State v. ShirleyState v. Shirley
JUDGMENT: AFFIRMED AND REMANDED
RELEASED AND JOURNALIZED: May 16, 2019
Appearances:
Michael C. O‘Malley, Cuyahoga County Prosecuting Attorney, and Mary M. Frey, Assistant Prosecuting Attorney, for appellee.
Patrick Leary, for appellant.
KATHLEEN ANN KEOUGH, J.:
{¶ 1} Defendant-appellant, James Shirley, appeals from the trial court‘s judgment, rendered after a bench trial, finding him guilty of having a weapon while under disability, possessing a defaced firearm, tampering with evidence, obstructing official business, and falsification, and sentencing him to an aggregate term of 60
I. Background
{¶ 2} In January 2018, a Cuyahoga County Grand Jury charged Shirley in a six-count indictment with (1) improperly discharging a firearm at, in, or into a school safety zone, with one- and three-year firearm specifications, and notice of prior conviction and repeat violent offender specifications; (2) having a weapon while under disability; (3) possessing a defaced firearm; (4) tampering with evidence; (5) obstructing official business; and (6) falsification. All counts also carried a forfeiture of weapon specification. The charges arose out of an incident that occurred on January 11, 2018.
{¶ 3} Tamara Ivory testified at trial that she was driving near Miles Elementary School in Cleveland at approximately 8:30 a.m. on January 11, 2018. While she was stopped at the traffic light at the intersection of Miles Avenue and East 123rd Street, she saw a male cross the street directly in front of her car. Ivory said that as the male walked across the street, he removed a gun from under his shirt, and when he reached the other side of the street, he randomly started shooting. Ivory said that the male first shot down East 123rd Street, and then he turned and started shooting in the direction of Miles Elementary School.
{¶ 4} Ivory testified that she got a “good look” at the male, who was wearing all black, including a black hoodie, but who appeared “to not be [in] his proper state
{¶ 5} The 911 recording of Ivory‘s call was played in court. Ivory reported to the dispatcher that there was a male “shootin’ on the corner” of East 123rd Street and Miles Avenue, near Miles Elementary School, and described the male who was shooting as light-skinned, in his late 20‘s, with a beard and mustache, and wearing all black, including a black hoodie. She also described the gun the male had as a 9 mm chrome gun.
{¶ 6} Ivory agreed that the 911 recording was a true and accurate recording of her 911 call. She testified that when she told the dispatcher that the gun was chrome, she meant that it was silver. She testified further that after listening to the 911 call, she remembered that the shooter‘s gun was chrome, not black. On cross-examination, she testified that listening to the 911 call “definitely recall[ed] and spark[ed] her memory” about the gun, and “if it‘s on the tape, yes, it was chrome.”
{¶ 7} Ivory testified that the police contacted her between 9:00 a.m. and 10:00 a.m. that same morning and advised her they had apprehended a suspect. Ivory then participated in a cold stand identification near where the suspect had been apprehended. Shirley stood outside the police zone car while Ivory was across the street. Ivory testified that the male the police had apprehended looked “exactly as the person” she had seen shooting earlier that morning, and she had “no doubt” he was the person she had seen shooting. Ivory then identified Shirley in court as
{¶ 8} Cleveland Police Sergeant John Ball testified that he responded on January 11, 2018, to the call of shots fired near Miles Elementary School. He said that he had a description of the suspect, and arrived in the vicinity of East 119th Street and Miles Avenue within a few minutes of receiving the call. He asked several children in the area if they had seen anyone running or shooting and, based on what they told him, he drove around the block and headed southbound on East 119th Street. Ball said that he saw a male who fit the suspect‘s description by a fence behind a garage; the man was bending down as if he were placing something on the ground. When Ball told the man to show his hands, he jumped over the fence and ran away. Ball caught up with the man, and as Ball pointed his gun at him and ordered him to stop, other officers arrived and handcuffed him. Ball identified Shirley in court as the male he and the other officers apprehended on January 11, 2018.
{¶ 9} Ball testified that he then asked several police officers who were at the scene to retrace the male‘s steps to look for contraband. Ball said that within five minutes, the officers found a gun and keys at the same location where Ball had seen the male bending over putting something down. The gun was found in a bucket, slightly obscured by leaves, and the keys were found on a piece of wood by the garage, several feet away from the bucket. Ball testified that the gun was loaded, and
{¶ 10} Cleveland Police Officer Jarrel Miller testified that he arrived on the scene as the suspect was being handcuffed. He said that the suspect, who matched the description given by dispatch, told the police his name was Rashaun Tyler, and denied that the gun and keys belonged to him. Using the name and date of birth that the suspect provided, the officers found an address for Rashaun Tyler. When they went to that address, they determined that the keys recovered by the police unlocked the door to the upstairs unit. A man answered the door and told them that Rashaun Tyler lived there but was not home. The officers eventually learned that the apprehended suspect‘s name was actually James Shirley.
