State v. Spear , 2017 Ohio 169 ( 2017 )

[Cite as State v. Spear, 2017-Ohio-169.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
STATE OF OHIO C.A. No. 28181
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
DARIUS D. SPEAR COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellant CASE No. CR 14 11 3501 (K)
DECISION AND JOURNAL ENTRY
Dated: January 18, 2017
SCHAFER, Judge.
{¶1} Defendant-Appellant, Darius Spear, appeals from his conviction in the Summit
County Court of Common Pleas. This Court affirms.
I.
{¶2} On the evening of November 15, 2014, multiple law enforcement agencies
conducted a raid at a home in Akron. The raid occurred because the police suspected that a large
scale, illegal dogfight was set to occur on the property. As a result of the raid, the police arrested
more than 45 individuals in connection with dogfighting. Spear was one of the individuals
whom the police arrested. At the time of his arrest, he had $1,496 in cash on his person.
{¶3} A grand jury indicted Spear on one count of dogfighting, in violation of R.C.
959.16(A)(5), as well as a criminal forfeiture specification for the $1,496 in cash. Spear
ultimately went to trial along with three of his co-defendants, all of whom requested a jury trial.
At the conclusion of the trial, the trial court entered a judgment in favor of Spear on the
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forfeiture specification. The jury then deliberated on the remaining dogfighting charge and
found Spear guilty. The court sentenced Spear to two years of community control and a fine.
{¶4} Spear now appeals from his conviction and raises two assignments of error for our
review. For ease of analysis, we reorder the assignments of error.
II.
Assignment of Error II
There was insufficient evidence to support the Appellant’s conviction for
dogfighting.
{¶5} In his second assignment of error, Spear argues that his conviction for dogfighting
is based on insufficient evidence. We disagree.
{¶6} A sufficiency challenge of a criminal conviction presents a question of law, which
we review de novo. State v. Thompkins, 78 Ohio St.3d 380, 386 (1997). In carrying out this
review, our “function * * * 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.” State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the syllabus.
After such an examination and taking the evidence in the light most favorable to the State, we
must decide whether “any rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt.” Id. “In essence, sufficiency is a test of adequacy.”
Thompkins at 386.
{¶7} R.C. 959.16(A)(5) provides that “[n]o person shall knowingly * * * [p]ay money
or give anything else of value in exchange for admission to or be present at a dogfight.” This
Court recently examined the foregoing statute and found it to be ambiguous. See State v. Taylor,
9th Dist. Summit No. 28091, 2016-Ohio-7953. We, therefore, conducted a statutory analysis and
determined that R.C. 959.16(A)(5)’s legislative history supports a disjunctive reading of the
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statute. Id. at ¶ 12-15. We held that, to support a conviction under R.C. 959.16(A)(5), the State
may prove either that a person (1) knowingly paid money or gave something of value for
admission to a dogfight, or (2) knowingly was present at a dogfight. Id. at ¶ 15. “A person acts
knowingly, regardless of his purpose, when he is aware that his conduct will probably cause a
certain result or will probably be of a certain nature. A person has knowledge of circumstances
when he is aware that such circumstances probably exist.” Former R.C. 2901.22(B).
{¶8} Captain Clark Westfall testified that he helped organize a raid at a home in Akron,
where the police suspected that the owner was conducting a dogfighting operation. As part of its
case-in-chief, the State introduced several pictures of the target residence, two of which are aerial
map views. The pictures show that the home is located at the end of a dead-end street and has a
sizeable backyard that abuts a noise barrier for the freeway. The backyard contains a detached
garage as well as a freestanding trailer. The front of the home faces west, and the entire
backyard is enclosed by a fence. The fence joins to the house on the house’s north and south
sides such that the fence traverses the driveway for the residence. The portion of the fence that
traverses the driveway and connects with the south side of the house is a large, retractable gate.
