Opinion
No. 105965
04-12-2018
STATE OF OHIO PLAINTIFF-APPELLEE v. KEVIN L. PAYNE DEFENDANT-APPELLANT
ATTORNEY FOR APPELLANT Kimberly K. Yoder Kimberly K. Yoder Co., L.P.A. 20525 Center Ridge Road, Suite 133 Rocky River, Ohio 44116 ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga County Prosecutor By: Janna R. Steinruck Assistant Prosecuting Attorney Justice Center - 9th Floor 1200 Ontario Street Cleveland, Ohio 44113
JOURNAL ENTRY AND OPINION JUDGMENT: AFFIRMED Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-16-609944-A BEFORE: S. Gallagher, J., E.A. Gallagher, A.J., and McCormack, J.
ATTORNEY FOR APPELLANT
Kimberly K. Yoder
Kimberly K. Yoder Co., L.P.A.
20525 Center Ridge Road, Suite 133
Rocky River, Ohio 44116
ATTORNEYS FOR APPELLEE
Michael C. O'Malley
Cuyahoga County Prosecutor
By: Janna R. Steinruck
Assistant Prosecuting Attorney
Justice Center - 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113 SEAN C. GALLAGHER, J.:
{¶1} Appellant Kevin L. Payne appeals his convictions for felonious assault and having weapons while under disability. Upon review, we affirm.
{¶2} Appellant was charged under a four-count indictment with offenses related to the shooting of the victim on September 9, 2016. The case ultimately proceeded to a jury trial.
{¶3} Testimony in the case revealed that the victim was shot while taking a shortcut home. On the day of the incident, the victim had walked to a house about a block away from his home to do some painting work. On his way home, he stopped at the D-VIP Car Wash to speak to some individuals. The victim testified that appellant had threatened him and a group of people at the car wash a few days earlier. After stopping at the car wash, appellant proceeded to walk toward his apartment building via a shortcut.
{¶4} The victim testified that he walked across a parking lot by Holly Park toward some bushes that were growing around an abandoned area. While he was walking, he saw appellant come from across the street, walk along the side of a building, and come up behind him. The victim stated he knew appellant from the neighborhood, had seen him eight to ten times before, and had interacted with him a couple of times. He knew appellant by his nickname, "Bananas," but he did not know appellant's actual name. The victim thought appellant might be going to the park to hang out. The victim stated that appellant was about ten feet away and was wearing a T-shirt, blue jeans, and black tennis shoes. He described appellant as having a goatee, a fresh haircut, and protruding buckteeth. The victim testified that there was nobody else around.
{¶5} The victim testified that appellant stated: "Oh, you walking through the cut? You don't walk through — don't nobody go through this cut. This is my cut." The victim took a few steps into the cut through and stated, "Well, I been walking through the cut for the last three years." He then heard appellant make a remark and a "pow." The victim felt a bullet, which left a bullet hole in his back and chest, fractured a rib, lacerated a lung, and nicked his liver. The victim grabbed his chest, ran to his apartment building, and screamed to his fiancée that he had been shot and to call 911.
{¶6} The victim's girlfriend and an upstairs neighbor both had heard the gunshot. They drove the victim to a nearby gas station where they told a police officer who was there that the victim had been shot. EMS was called, and the victim was taken to the hospital. Although the victim reported a history of alcohol and drug use, he testified he had not had anything to drink or used any drugs that day.
{¶7} Det. Joseph Marche met with the victim at the hospital. The victim told the detective about the shooting and provided a description of the suspect. Appellant was arrested a few days after the incident. The victim identified him from a photo lineup. No evidence was located at the reported scene of the crime.
{¶8} The trial court denied appellant's Crim.R. 29 motion for acquittal. The jury found appellant not guilty of attempted murder and felonious assault as charged in Counts 1 and 3 of the indictment. The jury found appellant guilty of felonious assault in violation of R.C. 2903.11(A)(1), as charged in Count 2 of the indictment, as well as the accompanying one- and three-year firearm specifications, and the court found appellant guilty of the notice of prior conviction and repeat violent offender specifications. The court found appellant guilty of having weapons while under disability in violation of R.C. 2929.13(A)(2), as charged in Count 4 of the indictment.
{¶9} The trial court sentenced appellant to a total aggregate prison term of eight years. The court also imposed three years of mandatory postrelease control.
{¶10} Appellant timely filed this appeal. He raises three assignments of error for our review.
{¶11} Under his first assignment of error, appellant claims the trial court erred by denying his motion to declare a mistrial. His motion was made in response to testimony from Det. Marche about how he identified appellant because the testimony referenced appellant's "criminal histories."
