State v. Cummings , 2018 Ohio 3993 ( 2018 )

[Cite as State v. Cummings, 2018-Ohio-3993.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
Nos. 106261 and 106265
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
KENSHAWN CUMMINGS
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case Nos. CR-16-607962-A and CR-16-608614-A
BEFORE: Kilbane, P.J., McCormack, J., and Boyle, J.
RELEASED AND JOURNALIZED: September 27, 2018
[Cite as State v. Cummings, 2018-Ohio-3993.]
ATTORNEY FOR APPELLANT
Mark R. Marshall
P.O. Box 451146
Westlake, Ohio 44145
ATTORNEYS FOR APPELLEE
Michael C. O’Malley
Cuyahoga County Prosecutor
Andrea N. Isabella
Assistant County Prosecutor
The Justice Center - 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
MARY EILEEN KILBANE, P.J.:
{¶1} In this consolidated appeal, defendant-appellant, Kenshawn Cummings
(“Cummings”), appeals his convictions.1 For the reasons set forth below, we affirm.
{¶2} Over the course of 2016 and 2017, Cummings was charged in the following
six cases: CR-16-607464-B; CR-16-607962-A; CR-16-608613-A; CR-16-608614-A;
CR-16-610231-A; and CR-17-617167-A. Case Nos. CR-16-607962-A and
CR-16-608614-A relate to the instant appeal, and the remaining cases relate to
Cummings’s companion appeal — State v. Cummings, 8th Dist. Cuyahoga Nos. 106262,
106263, 106264, and 106268.
{¶3} In July 2016, Cummings was charged in Case No. CR-16-607962-A with
aggravated robbery (Count 1), robbery (Count 2), felonious assault (Count 3), and petty
theft (Count 4). The charges arise from an incident in April 2015 and name Vicki
Leonard (“Leonard”) as the victim.
1 This
appeal is a companion case to the consolidated appeal in State v.
Cummings, 8th Dist. Cuyahoga Nos. 106262, 106263, 106264, and 106268.
[Cite as State v. Cummings, 2018-Ohio-3993.]
{¶4} In August 2016, Cummings was charged in Case No. CR-16-608614-A with
attempted murder (Count 1), two counts of felonious assault (Counts 2 and 3), two counts
of aggravated robbery (Counts 4 and 5), kidnapping (Count 6), the discharge of a firearm
on or near prohibited premises (Count 7), and two counts of having a weapon while under
disability (“HWWUD”) (Counts 8 and 9).2 The charges arise from an incident in August
2016 and name Collin Langham (“Langham”) as the victim.
{¶5} On March 3, 2017, the trial court granted the state’s request to join Case No.
CR-16-607962-A (the aggravated robbery case) with Case No. CR-16-608614-A (the
attempted murder case) for trial, which commenced before a jury three days later, on
March 6, 2017. The following evidence was adduced at trial.
Attempted Murder Case
{¶6} Langham testified that on August 1, 2016, he was visiting a friend at the
Triumph Towers apartment complex in Euclid, Ohio. He left his friend’s apartment
around 6:00 p.m. Langham exited the apartment building from the back, which led to the
rear parking lot. On his way out, Langham saw a few acquaintances and spoke with
them for approximately five to ten minutes. He was then approached by Cummings, who
Langham knew as “Ken.” Langham testified that he knew Cummings and “help[ed] him
from time to time[.]” He would “give him a dollar, something, maybe give him food,
something. Little stuff like that[.]”
2Each of Counts 1-7 carried one- and three-year firearm specifications.
[Cite as State v. Cummings, 2018-Ohio-3993.]
{¶7} The other male acquaintances walked away when Cummings approached
Langham. At that point, Cummings said to Langham “[g]ive me what you got.”
Langham replied, “I’m not giving you anything.” From there, Cummings further
approached Langham and shot him in the leg before fleeing the scene. Langham sought
assistance from other people at the apartment complex. One tenant heard the gunshot
and called 911. Langham was taken by an ambulance to the hospital. Langham’s leg
was fractured, and the bullet was lodged in the inner area of his knee.
