State v. ScandrickState v. Scandrick
Rendered on the 21st day of May, 2010.
R. LYNN NOTHSTINE, Atty. Reg. No. 0061560, Assistant Prosecuting Attorney, 301 W. Third Street, 5th Floor, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee
RICHARD A. NYSTROM, Atty. Reg. No. 0040615, 1502 Liberty Tower, 120 West Second Street, Dayton, Ohio 45402
Attorney for Defendant-Appellant
DONOVAN, P.J.
{¶ 1} This matter is before the Court on the Notice of Appeal of Lonnie B. Scandrick, filed April 29, 2009. On April 21, 2008, Scandrick was indicted on one count of murder (proximate result), in violation of
{¶ 2} On May 23, 2008, Scandrick filed a motion to suppress, which the trial court overruled after a hearing. On February 23, 2009, Scandrick pled guilty to the charge of having weapons while under disability, and the case proceeded to a jury trial on February 24th on the remaining counts. At the close of the evidence, Scandrick pled guilty to the charge of carrying a concealed weapon. Scandrick was found guilty of all remaining counts.
{¶ 3} The trial court sentenced Scandrick to 15 years to life for murder, to six years for felonious assault (serious harm), to five years for felonious assault (deadly weapon), to 12 months for carrying a concealed weapon, and to four years for having weapons while under disability. The court merged the sentence for felonious assault (serious harm) with the sentence for murder for a term of 15 years to life. The court further ordered that the sentence for murder be served consecutively to the sentence for felonious assault (deadly weapon), and that the sentences for carrying a concealed weapon and having weapons while
{¶ 4} Scandrick asserts two assignments of error. His first assignment of error is as follows:
{¶ 5} “WHETHER DEFENDANT’S CONVICTION AND SENTENCE FOR THE MURDER CHARGE WAS SUPPORTED BY SUFFICIENT QUALITATIVE AND QUANTITATIVE EVIDENCE, ERRONEOUS AS A MATTER OF LAW, AND THEREBY VIOLATED DEFENDANT’S CONSTITUTIONAL RIGHT TO DUE PROCESS UNDER THE FIFTH AND FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND ARTICLE I SECTION 10 OF THE OHIO STATE CONSTITUTION.”
{¶ 6} While the text of Scandrick’s first assigned error is addressed to the sufficiency of the evidence, he also asserts in the body of his brief that his conviction is against the manifest weight of the evidence, and we will address both arguments herein. Scandrick also asserts that his counsel was ineffective in the body of his brief, but since that argument is not addressed to the sufficiency or weight of the evidence, and since it is not the subject of a distinct assigned error, we will not address it.
{¶ 7} “In reviewing a claim of insufficient evidence, ‘[t]he relevant inquiry is whether, after reviewing the evidence in a light most favorable to the prosecution, any
{¶ 8} “When an appellate court analyzes a conviction under the manifest weight of the evidence standard it must review the entire record, weigh all of the evidence and all the reasonable inferences, consider the credibility of the witnesses and determine whether in resolving conflicts in the evidence, the fact finder clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. (Internal citations omitted). Only in exceptional cases, where the evidence ‘weighs heavily against the conviction,’ should an appellate court overturn the trial court’s judgment.” State v. Dossett, Montgomery App. No. 20997, 2006-Ohio-3367, ¶ 32.
{¶ 9} The credibility of the witnesses and the weight to be given to their testimony are matters for the trier of facts to resolve. State v. DeHass (1967), 10 Ohio St.2d 230, 231. “Because the factfinder * * * has the opportunity to see and hear the witnesses, the cautious exercise of the discretionary power of a court of appeals to find that a judgment is against the manifest weight of the evidence requires that substantial deference be extended to the factfinder’s determinations of credibility. The decision whether, and to what extent, to credit the testimony of particular witnesses is within the peculiar competence of the factfinder, who has seen and heard the witness.” State v. Lawson (Aug. 22, 1997), Montgomery App. No. 16288.
{¶ 10} This court will not substitute its judgment for that of the trier of facts on the issue of witness credibility unless it is patently apparent that the trier of fact lost its way in arriving at its verdict. State v. Bradley (Oct. 24, 1997), Champaign App. No. 97-CA-03.
