State v. Vicente-ColonState v. Vicente-Colon
Dated: December 20, 2010
MOORE, Judge.
{¶1} Appellant, Bryan Vincente-Colon1, appeals from the decision of the Lorain County Court of Common Pleas. This Court affirms.
I.
{¶2} We previously summarized the facts in this case in our disposition of a case involving Vincente-Colon‘s co-defendant. State v. Pedraza, 9th Dist. No. 09CA009706, 2010-Ohio-4284.
“In the late evening hours of November 4, 2008, Lorain Police Officers Jacob Morris and Orlando Perez were on patrol. They heard what sounded like a gunshot and proceeded to investigate. Lеss than ten seconds later they observed a man, Steven Vincente-Colon, outside a residence. According to the officers, the smell of gun powder was prevalent. The officers asked Steven Vincente-Colon if he heard the gunshot and he stated that he did not. He further offered, without prompting, that no one else was present in the home. This aroused the officers’ suspicion. Officer Morris shined his flаshlight on the second floor
windows and noticed the outline of a person and observed the window blinds closing. Steven Vincente-Colon then informed him that two men were in the home, his brother, Bryan Vincente-Colon and his cousin, Pedro Marquez. Steven Vincente-Colon informed the officers that Pedro Marquez owned the home. The officers obtained Pedro Marquez‘s phone number and contacted him. They detеrmined that he was not in the home as Steven had said. The officers asked him to meet them at the home. While waiting for Marquez, the officers set up a perimeter around the home to ensure that no one left the premises. Other officers arrived to complete this task. “Upon Marquez‘s arrival, officers asked him to unlock the door to the home and he consented. Prior to the police entering the home, Edgardo Otero, who was in the attached duplex, informed the officers that his brother was in the home and asked if he could attempt to get him to come out. Otero then shouted into the residence, both in English and in Spanish. David Pedraza and Bryan Vincente-Colon exited the home. The two men were arrested.”
{¶3} On December 18, 2008, Vincente-Colon was indicted on one count of tampering with evidеnce in violation of
II.
ASSIGNMENT OF ERROR I
“VINCENTE-COLON‘S CONVICTION IN THIS CASE WAS BASED ON INSUFFICIENT EVIDENCE AND, THEREFORE, SHOULD BE REVERSED.”
{¶4} In his first assignment of error, Vincente-Colon contends that his conviction for tampering with evidence was not supported by sufficient evidence.
{¶5} When considering a challenge to the sufficiency of the evidence, the court must determine whether the prosecution has met its burden of production. State v. Thompkins (1997), 78 Ohio St.3d 380, 390 (Cook, J., concurring). To determine whether the evidence in a criminal
“An appellate court‘s function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant‘s guilt beyond a reasonable doubt. 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. Jenks (1991), 61 Ohio St.3d 259, paragraph two of the syllabus.
{¶6} Vincente-Colon was сonvicted of tampering with evidence, in violation of
{¶7} Initially, Vincente-Colon contends that the State failed to establish that he knew that an official proceeding or investigation was in process. “[A]n official investigation generally means an ‘inquiry into the legality or illegality of facts which is in process of being made by officials of one or more levels of government, law enforcement.‘” State v. Murray, 12th Dist. No. CA2009-03-015, 2009-Ohio-6174, at ¶34, quoting State v. Diana (Dec. 23, 1975), 10th Dist. Nos. 75AP-210 & 75AP-211.
“we will employ a reasonable-person standard and focus on the defendant‘s intent, rather than the purpose of the criminal investigation. The law has long recognized that intent, lying as it does within the privacy of a person‘s own thoughts, is not susceptible of objective proof. The law recognizes that intent can be determined from the surrounding facts and circumstances, and persons are presumed to have intended the natural, reasonable and probable consequences of
their voluntary acts.” (Internal citations and quotations omitted.) Murray, supra, at ¶28.
{¶8} Officer Jake Morris testified that while on patrol on November 4, 2008, he heard what sounded like gunshots. He went to thе area from which he believed the sound originated, and discovered a man outside a residence. Officer Morris testified that he could smell the gunpowder in the air. He asked the man if he heard the gunshots, and the man, who appeared nervous, said no. The man then informed Officer Morris that he was the only one at the home and that no one else was inside. Officer Morris immediately shined his flashlight on the housе and saw the outline of a person in a second-story window. He testified that the blinds to that window, which were open, were quickly closed.
{¶9} Officer Morris’ testimony was supported by Detective Orlando Perez‘s testimony. Detective Perez stated that he was with Officer Morris on the night of the incident. He verified that they heard a gunshot, approached a duplex that smelled distinctly of gunpowder, and began to investigate. He stated that Officer Morris informed him that he saw someone upstairs who closed the blinds. Thus, the testimony suggests that the individuals inside the home observed the police outside. Detective Perez further explained that the officers were outside the home for about an hour before Marquez arrived. It was at this time that Otero shouted into the home and Pedraza and Vincente-Colon came out оf the home. Given the facts that the area smelled of gun powder and a gunshot was heard in the area, a reasonable person would know that the police were at the residence to investigate. See Murray, supra. Accordingly, viewing the testimony in the light most favorable to the State, we conclude that the State presented sufficient evidence on this element.
