STATE OF OHIO v. ORLANDO PEDRO TYUS
C.A. No. 29520
IN THE COURT OF APPEALS NINTH JUDICIAL DISTRICT
September 16, 2020
2020-Ohio-4455
APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. CR-2018-09-3067(A)
Dated: September 16, 2020
CALLAHAN, Presiding Judge.
{1} Appellant, Orlando Tyus, appeals his convictions in the Summit County Court of Common Pleas.
I.
{2} At 3:39 a.m. on July 7, 2018, Akron police officers were dispatched in response to a 911 call reporting a shooting on Schiller Avenue on the north side of Akron. When they arrived, they discovered the body of B.R., who appeared to have been shot in the back of the head. B.R.‘s brother, C.R., reported that two individuals had approached them from behind as they neared their parked car. One brandished a gun and demanded money from C.R., who then heard several gunshots as B.R. was shot by the other individual. C.R. fled on foot, then called 911. Police recovered three spent shell casings and one live round from the scene. Officers detained three men who were in the area near the time of the shooting—including one man who stopped to render aid to B.R.—but they determined that those individuals were not involved.
{4} When officers canvassed the area where R.M.‘s body was discovered, they encountered a woman named C.H. C.H. reported that earlier that morning, she had been lured into an alley known as Minordy Place at its intersection with 6th Avenue by an individual who led her to believe that he had drugs for her. She informed the officers that once in the alley, a woman aimed a gun at her head. A man then did the same, but when he pulled the trigger, the gun did not fire. C.H. told the officers that she managed to flee, and she took them to the location of the incident, where they recovered two live rounds of ammunition.
{5} The three incidents did not appear to be connected, and police did not obtain information leading to any suspects until mid-August. At that time, a woman who had been taken into custody on drug charges and who was being recruited to serve as a confidential informant disclosed that she had information about a homicide. The woman, B.H., informed police that a younger acquaintance, C.J., had disclosed to her that she had participated in a series of shootings that occurred the weekend after the Fourth of July holiday. B.H. identified the two men who also participated in the shootings as “Bishop” and “Orka,” who she described as half-brothers. B.H. told officers that she had originally heard that two men and one woman had been killed, but she later learned that the woman had escaped because a gun malfunctioned. As a result of their interview with B.H., the investigators obtained the names of Donyea Tyus, known as “Bishop,”
{6} Orlando Tyus and his brother, Donyea Tyus, were each charged with two counts of aggravated murder in violation of
{7} Orlando appealed, raising six assignments of error. Several of his assignments of error are rearranged for purposes of discussion.
II.
ASSIGNMENT OF ERROR NO. 1
THE TRIAL COURT ERRED BY DENYING ORLANDO TYUS’ MOTION TO SEVER HIS TRIAL, IN VIOLATION OF THE 5TH, 6TH, AND 14TH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ART. 1, § 10, OF THE OHIO CONSTITUTION.
{8} In his first assignment of error, Orlando Tyus argues that the trial court erred by denying his motion to sever his trial from that of his brother because one of the State‘s witnesses testified with respect to out-of-court statements made by Donyea. This Court does not agree.
{10} The Sixth Amendment to the United States Constitution guarantees an accused the right to confront witnesses against him. Crawford v. Washington, 541 U.S. 36, 54 (2004). The Confrontation Clause is implicated by the admission of out-of-court statements that are testimonial in nature when the declarant does not testify in the proceeding. See Melendez-Diaz v. Massachusetts, 557 U.S. 305, 309-310 (2009). Only testimonial statements make a declarant a “witness” for purposes of the Confrontation Clause, and “[i]t is the testimonial character of the statement that separates it from other hearsay that, while subject to traditional limitations upon hearsay evidence, is not subject to the Confrontation Clause.” Davis v. Washington, 547 U.S. 813, 821 (2006).
