State v. Tye , 2022 Ohio 2869 ( 2022 )

[Cite as State v. Tye, 2022-Ohio-2869.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 111174
v. :
DESHAWN D. TYE, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: August 18, 2022
Criminal Appeal from the Cuyahoga County Common Pleas Court
Case No. CR-15-601956-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Brian Kraft, Assistant Prosecuting Attorney,
for appellee.
Edward F. Borkowski, Jr., for appellant.
ANITA LASTER MAYS, P.J.:
Defendant-appellant Deshawn D. Tye (“Tye”) appeals his convictions
and asks this court to vacate the convictions and remand to the trial court for a new
trial. We affirm.
After a jury trial, Tye was found guilty of six counts of aggravated
robbery, first-degree felonies, in violation of R.C. 2911.01(A)(1); one count of
kidnapping, a first-degree felony, in violation of R.C. 2905.01(A)(2); one count of
failure to comply, a third-degree felony, in violation of R.C. 2921.331(B); four counts
of having a weapon while under a disability, third-degree felonies, in violation of
R.C. 2923.13(A)(2); and three counts of robbery, a second-degree felony, in violation
of R.C. 2911.02(A)(2). Tye was sentenced to an aggregate total of 19 years’
imprisonment.
I. Facts and Procedural History
On November 24, 2015, Terry Pulliam (“Pulliam”), a pizza delivery
driver was making a delivery, when a man who identified himself as Shawn, pulled
out a 9 mm firearm and told Pulliam to give him the pizza and $20. After Pulliam
complied, Shawn jumped into a “blu-ish,” four-door Chevy Taurus with a spoiler on
the back, per Pulliam’s description. Pulliam describe Shawn as a black man, who
weighed between 190 and 200 pounds, 5'10" in height, with a tattoo under his left
eye, and “peach fuzz” on his face. (Tr. 450.) During trial, Pulliam identified Tye as
the man who robbed him. Pulliam also previously identified Tye during a photo
lineup at the police station with 80 percent confidence.
On December 2, 2015, William Maughan (“Maughan”), a pizza
delivery driver, was making a delivery to a nursing home. When Maughan arrived
at the nursing home, he called the man who ordered the pizza, and the man
instructed Maughan to a door. Upon arriving at the door, the man came outside,
and while waving a 9 mm firearm, instructed Maughan to give him money.
Maughan complied and gave the man $23 and a sandwich. The man then demanded
Maughan’s wallet, and again, Maughan complied. After which, Maughan returned
to his vehicle and called his employer who notified the police. Maughan testified
that the man referred to himself as Shawn on the order and described Shawn as a
stocky, black man, wearing black clothes, and appeared to weigh approximately 195
pounds.
On December 5, 2015, Aaron Putnam (“Putnam”), a pizza delivery
driver was making a delivery at an apartment building. When Putnam arrived, he
called the man who made the order. Putnam walked to the door to make the
delivery, a man walked up to him and asked how much for the pizza. When Putnam
replied, the man pulled a gun and pointed it at Putnam. Putnam gave his cash and
the pizza to the man. Putnam described the man as African-American, wearing a
hood with a tattoo on his neck. Later, at the police station, Putnam identified Tye as
the man who robbed him during a photo lineup, with 100 percent confidence.
After Putnam reported the incident to the police, Officer Brian
Ondercin (“Officer Ondercin”) of the Cleveland Heights Police Department, called
the number of the customer who ordered the pizza and left a message on the
voicemail. Officer Ondercin received a call back from a man who said “hello,” and
then hung up. On December 6, 2015, Officer Christopher Skok requested that the
phone company track the phone, which was tracked to an apartment complex. The
police learned that a Nissan was parked at the complex, but when they arrived, the
Nissan was gone. Later on, the police saw a vehicle matching the description of the
Nissan driving on Lorain Avenue. The police followed the vehicle into a car wash
and attempted to box-in the vehicle. However, the driver was able to leave the area,
scraping the driver side of the vehicle as he fled the scene. Later that day, the Nissan
was recovered in Cleveland Heights.
On December 7, 2015, Detectives Andrew Ziska (“Det. Ziska”), Josef
Burghardt, and Michael Krane learned the whereabouts of the tracked cell phone.
