State v. Gill , 2013 Ohio 5027 ( 2013 )

[Cite as State v. Gill, 2013-Ohio-5027.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 99529
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
FLOY GILL
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED IN PART; REVERSED IN PART
AND REMANDED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-565332
BEFORE: Jones, J., Celebrezze, P.J., and E.T. Gallagher, J.
RELEASED AND JOURNALIZED: November 14, 2013
ATTORNEY FOR APPELLANT
John T. Castele
614 West Superior Avenue
Suite 1310
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Brad S. Meyer
Assistant County Prosecutor
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
LARRY A. JONES, SR., J.:
{¶1} Defendant-appellant, Floy Gill, appeals his felonious assault convictions with
firearm specifications that were rendered after a jury trial. He also appeals his having
weapons while under disability conviction that was rendered by the court. We affirm the
judgment of conviction; reverse the judgment of sentence; and remand for resentencing.
I. Procedural History
{¶2} In August 2012, Gill was charged in a three-count indictment for the
September 8, 2010 shooting of Rebeka Hurt. Counts 1 and 2 charged Gill with
alternative means of committing felonious assault against Hurt, and Count 3 charged Gill
with having weapons while under disability. The felonious assault charges contained
one- and three-year firearm specifications.
{¶3} The matter proceeded to trial, with the felonious assault and firearm
specification charges before a jury and the having weapons while under disability charge
before the bench. At the conclusion of trial, the jury found Gill guilty of the felonious
assault charges and firearm specifications, and the court found him guilty of having
weapons while under disability.
{¶4} For the purpose of sentencing, the felonious assault charged in Count 2
merged with the felonious assault charged in Count 1. The trial court sentenced Gill to a
three-year prison term on Count 1, to be served consecutively to a three- year term for the
firearm specification. The trial court further sentenced him to a one-year prison term on
Count 3, having weapons while under disability, and ordered that it be served
consecutively to Count 1. Thus, the trial court sentenced Gill to a total seven-year
prison term.
II. Facts
{¶5} The victim, Rebeka Hurt, had known Gill for about seven or eight years at the
time of the incident; she had previously dated Gill’s brother, and she and the brother
maintained a good relationship. Hurt was also friends with Gill and would frequently
see him. Additionally, Hurt was good friends with Gill’s girlfriend, Sharonika Allen.
{¶6} Hurt testified that on the day of the incident, she and Allen were “hanging
out” at Hurt’s grandmother’s house. Hurt called a friend, Gregory Clark,1 to see what
he was doing; he and his roommate, Lewis Menefee, were watching a basketball game.
Hurt and Allen decided to join them.
{¶7} At Clark’s house, the four “hung out,” and by all accounts were drinking and
smoking marijuana. According to Hurt, Gill continuously called Allen’s cell phone
while they were at Clark’s house. Thus, after approximately three hours of “hanging
out” at Clark’s house, Clark drove Allen to East 139th Street and Beachwood Avenue,
where Allen was to meet up with Gill; Hurt went along for the ride. Hurt was the front
seat passenger and Allen was in the back seat. Hurt testified that Gill continued to call
and text Allen during the drive to take Allen to meet up with Gill.
{¶8} According to Hurt, when they arrived at the destination, she saw Gill standing
in the middle of the street. Clark drove slowly past Gill and stopped, whereupon Allen
Clark is also at times referred to as Gregory Demp in the transcript.
1
got out of the car and walked around to the back of the car where Gill was standing.
Hurt testified that she “almost immediately” heard shots being fired from behind the car
and ducked. Clark drove off, and Hurt looked back and saw that Gill’s arms were
extended out in front of him. Hurt realized that she had been shot and called 911. A
recording of the 911 call was played at trial; Hurt identified Gill as the shooter.
{¶9} Clark drove Hurt to the hospital. Hurt suffered a gunshot wound to her
abdomen and had to undergo three surgeries.
{¶10} Hurt testified that no one else was outside except Gill when they arrived at
East 139th Street and Beachwood Avenue. Hurt further testified that when Clark drove
past Gill, she thought there might be “problems” because Gill and Allen had “bickered”
in the past and sometimes their disagreements “got physical.” Hurt denied that she was
too impaired to know what was going on.
{¶11} Officer Robert Kowza responded to the hospital, where Hurt told him that
Gill had shot her. Kowza went to the crime scene where he found bullet casings and
secured the area. The officer also recovered a fragment of the bullet taken from Hurt’s
abdomen.
{¶12} Kowza further testified that Hurt told him that Gill had exited from a house
and shot into the crowd. Hurt testified that she did not tell that to Officer Kowza, or did
not remember telling that to him.
{¶13} Clark, who had driven Allen to East 139th Street and Beachwood Avenue,
testified that he had no knowledge of to whose home he was taking her. Further, at the
time of the incident, he did not know Gill. Clark testified that after Allen got out of the
vehicle, he heard a “pop,” looked in his rearview mirror, and saw a person, whom he
could not identify as male or female, standing behind the car shooting at it.