{¶9} Captain Westfall testified that multiple law enforcement agencies took positions
around the target residence at approximately 7:00 p.m. and conducted surveillance as numerous
people entered the fenced-in backyard. The Captain learned from a source that the property’s
retractable gate was closed and locked when dogfighting activity was occurring. Accordingly,
that evening, an armored vehicle was waiting at a nearby facility for Captain Westfall’s
command. Once the gate to the property closed, Captain Westfall signaled for the armored
vehicle, which breached the retractable gate at 10:41 p.m. Captain Westfall testified that, from
the point in time that the retractable gate closed until the armored vehicle arrived to breach it,
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between nine and ten minutes elapsed. He stated that, once the gate was breached, the scene
became “very chaotic” with people “running around, throwing things, [and] screaming.” A total
of 52 law enforcement officers ultimately responded to the scene that evening, and 47
individuals were arrested.
{¶10} On the evening of the raid, Detective Mark Hockman was tasked with
maintaining surveillance from a public walkway that ran along the south edge of the target
residence. From his position, he could observe portions of the backyard as well as the street
leading to the property. According to Detective Hockman, the police were led to believe a
dogfight would occur at the property between 10:00 and 11:00 p.m. and that the fight would
begin when the retractable gate closed. Eventually, the gate closed, and Detective Hockman
watched for approximately 12 more minutes. During that time, he observed the individuals
gathered in the backyard form “a single file formation towards the north end of the [detached]
garage.” Detective Hockman could not see the north side of the garage from his position, but
knew that a man door was located there and assumed that the group was walking into the garage.
He testified that, at some point before the armored vehicle arrived, he then noticed individuals
leaving the garage area. Although Detective Hockman could not recall exactly how long the
individuals that he saw remained in the garage area, he confirmed that a typical dogfight can last
anywhere from 30 seconds to an hour.
{¶11} Detective Hockman testified that, as soon as the armored vehicle breached the
retractable gate, people scattered and “were flying out of the garage and running in * * * all sorts
of directions.” He quickly went to assist other officers in their attempt to detain the fleeing
individuals and, following the chaos, further aided in the investigation on the property. He
testified that the police ultimately seized $52,000 that evening and $1,496 of that amount came
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from Spear. Detective Hockman confirmed that several of the individuals they arrested that
evening came from out of state and that dogfighting is funded by both the spectators who pay
admission to watch the fights and the gambling that takes place when individuals bet on the
outcomes of the fights. According to Detective Hockman, dogfights are meticulously planned
well in advance and are “very secretive.” With regard to the target residence here, Detective
Hockman noted that someone “went to great lengths [to] secur[e] [it] as a clandestine area to
operate * * * these dogfights * * *.” He opined, based on his training and experience, that it
would not be possible for someone to be present and not know they were at a dogfight.
{¶12} Detective Brian Boss testified that he acted as the lead operator for the Akron
SWAT team when the raid ensued. He stated that his team was the first to breach the backyard
after the gate was compromised and that he immediately rounded the southeast corner of the
house. In the area between the north side of the detached garage and the north fence line, he
briefly observed approximately 40 people standing near the garage watching two men taunt two
pit bulls on separate leashes. The crowd then scattered, and Detective Boss and his team gave
chase. He testified that there was “cash everywhere,” including on the ground.
{¶13} Officer Delvin Pickett, a member of the crime scene unit, testified that he took a
video recording of the scene at the property after the raid occurred. The video recording
documents numerous items related to dogfighting. Inside the detached garage at the property,
Officer Pickett found a large, square, freestanding ring that looks to have been constructed from
wood and other materials. The inside flooring of the ring was carpeted and had several long
pieces of duct tape arranged in lines. Officer Pickett stated that both the lines of duct tape and
the inside walls of the ring were covered in “wet, fresh blood.” Officer Pickett also found inside
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the garage buckets of water, sponges, and bloodied break sticks. There was testimony that break
sticks are used to pry open a dog’s mouth when it has latched onto another dog.
{¶14} Apart from the detached garage, Officer Pickett also documented the inside of the
freestanding trailer at the southeast corner of the backyard and a separate, fenced area that he
found there. The trailer contained more buckets of water and sponges, a filthy shower area, and
weighing scales. In the separate, fenced area, Officer Pickett found individual, enclosed cages
for dogs, kennels, chains, and bowls. At the time that he recorded the scene, at least one dog was
still confined in one of the kennels in the fenced-in area.
