State v. TatumState v. Tatum
NUNC PRO TUNC1
Rendered on March 13, 2012
Ron O‘Brien, Prosecuting Attorney, and Barbara A. Farnbacher, for appellee.
Kirk A. McVay, for appellant.
APPEAL from the Franklin County Court of Common Pleas.
BROWN, J.
{¶1} Curtis Wayne Tatum, defendant-appellant, appeals from a judgment of the Franklin County Court of Common Pleas in which the court found him guilty, pursuant to a jury verdict, of attempted murder with specification, in violation of
{¶2} In the early morning hours of August 2, 2008, a teenage female relative of the victim, D.R., telephoned D.R. and told her she was in distress, and asked that D.R. pick her up. Upon arriving in the area spеcified by the relative, D.R. saw appellant and several others, all of whom possessed large guns. D.R. testified at trial that she knew appellant prior to the incident as she had helped him in a dispute with drug dealers over money. Appellant approached D.R.‘s vehicle, pointed a gun at her, and demanded money. D.R. gave appellant $500, and appellant and the others walked away. D.R. then called thе police on her cell phone. From 20 feet away, appellant began shooting at her vehicle. The vehicle was struck by bullets at least ten times, and D.R.‘s hand was struck by a bullet. D.R. fled the scene in her vehicle. Appellant was later arrested.
{¶3} Appellant was indicted on May 26, 2009, on counts of attempted murder with specification, felonious assault with specification, aggravated robbery with specification, robbery with specification, and having a weapon while under disability. A jury trial commenced May 24, 2010, on all of the counts, except having a weapon while under disability, which was tried to the court. The State of Ohio, plaintiff-appellee, dismissed the robbery with specification count after the presentation of the evidence. The jury found appellant guilty as to all counts before it, and the trial court found аppellant guilty of the having a weapon while under disability count. After a sentencing hearing on June 2, 2010, the trial court sentenced appellant to prison terms of five years for the attempted murder count, three years for the aggravated robbery count, three years for the
[I.] THE TRIAL COURT ERRED WHEN IT ENTERED JUDGMENT AGAINST THE DEFENDANT AS TO COUNTS ONE, TWO, THREE, AND FIVE OF THE INDICTMENT WHEN THE VERDICTS OF THE JURY AND THE COURT (AS TO COUNT FIVE) ARE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE, IN VIOLATION OF DEFENDANT-APPELLANT‘S RIGHTS TO DUE PROCESS OF LAW AND A FAIR TRIAL GUARANTEED BY AMENDMENTS V AND XIV OF THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION.
[II.] DEFENDANT-APPELLANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL GUARANTEED BY AMENDMENTS VI AND XIV OF THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION WHEN COUNSEL FOR DEFENDANT-APPELLANT ALLOWED DETECTIVE RICHARD BAIR, A NON-EXPERT AS TO BALLISTICS, TO TESTIFY WITHOUT OBJECTION AS TO HIS OPINION THAT THE BULLETS FIRED INTO THE VICTIM[‘]S CAR WERE FROM A LARGE CALIBER FIREARM.
{¶4} Appellant argues in his first assignment of error that the trial court‘s judgment with regard to all of the crimes for which he was convicted was against the manifest weight of the evidence. This court‘s function when reviewing the weight of the
{¶5} In addressing a manifest weight of the evidence argument, we are able to consider the credibility of the witnesses. See Martin at 175. However, in conducting our review, we are guided by the presumption that the jury, or the trial court in a bench trial, is best able to view the witnesses and observe their demeanor, gestures and voice inflections, and use these observations in weighing the credibility of the proffered testimony. Seasons Coal Co., Inc. v. Cleveland (1984), 10 Ohio St.3d 77, 80. Thus, a reviewing court must defer to the factual findings of the jury or judge in a bench trial regarding the credibility of the witnesses. State v. DeHass (1967), 10 Ohio St.2d 230, paragraph one of the syllabus. Concerning the issue of assessing witness credibility, the general rule of law is that “[t]he choice between credible witnesses and their conflicting testimony rests solely with the finder of fact and an appellate court may not substitute its own judgment for that of the finder of fact.” State v. Awan (1986), 22 Ohio St.3d 120,
{¶6} In the present case, appellant‘s arguments center on the general contention that, apart from D.R.‘s testimony and her 911 call, there was no direct or circumstantial evidence proving that appellant was even present when shots were fired at D.R. Appellant contends the case hinges completely on the veracity of D.R.‘s representations that appellant demanded money from her and then shot at her and her vehicle with a large gun, and the credibility of D.R.‘s testimony was subject to allegations of fabrication, misperception, and the test of reasonable dоubt. Specifically, appellant cites the following problems with D.R.‘s testimony: (1) D.R.‘s reticence to offer honest and complete responses to certain questions even on direct examination; (2) her outright refusal to simply answer “yes” or “no” questions asked on cross-examination; (3) the revelation throughout her testimony of her fundamental lack of forthrightness in her discussions with the police in their investigation of the case concerning the circumstances of the crimes alleged and her relationship to appellant, as well as her preparation for testimony with the assistant prosecutor who tried the case; (4) evidence, albeit denied by D.R., that appellant owed her money, disclosing motive for her to tell the police that appellant had robbed her; and testimony suggesting that individuals other than appellаnt fired shots at
{¶7} D.R.‘s testimony was as follows. D.R. testified that she was at a movie theater when her 16-year-old relative, “Juanna,” telephoned her. Juanna was upset, in “distress,” and needed a ride. D.R. went to pick up Juanna and had $500 in cash on her to pay her rent. When she arrived at the area and began looking for Juanna, she saw appellant with a “big gun,” which she described as an AK-47. Appellant was with several others who also had big guns. As D.R. parked her car, she asked appellant if he knew where Juanna was located. At that point, appellant was standing in front of her car. Appellant said he did not know but then said “bitch, give me your money.” She gave apрellant her cash, and as he was running away, she got out of her car and called 911. She then heard her cousin “Shanise,” who was nearby, scream. Appellant was pointing a gun at D.R.‘s car and started shooting at the car. D.R. said she was inside the car talking to the 911 operator when appellant began shooting. Bullets hit the car and then struck her. She pulled her car out and drove to a nearby fire station. D.R. testified she had knоwn appellant prior to the incident because she acted as a mentor for many inner-city teenagers, including appellant, who lived in the same type of low-income housing in
{¶8} Dean Collins, a city of Columbus police officer, testified that he wrote in the police report that the weapon used was a handgun or automatic handgun, which he determined based upon the bullet holes in the car.
