STATE OF OHIO, Plaintiff-Appellee, v. ANDRE Q. PETTAWAY, Defendant-Appellant.
No. 114051
COURT OF APPEALS OF OHIO EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
April 3, 2025
2025-Ohio-1181
LISA B. FORBES, J.
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-24-689050-B
JUDGMENT: AFFIRMED IN PART, VACATED IN PART, AND REMANDED
RELEASED AND JOURNALIZED: April 3, 2025
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Jeffrey S. Schnatter and Margaret Graham, Assistant Prosecuting Attorneys, for appellee.
John B. Gibbons, for appellant.
LISA B. FORBES, J.:
{¶ 1} Defendant-appellant Andre Q. Pettaway, Jr. (“Pettaway”) appeals his convictions for one count of murder and five counts of improper discharge of a firearm into a habitation. In separate assignments of error, Pettaway contends there was insufficient evidence to sustain each of his convictions and that each conviction
I. Facts and Procedural History
{¶ 2} Derrion Miller (“Miller”) was killed in a drive-by shooting on the morning of March 26, 2023, while visiting with friends at a home located at 6970 Kinsman Road, Cleveland Ohio. Pettaway and two codefendants, Drequan Wood (“Wood”) and Michael J. Creer, Jr. (“Creer”), were eventually indicted on charges related to the killing. Pettaway was charged with one count of felony murder, one count of felonious assault, six counts of improper discharge of a firearm into a habitation, one count of discharge of a firearm on or near prohibited premises and one count of having a weapon while under disability. The felony-murder, felonious-assault, and improper-discharge counts each carried one-, three-, and five-year firearm specifications. The count of discharge of a firearm on or near prohibited premises carried a one- and three-year firearm specification.
{¶ 3} Pettaway and his codefendants were tried together before a jury. At trial, the State presented 17 witnesses, which, for the most part, can be broken down into two groups: (1) witnesses who were present at 6970 Kinsman Road during the drive-by shooting, and (2) witnesses who, on behalf of the State, investigated the
A. Witnesses to the Shooting
{¶ 4} The witnesses who were present at the shooting collectively testified that in the early morning hours of March 26, 2023, they were gathered in the living room of a home located at 6970 Kinsman Road, Cleveland, Ohio, when numerous shots were fired into the home. Those shots passed through the kitchen located at the back of the home, into the living room where the group was gathered. One of the individuals present that night, Brandon Abercrombie, had a gun with him and returned fire towards the back of the home — the direction from which the shots were coming.
{¶ 5} Miller, who was situated in the middle of the living room at the time of the shooting, was hit in lower abdomen by one of the bullets passing through the home. Emergency services were called and responded to the scene. By the time they arrived, the shooting had ended and no suspects were in sight. Miller was unconscious and bleeding from the abdomen. Emergency services transported Miller to a hospital where he later succumbed to his injuries.
{¶ 6} The witnesses present on the night of the shooting testified that they had no ability to see who was shooting at them. One of the residents of the home, Shardasia Cannon, testified that she had initially suspected the shooter to be her ex-boyfriend, Rayshawn Wicks, because Wicks and Abercrombie had gotten into a fight at her home the day before and Wicks had texted her that he was going to “shoot up”
B. Investigative Witnesses
{¶ 7} The second group of witnesses who testified on behalf of the State at trial were the individuals responsible for investigating the shooting. Collectively, these individuals testified that numerous bullet casings were recovered from the scene of the crime. Specifically, 36 casings had been recovered from a parking lot behind the home and five bullet casings were recovered from inside the home. Forensic analysis of the bullet casings found behind the home showed that two separate guns had been used in the shooting. The five bullet casings recovered from inside the home were identified as belonging to a single gun.
{¶ 8} Investigators were further able to recover surveillance footage from a camera owned by the Cuyahoga Metropolitan Housing Authority (“CMHA”) located on the street behind the home where the shooting occurred. This footage, although poor in quality, captured the shooting while it was in progress. Specifically, it showed a silver Kia SUV pulling up behind the home and several muzzle flashes coming from inside the vehicle. These flashes appeared to be coming from both the driver’s seat of the vehicle, as well as the back seat of the vehicle on the driver’s side.
{¶ 10} The three suspects associated with the Kia SUV were identified by police through a series of still photographs taken from the video-surveillance footage. Specifically, Andrew Hayduk, the lead detective assigned to the case, testified that the video-surveillance footage gathered from the Rapid Stop gas station showed clear face shots of the individual in the all red outfit who had been driving the car — later to be identified as Drequan Wood — and the individual in the tricolored jacket who had been a passenger in the backseat — later to be identified as Andre Pettaway. The video-surveillance footage gathered from the Shell station
{¶ 11} On March 28, 2023, the police executed a search warrant on Drequan Wood’s home where they located a red sweat outfit consistent with the outfit worn by the driver of the Kia SUV. Police also recovered several 9 mm handgun magazines and a MasterPiece Arms 9 mm firearm from the home. Forensic testing uncovered gunshot residue on the sleeve of the red sweat outfit, and ballistics testing revealed that the MasterPiece Arms firearm was a match for 25 of the bullet casings recovered from outside the home where the shooting occurred.
