shall constitute the mandate pursuant to
FRANK D. CELEBREZZE, JR., JUDGE
MARY J. BOYLE, A.J., and
EILEEN T. GALLAGHER, J., CONCUR