State v. King , 2013 Ohio 574 ( 2013 )

[Cite as State v. King, 2013-Ohio-574.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 98234
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
DOMETRIC S. KING
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-558799
BEFORE: Stewart, A.J., Rocco, J., and E.A. Gallagher, J.
RELEASED AND JOURNALIZED: February 21, 2013
ATTORNEY FOR APPELLANT
Robert H. Williams
Hildebrand, Williams & Farrell
21430 Lorain Road
Fairview Park, OH 44126
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Patrick J. Lavelle, Jr.
Assistant County Prosecutor
The Justice Center
1200 Ontario Street, 8th Floor
Cleveland, OH 44113
MELODY J. STEWART, A.J.:
{¶1} The court found defendant-appellant Dometric King guilty of possession of
drugs, trafficking in drugs, and one count of participating in a criminal gang. In this
appeal, King challenges the sufficiency and weight of the evidence only as it relates to the
participation in a criminal gang count. He argues that the state failed to prove that he
was a member of the Star Boyz gang because its evidence showed nothing more than that
he associated with known gang members.
I
A
{¶2} R.C. 2923.42(A), which defines the offense of participating in a criminal
gang, states:
(A) No person who actively participates in a criminal gang, with knowledge
that the criminal gang engages in or has engaged in a pattern of criminal
gang activity, shall purposely promote, further, or assist any criminal
conduct, as defined in division (C) of section 2923.41 of the Revised Code,
or shall purposely commit or engage in any act that constitutes criminal
conduct, as defined in division (C) of section 2923.41 of the Revised Code.
{¶3} As applicable here, a “criminal gang” is defined by R.C. 2923.41(A) as “an
ongoing formal or informal organization, association, or group of three or more persons”
that has a common name or identifying signs, symbols, or colors; and the persons in that
group have either individually or collectively been engaged in a pattern of criminal
activity.
{¶4} A “pattern of criminal activity” is defined by R.C. 2923.41(B) as follows:
(B)(1) “Pattern of criminal gang activity” means, subject to division (B)(2)
of this section, that persons in the criminal gang have committed, attempted
to commit, conspired to commit, been complicitors in the commission of, or
solicited, coerced, or intimidated another to commit, attempt to commit,
conspire to commit, or be in complicity in the commission of two or more
of any of the following offenses:
(a) A felony or an act committed by a juvenile that would be a felony if
committed by an adult;
(b) An offense of violence or an act committed by a juvenile that would be
an offense of violence if committed by an adult;
(c) A violation of section 2907.04, 2909.06, 2911.211 [2911.21.1], 2917.04,
2919.23, or 2919.24 of the Revised Code, section 2921.04 or 2923.16 of the
Revised Code, section 2925.03 of the Revised Code if the offense is
trafficking in marihuana, or section 2927.12 of the Revised Code.
(2) There is a “pattern of criminal gang activity” if all of the following
apply with respect to the offenses that are listed in division (B)(1)(a), (b), or
(c) of this section and that persons in the criminal gang committed,
attempted to commit, conspired to commit, were in complicity in
committing, or solicited, coerced, or intimidated another to commit, attempt
to commit, conspire to commit, or be in complicity in committing:
(a) At least one of the two or more offenses is a felony.
(b) At least one of those two or more offenses occurs on or after January 1,
1999.
(c) The last of those two or more offenses occurs within five years after at
least one of those offenses.
(d) The two or more offenses are committed on separate occasions or by
two or more persons.
{¶5} Finally, “criminal conduct” is defined as
the commission of, an attempt to commit, a conspiracy to commit,
complicity in the commission of, or solicitation, coercion, or intimidation of
another to commit, attempt to commit, conspire to commit, or be in
complicity in the commission of an offense listed in division (B)(1)(a), (b),
or (c) of this section * * *.
R.C. 2923.41(C).
B
{¶6} The state offered the testimony of two law enforcement officers who testified
generally as to the gang culture in Cleveland and more specifically to establish that King
actively participated in the Star Boyz gang. Viewing the evidence most favorably to the
state, see State v. Yarbrough, 95 Ohio St.3d 227, 2002-Ohio-2126, 767 N.E.2d 216, ¶ 78,
that evidence showed that Cleveland gangs tended to form along small,
neighborhood-oriented groups as opposed to the larger, more hierarchical national gangs.
The Star Boyz derived their name from Star Avenue, a street within their territory,
although they sometimes referred to themselves as “STH,” an abbreviation for “Star
Town Hustlers”; “D-Block,” a reference to Decker Avenue, a street within their territory;
and “RDS,” an abbreviation for Redell, Decker, and Star Avenues, all streets within the
gang’s territory.
{¶7} An agent with the Federal Bureau of Alcohol, Tobacco, and Firearms
testified that over a period of years, he built a profile of more than 40 individuals who
were associated by police reports and criminal activity with the Star Boyz. He monitored
social networking sites to keep abreast of their activities and gathered information on
those affiliated with the gang through photographs and postings on those sites. The
agent noted that gang graffiti in the territory often documented the gang’s presence as a
warning to those who would enter their territory. He identified photographs
documenting different graffiti that identified the territory as belonging to the Star Boyz.