{¶8} Euclid Police Officer Frank Royce (“Officer Royce”) responded to a call that
shots were fired at the Triumph Towers on August 1, 2016. Officer Royce spoke with
Langham while he was at the hospital. At that time, Langham indicated that he was shot
by “Ken.” Langham described “Ken” as a black male in his 20s, medium complexion,
approximately six feet tall, thin build, wearing a white V-neck Versace T-shirt, black
pants, and white shoes.
{¶9} Euclid Police Detective Joshua Schultz (“Detective Schultz”) testified about
his investigation of the case. He obtained surveillance video from the apartment
complex, which was played for the jury. The video of the parking lot captured the
moment when Langham was shot. From that video, the assailant can be seen wearing a
white shirt, dark pants, and white shoes. The other surveillance videos clearly captured
Cummings walking into the apartment complex minutes before the shooting, wearing a
white Versace shirt, black pants, and white shoes. Detective Schultz recognized
Cummings from the video. Thereafter, Detective Schultz created a photo array and had
another officer present it to Langham. Langham identified Cummings as the assailant
with “100% certainty.” A search warrant was then executed upon Cummings’s
residence, where officers located a white V-neck Versace T-shirt, a pair of black pants,
and a pair of white high-top shoes.
{¶10} Sergeant Philip Christopher (“Sergeant Christopher”) of the Cuyahoga
County Sheriff’s Office, testified about three jail calls placed by Cummings while
incarcerated. The three jail calls were from August 4, 2016, August 25, 2016, and
September 28, 2016. In the September 28th jail call, Cummings is speaking with another
male. Seven minutes into the conversation, Cummings says, “I did this s * * *[.]” It
appears that the other male then immediately ends the call.
Aggravated Robbery Case
{¶11} Leonard testified that around 10:30 p.m. on April 25, 2015, she was walking
back to her Euclid apartment from a nearby store when she observed a male jump out
from between two cars in her apartment complex’s parking lot. The male, later identified
as Cummings, ran up to her, kicked her in the chest, knocking her to the ground.
Cummings then stole her purse and fled the scene. Leonard, who was 62 years old at the
time, laid on the ground for approximately 15 minutes before getting herself up. She was
unable to call 911 because her cell phone was in her purse, which was stolen. The next
morning she was still in pain, so she called 911 with someone else’s phone and was taken
by ambulance to Euclid Hospital, where she stayed for four days. She sustained an injury
to her vertebrae, a mild fracture, and a bruise to her chest.
{¶12} Special Agent Brian Collins (“Agent Collins”) testified about his
investigation of the case. 3 He spoke to Leonard while she was at the hospital. He
obtained Leonard’s cell phone number and subpoenaed her phone records. Based on the
phone calls made after Leonard’s phone was stolen, Agent Collins learned that an
individual named Quintin Hill was contacted by Cummings from Leonard’s cell phone.
Agent Collins then created a photo array containing Cummings’s picture. Leonard
identified Cummings as the assailant with 75 percent certainty.
{¶13} With regard to the attempted murder case, the jury found Cummings guilty
of two counts of felonious assault, two counts of aggravated robbery, kidnapping, and the
discharge of a firearm on or near prohibited premises, all with the accompanying
specifications. The jury also found him guilty of one count of HWWUD. The
remaining HWWUD count was dismissed by the state. The jury found Cummings not
guilty of attempted murder. With regard to the aggravated robbery case, the jury found
Cummings guilty of all counts — aggravated robbery, robbery, felonious assault, and
petty theft.
{¶14} In June 2017, Cummings filed a motion for acquittal under Crim.R. 29(C) or
in the alternative a motion for new trial under Crim.R. 33. The trial court held a hearing
on the matter one month later. At the hearing, Cummings argued that the state failed to
3Atthe time of the incident, Collins was a detective with the Euclid Police
Department, but since then he has been employed as a special agent with the
Federal Bureau of Investigation.
timely produce the jail calls to defense counsel. The state argued that Cummings’s
motion was untimely. The state further argued that Cummings’s substantial rights have
not been materially affected. The trial court denied the motion, finding that Cummings
did not demonstrate that the late disclosure of the jail calls prejudiced him “in light of the
overwhelming evidence of his guilt as determined by the jurors of him in one case
shooting a victim on video.”