{11} In Bruton v. U.S., 391 U.S. 123 (1968), the United States Supreme Court recognized that when multiple defendants are tried together, the admission of an out-of-court confession by a co-defendant that incriminates the defendant violates the Confrontation Clause, and the violation cannot be cured by means of a limiting instruction. Id. at 126, 137. The same constitutional infirmity may be present when the out-of-court statements were made to a prosecution witness other than a police officer. See State v. Moritz, 63 Ohio St.2d 150, 154 (1980). Similarly, an out-
{12} Because Bruton violations are grounded in the Confrontation Clause, however, the out-of-court statements at issue must be testimonial for the protections of the Confrontation Clause to attach. U.S. v. Johnson, 581 F.3d 320, 326 (6th Cir.2009). ”Bruton is simply irrelevant in the context of nontestimonial statements * * * Statements that do not implicate the Confrontation Clause, a fortiori, do not implicate Bruton.” (Alterations in original.) State v. Luckie, 5th Dist. Richland Nos. 16CA91, 16CA92, 16CA93, 2018-Ohio-594, ¶ 44, quoting U.S. v. Dargan, 738 F.3d 643, 651 (4th Cir.2013). See also State v. Fannon, 4th Dist. Athens Nos. 17CA24, 17CA26, 2018-Ohio-5242, ¶ 28-29; State v. Carter, 7th Dist. Mahoning No. 15 MA 0225, 2017-Ohio-7501, ¶ 39; State v. Chaffin, 2d Dist. Montgomery No. 25220, 2014-Ohio-2671, ¶ 41; State v. Newsome, 3d Dist. Putnam No. 12-12-03, 2012-Ohio-6119, ¶ 27-31.
{13} Statements given to police officers are testimonial when “the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.” Davis, 547 U.S. at 822. Because some statements made to persons other than police officers may be testimonial in nature, they are not categorically excluded from the scope of the Confrontation Clause, but that fact is “highly relevant.” Ohio v. Clark, 576 U.S. 237, 249 (2015). “Statements made to someone who is not principally charged with uncovering and prosecuting criminal behavior are significantly less likely to be testimonial than statements given to law enforcement officers.” Id. As with statements given to law enforcement, the primary purpose test controls. See id. at 245-246. The primary purpose test is an objective inquiry that takes into account the totality of the surrounding circumstances. See State v. Jones, 135 Ohio St.3d 10, 2012-Ohio-5677, ¶ 56. Relevant circumstances that bear on the primary purpose inquiry are the identity
{14} Orlando argues that the trial court erred by denying his motion to sever because the anticipated testimony of B.H., a fact witness called by the State, included statements made to her by Donyea that were circumstantial evidence tending to prove that he participated in the crimes charged against him. Specifically, B.H., who did testify at trial, explained that several weeks after the events in question, Orlando and Donyea were present in her home, where they sat on either side of her on a sectional sofa during a conversation. According to B.H.‘s testimony, Donyea expressed concern about C.J.‘s recent arrest and asked B.H. “if [C.J.]‘s going to keep it silent, keep it 100.” B.H. explained that by asking this question, Donyea inquired whether C.J. would disclose what she knew about the crimes, although he did not specifically reference murder. B.H. also explained that although Donyea did the talking, Orlando “always kind of nodded and said yes.”
{15} Donyea‘s statements were made in an informal setting to an acquaintance with no connection to law enforcement. Like statements made to a friend while incarcerated or to a fellow inmate, these statements were not testimonial in character. State v. Henderson, 7th Dist. Mahoning No. 16 MA 0057, 2018-Ohio-5124, ¶ 38; Carter, 2017-Ohio-7501, at ¶ 36-39; Newsome, 2012-Ohio-6119, at ¶ 31. Consequently, the Confrontation Clause was not implicated, and Bruton did not require the trial court to sever Orlando‘s trial based upon them. See Carter at ¶ 39; Newsome at ¶ 31, 33. Orlando Tyus’ first assignment of error is overruled.
ASSIGNMENT OF ERROR NO. 2
THE TRIAL COURT ERRED IN ADMITTING OVERLY GRUESOME PHOTOGRAPHS OF VICTIM [R.M.], IN VIOLATION OF THE 5TH, 6TH, AND 14TH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ART. 1, § 10, OF THE OHIO CONSTITUTION.