{¶ 11} Cleveland Police Officer Devan Wynn, who conveyed Shirley to jail, testified that Shirley eventually admitted that the keys were his but maintained even during booking that his name was Rashaun Tyler. Officer Wynn said the police eventually identified Shirley based on his fingerprints.
{¶ 12} Cleveland Police Detective Antonio Curtis testified that he investigated the case. During his investigation, he learned there was a possibility the church across the street from where the shooting had occurred had video surveillance footage of the incident but Curtis said he was unable to contact anyone at the church to secure any video. He admitted that a gunshot residue test was not done on Shirley, and no one tested the gun for DNA or fingerprints. He also
{¶ 13} Shirley presented no evidence in his defense. After denying Shirley‘s
II. Law and Analysis
A. Sufficiency of the Evidence
{¶ 14} In his first assignment of error, Shirley asserts that the trial court erred in denying his
{¶ 15} A
{¶ 16} The test for sufficiency requires a determination of whether the prosecution met its burden of production at trial. State v. Bowden, 8th Dist. Cuyahoga No. 92266, 2009-Ohio-3598, ¶ 12. The relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997).
{¶ 17}
{¶ 18} Instead, Shirley contends that the state failed to link the gun retrieved from the bucket to him. He argues that Ivory‘s description of the shooter to the 911 dispatcher “could have been any number of people in the area,” and her identification of him from the cold stand was unreliable because she was across the street from where he was standing. He further contends the cold stand was impermissibly suggestive because Ivory was shown a lone black male standing outside a police car. Finally, he contends there was insufficient evidence to support
{¶ 19} Shirley‘s arguments have no merit. Ivory called 911 almost immediately after she witnessed Shirley pull out a firearm as he crossed the street in front of her car and begin shooting the gun. She gave a very specific description of the shooter to the 911 dispatcher, describing him as light-skinned, in his late 20‘s, with a beard and mustache, and wearing all black, including a black hoodie. Furthermore, Ivory was consistent in her identification of Shirley as the male she saw shooting on the morning of January 11, 2018. She identified him in the cold stand within approximately one hour of the shooting, and during trial, she testified that she had no doubt Shirley was the person she saw shooting a gun on January 11, 2018. With respect to the alleged impermissible suggestiveness of the cold stand, Ivory specifically testified that she “definitely” would have told the police if she had any doubt that the man she observed across the street was not the shooter.
{¶ 20} Shirley‘s argument that the evidence was insufficient because there was no DNA or fingerprint evidence linking him to the gun is similarly unavailing. Sgt. Ball testified that he saw Shirley bending down near the fence by the garage as if he were placing something on the ground, and when he ordered him to show his hands, Shirley fled. Within only five minutes of Shirley‘s apprehension, the police found a gun in the same location where Ball saw him bending over. There was no need for DNA or fingerprint testing; the circumstantial evidence that Shirley placed the gun in the bucket was sufficient to link him to the firearm. Furthermore, Ivory‘s
{¶ 21} There was also sufficient evidence to support Shirley‘s conviction for possessing a defaced firearm.
{¶ 22} We have already concluded there was sufficient evidence linking Shirley to the gun. With respect to Shirley‘s knowledge that the serial number on the gun had been removed, Sgt. Ball testified that the serial number would have been on the exterior of the gun, at the slide and on the barrel, if it had not been ground off. He testified further that the firearm the police recovered was loaded, and there was a round in the chamber of the gun. This evidence, coupled with Ivory‘s testimony that she saw Shirley shoot the gun, is sufficient to demonstrate that Shirley knew or had reason to believe that the serial number on the gun he possessed, and presumably loaded, had obviously been removed.
{¶ 24} Tampering with evidence requires a person to act with purpose, meaning that the person has a specific intention to cause a certain result. State v. Sharp, 8th Dist. Cuyahoga No. 103445, 2016-Ohio-2634, ¶ 19. When determining whether the defendant acted purposely, a defendant‘s state of mind may be inferred from surrounding circumstances. Id.