{¶14} Detective Michael Gibbs responded to the scene the evening of the incident,
approximately three hours after the shooting. He found eight 9 mm shell casings from
four different manufacturers and two fragmented bullets. The detective did not find any
fingerprints on the bullet casings, and he testified that the heat from the firing of the gun
would have destroyed any DNA material. Gibbs could not tell if the bullets had been
fired from the same gun or at the same time.
{¶15} Detective Kevin Callahan was the investigating detective. He spoke with
Hurt five days after the shooting, at which time Hurt told him that Gill had shot her.
Hurt identified Gill from a photo. The detective was unable to make contact with Allen.
{¶16} Allen testified for the defense. She testified that she had known Gill for
approximately six years and that they have a child together. According to Allen, she was
dropped off at East 139th Street and Beachwood Avenue so that she could go to her
friend’s house. When they arrived at the destination, she got out of the car and headed
to her friend’s house, when someone came out of the house and started shooting at the
car. Allen testified that she could not see the man’s face when he was firing the shots
because it was covered. But during the incident, she dropped to the ground, the shooter
ran over to her, looked at her, and ran off. Although she still could not see the shooter’s
face, she knew from his body build that it was not Gill. Allen denied that she and Gill
were dating at the time of the shooting, and she denied that she was being dropped off to
see Gill that evening.
{¶17} On this testimony, Gill was convicted of felonious assault and having
weapons while under disability. He now assigns two errors for our review: the first
challenging the weight of the evidence, and the second challenging the imposition of
consecutive sentences.
III. Law and Analysis
Manifest Weight of the Evidence
{¶18} A manifest weight challenge questions whether the state met its burden of
persuasion at trial. State v. Bowden, 8th Dist. Cuyahoga No. 92266, 2009-Ohio-3598, ¶
12. This court
weighs the evidence and all reasonable inferences, considers the credibility
of witnesses and determines whether in resolving conflicts in the evidence,
the jury 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, 388, 678 N.E.2d 541 (1997). A conviction should
be reversed as against the manifest weight of the evidence only in the most “exceptional
case in which the evidence weighs heavily against the conviction.” Id.{¶19} As to the review of witness credibility, this court has stated the
following:
Although we review credibility when considering the manifest weight of the
evidence, we are cognizant that determinations regarding the credibility of
witnesses and the weight of the testimony are primarily for the trier of fact.
The trier of fact is best able “to view the witnesses and observe their
demeanor, gestures, and voice inflections, and use these observations in
weighing the credibility of the proffered testimony.”
(Citations omitted.) State v. Kurtz, 8th Dist. Cuyahoga No. 99103, 2013-Ohio- 2999, ¶
26, quoting State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, ¶ 24.
{¶20} Gill contends that the conviction was against the manifest weight of the
evidence because it was not proven beyond a reasonable doubt that he was the shooter.
We disagree.
{¶21} It is true that none of the witnesses testified that they actually saw a gun in
Gill’s hand. But circumstantial evidence alone may be used to support a conviction.
State v. Jenks, 61 Ohio St.3d 259, 272-273, 574 N.E.2d 492 (1991). Circumstantial
evidence is the “proof of certain facts from which the trier of fact may infer other
connected facts that usually and reasonably follow, according to the common experience
of mankind.” State v. Duganitz, 76 Ohio App.3d 363, 367, 601 N.E.2d 642 (8th
Dist.1991) citing Black’s Law Dictionary 221 (5th Ed.1979). “[T]he circumstances, to
have the effect of establishing an allegation of fact, must be such as to make the fact
alleged appear more probable than any other; the fact in issue must be the most natural
inference from the facts proved.” Duganitz at id. citing 44 Ohio Jurisprudence 3d,
Section 1023 (1983).
{¶22} Hurt testified that during the hours prior to Allen meeting up with Gill, Gill
had been texting and calling Allen. When they arrived at the destination where Allen
was to meet Gill, Hurt saw Gill standing in the middle of the street. Aware that Allen
and Gill were known to bicker, had had physical confrontations in the past, and concerned
about potential tension between them that day, Hurt paid close attention to the two of
them when Allen got out of the car. She was certain that the man standing in the street
was Gill. Further, Hurt testified that no one else was outside at the time.
{¶23} According to Hurt, shots were fired “almost immediately” upon Allen
exiting the car. Hurt looked backed and saw that Gill’s arms were extended out in front
of him. After realizing that she had been shot and calling 911, Hurt, without hesitation,
identified Gill as the shooter. Hurt maintained throughout the investigation of the case
that Gill was the shooter.
{¶24} Likewise, although Clark did not know Gill and, thus, could not identify
him, he did testify that when Allen exited the car, he heard a “pop,” looked in the
rearview mirror, and saw that the person standing behind the car was shooting at them.
That person, according to Hurt’s testimony as just detailed, was Gill.
{¶25} The direct and circumstantial evidence in this case proved beyond a
reasonable doubt that Gill was the shooter. The inconsistencies in the testimony do not
cast doubt on the conviction. For example, Officer Kowza’s testimony that Hurt told
him that Gill came out of house and fired shots into the crowd still implicated Gill as the
shooter.