{17} The admissibility of gruesome photographs in a noncapital case is considered with reference to
{18} “Autopsy photographs are generally admissible to help the jury appreciate the nature of the crimes, to illustrate the coroner‘s or other witnesses’ testimony by portraying the wounds, to help prove the defendant‘s intent, and to show the lack of accident or mistake.” State v. Buck, 9th Dist. Summit No. 27597, 2017-Ohio-273, ¶ 22, quoting State v. Costell, 3d Dist. Union No. 14-15-11, 2016-Ohio-3386, ¶ 142. Consequently, autopsy photographs—even if gruesome—are not per se inadmissible. Maurer at 265. See also State v. Baskerville, 9th Dist. Summit No. 28148, 2017-Ohio-4050, ¶ 33.
{19} Orlando objected to the admission of State‘s Exhibits 48B and 48C. State‘s Exhibit 48B depicts the interior of R.M.‘s skull with the brain removed. State‘s Exhibit 48C is similar except that in that photograph, a portion of the base of the skull bone has been removed to locate where the bullet lodged. State‘s Exhibit 48C also depicts a metal rod that was inserted to demonstrate the path of the bullet. The trial court acknowledged the gruesome nature of the photographs, but admitted them because they were relevant to demonstrating the cause of R.M.‘s death.
{20} Although gruesome, State‘s Exhibits 48B and 48C served to illustrate the testimony of Dr. Lisa Kohler, the Chief Medical Examiner who testified about the autopsy of R.M.‘s body. Dr. Kohler testified that R.M. was killed by a single gunshot wound to the head. She noted that the bullet entered “just on the inside angle of the right eye” and travelled through the sinus and the base of skull to where it lodged. Dr. Kohler explained that the bullet never entered the brain cavity, but that R.M.‘s death was caused by a combination of blood loss and injury to the brain caused by “concussive forces” that resulted from the trajectory of the bullet. As Dr. Kohler explained,
As the bullet passes through anything, it releases energy so there‘s a big expanse of energy around it and that is shown in that he had some bruising to the brain near where the wound trac[k] was although the bullet never actually got into the cavity where the brain is housed.
Dr. Kohler further distinguished a gunshot wound that results in a bullet that enters the brain and results in a “fairly quick” death from R.M.‘s wound, which may have caused death within “a series of minutes[]” during which “[h]e may have been able to have some function for a short period of time.”
{22} Orlando Tyus’ second assignment of error is overruled.
ASSIGNMENT OF ERROR NO. 4
THE TRIAL COURT COMMITTED PLAIN ERROR BY ADMITTING PHOTOGRAPHS OF DONYEA TYUS WITH A GUN, IN VIOLATION OF THE 5TH, 6TH, AND 14TH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ART. 1, § 10, OF THE OHIO CONSTITUTION.
{23} In his fourth assignment of error, Orlando Tyus argues that the trial court erred by admitting two photographs of Donyea in possession of a firearm despite the fact that they had no probative value. Orlando acknowledges that trial counsel did not object to the admission of the photographs, so he has forfeited all but plain error. See
{24}
{25} Orlando argues that the trial court committed plain error by admitting State‘s Exhibits 8K and 8L, which are two photographs extracted from a cellular phone collected when
{26} Under
{27} Thus, this Court cannot agree with Orlando‘s broad assertion that State‘s Exhibits 8K and 8L had no probative value. Our inquiry does not end at that point, however, because under
{28} The trial court did not commit plain error in the admission of these exhibits, and Orlando Tyus’ fourth assignment of error is overruled.
ASSIGNMENT OF ERROR NO. 3
ORLANDO TYUS WAS DENIED HIS RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL UNDER THE 6TH AMENDMENT TO THE U.S. CONSTITUTION AND ARTICLE I, §§ 1, 10 & 16 OF THE OHIO CONSTITUTION WHEN COUNSEL DID NOT OBJECT TO UNDULY PREJUDICIAL PHOTOGRAPHS OF THE CO-DEFENDANT.