{¶12} The record reflects that Det. Marche was testifying about apprehending appellant. He was asked how appellant was identified, since up until the point of his arrest, the police only had a description but did not have his name. The following testimony transpired:
MS. STEINRUCK: So what was your next step? DETECTIVE MARCHE: We had to identify him. MS. STEINRUCK: Okay. 6 DETECTIVE MARCHE: Which we did. As Kevin Payne. I ran him on the law enforcement data terminal, got all his information, his last known address, his past criminal histories, I pulled him up on OLEG which is the Ohio law enforcement
{¶13} At that point, defense counsel asked for a sidebar and the judge dismissed the jury for the day. Defense counsel argued that the mention of appellant's "past criminal histories" and the criminal OLEG database was prejudicial. The trial court recognized that no details were offered with regard to appellant's criminal history. After further discussion, the court asked the attorneys to research the issue.
{¶14} The following day, defense counsel filed a motion to declare a mistrial, and the court revisited the matter. After hearing arguments from both parties, the trial court denied the motion. The trial court indicated: "There was no other testimony. There was no embellishing. There was [nothing] else to enhance those three words or to say more about it so therefore I don't believe that's enough for a mistrial." The court decided against giving a curative instruction because "it would just bring more attention to it." The court further instructed counsel to move on to another issue upon resuming questioning of the detective.
{¶15} It is within a trial court's sound discretion to decide whether to grant or deny a mistrial. State v. Cepec, 149 Ohio St.3d 438, 2016-Ohio-8076, 75 N.E.3d 1185, ¶ 89, citing State v. Garner, 74 Ohio St.3d 49, 59, 1995-Ohio-168, 656 N.E.2d 623. "A mistrial should be declared only when justice requires and when a fair trial is no longer possible." Cepec, citing State v. Franklin, 62 Ohio St.3d 118, 127, 580 N.E.2d 1 (1991).
{¶16} In Garner, the Ohio Supreme Court found that the trial court did not abuse its discretion by failing to order a mistrial where an improper reference to the defendant's prior arrests was fleeting and was promptly followed by a curative instruction. Id. at ¶ 89. In Cepec, the court found no abuse of discretion where the improper reference to the defendant's prior criminal record was promptly addressed by a curative instruction and the defense itself introduced some evidence of the defendant's criminal history during mitigation. Id. at ¶ 90.
{¶17} In State v. W.J., 10th Dist. Franklin No. 14AP-457, 2015-Ohio-2353, ¶ 49-52, the Tenth District found the trial court did not abuse its discretion in denying a motion for a mistrial when the testimony concerning appellant's criminal history was vague and did not reference any specific crime, the defense counsel did not request the trial court to move forward with a curative instruction, and there was ample evidence presented at trial to convict the defendant.
{¶18} In State v. Moulder, 8th Dist. Cuyahoga No. 80266, 2002-Ohio-5327, ¶ 36-44, this court found the trial court did not abuse its discretion in denying a mistrial when the reference to the defendant's previous prison experience was brief, the prosecution did not introduce or attempt to introduce evidence regarding the appellant's prior criminal history, and no curative instruction was given in order not to highlight the statement. As this court previously has found, where a witness makes an isolated reference to a defendant's criminal history and there is no showing that the defendant suffered material prejudice, a mistrial is not warranted. State v. Conner, 8th Dist. Cuyahoga No. 99557, 2014-Ohio-601, ¶ 92.
{¶19} The case that was cited by appellant's trial counsel is distinguishable. In State v. Hajdin, 8th Dist. Cuyahoga No. 81058, 2003-Ohio-2863, a computer printout containing the defendant's criminal history and police reports concerning the incident in the case was inadvertently taken into the jury deliberation room. This was a 21-page document that two jurors had actually seen, and the entire jury had been made aware that the defendant had a "rap sheet." Id. at ¶ 10. It was determined that "the jury was given outside information which contained a detailed and prejudicial synopsis of the incident as well as the defendant's extensive criminal history, including almost identical charges which had been previously filed against him." Id. at ¶ 18. The defendant was found to have been prejudiced because the document, which contained "highly inflammatory and inadmissible material" that was reflective of the defendant's bad character and inferred he acted in conformity therewith, was present in the jury room. Id. at ¶ 20. No such circumstances exist in this case.
{¶20} This case is more akin to W.J. and Moulder. Here, the testimony concerning appellant's prior criminal histories was brief and did not reference any specific crimes. Although the trial court did not offer a curative instruction in this matter, defense counsel did not request one and suggested that it would draw more attention to the statement. The trial court indicated it did not wish to draw any further attention to the statement and instructed that the questioning move on to another issue. There was ample evidence at trial to convict appellant.
{¶21} Upon review, we find that appellant has not demonstrated prejudice such that the jury would not have found him guilty but for the improper statement. Accordingly, we conclude the trial court did not abuse its discretion in denying appellant's motion for a mistrial based on the statement referencing his prior criminal histories. Appellant's first assignment of error is overruled.
{¶22} Under his second assignment of error, appellant claims the trial court erred in denying his Crim.R. 29 motion for acquittal. A motion for judgment of acquittal under Crim.R. 29(A) requires a court to consider if the evidence is insufficient to sustain a conviction. "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, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus.