{¶ 25} Shirley‘s intent to make the gun unavailable as evidence can be inferred from his attempt to hide the gun in a bucket after the shooting incident. “Sufficient evidence exists to support a tampering-with-evidence conviction where a defendant hides a gun used in a shooting immediately after the incident.” State v. McGee, 1st Dist. Hamilton No. C-150496, 2016-Ohio-7510, ¶ 5, citing State v. Hill, 10th Dist. Franklin No. 15AP-928, 2016-Ohio-5205, ¶ 5, and State v. Dantzler, 10th Dist. Franklin Nos. 14AP-907 and 14AP-908, 2015-Ohio-3641, ¶ 36. Moreover, as a convicted felon, Shirley was prohibited from owning or possessing a firearm. When he hid the gun in the bucket and then fled from Sgt. Ball, Shirley was trying to avoid,
{¶ 26} The dissent‘s assertion that a defendant‘s attempt to hide a gun must be “coupled with other acts” to support a tampering with evidence conviction is not consistent with the case law. In Hill, 2016-Ohio-5205 at ¶ 5, for example, the Tenth District affirmed the defendant‘s conviction for tampering with evidence, stating, “[t]he tampering with evidence charge was based on [the defendant‘s] hiding the gun used in the attack immediately after the shooting. This qualifies as tampering with evidence as defined by
{¶ 27} The first assignment of error is overruled
B. Manifest Weight of the Evidence
{¶ 28} In his second assignment of error, Shirley contends that his convictions were against the manifest weight of the evidence.
{¶ 29} A manifest weight challenge questions whether the state met its burden of persuasion. State v. Freeman, 8th Dist. Cuyahoga No. 106374, 2018-Ohio-3587, ¶ 18. To determine whether a conviction is against the manifest weight of the evidence, the reviewing court must look at 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. Thompkins, 78 Ohio St.3d at 388. An appellate court will reverse a conviction as against the manifest weight of the evidence only in the most exceptional case in which the evidence weighs heavily against the conviction. Id.
{¶ 30} Shirley argues that Ivory‘s testimony at trial that the gun was black “calls into question [her] entire recollection of that morning, as well as the inference that the gun recovered was ever possessed by [him.]” He also contends that the evidence linking him to the recovered firearm is “dubious at best,” and that the lack of DNA and fingerprint evidence, or video surveillance footage from the church
{¶ 31} Ivory‘s description to the police and at trial was consistent with what she told the 911 dispatcher, with the exception of her testimony at trial that the gun was black. But after listening to the 911 call, Ivory testified that the call “definitely * * * spark[ed] her memory” about the gun, and she recalled that it was actually chrome. She also testified that “if it‘s on the tape, yes, it was chrome.” Thus, the initial inconsistency in Ivory‘s testimony about the gun was corrected.
{¶ 32} The record reflects that Ivory was consistent in her description of the shooter and certain about her identification of Shirley as the shooter. Determinations regarding the credibility of witnesses and the weight given to the evidence are primarily matters for the trier of fact to decide. State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967). The trier of fact is best able to view the witnesses and observe their demeanor and voice inflections, and use these observations in weighing the credibility of the proffered testimony. State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, ¶ 24. We afford great deference to the factfinder‘s determination of witness credibility, State v. Ball, 8th Dist. Cuyahoga No. 99990, 2014-Ohio-1060, ¶ 36, and on this record, find nothing to reverse the trier of fact‘s conclusion that Ivory‘s testimony about what she saw on the morning of January 11, 2018 was credible.
{¶ 33} We also find that despite Shirley‘s argument otherwise, the evidence linking him to the firearm, albeit circumstantial, was substantial. Ivory testified that
{¶ 34} In addition to the evidence linking Shirley to the gun, the evidence demonstrated that Shirley fled from Sgt. Ball, and when he was apprehended, he gave the police a false name and birthdate. The factfinder was free to interpret Shirley‘s conduct as indicative of his consciousness of his guilt, and thus of guilt itself. State v. Santiago, 8th Dist. Cuyahoga No. 95516, 2011-Ohio-3058, ¶ 30.
{¶ 35} This is not the exceptional case where the evidence weighs heavily against the convictions, and the trial court did not lose its way or create a miscarriage of justice in convicting Shirley. The second assignment of error is therefore overruled.
{¶ 36} In his third assignment of error, Shirley contends that the trial court erred in imposing consecutive sentences.
{¶ 37} Consecutive sentences may be imposed only if the trial court makes the required findings pursuant to
{¶ 38} In imposing consecutive sentences, the trial court must both make the requisite statutory findings and incorporate those findings into its sentencing entry. Bonnell at syllabus.