{29} Orlando Tyus’ third assignment of error argues that he was denied the effective assistance of counsel because trial counsel failed to object to the admission of State‘s Exhibits 8K and 8L.
{30} In order to demonstrate ineffective assistance of counsel, a defendant must show (1) deficiency in the performance of counsel “so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment” and (2) that the errors made by counsel were “so serious as to deprive the defendant of a fair trial[.]” Strickland v. Washington, 466 U.S. 668, 687 (1984). A defendant must demonstrate prejudice by showing that, but for counsel‘s errors, there is a reasonable possibility that the outcome of the trial would have been different. Id. at 694. “A defendant‘s failure to satisfy one prong of the Strickland test negates a court‘s need to consider the other.” State v. Madrigal, 87 Ohio St.3d 378, 389 (2000), citing Strickland at 697.
ASSIGNMENT OF ERROR NO. 5
THE TRIAL COURT ERRED IN THE HAVING WEAPON WHILE UNDER DISABILITY JURY INSTRUCTION, IN VIOLATION OF THE 5TH, 6TH, AND 14TH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ART. 1, § 10, OF THE OHIO CONSTITUTION.
{32} In his fifth assignment of error, Orlando Tyus has argued that the trial court erred by instructing the jury using language that tracked the wording of
{33} “[A] trial court must fully and completely give the jury all instructions which are relevant and necessary for the jury to weigh the evidence and discharge its duty as the fact finder.” State v. Comen, 50 Ohio St.3d 206 (1990), paragraph two of the syllabus;
{34} Applying federal law, the United State Supreme Court has determined that a trial court errs by refusing to accept a defendant‘s stipulation of a prior conviction for purposes of possessing a weapon under disability and, instead, permitting proof of the fact by means of the conviction itself. Old Chief v. U.S., 519 U.S. 172, 174 (1997). In State v. Creech, 150 Ohio St.3d 540, 2016-Ohio-8440, the Ohio Supreme Court reached a similar conclusion applying Ohio law:
Pursuant to
Evid.R. 403 , in a case alleging a violation ofR.C. 2923.13 , when the name or nature of a prior conviction or indictment raises the risk of a jury verdict influenced by improper considerations, a trial court abuses its discretion when it refuses a defendant‘s offer to stipulate to the fact of the prior conviction or indictment and instead admits into evidence the full record of the prior judgment or indictment when the sole purpose of the evidence is to prove the element of the defendant‘s prior conviction or indictment.
Id. at ¶ 40. In this case, the trial court did not refuse to accept Orlando‘s stipulation regarding his prior conviction in favor of admitting the complete record of his conviction, so the Ohio Supreme Court‘s analysis in Creech does not apply directly to the matter at hand. Nonetheless, Orlando suggests that Creech should inform this Court‘s analysis because “the concerns raised in Creech are applicable to this circumstance[].” Specifically, he maintains that just as admission of a conviction could violate
{35} In Creech, the Ohio Supreme Court adopted the reasoning of Old Chief, but emphasized that
What mattered for purposes of the federal statute is that the defendant had been sentenced to a crime punishable with a sentence of more than a year in prison. The General Assembly in
R.C. 2923.13 made some distinctions in determining the classes of crimes that should bar a convict from possessing a gun, but the classes are still broad. What matters to the General Assembly—and an element that the state must prove—is that the crime the defendant was convicted of was either a “felony offense of violence” or a “felony offense involving the illegal possession, use, sale, administration, distribution, or trafficking in any drug of abuse.”R.C. 2923.13(A)(2) and(3) . In regard toR.C. 2923.13 , a stipulation or admission concerning the status element would necessarily include the fact that the defendant was under indictment or had previously been convicted of a crime falling within those broad categories.
(Emphasis added.) Creech at ¶ 35. Consequently, a jury instruction that recites that the defendant has been convicted of a “felony offense of violence” under
{36} The trial court did not abuse its discretion by instructing the jury that Orlando had been “previously convicted of a felony offense of violence[.]” Orlando Tyus’ fifth assignment of error is overruled.
ASSIGNMENT OF ERROR NO 6.