{¶15} In addition to filming the contents of the structures on the property, Officer
Pickett also documented the numerous vehicles that were on scene when the raid commenced.
Several of the vehicles were parked inside the enclosed backyard and additional vehicles were
parked at a vacant lot that was located to the north of the target residence. Officer Pickett
testified that he was able to observe kennels in a number of the vehicles that he recorded,
including the vehicles parked in the backyard. At least one of the kennels had a dog inside of it.
{¶16} Detective Mildred Morris, another member of the crime scene unit, testified that
she also documented various aspects of the scene that evening. As part of her duties, Detective
Morris photographed several of the individuals who were arrested at the scene. She identified
Spear as one of the arrestees whom she photographed at the property that evening.
{¶17} Officer Tim Harland testified that he works for the Summit County Humane
Society and was present at the target residence to secure the dogs on scene and provide them any
necessary medical treatment. He testified that he ultimately collected eight dogs from the
property that evening, all of which were either pit bulls or pit bull mixes. Of the eight dogs
collected, one dog had to be euthanized for safety reasons because he was vicious. Two of the
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other dogs had actively bleeding puncture wounds that were consistent injuries a dog would
receive from another dog. Based on his training and experience, Officer Harland opined that the
two injured dogs had been involved in a dogfight “[v]ery recently.”
{¶18} Maurice Wynn, Jr., one of Spear’s co-defendants, testified for the State pursuant
to a plea agreement. Wynn agreed that he came to the target residence the evening of the raid to
watch dogfights and that the owner of the residence, Alvin Banks, charged him $75 to see the
fights. Wynn testified that Banks personally called him to invite him to the fights. According to
Wynn, he came to the fights alone, could not say who else was there, did not know how any of
the other people there received their invitations, and did not know if anyone else paid to see the
fights. Wynn agreed that people were betting on the winners of the dogfights that night and that
one dogfight took place before the police conducted their raid. He testified that the fight took
place inside the detached garage and that, before it started, Banks signaled for him to enter the
garage. Wynn admitted that there were other people in the garage, but stated that he did not
know how many. He did agree, however, that everyone who had been gathered in the yard went
into the garage and that he came back outside when the fight ended.
{¶19} Robby Hollis, another of Spear’s co-defendants, also testified for the State
pursuant to a plea agreement. Hollis admitted that he had been friends with Alvin Banks for
several years and that, before the evening of the raid, he had attended dogfights at Banks’
residence on two separate occasions. Hollis testified that Banks invited him to fights by word of
mouth. He agreed that, during the two previous fights, he personally saw Banks collect money
from people for admittance to the fights. According to Hollis, Banks was standing near the
retractable gate when he arrived on the evening of the raid and waived him through without
payment. He was able to observe, however, Banks collect money from four or five other
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individuals as he made his way inside. Hollis indicated that he saw two injured dogs standing by
the gate when he arrived, but that he missed the first dogfight that occurred that evening. He
agreed that people were gambling on the dogs at the fights he previously attended at Banks’
residence.
{¶20} Spear concedes that a dogfight occurred at the target residence on the evening of
his arrest. He argues that his dogfighting conviction is based on insufficient evidence because
there was no evidence that he paid money or gave anything of value for admission to the fight or
that he actually witnessed a dogfight that evening. He notes that there was no testimony that he
actually entered the garage where the dogfight occurred. He further argues that R.C.
959.16(A)(5) “requires more than mere presence, it requires the paying of a fee in exchange for
admission.”
{¶21} As previously noted, this Court has interpreted R.C. 959.16(A)(5) as requiring the
State to prove either that a person (1) knowingly paid money or gave something of value for
admission to a dogfight, or (2) knowingly was present at a dogfight. Taylor, 2016-Ohio-7953, at
¶ 15. Accordingly, the State was not required to prove that Spear paid money or gave something
of value for admission to the dogfight(s) at the target residence. Spear’s conviction can stand so
long as the State set forth sufficient evidence that he was knowingly present at a dogfight.
Viewing all the evidence in a light most favorable to the State, we must conclude that the State
satisfied its burden of production on that issue.
