State v. Ladson , 2016 Ohio 7781 ( 2016 )

[Cite as State v. Ladson, 2016-Ohio-7781.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 104091
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
MARCUS LADSON
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-15-599880-A
BEFORE: S. Gallagher, J., Jones, A.J., and E.T. Gallagher, J.
RELEASED AND JOURNALIZED: November 17, 2016
ATTORNEY FOR APPELLANT
Allison S. Breneman
1220 West 6th Street
Suite 303
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
By: Anna Woods
Zachary M. Humphrey
Assistant Prosecuting Attorneys
Justice Center - 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
SEAN C. GALLAGHER, J.:
{¶1} Marcus Ladson was sentenced to 16.5 years for improperly discharging a
firearm into habitation, having a weapon while under disability, receiving stolen property,
drug possession, and aggravated menacing. All the individual, maximum sentences were
imposed consecutively, although only a $250 fine was imposed for the misdemeanor
aggravated menacing count. We affirm.
{¶2} Most of the underlying facts are undisputed. In January 2015, a third party
reported her 9 mm handgun stolen. The night before, her husband borrowed her car and
was unaware of the fact that the handgun had been left in the back. The husband drove
Ladson from a bar in the early morning hours and stopped at a convenience store along
the way. The husband went inside, while Ladson remained with the running vehicle.
Ladson was the only other person in the vehicle the night the handgun disappeared,
although there is a claim that some other individuals milled about the car in the
convenience store parking lot.
{¶3} Two months later, on the night of the incident, the victim in this case ran
from her apartment to where her mother was staying in another building within the same
complex. The victim appeared scared and distraught, telling her mother that Ladson
came to the apartment to continue an argument they had earlier in the evening and that
Ladson fired shots up through the apartment window. The victim’s mother called the
police. Officers immediately responded and found Ladson in the victim’s back bedroom.
The handgun, the same one reported stolen in January, was found in the clothes hamper
in Ladson’s immediate vicinity. A spent shell casing was found outside the apartment,
and there were bullet holes in the window and ceiling. The bullet trajectory matched the
location where the shell casing was recovered outside the apartment. The handgun found
near Ladson was the weapon used to fire the recovered shell casing, and the weapon
tested positive for gunshot residue. Ladson also tested positive for gunshot residue.
{¶4} Ladson disputes the victim’s account of the evening. After Ladson and the
victim colluded in a recorded jail-house telephone call, the victim was reluctant to testify
at trial. She largely claimed she did not remember what had happened, and that Ladson
was invited over and did not shoot at the apartment. The victim’s trial testimony
contradicted her statement to police officers, given on the night of the attack, and the
statements made to her mother in an excited state immediately following the shooting.
The state unsuccessfully attempted to refresh the victim’s recollection, with her prior
written memorandum contained in the police report, through leading questions that were
answered in the negative.
{¶5} The jury convicted Ladson of improperly discharging a firearm into
habitation, with an associated one- and three-year firearm specification, having a weapon
while under disability, receiving stolen property, drug possession, and aggravated
menacing. The trial court sentenced Ladson to an aggregate term of 16.5 years of prison
— eight years on the discharging into habitation count, three years on the firearm
specification, three years on the having weapon while under disability count, 18 months
on the receiving stolen property count, one year on the drug possession count, and
imposed a $250 fine for the misdemeanor aggravated menacing count. All prison terms
were imposed to be consecutively served after the trial court made the R.C. 2929.14(C)(4)
findings, which are not challenged in this appeal.
{¶6} Ladson appealed, claiming his conviction is against both the manifest weight
and the sufficiency of the evidence, that the trial court erred in allowing the jury to use the
victim’s written statement during its deliberations, and that the trial court abused its
discretion in imposing the sentences to be served consecutive to one another under State
v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124. We can summarily
dispel the latter two claims.
{¶7} The victim’s written statement was not introduced into evidence, nor did it
accompany the evidence into the deliberation process. Ladson also does not cite any
authority in support of his argument regarding the victim’s testimony as required under
App.R. 16(A)(7). He included generic references to Evid.R. 611(C), providing that
leading questions on direct are discouraged, and Evid.R. 613, the rule governing
impeachment through self-contradiction, but it is not entirely clear how those rules
impacted the trial evidence from the arguments presented. Without arguments in support
of any error, we must overrule the assigned error.
{¶8} We are also required to overrule the sentencing argument because appellate
courts cannot review a final sentence for abuse of discretion under R.C. 2953.08(G) and
State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 10. Even if
we considered Ladson’s claim under our authority to review the maximum sentence
imposed on the highest degree offense for which sentences were imposed under R.C.
2953.08(A)(1), Ladson primarily asks for us to review his sentence to determine whether
the trial court failed to consider the appropriate sentencing factors, under R.C. 2929.11
and 2929.12, with respect to the imposition of consecutive sentences, and upon
considering those factors to conclude that the 16.5 years of prison is too long. The trial
court expressly considered all relevant sentencing factors, and R.C. 2929.11 through
2929.12 are only applicable to the imposition of an individual sentence, imposed upon an
individual count. State v. Kirkman, 8th Dist. Cuyahoga No. 103683, 2016-Ohio-5326, ¶
9 (the legislature’s indication that the section only applies to the imposition of a single
felony sentence must be construed as limiting the application of the statutory section to
sentences imposed on a single offense, not the consecutive nature of the service). The
trial court was not required to consider those factors in determining whether the sentences
should be served consecutively. Id.{¶9} This is not to say that a trial court cannot be guided by the sentencing factors
within the scope of consecutive sentencing. A trial court imposing a consecutive
sentence could be reviewing many of the same facts and considerations outlined in the
principles of sentencing under R.C. 2929.11 and the seriousness and recidivism factors of
R.C. 2929.12 when making the findings required by R.C. 2929.14(C)(4). The likelihood
that those principles, facts, and considerations play a role in the imposition of consecutive
sentencing, however, is not an invitation to require that they be listed or weighed in
consideration of the fact that R.C. 2929.14(C)(4) contains no such requirement in contrast
to other sections of the Revised Code. See, e.g., R.C. 2929.20(J) (“[a] court shall not
grant a judicial release under this section to an eligible offender who is imprisoned for a
felony of the first or second degree * * * unless the court, with reference to factors under
section 2929.12 of the Revised Code” makes specific findings). The trial court must
make the findings, and we can only exercise our authority under R.C. 2953.08(G) if we
can clearly and convincingly find that the record does not support the trial court’s
findings. Appellate panels cannot be transformed into second-tier sentencing courts,
reconsidering the weight given to any one factor in order to arrive at a different decision
on whether to impose consecutive sentences.