Detectives approached the area, looking for the Taurus, based on the previous
description given by Pulliam. Detectives found the car near a junkyard and flagged
down a Cleveland Metropolitan Housing Authority (“CMHA”) police officer to
approach the vehicle. Once the CMHA officer activated his lights and sirens, the
suspect drove off in the car. The detectives and the officer followed the car, until it
came to a stop. Once stopped, the passenger, later identified as Arneisha Holmes
(“Holmes”) and Tye’s girlfriend, exited the vehicle. The driver, later identified as
Tye, exited from the driver’s side, holding a gun, and started running towards the
detectives.
Det. Ziska fired his weapon at Tye, but Tye kept running trying to
locate a vehicle to take. Tye attempted to take a tan vehicle from a woman, but was
unsuccessful. He approached another car, dragged the driver, Amanda Harris
(“Harris”) out by gunpoint and began driving the car towards the detectives while
pointing his gun at them. The detectives and the CMHA officer began shooting at
Tye. Det. Ziska attempted to shoot the tires of the vehicle while it drove by him.
They were unable to stop the vehicle or apprehend Tye.
Shortly thereafter, Herbert Austin (“Austin”) was at a gas station
when he heard a loud noise. Austin observed a car driving with a flat tire and bullet
holes in the door. The driver, later identified as Tye, got out of the car and demanded
that Austin give him his car. Austin complied and Tye took the car.
Around the same time, Holmes received a call from Tye asking her
where she was located. Tye pulled up in the car he took from Austin, and the two
drove towards Erie, Pennsylvania to the hospital, in order to treat Tye’s bullet
wound. Tye and Holmes went to Mill Creek Community Hospital, who notified the
police of the gunshot wound. Officer Brandon Heynes (“Officer Heynes”) responded
to the call. Officer Heynes spoke to Tye, and Tye stated that his name was Michael
Jenkins. He told Officer Heynes that he was assisting his sister, Holmes, with
moving from Euclid, Ohio to Erie, Pennsylvania when he was shot. Neither Tye nor
Holmes provided any details about where the incident took place.
Officer Heynes contacted the Euclid Police Department and was
transferred to the Cleveland Police Department. Officer Heynes detained Tye and
Holmes, and after searching Holmes’s purse, found several sets of car keys, cell
phones, narcotics, Tye’s I.D., and credit and debit cards, including Maughan’s visa
debit card. Officer Heynes received the description of Austin’s car and located it in
the parking lot of the hospital. Upon inspection of the car, Officer Heynes observed
blood in the car and a semiautomatic handgun. The car was towed back to
Cleveland, and Tye was arrested.
After Tye’s arrest, his DNA was matched with DNA found on the
steering wheels and car doors of three separate vehicles. Tye’s DNA was also found
on the gun located in Austin’s car that was determined to be operable by the police.
Tye’s fingerprints were also found in the Nissan.
On January 15, 2016, a Cuyahoga County Grand Jury indicted Tye on
34 counts, as follows:
Count Offense Degree Revised Code Specification
(yrs.)
1 Attempted Murder F1 2923.02 and 1, 3, and 7
2903.02(A)
2 Attempted Murder F1 2923.02 and 1, 3, and 7
2903.02(A)
3 Attempted Murder F1 2923.02 and 1, 3, and 7
2903.02(A)
4 Attempted Murder F1 2923.02 and 1, 3, and 7
2903.02(A)
5 Felonious Assault F2 2903.11(A)(2) 1
6 Felonious Assault F2 2903.11(A)(2) 1
7 Felonious Assault F2 2903.11(A)(2) 1
8 Felonious Assault F2 2903.11(A)(2) 1
9 Aggravated F1 2911.01(A)(1) 1 and 3
Robbery
10 Kidnapping F1 2905.01(A)(2) 1 and 3
11 Aggravated F1 2911.01(A)(1) 1 and 3
Robbery
12 Kidnapping F1 2905.01(A)(2) 1 and 3
Count Offense Degree Revised Code Specification
(yrs.)