{¶22} There was limited testimony at trial that specifically pertained to Spear, but
Detective Morris did identify him as one of the arrestees she photographed at the target property
and Detective Hockman did testify that, at the time of his arrest, Spear had $1,496 in cash on his
person. Moreover, Detective Hockman opined, based on his training and experience, that it
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would have been impossible for someone to be present that evening and not know they were at a
dogfight. He noted that dogfights are “very secretive” and planned well in advance. There was
testimony that the property here was entirely surrounded by a fence and that the large, retractable
gate that completed the enclosure was secured when the dogfights started. There also was
testimony that, from the time the gate closed until it was breached, it remained closed and,
during that timeframe, the crowd appeared to enter the detached garage where the fight occurred.
Detective Boss also saw a large crowd watching two men taunt two pit bulls when he entered the
property behind the armored vehicle. There was testimony that the police collected
approximately $52,000 that evening and that they found significant sums of money on the
ground where it had been thrown when the raid commenced. Given the presence of the dogs, the
behavior of the crowd, the clandestine nature of the event, and the large quantities of money that
the crowd had on hand, a rational trier of fact could have concluded that Spear was knowingly
present at a dogfight that evening. See former R.C. 2901.22(B) (defining the circumstances in
which a person acts “knowingly”). Spear has not shown that his dogfighting conviction is based
on insufficient evidence. Consequently, his second assignment of error is overruled.
Assignment of Error I
The trial court abused its discretion when it determined that the State’s
witness Maurice Wynn was “adverse” or “hostile” and allowed the State to
cross-examine the witness.
{¶23} In his first assignment of error, Spear argues that the trial court abused its
discretion when it declared a State’s witness hostile and/or adverse and allowed the State to ask
him leading questions on direct examination. Because Spear has not explained how he was
prejudiced by the trial court’s ruling, we overrule his assignment of error.
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{¶24} “Evid.R. 611(C) generally prohibits the use of leading questions on direct
examination.” State v. McKelton, Slip Opinion No. 2016-Ohio-5735, ¶ 150. A trial court may
permit the use of leading questions, however, when “a party calls a hostile witness, an adverse
party, or a witness identified with an adverse party * * *.” Evid.R. 611(C). “A witness who has
a strong affinity to the defendant is a witness ‘identified with an adverse party.’” State v. White,
9th Dist. Lorain No. 94CA005936, 1995 WL 338423, *4 (June 7, 1995). “‘A hostile witness is
one who is so evasive or uncooperative on examination that his testimony is impeded.’”
McKelton at ¶ 152, quoting Weissenberger, Ohio Evidence: 1991 Courtroom Manual 170
(1991).
{¶25} “The determination of whether a witness is hostile or adverse is entrusted to the
sound discretion of the trial court.” State v. Rutkowski, 9th Dist. Lorain No. 94CA005831, 1995
WL 324085, *2 (May 31, 1995). Consequently, we “review a trial court’s application of
[Evid.R. 611(C)] for an abuse of discretion.” McKelton at ¶ 150. Accord State v. Wilson, 9th
Dist. Lorain No. 96CA006412, 1997 WL 164304, *7 (Apr. 2, 1997) (“The trial court has
discretion to permit the [S]tate to ask leading questions of its own witnesses.”). An abuse of
discretion indicates that the trial court’s attitude was unreasonable, arbitrary, or unconscionable.
Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).
{¶26} The State’s first witness was Marcus Wynn, Jr. The prosecutor asked Wynn his
name, age, and employment status before requesting a sidebar. An off the record discussion then
took place, after which the prosecutor asked the court to call Wynn as its own witness due to his
status as a co-defendant. See Evid.R. 614(A). The court declined to do so, but stated that it
would declare Wynn an adverse witness. In response, defense counsel asked whether the court
intended to declare Wynn a hostile witness, and the court confirmed that it was its intention to do
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so because Wynn was a defendant. An additional discussion then ensued wherein defense
counsel argued that Wynn had yet to demonstrate any hostility. The prosecutor noted that the
court had declared Wynn a hostile witness in a prior trial against other co-defendants in this
matter. The following discussion then took place:
THE COURT: [Wynn] does not want to be here.