{¶ 11}
{¶ 12} The jury was instructed that they could convict Scandrick not only if they determined he was the principal offender but also if they instead determined that he aided and abetted Reid, and Scandrick does not dispute that he was subject to conviction under the complicity statute,
{¶ 13} Dr. Brian Casto, a deputy coroner and forensic pathologist with the Montgomery County Coroner’s Office, testified, after having performed an autopsy on Ousley, that he died from “multiple gunshot wounds,” one to each of his thighs and one to
{¶ 14} Cheryl Scroggins was a witness to the shooting of Ousley. Scroggins resided at 3309 Delphos Avenue, and she testified that on the date of the shooting a man she knew as “Lonnie B.” from her father’s “bootleg joint” asked her for a cigarette in front of Nathan’s, and that an older man was with him whom she later learned was Timothy Reid. While Scroggins walked home from Nathan’s, she encountered Ousley, whom she knew as “Squiggy,” walking toward the market. Scroggins later heard a gunshot from the direction of the market, and when she turned around, she “saw two guys standing on the side of Squiggy. They look like they were arguing.” Scroggins stated that Squiggy “was standing there with his hands up like he was trying to explain something.” “Lonnie B.” then threw Squiggy to the ground, and Reid drew a gun and fired a couple of shots at Squiggy. According to Scroggins, Reid’s gun jammed, and he “passed it to Lonnie B., and he did
{¶ 15} Anthony White also witnessed the shooting. White was in a vacant house across the street from Nathan’s, where he had gone to “shoot” heroin. As he stood by the window at the front of the house, he testified that Scandrick ” * * * shot and killed little Chris.” According to White, Scandrick was with “some other dude” who was “standing by the alley.” White stated that he observed a gun in Scandrick’s hand. He heard Ousley tell Scandrick to leave the area before the police arrived, and Scandrick replied, “Fuck the police. I’m the police,” and he shot Ousley. White stated that he believed the bullet from Scandrick’s weapon entered Ousley’s back shoulder. White testified that he heard a total of three shots. After the shooting, White testified that Scandrick and the man he was with walked away together. White did not speak to the police about what he observed until June. He was incarcerated at that time, and he asked his lawyer to contact the police. After he was shown a photo spread, White identified Scandrick, and he also identified another man in the same photo lineup. White identified Scandrick in court as the shooter.
{¶ 16} Majed Saleh, whose nickname is Mark, was working at Nathan’s with his cousin, Ibrahim Saleh, whose nickname is Sean, at the time of the shooting. Mark was standing at the cash register, and he observed Ousley, a regular Nathan’s customer, pass by the front of the market. Shortly thereafter, Mark heard a gunshot, and he and Sean went to
{¶ 17} Sean Saleh testified that he was working “at the lottery” when he heard a gunshot. He looked outside and observed Scandrick with a gun in his hand facing Ousley, who was standing near him. Ousley and Scandrick spoke to each other briefly, and then Ousley knocked Scandrick to the ground, according to Sean. Scandrick dropped his weapon, and it slid under a car. Sean heard another gunshot, and he observed another man in front of a parked car in front of the store with a gun in his hand. Sean testified that the second gunman’s weapon was jammed, and “he was fixing it.” Sean recognized both of the gunmen, and he testified that “they used to come to the store always together, buy some beer and leave.” After the second shot, Sean testified that Ousley, who was on top of Scandrick on the ground, rolled off and “was on the floor.” Sean heard Ousley call Sean’s name, and he ran to the back of the store and took the phone from Mark, telling the 911 dispatcher that they needed help. Sean then returned the phone to Mark and ran back to the front door of the store. At that time, Scandrick, with a gun in hand, was attempting to remove a brown bag from Ousley’s pocket, and “Chris was on the floor, doing like this, like don’t touch. Move.” Sean then observed Scandrick shoot Ousley in the leg. When Sean began to open the door to the store, he testified that Scandrick told him to “back up.” After the police arrived, Sean went outside and noticed that the brown bag in Ousley’s pocket was gone. Sean initially
{¶ 18} Officer Steve Bryant, a crime scene investigator for the Dayton Police Department, testified that he collected two .40 caliber spent shell casings and Ousley’s clothing from the scene, his clothing having been removed by the paramedics. Bryant also investigated the home of Scandrick, at 125 Brooklyn Avenue, where he recovered, among other things, clothing, a brown paper bag containing a bottle of vodka, and a wallet containing “several identifications for Timothy Reid.”