{¶ 40} The trial court‘s journal entry of sentencing, however, incorrectly states that in imposing consecutive sentences, the trial court found that (1) consecutive sentences are necessary to protect the public from future crime by Shirley or punish him; (2) not disproportionate to the seriousness of Shirley‘s conduct and the danger he poses to the public; and (3) that at least two of the multiple offenses were committed as part of one or more courses of conduct, and the harm caused by the multiple offenses was so great or unusual that no single prison term for any of the offenses adequately reflects the seriousness of Shirley‘s conduct. (Emphasis added.) The trial court did not make this third finding when imposing consecutive sentences; rather, it found that Shirley has a criminal history that demonstrates that consecutive sentences are necessary to protect the public from future crimes by Shirley. Accordingly, we remand for the trial court to enter a nunc pro tunc sentencing entry that correctly reflects the statutory findings made by the trial court when it imposed consecutive sentences. State v. Holiday, 8th Dist. Cuyahoga No. 105070, 2017-Ohio-4306, ¶ 12 (sentencing entry should include statutory findings that were actually made at sentencing). The third assignment of error is sustained in part and overruled in part.
Judgment affirmed and remanded.
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 of this court directing the common pleas court to carry this judgment into execution. The defendant‘s conviction having been affirmed, any bail pending is terminated. Case remanded to the trial court for the issuance of a nunc pro tunc sentencing entry and execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
KATHLEEN ANN KEOUGH, JUDGE
FRANK D. CELEBREZZE, JR., J., CONCURS;
SEAN C. GALLAGHER, P.J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE OPINION
SEAN C. GALLAGHER, P.J., CONCURRING IN PART AND DISSENTING IN PART:
{¶ 42} I concur with the majority‘s resolution of the consecutive sentencing issue, but disagree with the decision to affirm the tampering with evidence conviction. In this case, the state solely relied on Shirley‘s act of bending over in an
{¶ 43} Nevertheless, the Ohio Supreme Court has acknowledged that there are three elements to the tampering with evidence offense under
{¶ 44} The term “knowingly” is defined under
A person acts knowingly, regardless of purpose, when the person is aware that the person‘s conduct will probably cause a certain result or will probably be of a certain nature. A person has knowledge of circumstances when the person is aware that such circumstances probably exist. When knowledge of the existence of a particular fact is an element of an offense, such knowledge is established if a person subjectively believes that there is a high probability of its existence and fails to make inquiry or acts with a conscious purpose to avoid learning the fact.
{¶ 45} The Ohio Supreme Court has explained that the statute requires the accused to actually “be aware that conduct will probably cause a certain result or will probably be of a certain nature or that circumstances probably exist.” State v. Barry, 145 Ohio St.3d 354, 2015-Ohio-5449, 49 N.E.3d 1248, ¶ 24. (Emphasis sic.) A person may be charged with knowledge of a particular fact “only if that person ‘subjectively believes that there is a high probability of its existence and fails to make inquiry or acts with a conscious purpose to avoid learning the fact.” Id., quoting
{¶ 47} State v. McGee, 1st Dist. Hamilton No. C-150496, 2016-Ohio-7510, ¶ 29, is similar. In McGee, the act of hiding the firearm was not dispositive in and of itself. Id. The court in McGee relied on the fact that the defendant concealed the firearm and then consistently misled the police officers about the location of the firearm used in the crime after the investigation was commenced. Id. In other words, in finding sufficient evidence in support of the tampering charge, both courts concluded that the act of hiding the firearm, when coupled with other acts, constituted sufficient evidence.
{¶ 48} In this case, the fact that the firearm was discovered in the bucket along with Shirley‘s keys is not dispositive and does not give rise to an inference that Shirley knew an investigation or official proceeding was under way or was likely to ensue, and also that he knowingly concealed the evidence for the purpose of impairing the potential evidence‘s usefulness during that proceeding or investigation. The majority‘s reliance on Hill, Dantzler, and Klein highlights the growing trend toward criminalizing any act inconsistent with turning over all
{¶ 49} Under the majority‘s rationale, all criminal acts in which evidence is immediately abandoned will support a tampering-with-evidence charge regardless of the severity of the crime or the offender‘s knowledge of the investigation. This case represents the bridge too far. “[M]erely establishing that the crime committed is an unmistakable crime is insufficient to prove that the accused knew at the time the evidence was altered, destroyed, concealed, or removed that an official proceeding or investigation into that crime was ongoing or likely to be instituted.” Barry, 145 Ohio St.3d 354, 2015-Ohio-5449, 49 N.E.3d 1248, at syllabus. The Ohio Supreme Court has provided an exception to Barry only with respect to murder. I would not expand Martin to include a crime such as having a weapon while under disability.
{¶ 50} In this case, the majority claims Shirley hid the firearm to conceal his commission of having a weapon while under disability. Nothing demonstrates Shirley‘s awareness of police investigating his having a weapon while under