{¶15} In August 2017, Cummings entered into a package plea agreement on his
four remaining cases. Thereafter, a sentencing hearing was held on all his cases. The
trial court sentenced Cummings to an aggregate of 11 years in prison in the aggravated
robbery case and an aggregate of 14 years in prison in the attempted murder case. The
court ordered the 14-year sentence be served consecutive to the 11-year sentence. The
court further ordered that these two sentences be served concurrently to the remaining
four cases, which were also concurrent to each other. In total, the trial court sentenced
Cummings to 25 years in prison.
{¶16} Cummings now appeals, raising the following two assignments of error for
review.
Assignment of Error One
The trial court abused its discretion by denying [Cummings’s] motion for a
new trial pursuant to [Crim.R. 33].
Assignment of Error Two
The trial court abused its discretion by denying [Cummings’s] motion for a
mistrial based upon violation of the oral motion in limine prohibiting the
state’s witnesses from advertently or inadvertently referencing that
[Cummings] was either known by the police department or had other
dealings with the police department.
Motion for New Trial
{¶17} In the first assignment of error, Cummings argues the trial court abused its
discretion by failing to grant a new trial under Crim.R. 33(A)(2) because the state did not
provide to defense counsel the jail call it played to the jury in which Cummings states, “I
did this s * * *[.]”
{¶18} A new trial may be granted under Crim.R. 33(A)(2), if the misconduct of the
prosecution materially affected Cummings’s substantial rights. Crim.R. 33(B) provides
that a motion for new trial must be filed within 14 days after the verdict has been
rendered, unless a defendant claims the motion was based on the grounds of newly
discovered evidence. Additionally, Crim.R. 33(C) requires that a motion under Crim.R.
33 (A)(2) must be sustained by an affidavit showing its truth.
{¶19} A Crim.R. 33 motion for a new trial is addressed to the sound discretion of
the trial court and will not be reversed absent an abuse of discretion. State v. Schiebel,
55 Ohio St.3d 71, 77, 564 N.E.2d 54 (1990). “‘The term “abuse of discretion” * * *
implies that the court’s attitude is unreasonable, arbitrary or unconscionable.’”
(Citations omitted.) Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140(1983), quoting State v. Adams, 62 Ohio St.2d 151, 404 N.E.2d 144 (1980).
{¶20} In the instant case, Cummings’s motion for new trial was not timely filed as
required by Crim.R. 33(B), nor did he seek leave to file his motion properly. In order to
obtain leave, a defendant must demonstrate by clear and convincing evidence that they
were unavoidably prevented from discovering the new evidence within the time period
provided by Crim.R. 33(B). A party is “unavoidably prevented” from filing a motion for
a new trial if they have “‘no knowledge of the existence of the [evidence or] ground
supporting the motion for [a] new trial and [with reasonable diligence,] could not have
learned of the existence of that ground within the time prescribed for filing the motion for
new trial[.]’” State v. Sutton, 2016-Ohio-7612, 73 N.E.3d 981, ¶ 12 (8th Dist.), quoting
State v. Walden, 19 Ohio App.3d 141, 145-146, 483 N.E.2d 859 (10th Dist.1984). Once
the trial court grants leave, the motion for new trial must be filed within seven days, and
the motion must be supported by an affidavit demonstrating the existence of the grounds
for the motion. Crim.R. 33(B).
{¶21} Cummings did not seek leave of the trial court within 14 days after the
verdict to file the motion, nor did he include an affidavit demonstrating the existence of
the grounds for the motion.4 Rather, Cummings filed his motion for a new trial more
than three months after the jury verdict. Nonetheless, the trial court entertained the
motion and held a hearing on the matter. At the hearing, the court stated there was “good
reason” to consider Cummings’s untimely motion.