13 Aggravated F1 2911.01(A)(1) 1 and 3
Robbery
14 Kidnapping F1 2905.01(A)(2) 1 and 3
15 Failure to Comply F3 2921.331(B) 1
16 Having a Weapon F3 2923.13(A)(2)
while Under a
Disability
17 Aggravated F1 2911.01(A)(1) 1 and 3
Robbery
18 Robbery F2 2911.02(A)(2) 1 and 3
19 Kidnapping F1 2905.01(A)(2) 1 and 3
20 Having a Weapon F3 2923.13(A)(2)
while Under a
Disability
21 Aggravated F1 2911.01(A)(1) 1 and 3
Robbery
22 Robbery F2 2911.02(A)(2) 1 and 3
23 Kidnapping F1 2905.01(A)(2) 1 and 3
24 Having a Weapon F3 2923.13(A)(2)
while Under a
Disability
25 Aggravated F1 2911.01(A)(1) 1 and 3
Robbery
26 Robbery F2 2911.02(A)(2) 1 and 3
27 Kidnapping F1 2905.01(A)(2) 1 and 3
28 Having a Weapon F3 2923.13(A)(2)
while Under a
Disability
29 Aggravated F1 2911.01(A)(1) 1 and 3
Robbery
30 Robbery F2 2911.02(A)(2) 1 and 3
31 Kidnapping F1 2905.01(A)(2) 1 and 3
32 Having a Weapon F3 2923.13(A)(2)
while Under a
Disability
33 Obstructing Justice F3 2921.32(A)(2) 1
34 Receiving Stolen F5 2913.51(A) 1
Property
At trial, after the state presented its case and rested, the trial court
dismissed Counts 1-4 and 17-19 of the indictment. Tye made a motion for acquittal
concerning the remaining counts, and the trial court denied his motion. Tye did not
call any witnesses. The jury found Tye guilty of Counts 9, 11-13, 15, 16, 21, 22, 24-
26, 28-29, 30, and 32. After the sentencing hearing, Tye was sentenced to 19 years’
imprisonment.1 Tye filed this appeal and assigned two errors for our review:
I. Appellant’s convictions were unsupported by sufficient evidence;
and
II. Appellant’s convictions were against the manifest weight of the
evidence.
II. Sufficiency and Manifest Weight of the Evidence
A. Standard of Review
As stated in State v. Roan, 8th Dist. Cuyahoga No. 108917, 2020-
Ohio-5179, ¶ 12:
The test for the sufficiency of the evidence involves a question of law
for resolution by the appellate court, to determine whether, after
construing all reasonable inferences in favor of the state, any
reasonable trier of fact could find that the state presented evidence to
prove each of the material elements of the offense beyond a
reasonable doubt. State v. Thompkins, 78 Ohio St.3d 380, 386, 678
N.E.2d 541 (1997). The 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. Vickers, 8th Dist. Cuyahoga
No. 97365, 2013-Ohio-1337, ¶ 17, citing State v. Jenks, 61 Ohio St.3d
259, 574 N.E.2d 492 (1991).
1 Tye was also sentenced in two unrelated cases, Cuyahoga C.P. No. CR-16-595172
and Cuyahoga C.P. No. CR-16-599499, which were resolved via guilty pleas and were to
be served concurrently with the present case. These cases are not subject to this appeal.
“A sufficiency analysis is different from that undertaken in
determining whether a conviction is against the manifest weight of the evidence.”
Id. at ¶ 13, citing Thompkins at paragraph two of the syllabus.
In considering a manifest-weight claim, the appellate court “review[s]
the entire record, 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.”
Id., quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st
Dist.1983).
“The criminal manifest weight-of-the-evidence standard addresses
the evidence’s effect of inducing belief.” Roan at ¶ 14, citing State v. Wilson, 113
Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, ¶ 25. “Under the manifest
weight-of-the-evidence standard, a reviewing court must ask the following question:
whose evidence is more persuasive — the state’s or the defendant’s?” Id., citing
Wilson at id. “Although there may be legally sufficient evidence to support a
judgment, it may nevertheless be against the manifest weight of the evidence.” Id.,citing Thompkins at 387; State v. Johnson, 88 Ohio St.3d 95, 723 N.E.2d 1054(2000). “When a court of appeals reverses a judgment of a trial court on the basis
that the verdict is against the manifest weight of the evidence, the appellate court
sits as a ‘thirteenth juror’ and disagrees with the fact finder’s resolution of the
conflicting testimony.” Id., citing Wilson at id. “Additionally, in a case tried by a
jury, only a unanimous appellate court can reverse on the ground that the verdict
was against the manifest weight of the evidence.” Id., citing Thompkins at 389.