The Star Boyz did not have a common “color,” but a member of the gang showed the
agent the four different signs the gang used. The agent was able to download from social
networking sites many photographs showing known gang members giving various Star
Boyz signs. There were also photographs showing graffiti paying tribute to deceased
gang members on numerous buildings within the gang’s territory. Other photographs
showed gang members with tattoos featuring the name of the gang or tributes to deceased
members. Finally, the state offered photographs of known gang members posing in a
group photograph, displaying stars as a homage to the gang and its name. This evidence
was sufficient to establish the existence of the Star Boyz gang.
{¶8} As evidence of a pattern of criminal activity, the agent testified that in six
years of following the Star Boyz, he knew that they had been involved in “numerous
firearms-related incidents, such as aggravated robbery, car jacking, [and] felonious
assault shootings.” The agent testified that the gang was “opportunistic” in that members
acted either alone or in concert when they saw a vulnerable target holding cash or some
other possession that they desired. The Star Boyz occupy a relatively small territory
(about four square blocks), they know the people living in that territory, and use
intimidation and threats of violence to create a veil of secrecy and ensure that their
criminal activities remain unreported by those non-gang members living within their
territory.
{¶9} The evidence showed that in general, gangs claim the sole right to traffick
drugs within their territory. They enforce that claim by violence and when non-gang
members are caught drug dealing within a gang’s territory, the gang will exact a
punishment as means of enforcing territorial boundaries.
{¶10} The agent identified a number of journal entries from various criminal cases
involving known members of the Star Boyz. There were other criminal incidents
involving gang members in which the state had been unable to obtain convictions on
charges, but the agent said that was a result of gang members intimidating victims and
witnesses into recanting or refusing to testify. The agent also identified a number of
photographs, again taken from social networking sites, showing known gang members
posing with firearms. The agent said that it was “not uncommon for a gang member to
show himself in a photograph holding a gun or putting photographs on social media to
intimidate other gangs to not mess with them or with the gang.”
{¶11} This testimony dovetailed with that of a Cleveland narcotics officer who
testified that the Star Boyz and the rival 7-All gang were involved in “a very volatile and
violent gang war.” The officer said that in 2002, the war resulted in the murder of a
7-All member and that bystanders identified a Star Boyz member as the shooter. The
officer detailed another shooting of a 7-All member in which the shooter was again
identified as a member of the Star Boyz.
{¶12} As for King’s participation with the Star Boyz, the agent testified that King
lived on Redell Avenue within the Star Boyz territory and had been involved with Star
Boyz members since at least 2002. The police officer testified that King had been on a
police watch list as a member of the Star Boyz. He said that when he had been a line
officer, he patrolled the Star Boyz territory every day for at least two years and “quite
regular[ly]” saw King with other gang members. When asked to define what he meant
by “quite regularly,” the officer said, “[i]f I worked six days, maybe five.” The agent
referenced two photographs taken from the cell phone of a known Star Boyz member that
showed King posing with other gang members who were displaying stars. In one of the
pictures, King is saluting. King’s presence in the group photograph was consistent with
evidence that King trafficked in drugs inside the Star Boyz territory. The officer testified
that the gang strictly controlled who could traffick drugs in their territory — if a person
could sell drugs inside Star Boyz territory without being harassed, it meant that the person
did so with the gang’s approval. This was a tacit acknowledgment that the person selling
drugs was in the gang.
{¶13} The evidence going to whether King had knowledge that the Star Boyz
engaged in a pattern of criminal gang activity was shown by testimony concerning an
ongoing war between the Star Boyz and their rivals, the 7-Alls, whose territory abuts that
of the Star Boyz. In 2006, King was accompanying another male when they saw a car
driven by a member of the 7-Alls. King pulled out a handgun and fired into the car. He
later pleaded guilty to attempted felonious assault as a result of the shooting. The officer
described another incident involving the gang war between the Star Boyz and 7-Alls in
which a car carrying Star Boyz shot into a car occupied by 7-Alls. The police arrested
various members of both gangs after the shooting and the officer identified King as being
in the Star Boyz car.
C
{¶14} King argues that the state’s witnesses did not offer direct evidence that he
was an active member of the Star Boyz gang. He notes that there was no evidence of his
membership from other admitted gang members or that he bore a gang tattoo as did other
members. He thus maintains that the state tried to establish his membership through guilt
by association on the basis of his appearing in group photographs featuring other known
gang members.
{¶15} If the state’s evidence consisted of nothing more than two photographs
showing King in the company of other gang members, King’s argument might have merit.
“[N]ominal or passive association” with a gang is not enough to prove active gang
membership, State v. Hairston, 9th Dist. Nos. 23663 and 23680, 2008-Ohio-891, ¶ 18,
and King’s mere presence in photographs of gang members — his association with them
— without more, would not be enough to establish that he participated in gang activity.