{¶10} Vincente-Colon further contеnds that the State failed to present evidence that would tend to show Vincente-Colon first knew there was an official proceeding or investigation
{¶11} Next, Vincente-Colon contends that the State failed to present sufficient evidence that he concealed the shotguns. He points out that although gunshot residue tests revealed gunshot residue on Pedraza, the test did not reveal any residue on Vincente-Colon. Martin Lewis, with the Trace Evidеnce section of Bureau of Criminal Investigation testified that “[t]he absence of gunshot primer residue on a person‘s hands does not preclude the possibility of any of
{¶12} Further, the State was not required to show evidence that Vincente-Colon himself concealed the shotguns.
{¶13} Vincеnte-Colon contends that the State failed to present sufficient evidence that he acted with purpose to impair the value or availability of the evidence.
{¶14} Lastly, Vincente-Colon contends that the State failed to present evidence that an underlying crime was committed, because they did not prove that the shotguns were involved in the commission of a crime.
{¶15} Accordingly, viewing all this evidence in the light most favorable to the State, the trial court could have found that Vincente-Colon tampered with the evidence.
{¶16} Vincente-Colon‘s first assignment of error is overruled.
ASSIGNMENT OF ERROR II
{¶17} In his second assignment of error, Vincente-Colon contends that his conviction for tampering with evidence was against the manifest weight of the evidence. We do not agree.
{¶18} It is well established that a review of the sufficiency of the evidence and a review of the manifest weight of the evidence are separate and legally distinct determinations. State v. Gulley (Mar. 15, 2000), 9th Dist. No. 19600, at *1. “While the test for sufficiency requires a determination whether the state has met its burden of production at trial, a manifest weight challenge questions whether the state has met its burden of persuasion.” Id., citing Thompkins, 78 Ohio St.3d at 390 (Cook, J., concurring).
{¶19} A determination of whether a conviction is against the manifest weight of the evidence does not permit this Court to view the evidence in the light most favorable to the State to determine whether the State has met its burden of persuasion. State v. Love, 9th Dist. No. 21654, 2004-Ohio-1422, at ¶11. Rather,
“an appellate court must review the entire record, weigh the evidence and all reasonable inferеnces, 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 (1986), 33 Ohio App.3d 339, 340.
This discretionary power should be invoked only in extraordinary circumstances when the evidence presented weighs heavily in favor of the defendant. Id.
{¶20} Vincente-Colon combined his first and second assignments of error. This is not appropriate, as sufficiency and manifest weight are two separate, legally distinct arguments. Although he consistently states that his conviction was against the manifest weight of the evidence and not based upon sufficient evidence, it does not appear that he asks this Court to
{¶21} We do note that in one portion of his argument, Vincente-Colon contends that the State‘s theory was that the shotguns were found in the attic that contained “newspaper-like insulation” and upon exiting the home, Vincente-Colon was observed to have newspaper-like insulation on his clothing. He argues that this theory was rebutted by defense witnesses Pedro Marquez, who testified that the insulation on the carpet below the attic-access panel had been there for three to four months. We will construe this argument as a manifest weight argument.
{¶22} The uncontradicted testimony revealed that officers located in the attic underneath blown-in insulation two sawed-off shotguns with the serial numbers filed off. Officer Peter Soto testified that once the owner gave permission to search the home, he noticed insulation on the floor underneath the attic access panel. He explained that in his experience, people hide things in the attic, so he decided to investigate the attic. He stated that “[y]ou could tell that someone had been in there; [the insulation] was matted down in some areas. I just started searching and probing, and I came across the two firearms buried under the insulation.” He further stated that the guns were located stuffed in the corner of the attic, not clоse to the attic access panel. On cross-examination, Officer Soto stated that he believed that the insulation under the attic access panel would have come down when someone entered the attic. He explained that although he did not know when the guns were put in the attic, the insulation on the floor below the attic access panel looked fresh and was not trampled on or matted down. The testimony revealed that Vincente-Colon had insulation on his clothes.
{¶24} The fact that the trial court chose to believe the police officers’ testimony with regard to hearing a gunshot, observing fresh insulation under the attic access panel, and observing insulation on both Pedraza and Vincente-Colon does not lead to a conclusion that Vincente-Colon‘s conviction was against the manifest weight of the evidence. Notably, the only two witnesses to testify on Pedraza and Vincente-Colon‘s behalf were his relatives, thus the trial court could have found this testimony to be biased. After reviewing the entire record, weighing the inferences and considering the credibility of the witnesses, we cannot say that the trier of fact created a manifest misсarriage of justice in finding Vincente-Colon guilty of tampering with evidence. Otten, 33 Ohio App.3d at 340.
III.
{¶25} Vincente-Colon‘s assignments of error are overruled. The judgment of the Lorain County Court of Common Pleas is affirmed.
Judgment affirmed.
We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandаte, pursuant to
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.
CARLA MOORE
FOR THE COURT
DICKINSON, P. J.
CONCURS
BELFANCE, J.
CONCURS IN JUDGMENT ONLY, SAYING:
{¶26} I concur in the judgment. Although I might have analyzed paragraph 7 of the majority‘s opinion differently, I agree that there was sufficient evidence to establish that Mr. Vincente-Colon knew that an official proceeding or investigation was in progress.
BRIAN J. DARLING, Attorney at Law, for Appellant.
DENNIS P. WILL, Prosecuting Attorney, and AMY IOANNIDIS BARNES, Assistant Prosecuting Attorney, for Appellee.