4 We note that a motion for a new trial based on claims of prosecutorial
misconduct under “Crim.R. 33(A)(2) may be summarily denied when not
accompanied by an affidavit attesting to the facts upon which the motion is based.”
State v. Morgan, 8th Dist. Cuyahoga No. 63666, 1992 Ohio App. LEXIS 6581, 10
(Dec. 31, 1992), citing State v. Rogers, 68 Ohio App.3d 4, 587 N.E.2d 381 (9th
Dist.1990); Toledo v. Stuart, 11 Ohio App.3d 292, 465 N.E.2d 474 (6th Dist.1983).
{¶22} While the trial court did not need to address the merits of the motion for a
new trial because of the facially, apparent procedural and substantive deficiencies, the
trial court gave Cummings extra consideration by allowing him another opportunity to
present his arguments. As a result, we likewise consider the merits of Cummings’s
motion.
{¶23} A review of the record in the instant case reveals defense counsel objected
to the jail calls being introduced as evidence at trial. The state did not provide defense
counsel with the jail calls until the week of trial. The state explained that the jail calls
were not provided until the week of trial because Cummings made “numerous, numerous
calls” while he was in jail for the previous seven months. The state further explained
that it had to go through all the calls and narrow them down to the calls that were
relevant. The state ultimately deemed that three jail calls were relevant. In the last call,
the state explained that Cummings was speaking to a relative and goes on to say how the
prosecutor’s office is doing everything in its power to railroad him. Cummings states, “I
know that I did this s * * *[.]” At that point, the telephone conversation drops. The
state’s position was that Cummings was “making a full admission that even though he
believes [the prosecutor’s] office is railroading him, that he knows he’s in trouble at that
point because he did it.” Defense counsel was not able to review the calls on his
personal computer because of software issues. The state offered defense counsel access
to a “blank computer” for defense counsel and Cummings to review the calls. The trial
court then gave defense counsel as much time as needed to speak with Cummings and
review the calls. After a recess, the trial proceeded with the state calling Sergeant
Christopher to the stand.
{¶24} Months later, defense counsel and Cummings reviewed all of the evidence
provided by the state, including all the jail call tapes in preparation for Cummings’s other
criminal cases. After listening to these tapes, it was discovered that the state never
provided defense counsel with a copy of the recorded jail call containing the statement
from Cummings that “I did this s * * *,” which was played for the jury at Cummings’s
joint trial.
{¶25} During the hearing on Cummings’s motion for a new trial, defense counsel
argued that because he was able to actually listen to the tapes “moments before Sergeant
Christopher testified, nothing jumped off the page at me.” Defense counsel objected to
the calls before and after they were played. He did not “stand in front of the jury and
strenuously object because * * * that [was] a strategic decision on my part. I’m not
going to stand there and repeatedly object to the stuff that’s coming in.” The trial judge
asked defense counsel to explain why he did not recognize the calls were different from
what he listened to with Cummings and what was played in court. Defense counsel
explained that he was preparing for five cases, which were serious. There was a
multitude of discovery in these cases. He knew at trial that the state’s intention was to
play them.
{¶26} The state acknowledged upon checking the disc that was provided to
defense counsel at trial, that the disc did not contain the correct jail call. The state
reiterated that, at trial, it advised defense counsel the significance of the jail calls. The
state also reiterated the overwhelming evidence presented against Cummings at trial —
surveillance video of Cummings shooting Langham, the exact clothing that was caught on
surveillance was also seized as part of the execution of the search warrant by Euclid
police, the photo array, as well as, the in-court identifications made by both victims.
{¶27} The trial court found that the state’s failure to disclose the jail call was not
willful, nor did Cummings argue that it had been. The court concluded that Cummings
“has not shown that the late disclosure has prejudiced him in light of the overwhelming
evidence of his guilt as determined by the jurors * * * in one case shooting a victim on
video” and the “compelling testimony of [Leonard] who identified [Cummings] as
physically accosting her, knocking her down, taking her belongings.”