{¶9} James Niggemeyer, a detective for the Columbus police department, testified D.R. picked appellant‘s image from a photograph array. He stated that D.R. never told him about the voicemails she left for appellant prior to the сrime or that she had
{¶10} Richard Bair, a detective with the Columbus police department, testified that, even though he is not a ballistics expert and did not run any tests on the bullet fragments, he believed, based upon his experience and training, that the bullets are from a large-caliber firearm. Defense counsel emphasized on cross-examination that Bair was not a ballistics expert and questioned him on what experience and training he had to allow him to make that conclusion. He admitted he could not say for sure every weapon the bullets could have come from. He said it was possible that the bullets came from a low-caliber weapon. On one occasion, he referred to the bullet fragmеnts that fell out of the door as .22-caliber fragments.
{¶11} Appellant is correct that the evidence against him derives solely from D.R.‘s testimony. We also agree that the credibility of D.R.‘s testimony was subject to question in several respects. D.R.‘s responses to questions, both on direct examination and cross-examination, seemed evasive or hyper-guarded at times. She often did not answer questions with simple “yes” and “no” responses and attempted to rephrase questions to suit her liking. In fact, the trial court warned D.R. at one point during the trial, outside of the presence of the jury, that she must directly answer the questions posed to her or face possible sanctions. It is also indisputable that D.R. admitted several times that she was
{¶12} As for the ballistics evidence, we disagree with some of appellant‘s interpretations thereof. Although we agree that the bullet strikes were all toward the front passenger side of the vehicle and several were in the passenger door, there was one strike on the front windshield and several on the front windshield pillars on the passenger side. Appellant could have still been stаnding generally in the “front” of the vehicle and made these entry holes. Furthermore, some of the holes on the passenger side door could have resulted from shots fired as she fled in her vehicle. The testimony was unclear whether D.R. was driving away at any point during the shooting or whether appellant was moving while he was shooting. Also, although Bair stated on one occasion during his testimony that detectives recovered “.22” fragments from the vehicle, he did not explain this statement. This description is also inapposite to his testimony that the fragments were too small to determine what kind of gun they came from. Thus, we cannot say that Bair‘s reference to “.22” fragments “proves,” as appellant claims, that other firearms, besides the one possessed by appellant, were used to fire at D.R.
{¶13} Nevertheless, the ultimate question with which we are fаced is whether the trier of fact clearly lost its way and created a manifest miscarriage of justice. We cannot
{¶14} Appellant argues in his second assignment of error that he received ineffective assistance of counsel in that his trial counsel allowed Detective Bair, a non-expert in ballistics, to testify as to his opinions that the bullets fired into the victim‘s car were from a large-caliber firearm. The
{¶15} An attorney properly licensed in the state of Ohio is presumed competent. State v. Lott (1990), 51 Ohio St.3d 160, 174. The defendant has the burden of proof and must overcome the strong presumption that counsel‘s performance was adequatе or that counsel‘s action might be sound trial strategy. State v. Smith (1985), 17 Ohio St.3d 98, 100. In demonstrating prejudice, the defendant must prove that there exists a reasonable probability that, were it not for counsel‘s errors, the result of the trial would have been different. State v. Bradley (1989), 42 Ohio St.3d 136, paragraph three of the syllabus.
{¶16} In the present case, appellant argues that his counsel was ineffective because he failed to object to Detective Bair‘s testimony that the bullets fired into D.R.‘s car were from a large-caliber firearm. Appellant contends Bair‘s testimony was highly damaging to any assertion the defense could make in closing arguments that individuals other than appellant fired weapons, and he was prejudiced by his counsel‘s failure to object. However, appellant provides no authority to support his proposition that Bair should not have been permitted to testify in this regard.
If the witness is not testifying аs an expert, his testimony in the form of opinions or inferences is limited to those opinions or inferences which are (1) rationally based on the perceptions of the witness and (2) helpful to a clear
understanding of his testimony or the determination of a fact in issue.
{¶17} In this case, Bair was testifying as a lay witness. We find his testimony was properly admitted under
{¶18} Even if we were to find that appellant‘s counsel was deficient for failing to object to Bair‘s testimony, apрellant has failed to demonstrate prejudice. Appellant‘s counsel emphasized on cross-examination that Bair was not a ballistics expert and
{¶19} Accordingly, appellant‘s two assignments of error are overruled, and the judgment of the Franklin County Court of Common Pleas is affirmed.
Judgment affirmed.
KLATT and SADLER, JJ., concur.
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