ORLANDO TYUS’ CONVICTIONS WERE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE IN VIOLATION OF THE 5TH AND 14TH AMENDMENTS TO THE U.S. CONSTITUTION AND ARTICLE I, §§ 1, 10 & 16 OF THE OHIO CONSTITUTION.
{37} Orlando Tyus’ final assignment of error argues that his convictions were against the manifest weight of the evidence. This Court does not agree.
{38} When considering whether a conviction is against the manifest weight of the evidence, this Court must:
review the entire record, weigh the evidence and all reasonable inferences, consider the credibility of 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. Otten, 33 Ohio App.3d 339, 340 (9th Dist.1986). A reversal on this basis is reserved for the exceptional case in which the evidence weighs heavily against the conviction. Id., citing State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist.1983). The identity of a perpetrator must be proved by the State beyond a reasonable doubt. State v. Flynn, 9th Dist. Medina No. 06CA0096-M, 2007-Ohio-6210, ¶ 12. As with any element of an offense, identity may be proved by direct or circumstantial evidence, which do not differ with respect to probative value. Id. See also State v. Treesh, 90 Ohio St.3d 460, 485 (2001), citing State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph one of the syllabus.
{39} Orlando‘s only argument regarding manifest weight is that the State‘s evidence that identified him as one of the perpetrators was unreliable and unverified by any scientific evidence. Specifically, Orlando has argued that the witnesses who identified him as one of the shooters were known drug users whose testimony was influenced by favorable treatment by the State.
{40} Officer Timothy White testified that he arrived at a scene on Schiller Avenue in response to a 911 call that was placed at 3:39 a.m., where officers found that B.R. had been shot in the back of the head. It appeared that B.R.‘s brother, C.R., was the only witness to the shooting, but C.R. offered limited information and appeared to be “[v]ery erratic; very shocked; scared, traumatic.” It was also apparent that C.R. had been consuming alcohol. According to Officer White, C.R. suspected that the individuals had fled on foot towards Tallmadge Avenue. C.R. also mentioned that one of the individuals was wearing an army-style fabric hat. Officer White located and detained three individuals in the vicinity, one of whom was wearing a hat and one of whom was covered in blood. Officer White later recognized that individual as a man who had been near
{41} C.R. also testified at trial. He acknowledged that he had consumed alcohol on the evening of the events, but nonetheless offered a basic description of what transpired. C.R. explained that he and B.R. drove to a cousin‘s house on the evening of July 6, 2018, and B.R. parked his car along the street. He testified that when they decided to leave, they walked together to B.R.‘s parked car. C.R. made it to the passenger door, but a person approached him from the rear and demanded his money. He recalled that the individual was a black male wearing an army hat, but could offer no further description. C.R. saw another person on the driver‘s side of the vehicle and heard four shots as he saw that person shoot his brother.
{42} Officers recovered three spent shell casings from the scene of B.R.‘s death, as well as one live round of ammunition. According to Sergeant Robert Miller, those findings were consistent with at least three shots being fired and one “jam or * * * misfire.” The live bullet had markings consistent with being struck by a firing pin. Mr. Matt, who described his ballistics analysis, testified that two of the spent cartridges and a bullet recovered from B.R.‘s body were fired by the same weapon. He also explained that a live round can be marked by a firing pin when the firing pin fails to strike the primer with enough force to detonate it, but leaves an indentation nonetheless.
{43} The body of R.M. was found in a parking lot near the intersection of 5th Avenue and Arlington Street. The person who reported the body to police did not witness the shooting, but she reported to police that she may have seen the victim alive between 3:20 a.m. and 4:00 a.m. A single bullet was recovered from R.M.‘s body; according to Mr. Matt, that bullet was not fired from the same weapon that fired the bullets recovered from the scene of B.R.‘s shooting.
{45} C.H. testified during the trial. She acknowledged that she has an extensive criminal record consisting of drug and prostitution-related charges and testified that she was working as a prostitute on the evening in question. C.H. recalled that she was working near the corner of 6th Avenue and Arlington at approximately an hour before sunrise when a black male called out to her, referring to her as “Auntie,” summoning her to the other side of the street while holding up a baggie that she believed to hold crack cocaine. She testified that she resisted his invitation to step into a darker location, but acknowledged that she was hoping to obtain some drugs. C.H. recalled that the man grabbed her arm and pulled her into the alley, knocking her to the ground. She testified that after she stood up, she saw a white woman with blond hair and another black man.