{¶ 12} Wood was arrested following the search of his home. While in custody, Wood admitted to driving the Kia SUV on the morning of March 26, 2023. He also admitted that he was driving around with people whom he knew by the
{¶ 13} Mapping of cell phone data later done as part of the investigation showed that Wood’s and Creer’s cell phones were together at the time of the shooting and in the vicinity of 6970 Kinsman Road, where the shooting occurred. No cellular data was recovered with regard to Pettaway’s cell phone for the timeframe involving the shooting.
{¶ 14} Following Wood’s arrest, Creer posted a story to his Instagram account showing a video of him, Wood, and Pettaway hanging out in an unknown kitchen and dressed in the same clothes they had worn on the night of the shooting. The words “Free Sav” were written across the video along with other text. Thereafter, arrest warrants issued for Creer and Pettaway.
{¶ 15} Creer was arrested following a traffic stop in April 2023. Pettaway was taken into custody on July 12, 2023. During an interview with Det. Hayduk while in custody, Pettaway identified himself in the videos but denied that he knew who the other two individuals were in the Kia SUV the morning of the shooting at 6970 Kinsman.
D. Verdict and Sentence
{¶ 16} At the close of the State’s case, Pettaway moved for acquittal on all of the charges filed against him, pursuant to
{¶ 17} At the state’s request, the jury was instructed on an aiding-and-abetting theory of liability with regard to Pettaway. Under this theory, the jury was instructed it could find Pettaway guilty of felony murder and improper discharge of a firearm into a habitation even if it found that Pettaway was not the principal offender, so long as the jury found that he aided or abetted the principal offender in the commission of the offenses.
{¶ 18} At the close of trial, the jury found Pettaway guilty of felony murder with one-year, three-year and five-year firearm specifications, and guilty of five counts of improperly discharging a firearm at or into a habitation with one-, three-, and five-year firearm specifications.
{¶ 19} For the purposes of sentencing, the trial court merged the five counts of improper discharge of a firearm with the felony-murder count, and the State elected to proceed to sentencing on the felony-murder conviction. The trial court sentenced Pettaway to a term of life imprisonment with parole eligibility after 15 years on the felony-murder conviction. The court also imposed the five- and three-year firearm specifications on the felony-murder count to run consecutive to each other, and consecutive to the base 15 years on that count. Lastly, the court imposed a three-year firearm specification and one-year firearm specification on two of the convictions for improper discharge of a firearm. The court ordered the three- and one-year firearm specifications to be served consecutively to each other and to the
{¶ 20} Pettaway now appeals his convictions by raising the following two assignments of error:
(1) The trial court erred in failing to grant judgment of acquittal for each and every count of the indictment, as the evidence introduced by the state of Ohio was insufficient to sustain a conviction on each related, charged count of the indictment, as a matter of law.
(2) The jury verdicts on each and every count of conviction were against the manifest weight of the evidence.
II. Law and Analysis
A. Sufficiency of the Evidence
{¶ 21} In his first assignment of error, Pettaway contends that the State failed to produce sufficient evidence to support his convictions for felony murder and improper discharge of a firearm because it did not present any direct evidence that he was in the Kia SUV during the shooting. Pettaway also contends that there was insufficient evidence to convict him of the charges because the State failed to produce any direct or circumstantial evidence that he actually fired a gun or that he aided and abetted another in the commission of the offenses.
{¶ 22} 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. Thompkins, 78 Ohio St.3d 380, 386 (1997). On review from a sufficiency-of-the-evidence challenge, appellate courts examine the evidence in the light most favorable to the state and determine whether any rational trier of fact could have
{¶ 23} Pettaway was convicted of felony murder in violation of
{¶ 24} We disagree with Pettaway’s contention that the State failed to present sufficient evidence to support his convictions because it did not present direct evidence that Pettaway was in the Kia SUV at the time of the shooting. Direct evidence exists when “a witness testifies about a matter within the witness’s personal knowledge such that the trier of fact is not required to draw an inference from the evidence to the proposition that it is offered to establish.” State v. Cassano, 2012-Ohio-4047, ¶ 13 (8th Dist.). In contrast, “circumstantial evidence requires the drawing of inferences that are reasonably permitted by the evidence.” Id. As noted above, when it comes to satisfying each element of an offense under the sufficiency of the evidence standard, there is no cognizable difference between direct and circumstantial evidence. Accordingly, the State was not obligated to produce direct evidence that Pettaway was in the car; circumstantial evidence permitting an inference of the same was all that was required.