{¶ 19} Sergeant James Mullins of the Dayton Police Department testified that he and his partner, Rodney Barrett were on patrol in an unmarked vehicle on April 10th when they were dispatched to Nathan’s on the report of a shooting by two black males wearing gray clothing. As the officers approached Nathan’s, they observed a marked cruiser already at the scene, and thus, they proceeded to look for the suspects. As Mullins turned onto Huron, less than two minutes after receiving the dispatch, he observed Scandrick, “a black male in gray on the sidewalk.” The officers approached, exited their cruiser, and told Scandrick to stop. The officers observed that Scandrick had a “dark colored hat” in his hand, which he threw to the ground. As “the hat went down to the ground, a pistol fell out of the hat and the magazine also fell out of the hat.” The pistol was a .40 caliber Glock. Scandrick was arrested for carrying a concealed weapon.
{¶ 20} As Mullins patted Scandrick down, locating a second magazine in Scandrick’s rear pocket, Barrett observed another male running in the alley behind Huron.
{¶ 21} Barrett’s testimony regarding the arrest of Scandrick was consistent with that of Mullins. Barrett further testified that as he pursued the second suspect, who was wearing a gray jacket, he observed that “he had a brown paper bag in his hand as he was running. It appeared to be a bag * * * of possible liquor or a can of alcohol.” Barrett lost sight of the second suspect, and having been advised of the Brooklyn address, he proceeded to that location with another officer. When Barrett approached the front door, which was open, he observed a “brown bag like the one I saw the individual I was chasing carrying,” sitting on top of a television inside the home. Other officers arrived at the scene, and they and Barrett entered the home, announcing their presence. The officers found Timothy Reid in a bedroom under a blanket. They also recovered a gray jacket in another bedroom that Barrett recognized from his pursuit of Reid.
{¶ 22} Amy Rismiller, a forensic scientist in the serology DNA section of the Miami Valley Regional Crime Laboratory (“Crime Lab“), testified that blood stains on Scandrick’s gray knit jacket testified positive for the presence of Ousley’s DNA.
{¶ 23} Timothy Duerr, a forensic scientist from the Crime Lab and an expert in the area of firearms and toolmark examination, testified that he examined the .40 caliber Glock
{¶ 24} Detective Michael Galbraith of the Dayton Police Department was assigned as a homicide detective at the time of the shooting. In the course of his investigation, he photographed Scandrick the night he was arrested. Galbraith stated that Scandrick was wearing a gray sweatshirt at the time with visible blood stains. Regarding the witnesses he interviewed, Galbraith testified that Sean initially indicated that he did not recognize anyone when shown a photo spread. Galbraith stated that he interviewed Mark at his home and showed him a photo spread, and that Mark identified Scandrick as the person “standing over Chris,” and that he also identified Reid in another photo spread. When he showed the photo spread to Scroggins, she “identified Lonnie Scandrick as the person she saw standing down over top of the victim.” Galbraith testified that White’s attorney contacted him regarding the shooting, and that he spoke to White on July 7th while he was incarcerated for a drug offense. When shown a photo spread, White, who knew Scandrick, identified him.
{¶ 25} At trial, Scandrick testified on his own behalf. According to Scandrick’s testimony, he was shot in the head when he was a teenager, and as a result he has some permanent paralysis on his right side, and he walks with a limp. Scandrick testified that his cousin Devon resided with him on Brooklyn, and that Reid is also his cousin. Reid used to live with Scandrick but had moved out about month before the shooting. On the day of the shooting, Scandrick testified that Reid and Gaylon Drake came over to his home and the three of them took some car parts they had recovered to the salvage yard. After receiving $150.00 for the parts, the men went to the liquor store, where Reid bought a pint sized bottle of gin or vodka. Next, the men returned to Scandrick’s home and “sat around the house, kicked it,” and played chess.
{¶ 26} After about 45 minutes, the men walked to Nathan’s to get some beer. Scandrick and Drake went into the store and bought beer while Reid indicated that he was “going to buy some weed.” When Scandrick and Drake exited the store, Scandrick observed Reid speaking with “about six dudes,” one of whom Scandrick recognized as “the one dude that we buy the weed from.” Scandrick yelled to Reid to “come on” and he began to walk home with Drake. As they turned into an alley, “Gaylon turned around and looked and said they was jumping on Tim.” Scandrick told Drake to go help Reid and walked home, being unable to help Reid himself due to his paralysis.
{¶ 27} Shortly after Scandrick reached his home, Drake, followed by Reid, arrived. Reid “appeared to be in distress. He was holding his head. He had been dumped on his head or something.” Reid went into the house. Drake’s vehicle was parked at the rear of the house, and he and Scandrick also went inside as Drake prepared to leave through the back door. Once in the house, Scandrick noticed that the “house gun,” a .9 millimeter German Reuger, which Scandrick kept in a bag hanging on the door to the attic, was missing. The gun bag was “by the couch on the floor.” Drake left, and Scandrick walked to Reid’s nearby nephew’s house looking for Reid, who was not there. Scandrick testified he then thought Reid “was going to seek revenge.”