{46} C.H. testified that the woman turned around, pulled a gun from her waistband, and pointed it at her. C.H. indicated that the woman appeared to be acting on her own volition. One of the men grabbed the gun from the woman, held it to C.H.‘s head, and said, “Are you ready to die?” C.H. testified that she pleaded with the man not to shoot her because she has children, but she recalled that the man responded, “So what, Bitch. I have kids, too.” She recalled that the man pulled the trigger two times: the first time, the clip fell out and the second time, bullets were expelled. When the man stooped to pick up the bullets, C.H. attempted to flee, but one of the men
{47} Lieutenant Scott Lietke investigated the three incidents. Although three individuals were originally taken into custody at the scene of B.R.‘s shooting, Lieutenant Lietke explained that he was less confident in their involvement after he spoke with them. Lieutenant Lietke testified that he did not make solid progress with the investigation until members of the Summit County Drug Task Force told him that a potential confidential informant had disclosed that she had information related to a homicide. Lieutenant Lietke interviewed that individual, a woman named B.H., at the Akron Police Department. He emphasized that although he was aware that she had a deal with the drug task force, he communicated clearly to her that she could expect nothing from him. According to Lieutenant Lietke, B.H. disclosed that her acquaintance, C.J., was involved with the shootings along with brothers identified as “Orka” and “Bishop.” At that time, B.H. described a conversation that she had with the men and provided information from her cellular phone that enabled the identification of “Orka” as Orlando and “Bishop” as Donyea. Lieutenant Lietke testified that shortly thereafter, he arranged for an interview with C.J., who was in jail at the time. He explained that he showed C.J. pictures of the victims—then pictures of Orlando and Donyea—and that she expressed concern for her safety, but proved to be cooperative. Lieutenant Lietke testified that police followed up with C.H. after his interviews with B.H. and C.J. She identified C.J. from a photo array as the woman who pulled a gun on her in the alley, but failed to identify either Orlando or Donyea.
{48} Both B.H. and C.J. ultimately testified at trial. Like C.J., B.H. acknowledged that she is a drug user. She identified “Orka” as Orlando and “Bishop” as Donyea and testified that they are drug users as well. B.H. testified that she had conversations with C.J. after July 7, 2018,
{49} C.J., like other witnesses, acknowledged that she suffered from a drug addiction; at the time of these events, she was regularly using methamphetamine and fentanyl. She testified that in the early hours of July 7, 2018, she agreed to go out with Donyea and Orlando after doing a shot of fentanyl to avoid getting sick. She testified that both men had guns on their person, but that she was accustomed to seeing them with weapons. She also explained that she and the men each carried a cellular phone. C.J. testified that both men wore dark clothes and that Donyea wore a hat that she described as a “drill sergeant hat.” According to C.J., Orlando drove the car, Donyea rode in the passenger seat, and she rode in the back seat.
{51} C.J. testified that they drove from the scene in a direction that took them away from Tallmadge Avenue. She explained that they got back onto the highway and drove to Arlington and 5th Avenue on the east side of Akron. As they drove, both Orlando and Donyea referenced rap lyrics—“‘body for body.‘” C.J. testified that when they parked, Orlando and Donyea cleaned their guns, then the three left the car and walked toward Arlington. She explained that “Donyea was stating how he was mad because he didn‘t get his body so the next guy that he seen he was going to get him.” C.J. testified that as she and Orlando waited behind a fence, Donyea approached a man, shook his hand, then raised his gun to the man‘s head and pulled the trigger. When Donyea returned, he informed Orlando and C.J. that he knew the individual from prison.