{¶ 25} While it is true that in this case the State did not present any direct evidence that Pettaway was in the Kia SUV at the time of shooting — because none of the witnesses could identify who had shot at them and the CMHA video was of such poor quality that it did not show the faces or other identifying characteristics of the perpetrators — the State did present sufficient circumstantial evidence that Pettaway was in the car when the crimes were committed. Specifically, State’s
{¶ 26} Pettaway’s contention that the State failed to produce sufficient evidence of the crimes because it did not introduce any direct or circumstantial evidence that he actually fired a gun, is similarly unavailing in light of the fact that he was convicted on a theory of accomplice lability. Under a theory of accomplice liability, the State was not required to prove that Pettaway himself committed the illegal act of discharging a firearm into a habitation. Instead it was required to prove that Pettaway aided and abetted another in the commission of the illegal act. See
{¶ 27} Here, we find that the State did introduce sufficient evidence that Pettaway aided and abetted Wood and Creer in the commission of the offenses. A person satisfies the elements of aiding and abetting “when he supports, assists, encourages, cooperates with, advises, or incites the principal in the commission of the crime and shares the criminal intent of the principal.” State v. Seals, 2015-Ohio-517, ¶ 34 (8th Dist.), citing State v. Johnson, 93 Ohio St.3d 240, 243 (2001), at syllabus. “‘[P]articipation in criminal intent may be inferred from presence,
{¶ 28} In this case, the State presented evidence that went beyond Pettaway’s “mere presence” at the scene of the crime. The video evidence introduced at trial shows Pettaway hanging out with Wood and Creer in the parking lot of the Kinsman Party Center prior to the shooting and shows them waiting for each other to get into the Kia SUV. Video evidence from the Rapid Stop gas station following the shooting additionally shows both Pettaway and Wood inside the gas station smiling, engaging with one another, and talking to the same people. Nothing about Pettaway’s demeanor in these videos suggests that he had been dragged along, against his will, to a significant gun crime. Moreover, the various videos showed Pettaway as the back-seat passenger in the Kia SUV, and evidence was presented indicating shots were fired from the back seat. Lastly, the Instagram story posted by Creer following Wood’s arrest, shows Pettaway, Wood, and Creer engaging with each other while hanging out in an unknown kitchen, thus allowing the inference of support and companionship among the three individuals. Taking this evidence together and viewing it in the light most favorable to the State, we conclude that the State presented sufficient evidence that Pettaway aided and abetted Wood and Creer in the commission of the offenses.
{¶ 30} However, in State v. Grayson, 2017-Ohio-7175, ¶ 8 (8th Dist.), this court explained that “a violation of
B. Manifest Weight of the Evidence
{¶ 31} In his second assignment of error, Pettaway argues that each of his convictions is against the manifest weight of the evidence. Since we vacated four of the five convictions for improper discharge of a firearm under Pettaway’s first assignment of error, we limit our discussion of Pettaway’s manifest-weight challenge to the felony-murder conviction and the remaining improper-discharge-of-a-firearm conviction.
{¶ 32} Unlike a sufficiency challenge, which tests the burden of production of evidence, a manifest-weight-of-the-evidence challenge tests the burden of persuasion — specifically, the State’s burden of persuasion at trial. See Thompkins, 78 Ohio St.3d at 386. A manifest-weight challenge “addresses the evidence’s effect of inducing belief . . . . In other words, a reviewing court asks whose evidence is more persuasive — the state’s or the defendant’s?” State v. Wilson, 2007-Ohio-2202, ¶ 25. “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 the ‘thirteenth juror’ and disagrees with the factfinder’s resolution of the conflicting testimony.” Thompkins at 387. Reversing a conviction under a manifest weight theory “should be exercised only in the exceptional case in which the evidence weighs heavily against the conviction.” State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist. 1983).
A close examination of all the direct and circumstantial evidence, an evaluation of the inference that can be arrived at from the evidence, and weighing of the credibility of the State’s witnesses, will lead to the conclusion that there was certainly clearly insufficient evidence to return guilty verdicts on all of the related charged offenses.
Although “a conviction based on insufficient evidence is also, necessarily, against the manifest weight of the evidence,” State v. Rupert, 2024-Ohio-5027, ¶ 7 (2d Dist.), as noted above, this court finds that the State did in fact present sufficient evidence going to each element of felony murder and each element of the improper discharge of a firearm into a habitation. Accordingly, to the extent Pettaway’s manifest-weight claim is based solely upon his sufficiency of the evidence claim, we decline to reverse his convictions.