B. Law and Analysis
In Tye’s first assignment of error, he argues that his convictions were
unsupported by sufficient evidence. Specifically, he contends that the pizza
robberies and the weapons while under disability convictions were not supported by
sufficient evidence because the state did not prove, in accordance with
R.C. 2911.01(A)(1), that Tye had an operable firearm because no firearm was
recovered. R.C. 2911.01(A)(1) states,
(A) No person, in attempting or committing a theft offense, as defined
in section 2913.01 of the Revised Code, or in fleeing immediately after
the attempt or offense, shall do any of the following:
(1) Have a deadly weapon on or about the offender’s person or
under the offender’s control and either display the weapon,
brandish it, indicate that the offender possesses it, or use it.
He cites our decision in State v. Robinson, 8th Dist. Cuyahoga No. 101850, 2015-
Ohio-1838, to support his contentions that the victims’ testimonies about Tye’s use
of a firearm are insufficient to sustain convictions for robbery, having a weapon
while under a disability, and the firearm specifications.
In Robinson, this court stated, “[w]here no shots are fired and the
firearm is not recovered, such as in the instant case, circumstantial evidence,
including the representations and actions of the person in possession of the gun, are
of crucial importance, when we evaluate the evidence of a firearm’s operability.” Id.
at ¶ 25, citing State v. Fulton, 8th Dist. Cuyahoga No. 96156, 2011-Ohio-4259, ¶ 34.
The victims in Robinson testified
that they heard a noise from the gun, which was described by the
cashier as “cocking” and by the assistant manager as a loud clapping
sound. They both saw Robinson pull a black gun out, and the assistant
manager testified that the gun was pointed at her throughout the
entire incident. When Robinson had the employees take him to the
back of the store, he threatened to shoot the cashier when he felt the
cashier was moving too fast.
Id. at ¶ 26.
As a result of this testimony, this court reasoned that “Robinson’s
words and actions during the robbery, as testified to by the witnesses, implied that
his gun was operable. As such, the state presented sufficient, albeit circumstantial,
evidence upon which a reasonable jury could find the gun used in the robbery was
operable.” Id. at ¶ 27.
Tye argues that the victims’ testimonies from this instant case do not
demonstrate that the gun he used to rob them was operable. Tye contends that none
of the three robbery victims testified that Tye threatened to shoot them with the
firearm or that they were afraid he would shoot them. However, Tye’s arguments
are misplaced. As we stated in State v. Martin, 8th Dist. Cuyahoga No. 108996,
2021-Ohio-1096, “‘[P]roof of operability of a firearm can be established by
circumstantial evidence, which can consist of the brandishing of the firearm by the
defendant and the implicit threat to shoot.’” Id. at ¶16, quoting State v. Williams,
8th Dist. Cuyahoga No. 78961, 2001 Ohio App. LEXIS 4474 (Oct. 4, 2001).
This court has held that “[t]he word ‘brandish’ means to ‘wave or
exhibit in a menacing or challenging manner.’” State v. Hills, 8th Dist. Cuyahoga
No. 98848, 2013-Ohio-2902, ¶ 16, quoting State v. McCrary, 1st Dist. Hamilton
No. C-080860, 2009-Ohio-4390, ¶ 30. Pulliam testified that Tye pulled out a 9 mm
firearm and told Pulliam to give him the pizza and $20. Maughan testified that Tye
waved a 9 mm firearm and instructed Maughan to give him money. Maughan also
testified that he was scared enough by the incident that he wanted to quit his job.
He also stated that he did not feel as if he could leave the area because Tye was going
to shoot him even though he gave Tye “the stuff.” (Tr. 800.) Putnam testified that
Tye pulled a gun, pointed it at him, and demanded money. All three of the victims’
testimonies demonstrate that Tye brandished a firearm and after brandishing the
firearm, the victims complied with Tye’s demands. Thus, there is sufficient evidence
that the firearm used in the robberies was operable. Additionally,
R.C. 2923.13(A)(2), states:
Unless relieved from disability under operation of law or legal process,
no person shall knowingly acquire, have, carry, or use any firearm or
dangerous ordnance, if any of the following apply:
***
(2) The person is under indictment for or has been convicted of any
felony offense of violence or has been adjudicated a delinquent child
for the commission of an offense that, if committed by an adult, would
have been a felony offense of violence.
After review of the record and our determination that the gun was operable, we
find there was sufficient evidence to convict Tye of having a weapon while under a
disability.
In viewing the evidence in a light most favorable to the prosecution,
we determine that the jury could have found the essential elements of the crime
proven beyond a reasonable doubt.