[DEFENSE COUNSEL FOR CO-DEFENDANT]: He hasn’t said that yet. I don’t
know. I mean, you know that; [the jury] [does not] know.
THE COURT: It doesn’t matter what they know. It matters what I know. They
don’t judge admissibility of evidence.
Over the objection of both defense counsels, the court then permitted the State to ask Wynn
leading questions.
{¶27} Spear argues that the trial court abused its discretion by declaring Wynn to be
either a hostile or adverse witness. He argues that the court could not declare Wynn hostile
because he had not yet shown any reluctance to testify and the State failed to establish either
surprise or that it would suffer affirmative damage as a result of his testimony. See Evid.R.
607(A). He further argues that Wynn was not adverse to the State because he was testifying
pursuant to a plea agreement. Spear argues that the court could not rely upon its knowledge of
what occurred during other trials to determine Wynn’s status as a hostile or adverse witness in
the present matter.
{¶28} It is not clear from the record whether the trial court found Wynn to be a hostile
witness, an adverse witness, or both, given that the court used both terms when it issued its
ruling. To the extent the court intended to declare Wynn a hostile witness, Spear is correct that
the court could not rely on its knowledge of prior proceedings in other cases to make that
determination. See State v. Vaughn, 9th Dist. Summit No. 27902, 2016-Ohio-7384, ¶ 25,
quoting In re J.C., 186 Ohio App.3d 243, 2010-Ohio-637, ¶ 14 (9th Dist.) (court only may take
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judicial notice of prior proceedings in immediate case). Even so, we need not determine whether
the trial court abused its discretion when it allowed the State to cross-examine Wynn. That is
because, even assuming that the court abused its discretion, Spear has not shown that he was
prejudiced as a result of the court’s ruling. See State v. Foster, 9th Dist. Summit No. 14277,
1990 WL 72345, *2 (May 23, 1990) (“Leading questions * * * may not be a ground for reversal
on review unless prejudice results.”).
{¶29} As previously noted, Wynn’s testimony was that a dogfight occurred at the target
residence before the raid, he leaned about the fight from Alvin Banks, he paid money to see the
fight, the fight occurred in the garage, and other people, none of whom he could identify, were
present for the fight. Even without his testimony, however, the record contains evidence on each
of the points he raised. Spear concedes that a dogfight took place on the property that evening.
Further, Hollis, another co-defendant, testified that Banks invited him to the dogfight and
collected money from people for admission to the fight. There was evidence that the dogfight
took place in the garage, as the ring contained therein was covered with fresh blood and at least
two dogs showed signs of very recent trauma. Moreover, there was testimony that the fight
occurred after the gate closed, that one of the SWAT team members saw the crowd move to the
garage at that time, and that he later saw the crowd leaving the garage area. That same SWAT
team member, Detective Hockman, also opined that it would have been impossible for someone
to be present that evening and not know they were at a dogfight.
{¶30} Spear has not made any attempt to explain how he was prejudiced by the
prosecutor’s use of leading questions when he examined Wynn. See App.R. 16(A)(7); Cardone
v. Cardone, 9th Dist. Summit No. 18349, 1998 WL 224934, *8 (May 6, 1998) (“If an argument
exists that can support this assignment of error, it is not this [C]ourt’s duty to root it out.”). Even
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assuming that the trial court abused its discretion by declaring Wynn a hostile or adverse witness,
“[l]eading questions * * * may not be a ground for reversal on review unless prejudice results.”
Foster at *2. Spear has not shown that, had the State not been allowed to cross-examine Wynn,
the result of his trial would have been different. See id. Accordingly, his first assignment of
error is overruled.
III.
{¶31} Spear’s assignments of error are overruled. The judgment of the Summit County
Court of Common Pleas is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
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. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
JULIE A. SCHAFER
FOR THE COURT
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CARR, P. J.
MOORE, J.
CONCUR.
APPEARANCES:
STACY MCGOWAN, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and TABITHA B. STEARNS, Assistant
Prosecuting Attorney, for Appellee.