{¶16} The lack of direct evidence that King belonged to the Star Boyz was
expected because the evidence showed that most gang members deny their membership to
the police for fear of drawing attention, much less admitting that the gang exists at all.
The circumstantial evidence, however, showed the existence of Star Boyz graffiti and
photographs of members making the distinctive Star Boyz sign. Members of the 7-All
gang confirmed the existence of the Star Boyz and their open gang war left no doubt that
the gang existed.
{¶17} With the existence of the gang established, the state offered compelling
circumstantial evidence to show that King’s constant presence with gang members proved
that his relation to them was more than a mere “association.”
{¶18} Circumstantial evidence is defined as “‘[t]estimony not based on actual
personal knowledge or observation of the facts in controversy, but of other facts from
which deductions are drawn, showing indirectly the facts sought to be proved. * * *”’
State v. Nicely, 39 Ohio St.3d 147, 150, 529 N.E.2d 1236 (1988), quoting Black’s Law
Dictionary 221 (5th Ed.1979). That is, circumstantial evidence is a set of facts from
which another fact may be inferred, as opposed to direct evidence, which goes directly to
the fact to be established.
{¶19} King grew up and lived in Star Boyz territory and the law enforcement
officers testified that they constantly saw King in the presence of other gang members.
We agree that King’s mere presence in his own neighborhood, standing alone, did not
prove his membership in the gang, but the logical inferences from the state’s evidence
could lead a rational trier of fact to conclude that his constant presence went beyond mere
association. The state’s evidence showed that King had been documented as being
present during two separate incidents involving shootings between the Star Boyz and their
rivals, the 7-Alls. King’s participation in these shootings went beyond being a mere
bystander. He actively fired a gun into a car driven by 7-All members. This act was no
one-off — the police documented a second shooting incident involving a car carrying
King and other Star Boyz members firing at a car driven by 7-All members. Even if
King was a mere bystander during one shooting, it was highly unlikely that he was
innocently involved in two separate shootings. A rational trier of fact could find that
King’s act of riding in a car with Star Boyz members and actually shooting at a rival gang
member’s car was an affirmative act that announced his affiliation with the Star Boyz.
{¶20} That affiliation was further demonstrated by photographs showing King
posing with known Star Boyz members. This was more than a photograph showing a
random group of people — it was a group photograph of known Star Boyz members,
some of whom were shown holding cut-out stars. The presence of the stars served to
confirm the gang affiliation of those in the photograph. In addition, the photograph
shows King saluting, an act that a rational trier of fact could conclude was a show of
allegience to the gang itself.
{¶21} Finally, King’s drug trafficking within Star Boyz territory was itself a
telltale sign of membership. Testimony showed that gangs enforced their exclusive
claim to drug dealing inside their territory. If an interloper appeared, the gang would
actively remove that person, usually by means of violence. So if King was openly selling
drugs in Star Boyz territory without retaliation, it must have been because he was a Star
Boyz member.
{¶22} It is true that unlike some other members of the gang, King did not have any
tattoos displaying his gang affiliation or honoring deceased gang members. However,
King offered no evidence to show that tattoos were the sine qua non of Star Boyz
membership. Regardless of whether he had a gang tattoo, his constant presence in the
company of other gang members, and in particular his involvement in skirmishes with
rival gangs, could cause a rational trier of fact to conclude that King’s involvement with
the Star Boyz went beyond passive association and amounted to active membership in the
gang. To find otherwise would be to ignore the obvious circumstantial evidence.
II
{¶23} King next argues that his conviction is against the manifest weight of the
evidence, relying on the same arguments about his membership in the gang that he made
when claiming that there was insufficient evidence to support his conviction. To the
extent that these arguments overlap, we summarily reject them.
{¶24} The only new argument King raises in this assignment of error is that it is
possible for a gang member to commit a crime that has nothing to do with that gang
member’s participation in a gang. He argues that the drug transaction he committed was
a solo endeavor (made in the company of a non-gang member) and that there was no
proof that the transaction was for the “benefit” of the gang.
{¶25} The manifest weight of the evidence standard of review requires us to
review the entire record, 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. Otten, 33 Ohio App.3d
339, 340, 515 N.E.2d 1009 (9th Dist.1986).
{¶26} The evidence showing that drug trafficking by non-gang members within a
gang’s territory would not be tolerated was credible enough that the court did not lose its
way by concluding that King was a member of Star Boyz. As previously discussed, the
court heard competent, credible evidence establishing the existence of the Star Boyz
gang, the gang’s participation in criminal activity including drug trafficking, and the
manner in which the gang enforced its claimed exclusive right for its members to traffick
drugs within its territory. Given this evidence, the court did not lose its way by
concluding that King’s ability to traffic drugs in Star Boyz territory was credible evidence
of his membership in the gang.
{¶27} Judgment affirmed.
It is ordered that appellee recover of appellant its 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 Cuyahoga
County Court of Common Pleas 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.
MELODY J. STEWART, ADMINISTRATIVE JUDGE
KENNETH A. ROCCO, J., and
EILEEN A. GALLAGHER, J., CONCUR