State v. Houston , 92 N.E.3d 176 ( 2017 )

[Cite as State v. Houston, 2017-Ohio-4179.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 104752
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
ANTONIO J. HOUSTON
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case Nos. CR-15-597529-A, CR-15-597826-A, and CR-15-599941-A
BEFORE: Jones, J., McCormack, P.J., and Blackmon, J.
RELEASED AND JOURNALIZED: June 8, 2017
ATTORNEY FOR APPELLANT
David L. Doughten
David L. Doughten Co. L.P.A.
4403 St. Clair Avenue
Cleveland, Ohio 44103
ATTORNEYS FOR APPELLEE
Michael C. O’Malley
Cuyahoga County Prosecutor
BY: Ryan J. Bokoch
Assistant County Prosecutor
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
LARRY A. JONES, SR., J.:
{¶1} Defendant-appellant, Antonio Houston, appeals his conviction on multiple
counts. We affirm.
I. Procedural History and Facts
{¶2} In 2015, Houston was indicted in three separate but related cases. In
Cuyahoga C.P. No. CR-15-597826-A, Houston was charged in the July 6, 2015 shooting
involving Maurice Bradford and Larry Bradford. In Cuyahoga C.P. No.
CR-15-599941-A, Houston was charged in the July 8, 2015 shooting involving Brad
Bradford. In Cuyahoga C.P. No. CR-15-597529-A, Houston was charged in the
subsequent recovery of the firearm used in the July 8, 2015 incident.
{¶3} The state moved to consolidate the three cases. The trial court granted the
state’s motion and the case proceeded to a jury trial at which the following pertinent
evidence was presented.
{¶4} In the summer of 2015, the Fleet and Broadway divisions of the Heartless
Felons gang in the city of Cleveland were at war. Previously, members of the two sects
got along; they grew up together and attended the same schools. But a division occurred
sometime in the spring of 2015. On May 4, 2015, Pedro “Dro” Barnes, a member of
Broadway, was shot and killed, allegedly by a Fleet member. Antwoine “Ballzy” Palmer
was shot at the same time, but survived. On June 20, 2015, Fleet member Arthur
“Archie” Davis was shot and killed, allegedly by a Broadway member.
{¶5} Houston, a.k.a. “Papa,” was part of the Broadway sect. People also knew
Houston by the last name Curry, perhaps because he had a brother with that last name.
Houston had dated the same girl as Fleet member Brad Bradford. Brad had four
brothers: Lawrence Black and Maurice, Larry, and Nolando Bradford.
{¶6} Maurice, Larry, and Nolando lived with their mother in an up/down house on
East 85th Street in Cleveland. The upstairs was their apartment, and the downstairs was
an informal bar run by their mother. On July 6, 2015, Maurice and Larry were sitting
outside. Larry is a paraplegic from a previous shooting and was sitting either in his
wheelchair or in a chair next to his wheelchair.
{¶7} At some point, Maurice called 911 and reported that “Antonio Curry” had
just driven by and shot at him and Larry. Maurice’s six-year-old daughter was also
present, and Larry fell out of his chair to cover and protect her from the gunfire. The
brothers thought they heard six gunshots, but no one was hit and a single bullet hole was
found in the garage.
{¶8} Cleveland police officers Theresa Crews and Cynthia Cuba responded to the
scene. When the police arrived, Maurice told Patrolwoman Crews that “Antonio Curry”
had shot at him while driving by in a black SUV. Larry told Patrolwoman Cuba that the
SUV drove by and a man shot at him from the driver’s side rear window using a chrome
handgun. Through investigation, the Cleveland police learned that “Antonio Curry,”
was really Antonio Houston.
{¶9} Two days later, on July 8, 2015, Brad Bradford was in the alley behind his
house when another drive-by shooting occurred. Cleveland police officer Antonio
Andiano responded to the call. When Patrolman Andiano arrived, he saw 30 to 40
cartridge casings lying in the street. He spoke with Brad, who did not want to give him
any details of the shooting. Brad did, however, tell his girlfriend, Rodnesha, about the
shooting. Rodnesha testified that Brad told her Papa was riding in a black Kia truck
with two women. They drove by him and “shot up” Rodnesha’s Hyundai Sonata that
Brad was driving. Rodnesha was not in the car at the time of the shooting. When
Rodnesha got her car out of impound she counted 13 bullet holes in her car.