{¶23} The jury found appellant guilty of felonious assault in violation of R.C. 2903.11(A)(1), as charged in Count 2 of the indictment, as well as the accompanying one-and three-year firearm specifications, and the court found appellant guilty of the notice of prior conviction and repeat violent offender specifications. The court found appellant guilty of having weapons while under disability in violation of R.C. 2929.13(A)(2), as charged in Count 4 of the indictment.
{¶24} Appellant claims there was insufficient evidence for a rational jury to find the elements of the offense of felonious assault pursuant to R.C. 2903.11(A)(1) with firearm specifications proven beyond a reasonable doubt. Appellant argues that his conviction was based solely on the testimony of the victim. He points to the lack of physical evidence, questions the police investigation, argues there was no corroborating evidence, and states there were inconsistencies in the victim's version of events and his description of the shooter.
{¶25} R.C. 2903.11(A)(1) states that "[n]o person shall knowingly * * * [c]ause physical harm to another or to another's unborn[.]" The felonious assault statute does not require corroborating evidence to support a conviction and a victim's testimony, standing alone, can be sufficient to support a felonious assault conviction. State v. Wesley, 2015-Ohio-5031, 52 N.E.3d 279, ¶ 18 (12th Dist.). The same can be said of having weapons while under disability in violation of R.C. 2929.13(A)(2).
{¶26} There is no dispute that the victim in this case was shot. The victim testified that appellant approached him while he was walking home, commented to him about going through the "cut," and then shot him. The victim was able to identify appellant, with whom he was familiar, as the shooter. The evidence must be viewed in a light most favorable to the prosecution.
{¶27} Although appellant points to some inconsistencies reported by the victim, an evaluation of witness credibility is not proper on review for sufficiency of evidence. State v. Yarbrough, 95 Ohio St.3d 227, 2002-Ohio-2126, 767 N.E.2d 216, ¶ 79. "In a sufficiency of the evidence inquiry, appellate courts do not assess whether the prosecution's evidence is to be believed but whether, if believed, the evidence supports the conviction." State v. Carter, 8th Dist. Cuyahoga No. 104653, 2018-Ohio-29, ¶ 7, citing Yarbrough at ¶ 79-80. In this matter, the victim's testimony alone, if believed, was sufficient for the jury to find all the elements of the convicted offense proven beyond a reasonable doubt.
{¶28} We conclude that the trial court did not err in denying appellant's Crim.R. 29 motion for acquittal. Appellant's second assignment of error is overruled.
{¶29} Under his third assignment of error, appellant claims his conviction was against the manifest weight of the evidence. When reviewing a claim challenging the manifest weight of the evidence, the court, reviewing the entire record, must 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. State v. Thompkins, 78 Ohio St.3d 380, 387, 1997-Ohio-52, 678 N.E.2d 541. Reversing a conviction as being against the manifest weight of the evidence should be reserved for only the exceptional case in which the evidence weighs heavily against the conviction. Id.
{¶30} Appellant again points to the lack of physical or corroborating evidence and to inconsistencies in the record. "[A] lack of physical evidence alone does not render a conviction against the manifest weight of the evidence." State v. Shedwick, 10th Dist. Franklin No. 11AP-709, 2012-Ohio-2270, ¶ 32. Also, although there were some inconsistencies, such as an indication in the victim's medical record that he had been arguing with a group of males and one of them shot him, which the victim denied reporting to anyone, the jury was free to take note of the inconsistencies and resolve or discount them accordingly. Our review of the entire record reveals no significant inconsistencies or other conflicts in the state's evidence.
{¶31} Finally, appellant claims the jury's verdict of guilty on Count 2 for felonious assault under R.C. 2903.11(A)(1) with the firearm specifications was inconsistent with its verdict of not guilty on Count 3 for felonious assault in violation of R.C. 2903.11(A)(2). However, it is well recognized that consistency in verdicts between several independent counts of an indictment is not required. State v. Frierson, 8th Dist. Cuyahoga No. 105618, 2018-Ohio-391, ¶ 45. As the Supreme Court of Ohio has held, "[t]he several counts of an indictment containing more than one count are not interdependent and an inconsistency in a verdict does not arise out of inconsistent responses to different counts, but only arises out of inconsistent responses to the same count." State v. Lovejoy, 79 Ohio St.3d 440, 1997-Ohio-371, 683 N.E.2d 1112, paragraph one of the syllabus. Likewise, the fact that the jury was originally deadlocked on one of the charges, but reached a verdict after receiving a Howard instruction, does not justify a reversal of the conviction.
{¶32} We find that this is not the exceptional case in which the evidence weighs heavily against the conviction and that defendant's conviction is not against the manifest weight of the evidence. Appellant's third assignment of error is overruled.
{¶33} Judgment affirmed.
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 out of this court directing the common pleas court to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. SEAN C. GALLAGHER, JUDGE EILEEN A. GALLAGHER, A.J., and
TIM McCORMACK, J., CONCUR