{¶ 28} According to his testimony, Scandrick then decided to go Nathan’s to get some bread. He retrieved the .40 caliber Glock from Devon’s room along with a magazine sitting beside it, since “this [is] kind of a rough neighborhood and plus what had just happened earlier that day.” Scandrick put the pistol in his waistband and covered it with his gray sweatshirt and walked to the store, where he encountered Ousley, whom Scandrick knew as a drug dealer. Scandrick testified that he told Ousley that Reid was “out here with a gun and if I was you I wouldn’t be up here.” Scandrick decided to “extract [himself] from this situation because [he] * * * done been down that situation before,” and when he turned to leave, Ousley “came across my chest with something and I went up in the air and my feet went up in the air and I was dazed. And, that’s when he jumped on top of me. And, then somebody came * * * out of the alley and started shooting.” Scandrick testified that the lone shooter was Reid.
{¶ 29} According to Scandrick, when Ousley took him to the ground, the Glock fell
{¶ 30} Scandrick testified that he told the police “what grade I had completed. I told them about me being shot. I told them about me and * * * Ousley, him taking me down to the ground.” When he was asked about the shooting, Scandrick terminated the interview, and he testified as follows: “My thinking was, * * * I want to cooperate with them, but I know how things can be manipulated by the police. So, if I just give them a little bit, then * * * they would * * * know I was going to cooperate if I * * * was given the right * * * inducements.” On direct examination, Scandrick stated that he did not originally tell the police what happened because, ” * * * they would have charged me with what they charged me with now. And * * * * I wouldn’t have had nothing to bargain with.”
{¶ 31} On cross-examination, Scandrick denied telling the police that Ousley “beat my boy” over drugs, although he admitted telling the officer “he jumped on my * * * dude.” Scandrick admitted that he initially told the police that a man named Mark Green fired the .40 caliber Glock pistol, having retrieved it after it slid under the car. In response to further
{¶ 32} Having reviewed the evidence in a light most favorable to the prosecution, we conclude that any rational juror could have found the essential elements of murder and the felonious assault offenses proven beyond a reasonable doubt, whether Scandrick acted as a principal or aided and abetted Reid. Further, having thoroughly reviewed the entire record, weighed the evidence and all reasonable inferences, and having considered the credibility of the witnesses, we cannot conclude that Scandrick’s conviction is against the manifest weight of the evidence.
{¶ 33} Dr. Brian Casto gave detailed testimony regarding the “multiple gunshot wounds” that killed Ousley and the bullets he removed from Ousley’s body.
{¶ 34} Although the testimony of the witnesses to the shooting was somewhat varied, they testified consistently that Scandrick shot Ousley and that multiple shots were fired. Cheryl Scroggins testified that she saw Lonnie B. in front of Nathan’s, that she encountered Ousley walking in the direction of the market as she walked home, and that she heard a gunshot, turned around, and observed Lonnie B. and Ousley in an argument. Ousley had his “hands up like he was trying to explain something.” Scroggins then observed
{¶ 35} Scandrick, heavily armed, was apprehended close to the scene within minutes of the shooting. Sergeant Mullins stated that Scandrick volunteered that Ousley “beat” someone, presumably Reid, over drugs. Amy Rismiller testified that Scandrick’s gray sweatshirt was stained with Ousley’s blood. Timothy Duerr testified that the spent shell casings recovered by Steve Bryant at the scene came from Scandrick’s Glock.
{¶ 36} Regarding Scandrick’s testimony, the jury was free to discredit his version of events. If the jury believed Scroggins, who stated that Ousley stood “with his hands up” while arguing with Scandrick, “like he was trying to explain something,” they could reasonably conclude that Ousley’s posture was consistent with being confronted and not with being warned that Reid was armed and in the area. While Scandrick stated that he returned to the scene of the alleged attack on Reid merely to buy bread, and that he immediately attempted to “extract” himself from the “situation” with Ousley, the jury was free to discredit his testimony in its entirety. Considering all of the evidence, the jury was free to conclude that Scandrick shot Ousley more than once. Scandrick’s self-serving testimony on cross-examination further established his lack of credibility; he freely admitted that he lied to the police about Mark Green.