{¶28} Based on these facts, we cannot say the prosecuting attorney materially
affected Cummings’s substantial rights under Crim.R. 33(A)(2).
{¶29} Thus, the first assignment of error is overruled.
Motion for a Mistrial
{¶30} In the second assignment of error, Cummings argues the trial court abused
its discretion when it denied his motion for mistrial because the state violated his motion
in limine prohibiting the state’s witnesses from referencing that he was either known by
the Euclid Police Department or had other dealings with the police department.
{¶31} The Ohio Supreme Court, in State v. Treesh, 90 Ohio St.3d 460,
2001-Ohio-4, 739 N.E.2d 749, has stated:
[t]he granting or denial of a motion for mistrial rests in the sound discretion
of the trial court and will not be disturbed on appeal absent an abuse of
discretion. “A mistrial should not be ordered in a criminal case merely
because some error or irregularity has intervened * * *.” State v. Reynolds
(1988), 49 Ohio App.3d 27, 33, 550 N.E.2d 490, 497. The granting of a
mistrial is necessary only when a fair trial is no longer possible. State v.
Franklin (1991), 62 Ohio St.3d 118, 127, 580 N.E.2d 1, 9.
Id. at 480.
{¶32} In the instant case, Cummings’s defense counsel made an oral motion in
limine at the commencement of trial seeking
to limit the testimony to these cases that we are currently in trial for, and
only these cases. Any officers that would be testifying or witnesses that
would be testifying about other information or other investigations
regarding [Cummings], I would ask the Court to encourage the State to
admonish those witnesses, prevent them from identifying other cases that
[Cummings] may have been involved in, or was a suspect in, or is currently
a defendant in.
{¶33} The state responded that it was fully aware that the trial was in reference to
only two cases that were joined and that it had no intention of addressing any other of
Cummings’s three pending cases. The trial court then ordered that no witnesses shall
talk about any other case or investigation.
{¶34} Cummings contends there were three separate incidents at trial in which the
state’s witnesses made intimations that he was previously known to the Euclid Police
Department. Specifically, Detective Schultz testified that he was familiar with
Cummings. Moreover, Euclid Police Detective Susan Schmid (“Detective Schmid”)
testified that Cummings’s name was known to the Euclid Police Department. Lastly,
Leonard testified when she identified Cummings in a photo array that Euclid police
officers stated, “[w]e knew it.” Defense counsel’s objections to these statements were
sustained by the trial court, and the court gave instructions to the jury to disregard the
statements by Detective Schultz and Detective Schmid.
{¶35} Defense counsel also made an oral motion for mistrial. The state responded
that none of the questions posed were purposefully meant to seek an answer that would
suggest that Cummings was previously known to the Euclid Police Department.
Additionally, the state explained the jury was aware that Cummings, at some level, was
already known to Euclid Police Department because he had two pending cases that were
joined for trial, and the HWWUD count was also tried before the jury.
{¶36} The trial court denied the motion, finding that Cummings was not
prejudiced. The court stated:
It’s not unfairly prejudicial. The Court made its curative instruction
immediately. There is no indication that there was anything intentionally
done. I don’t need to get to that analysis, because I find there is no unfair
prejudice to [Cummings].
The other benign inference is of course the other delinquency adjudication,
which they will learn about shortly from his weapon under disability count.
***
And I believe there was only one question really that was poorly asked
about knowing [Cummings’s] name, and the Court cured that as soon as —
as soon as it came out.
So I’m going to find that there — the motion [for mistrial] is not well taken.
{¶37} Based on the foregoing reasoning, we cannot say the trial court’s decision
was unreasonable, arbitrary, or even unconscionable.
{¶38} Accordingly, the second assignment of error is overruled.
{¶39} Judgment is affirmed.
It is ordered that appellee recover of 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 convictions having
been affirmed, any bail pending appeal is terminated.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
MARY EILEEN KILBANE, PRESIDING JUDGE
TIM McCORMACK, J., and
MARY J. BOYLE, J., CONCUR