{¶26} And the testimony as to exactly how the group came to be at the crime scene
(that is, whether Clark picked Hurt and Allen up from Hurt’s grandmother’s house to go
to Clark’s house, or if the two got there some other way), does not change that, at some
point later that evening, Clark drove Hurt and Allen to East 139th Street and Beachwood
Avenue, where Gill shot at the car the trio was in, and struck Hurt.
{¶27} As to Allen’s testimony for the defense, the jury did not find it credible.
We do not find that result untenable and defer to its determination.
{¶28} In light of the above, Gill’s felonious assault and having weapons while
under disability convictions were not against the manifest weight of the evidence. The
first assignment of error is, therefore, overruled.
Consecutive Sentences
{¶29} R.C. 2953.08(G)(2), governing appellate review of felony sentencing,
provides as follows:
The appellate court may increase, reduce, or otherwise modify a sentence
that is appealed under this section or may vacate the sentence and remand
the matter to the sentencing court for resentencing. The appellate court’s
standard for review is not whether the sentencing court abused its
discretion. The appellate court may take any action authorized by this
division if it clearly and convincingly finds either of the following:
(a) That the record does not support the sentencing court’s findings under
division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of
section 2929.14, or division (I) of section 2929.20 of the Revised Code,
whichever, if any, is relevant;
(b) That the sentence is otherwise contrary to law.
{¶30} Thus, under R.C. 2953.08(G)(2), the following two grounds permit an
appellate court to reverse a trial court’s imposition of consecutive sentences upon an
offender: (1) the sentence is “otherwise contrary to law”; or (2) the appellate court, upon
its review, clearly and convincingly finds that “the record does not support the sentencing
court’s findings.” See also State v. Venes, 8th Dist. Cuyahoga No. 98682,
2013-Ohio-1891, ¶ 11.
{¶31} Under R.C. 2929.14(C)(4), when imposing consecutive sentences, the trial
court must first find that the sentence is “necessary to protect the public from future crime
or to punish the offender.” The trial court must also find that consecutive sentences are
“not disproportionate to the seriousness of the offender’s conduct and to the danger the
offender poses to the public.” Id. Further, the trial court must find that one of the
following factors applies:
(a) The offender committed one or more of the multiple offenses while the
offender was awaiting trial or sentencing, was under a sanction * * *, or
was under postrelease control for a prior offense.
(b) At least two of the multiple offenses were committed as part of one or
more courses of conduct, and the harm caused by two or more of the
multiple offenses so committed was so great or unusual that no single
prison term * * * adequately reflects the seriousness of the offender’s
conduct.
(c) The offender’s history of criminal conduct demonstrates that
consecutive sentences are necessary to protect the public from future crime
by the offender.
Id.{¶32} At sentencing, the trial court stated that it was its “job to protect the public
and then to hand down a sentence which is fair.” The court noted that it did not
believe that the bullet was intended for Ms. Hurt, but in this unfortunate
circumstance, it did hit her and she went through a very traumatic situation
which still arises today where she’s still having issues with her physical
ailments as well as her mental ailments.
{¶33} The court further noted that Gill had a criminal history “not only dating back
to juvenile, but back to 2001. The majority of it * * * is drugs and cocaine and selling
drugs and buying drugs * * *.”
{¶34} The court found that a prison sentence was consistent with the purposes and
principles of sentencing, and in imposing the consecutive sentence, stated the following:
On Count 3, having weapons while under disability, I find that to be a
situation where because of your prior criminal history and the fact that
there’s a gun involved in this case and being advised in the past and even
serving terms of incarceration that you are someone who has a disability for
carrying a gun, I’m going to sentence you on that felony of the third degree
to 1 year of incarceration * * * and I believe a fair sentence would be a
consecutive sentence to the underlying charge that I handed down on Count
1 of the indictment for a total term of 7 years * * *.
{¶35} On this record, we do not find that the trial court satisfactorily made the
required findings for the imposition of consecutive sentences. Although the court
offered “reasons” for the sentence, they were not specifically tied to the required findings
for consecutive sentences. See State v. Schmick, 8th Dist. Cuyahoga No. 99262,
2013-Ohio-4488. In Schmick, this court recently held that “substantial compliance” with
the statutory requirements for the imposition of consecutive sentences is not sufficient.
Otherwise, general statements made by trial courts can too easily be read as
consecutive sentence findings. We do not believe that the legislature
intended such a result; rather, it has specifically delineated the findings that
need to be made when sentencing to consecutive terms.
Id. at ¶ 13.
{¶36} In light of the above, the second assignment of error is sustained.
{¶37} Judgment of conviction affirmed; judgment of sentence reversed; case
remanded for resentencing.
It is ordered that appellant and appellee split the 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.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
LARRY A. JONES, SR., JUDGE
FRANK D. CELEBREZZE, JR., P.J., and
EILEEN T. GALLAGHER, J., CONCUR