{¶ 34} To the extent that Pettaway’s manifest-weight and sufficiency claims may not be one and the same, we also decline to reverse his convictions. A thorough review of the record shows that there are no apparent inconsistencies in the State’s evidence, nor are there any apparent credibility issues with regard to the State’s witnesses. We find that the evidence presented at trial weighs in favor of upholding Pettaway’s convictions, and as such, it cannot be said that this is one of those rare and exceptional cases where reversal is necessary.
{¶ 35} For the foregoing reasons, we affirm Pettaway’s felony-murder conviction and his conviction on Count 6 for improper discharge of a firearm into a habitation, however we vacate Pettaway’s convictions on the remaining four counts of improper discharge of a firearm into a habitation, including the sentences imposed for firearm specifications associated with these counts. We remand this case to the trial court for the limited purpose of holding a resentencing hearing.
{¶ 36} Judgment affirmed in part, vacated in part, and remanded to the trial court for proceedings consistent with this opinion.
It is ordered that appellant and appellee share 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
LISA B. FORBES, JUDGE
EILEEN A. GALLAGHER, A.J., CONCURS;
KATHLEEN ANN KEOUGH, J., CONCURS IN PART AND DISSENTS IN PART (WITH SEPARATE OPINION)
KATHLEEN ANN KEOUGH, J., CONCURRING IN PART AND DISSENTING IN PART:
{¶ 37} I concur with the majority’s decision to affirm Pettaway’s convictions on Counts 1 and 5 but respectfully dissent from the majority’s decision to vacate
{¶ 38} This issue first arose in the context of a
[t]here is zero evidence whatsoever that Derrion Miller made that townhouse a permanent or temporary habitation of his own. He did not live there . . . . there’s also no evidence whatsoever that [Kaevonna Smith] intended to make that structure a temporary or permanent habitation . . . . Count 7 is with regards to Shaniya Alston. Again, no evidence whatsoever that she intended to make that a permanent or temporary habitation.
(Tr. 1295-1297.)
{¶ 39} Both Wood and Creer joined Pettaway’s
[Y]ou must find beyond a reasonable doubt that on or about the 26th Day of March, 2023, in Cuyahoga County, Ohio, the Defendant and/or Defendants did knowingly, without privilege did discharge a firearm at or into an occupied structure that is a permanent or temporary habitation of:
In Count Two: Derrion Miller;
In Count Three: Brandon Abercrombie, Jr.;
In Count Four: Kaevonna Smith;
In Count Five: Shardasia Cannon;
In Count Six: Shania Alston.
{¶ 40}
{¶ 41} Rather, I find that Cannon’s residence was a “temporary habitation” for the other victims. Although it does not appear that there is any case law exploring the precise meaning of “temporary habitation” as it applies to
{¶ 42}
any house, building, outbuilding, watercraft, aircraft, railroad car, truck, trailer, tent, or other structure, vehicle, or shelter, or any portion thereof, to which any of the following applies:
(1) It is maintained as a permanent or temporary dwelling, even though it is temporarily unoccupied and whether or not any person is actually present.
(2) At the time, it is occupied as the permanent or temporary habitation of any person, whether or not any person is actually present.
(3) At the time, it is specially adapted for the overnight accommodation of any person, whether or not any person is actually present.
(4) At the time, any person is present or likely to be present in it.
{¶ 43} The Ohio Supreme Court has held that the definitions of “occupied structure” are read in the disjunctive and that the State need only prove one of the four definitions to fit the definition of “occupied structure.” State v. Wilson, 58 Ohio St.2d 52, 57 (1979). There is no doubt that Cannon’s home was an “occupied structure.” However,
{¶ 44} “Temporary habitation” is also a separate element of the offense and “temporary” was not specifically defined for the jury,1 nor did the jury request clarification or definition of the term during deliberations. See, e.g., State v. Blanton, 2021-Ohio-65, ¶ 12 (8th Dist.). The ordinary meaning of “temporary” is “one serving for a limited time.” See https://www.merriam-webster.com/dictionary/temporary [https://perma.cc/ZWB5-8XPT]. At the time of the shooting, it was already the early hours of the morning. Cannon, Abercrombie, Smith, Alston, and Miller spent the entire evening together, and Smith’s children were with their grandmother for the evening. Smith fell asleep on the couch. Everyone was getting comfortable in the home. None of the testimony implied that any of the victims had gone to Cannon’s home with the intention of leaving or not spending the night. Therefore, there was evidence in the record upon
{¶ 45} Additionally, the Fifth District considered a situation where an individual was indicted for each number of bullets shot into a home. See State v. McConnell, 2023-Ohio-654 (5th Dist.). In McConnell, the defendant was charged with 23 counts of discharging a firearm into a habitation in violation of
{¶ 46} Since I find that the State presented sufficient evidence to support Pettaway’s convictions and the jury could have inferred from the evidence received that the home was a temporary habitation of the other victims, I respectfully dissent and would affirm Pettaway’s convictions in their entirety.