{52} C.J. testified that after Donyea shot the man, “they told me that since I just witnessed them kill two people, that if I didn‘t do the same thing, then that‘s what would happen
And at that point, she turns around and she sees the gun and she starts, you know, begging for her life. And she‘s like please, don‘t. I have kids. And at this point I passed the gun to Donyea and he cocked it back and he said, “Bitch, I have kids, too.” And he tried to fire the gun and it still didn‘t go off.
And she tried to run. And Orlando tripped her and they told me to grab her and so I grabbed her and at that point she kicked me and she was able to get away.
C.J. testified that it was her intention to fire the gun at C.H.‘s head when she pulled the trigger, although she acknowledged prior statements to the contrary. She also testified that Orlando and Donyea sent her back to the alley to retrieve the baggies that had been left behind and that she tried to avoid them as she walked back. Again, however, C.J. acknowledged that previous statements omitted this detail. She also acknowledged that she had been charged with felonious assault in connection with the attempted shooting of C.H. and had entered into a plea agreement that required her to testify “truthfully, completely and accurately[.]“.
{53} Chris Miller, the Public Information Officer for Lorain Correctional Institution, testified regarding prison records for Donyea and R.M. According to those records, Donyea and R.M. had common locations within the Ohio Department of Corrections and Rehabilitations on several occasions, including a period of time from December 8, 2015, to January 19, 2016, when
{54} Special Agent Jacob Kunkle, who works with the Cellular Analysis Survey Team in the Cleveland office of the Federal Bureau of Investigation, testified that he conducted an analysis of cellular phone records in connection with this case. Agent Kunkle explained that when a cellular phone receives or initiates a call, the signal is picked up by a nearby tower chosen by the phone to optimize signal clarity and strength. He acknowledged that it is not possible to trace the precise path that a phone takes using this analysis, but he also explained that by examining historical cellular records, it is possible to estimate the location of a cellular phone relative to available towers if the phone was in use.
{55} Agent Kunkle testified that according to his analysis, a cellular phone taken from Orlando after his arrest and a cellular phone connected to Donyea were located in the general area of East Crosier and Hammel on the south side of Akron shortly after 3:00 a.m. on July 7, 2018. Agent Kunkle explained that his analysis indicated that both cellular phones moved north sometime between 3:08 a.m. and 3:38 a.m., when towers located in the vicinity of Schiller Avenue picked up activity from the phones. The phone associated with Orlando then traveled south again, sometime between 3:38 a.m. and 4:53 a.m., where it was picked up by a tower near the intersection of Route 8 and Interstates 76 and 77.
{56} As Orlando argues, three of the State‘s witnesses acknowledged frequent drug use; the same three witnesses acknowledged their criminal records. Both B.H. and C.J., as Orlando also argues, had some incentive to cooperate with the police in their investigation of this case. Although these facts do bear on the credibility of a witness, they do not stand in isolation. In this case, B.H.‘s testimony, although of less detail, was mostly consistent with the testimony provided
{57} This Court must “consider[] the credibility of witnesses” as part of our manifest weight review. State v. Thompkins, 78 Ohio St.3d 380, 387 (1997), quoting Martin, 20 Ohio App.3d at 175. Nonetheless, this Court is mindful of the well-established principle that a trier of fact enjoys the best position to assess the credibility of witnesses. State v. Rivera, 9th Dist. Lorain No. 18CA011263, 2019-Ohio-62, ¶ 39, quoting State v. Johnson, 9th Dist. Summit No. 25161, 2010-Ohio-3296, ¶ 15. Given the evidence in this case, this Court cannot conclude that this is the exceptional case in which the evidence weighs heavily against the convictions.
{58} Orlando Tyus’ sixth assignment of error is overruled.
III.
{59} Orlando Tyus’ assignments of error are overruled. The judgment of the Summit County Court of Common Pleas is affirmed.
There were reasonable grounds for this appeal.
Judgment affirmed.
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run.
Costs taxed to Appellant.
SCHAFER, J.
TEODOSIO, J.
CONCUR.
LYNNE S. CALLAHAN
FOR THE COURT
APPEARANCES:
JEREMY A. VEILLETTE, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN R. DIMARTINO, Assistant Prosecuting Attorney, for Appellee.