{¶ 37} Regarding the State’s alternative theory of complicity, we disagree with
{¶ 38} Since there is sufficient evidence to support Scandrick’s convictions, and because the jury did not lose its way in convicting Scandrick, Scandrick’s first assignment of error is overruled.
{¶ 39} Scandrick’s second assignment of error is as follows:
{¶ 40} “WHETHER IT WAS ERROR TO SENTENCE DEFENDANT ON TWO SEPARATE FELONIOUS ASSAULT CHARGES DERIVED FROM A SINGLE ACT AND ANIMUS PRECLUDED DEFENDANT’S CONSTITUTIONAL RIGHTS TO DUE PROCESS UNDER THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE I SECTION 10 OF THE OHIO STATE CONSTITUTION.”
{¶ 41} According to Scandrick, the “felony murder charge here[in] incorporates the
{¶ 42} The State responds that the issue of whether the felonious assault offenses should have been merged is “moot because the court did merge the serious physical harm form of felonious assault with the felony murder count,” and that felony murder and felonious assault with a deadly weapon are not allied offenses of similar import. Even if they were allied offenses, the State asserts, the trial court was correct in not merging them. According to the State, the evidence showed that Scandrick shot Ousley twice, once in the shoulder and once in the leg.
{¶ 43} As we recently noted in State v. Reid, Montgomery App.No. 23409, 2010-Ohio-1686, which involved Timothy Reid, Scandrick’s co-defendant, the Supreme Court of Ohio determined, “our analysis of allied offenses originates in the prohibition against cumulative punishments embodied in the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution, as applied to the states through the Fourteenth Amendment, and Section 10, Article I of the Ohio Constitution. United States v. Halper (1989), 490 U.S. 435, 440, 109 S.Ct. 1892, 104 L.Ed.2d 487, citing North Carolina v. Pearce (1969), 395 U.S. 711, 717, 89 S.Ct. 2072, 23 L.Ed.2d 656. However, both this court
{¶ 44}
{¶ 45} “(A) Where the same conduct by defendant can be construed to constitute two or more allied offenses of similar import, the indictment or information may contain counts for all such offenses, but the defendant may be convicted of only one.
{¶ 46} “(B) Where the defendant’s conduct constitutes two or more offenses of dissimilar import, or where his conduct results in two or more offenses of the same or similar kind committed separately or with a separate animus as to each, the indictment or information may contain counts for all such offenses, and the defendant may be convicted of all of them. ”
{¶ 47} “‘A two-step analysis is required to determine whether two crimes are allied offenses of similar import. E.g. State v. Blankenship (1988), 38 Ohio St.3d 116, 117, * * *
{¶ 48} “Courts have sometimes applied
{¶ 49} The jury returned verdicts finding Scandrick guilty of the offenses of murder,
{¶ 50} Timothy Reid was charged with the same two separate forms of felonious assault as Scandrick: knowingly causing serious physical harm to another,
{¶ 51} Herein, we also conclude that Scandrick’s
{¶ 52} We further determine that Scandrick is entitled to a merger of the surviving felonious assault offense with his offense of felony murder in violation of
{¶ 53} First, as we noted in Reid, “‘A proximate cause of any given result is that cause which in the natural and continued sequence of events contributes to produce the result, and without which it would not have happened.’ Monnin v. Fifth Third Bank of Miami Valley (1995), 103 Ohio App.3d 213, 224. Felonious assault as defined by
{¶ 54} “In Williams, the Supreme court held that
{¶ 55} As in Reid, the matter herein involves a completed murder and not an attempt. Although Ousely was shot three times, only one of the shots was fatal. As in Reid, on the authority of Williams, we conclude that Scandrick’s felonious assault in violation of
{¶ 56} Finally, as we noted in Reid, ”
{¶ 57} “It is possible to commit a violation of
{¶ 58} Scandrick’s second assignment of error is sustained, and we will reverse and vacate Scandrick’s sentences for felonious assault (deadly weapon) and his sentence for felony murder, which included his sentence for felonious assault (serious harm).1 The case will be remanded to the trial court to first merge Scandrick’s two offenses of felonious assault, and to merge the surviving felonious assault offense with Scandrick’s felony murder
GRADY, J. and HARSHA, J., concur.
(Hon. William H. Harsha, Fourth District Court of Appeals, sitting by assignment of the Chief Justice of the Supreme Court of Ohio).
Copies mailed to:
R. Lynn Nothstine
Richard A. Nystrom
Hon. Timothy N. O’Connell