Additionally, in Tye’s first assignment of error, he argues that there is
insufficient evidence to convict him on Count 11, where he was found guilty of
robbing Harris of her vehicle in an attempt to flee from the police. Tye argues that
Harris did not testify during trial and that Detective Raymond Diaz (“Det. Diaz”) of
the Cleveland Police Department, during his trial testimony, mentioned that she was
the owner of the vehicle. Tye argues that because there was no evidence presented
at trial that Harris owned the vehicle, his conviction for this count should be vacated.
At trial, Det. Diaz testified that one of the vehicles Tye took belonged to Harris.
(Tr. 770.) The state properly entered into evidence Harris’s vehicle identification
number and confirmed that the vehicle was owned by Harris. Harris also gave a
video-recorded statement to the police where she indicated that Tye fired his
weapon while taking her vehicle. (Tr. 1032, 1073.)
Tye, however, cites no case law to support his contention that the lack
of Harris’s testimony constitutes insufficiency of the evidence. Harris signed a
statement stating that Tye fired his weapon at police officers, stole her car at
gunpoint while she was in the driver seat, and drove off from the location. However,
pursuant to App.R. 12(A)(2), we overrule this portion of Tye’s assignment of error
for failure to cite case law or statutes in support of an argument, as required by
App.R. 16(A)(7). See State v. Johnstone, 8th Dist. Cuyahoga No. 92885, 2010-Ohio-
1854, ¶ 32; Perk v. Tomorrows Home Solutions, 8th Dist. Cuyahoga No. 107012,
2019-Ohio-103, ¶ 17; In re Guardianship of Williams, 8th Dist. Cuyahoga
No. 110781, 2022-Ohio-617, ¶ 26.
Therefore, Tye’s first assignment of error is overruled.
In Tye’s second assignment of error, he argues that his convictions for
the aggravated robberies of the pizza delivery victims and the related weapons while
under disability convictions were unsupported by credible, persuasive evidence. Tye
contends that even if the evidence was sufficient to prove that he robbed the pizza
delivery drivers, the identification evidence was not persuasive. “Under the
manifest weight-of-the-evidence standard, a reviewing court must ask the following
question: whose evidence is more persuasive — the state’s or the defendant’s?”
Roan, 8th Dist. Cuyahoga No. 108917, 2020-Ohio-5179, at ¶ 14, citing Wilson at
¶ 25.
Tye argues that the victims’ physical description of him was not
persuasive to demonstrate that Tye was the person who robbed each of the victims.
Pulliam described Tye as a black man, who weighed between 190 and 200 pounds,
5'10" in height, with a tattoo under his left eye, and “peach fuzz” on his face.
Maughan described Tye as a stocky, black man, wearing black clothes, and appeared
to weigh approximately 195 pounds. Putnam described Tye as African-American,
wearing a hood with a tattoo on his neck.
During Pulliam’s interview with the police, he identified Tye in a
photo lineup with 8 out 10 confidence. However, at trial, when he observed Tye in
person, Pulliam identified Tye as the man who robbed him. (Tr. 457.) Putnam
identified Tye during a photo lineup with 100 percent confidence. Additionally, the
descriptions given by all three men were consistent with each other. There was no
conflicting testimony in the identification of Tye.
Tye also argued that the jury lost its way in determining that the gun
was operable to sustain a conviction for aggravated robbery and having a weapon
while under a disability. As previously stated, Tye brandished a gun during all three
of the pizza delivery robberies and during the robbery of Harris. Mere brandishing
is enough to prove operability. See State v. Brown, 8th Dist. Cuyahoga No. 87947,
2007-Ohio-287, ¶ 33, quoting Thompkins, 78 Ohio St.3d at 384, 678 N.E.2d 541(“operability or potential operability may be proven where an individual ‘brandishes
a gun and implicitly but not expressly threatens to discharge the firearm at the time
of the offense.’”).
After a review of the record, weighing the evidence and all reasonable
inferences considering the credibility of the witnesses, we determine that the jury
did not lose its way. A manifest miscarriage of justice was not created. The victims’
identification of Tye was consistent and supported by the weight of the evidence.
Therefore, Tye’s second assignment of error is overruled.
Judgment affirmed.
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.
A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
________________________________
ANITA LASTER MAYS, PRESIDING JUDGE
FRANK DANIEL CELEBREZZE, III, J., and
MARY EILEEN KILBANE, J., CONCUR