{¶10} In this case, Ladson has not asked us to review to determine whether the
findings are supported by the record. Instead, he limited his argument to whether the
trial court abused its discretion by imposing his sentences to be consecutively served. As
a result, even if we considered the arguments presented under the standard of review set
forth in R.C. 2953.08(G), we are compelled to conclude that the imposition of
consecutive sentences under R.C. 2929.14(C)(4) is not otherwise contrary to law and the
findings underlying the consecutive sentences are supported by the record.
{¶11} Finally, we find no merit to Ladson’s arguments regarding the weight of the
evidence. In his manifest weight of the evidence argument, Ladson challenges the
credibility of the victim and one of the police officers. The remaining testimony from
the 11 other witnesses was not challenged on credibility grounds. Instead, Ladson claims
the undisputed evidence was insufficient to sustain the conviction. Because the
arguments are related, we will address them as one with the understanding that each
presents a different and distinct review.
{¶12} 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 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, 678 N.E.2d 541 (1997). 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.{¶13} A claim of insufficient evidence raises the question whether the evidence is
legally sufficient to support the verdict as a matter of law. Id. In reviewing a
sufficiency challenge, “[t]he 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.
{¶14} We do acknowledge that one police officer mistakenly included a statement
in his report that the handgun found near Ladson had a full magazine and one round in the
chamber, meaning the weapon had not been discharged or had been reloaded. During
trial, the officer acknowledged that he made a mistake; however, he claimed his trial
testimony — that the weapon lacked one round when found — was accurate. Although
this does affect the police officer’s credibility, there was ample evidence that the handgun
found near Ladson was recently discharged and the spent shell casing recovered at the
scene was fired from that particular handgun. Coupled with the evidence of gunshot
residue found on both Ladson and the handgun, the officer’s mistake does not render the
conviction as being against the manifest weight of the evidence. The jury was free to
consider the officer’s acknowledged mistake in conjunction with the remaining evidence.
{¶15} Further, even if we accept Ladson’s version of the victim’s trial testimony
and deem her statements as an indication that she never saw Ladson shoot the handgun
and was never in fear of his actions, there was overwhelming, credible evidence of
Ladson’s guilt beyond a reasonable doubt from every other witness. The victim’s mother
related how the victim was hysterical and afraid as she recounted how Ladson had shot at
the apartment with the victim inside — all of which was admitted as substantive evidence
of guilt through exceptions to the hearsay rule to support the aggravated menacing
conviction.1 Importantly, the victim’s mother also explained that the apartment did not
have any bullet holes in it before that night, for the purposes of the discharging a firearm
into habitation conviction.2 The victim’s mother was the named tenant and lived in the
apartment. She established that none of the tenants of the apartment owned or possessed
a handgun, a fact bolstered by the victim’s undisputed agreement, driving the reasonable
inference that Ladson brought the weapon into the apartment, establishing Ladson’s
1
R.C. 2903.21(A) provides that no person shall knowingly cause another to believe that the
offender will cause serious physical harm to the person or property of the other person. State v.
Goodwin, 10th Dist. Franklin No. 05AP-267, 2006-Ohio-66, ¶ 25-26 (merely displaying a weapon
supports a conviction for aggravated menacing where the victim believed the appellant was about to
cause serious physical harm).
2
R.C. 2923.161(A)(1) provides that no person shall knowingly discharge a firearm into an
occupied structure that is a permanent or temporary habitation of any individual.
having a weapon while under disability.3 The testifying police officers also connected
Ladson to the handgun — Ladson was the only person who was both found in the vicinity
of the recently discharged weapon and had the opportunity to steal the weapon after it was
left unattended in the car on the night of the theft, which establishes the receiving stolen
property charge.4 Ladson also tested positive for gunshot residue, which supports the
inference that he fired the gun at the victim as she stood in the apartment, for the purposes
of establishing each separate conviction. Ladson’s conviction for each count is not
against the sufficiency of the evidence.5
{¶16} We affirm.
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.
3
R.C. 2923.13(A)(3) provides that no person shall knowingly acquire, have, carry, or use any
firearm if the person has been convicted or is under indictment for any felony offense involving illegal
possession, use, sale, administration, distribution, or trafficking in any drug. Ladson has not
challenged the evidence proving his disability.
4
R.C. 2913.51(A) provides that no person shall receive, retain, or dispose of property of
another knowing or having reasonable cause to believe that the property was obtained through theft.
5
Although Ladson was also convicted of drug possession, no argument was advanced with
regard to the weight of the evidence in support of that conviction.
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 T. GALLAGHER, J., CONCURS;
LARRY A. JONES, SR., A.J., CONCURS IN JUDGMENT ONLY