{¶10} On July 13, 2015, Cleveland Heights police officer Michael Mathis was
flagged down by a scared female who reported that she was stopped at a traffic light when
a man in the backseat of the car next to her pointed a gun at her and motioned her to pull
over. While the female was talking to Patrolman Mathis, the subject car drove by and
the woman pointed the car out to the officer. Patrolman Mathis pulled the car over
without incident. Patrolman Mathis arrested the man in the backseat, Antonio Houston,
who the victim positively identified as the man who had just pointed the gun at her.
{¶11} Patrolman Mathis found two loaded guns, a 9 mm Ruger and a Kel-Tec 9
mm, in a purse on the front passenger seat floor. Keyonna Anderson, who had been
sitting in the front passenger seat, testified that the guns inside the purse were hers. She
claimed she bought them on the street for protection. She testified that she could not
remember when she bought the guns or describe what they looked like. She further
claimed that after she bought the guns, she put them in her purse and put her purse up on
a shelf. It was not until the day they were pulled over that she had pulled her purse
down off the shelf; she simply forgot there were two loaded guns in her purse.
{¶12} Kristen Koeth, a scientific examiner with the Cleveland Police Department’s
forensic laboratory, testified that six cartridge casings located at the scene of the July 8,
2015 shooting came from gun recovered during Houston’s July 13, 2015 arrest.
{¶13} Detective Timothy Toler testified about his investigation into the crimes.
He explained that when he initially tried to contact Maurice, Larry, and Brad, the men
would not talk to him. Detective Toler found Larry in a hospital getting treatment for an
unrelated illness, and it was then that Larry positively identified Houston as the shooter in
a photo lineup. Larry signed his name to the photo lineup and wrote “Papa” next to
Houston’s photo. Brad finally spoke to the detective in August 2015, after he was the
victim of another shooting in which he was injured.1 Brad did not, however, testify at
trial.
{¶14} Nolando, who was not home during the July 6th shooting, learned of it
shortly after it happened and testified at trial. At first, Nolando denied recognizing
Houston in the courtroom. The state was allowed to treat Nolando as a hostile witness,
and upon further questioning, Nolando admitted he knew Houston as “Pops” and that his
brother Maurice had told him that “Papa” had shot at him. Nolando admitted he was
scared to testify because he was afraid of retaliation. Nolando stated that testifying is
“snitching” and “snitches” “get, you know, shot at.”
Houston was subsequently charged in the August 2015 shooting involving Brad but all
1
charges against him were dropped. Antwoine Palmer pleaded guilty to multiple felony counts
involving the shooting.
{¶15} Larry testified at trial but only after he was brought in pursuant to a witness
warrant. Larry testified that contrary to what he initially told police, he did not
remember who shot him. He could not remember identifying the shooter in a photo
lineup or during police interviews. But he knew who Antonio Houston was and
reluctantly identified him in court. Upon further questioning, Larry remembered that
when he spoke to the investigating detective about the case, he stated “Papa” was the
shooter.
{¶16} Larry admitted that he and his brother Maurice are associated with Fleet
and, back in July 2015, Fleet and Broadway had a “beef.” Larry conceded that he did
not want to be seen as a snitch and if he came into court and testified with a “good
memory,” he would be seen as a snitch.
{¶17} Detective Alfred Johnson of the Cleveland Police Department’s Gang
Impact Unit testified that he obtained a search warrant for Houston’s phone and found
several photos and videos pertinent to the shootings. Detective Johnson identified a
video shot on July 5, 2015, in which Houston and Antwoine Palmer were holding guns.
Houston was holding a 9 mm Ruger, which Detective Johnson testified was the same one
used in the July 8, 2015 shooting involving Brad. Detective Johnson was confident it
was the same gun because of the unique markings on the handle. During the video, both
Houston and Palmer can be seen throwing up “gang signs” associated with the Heartless
Felons.
{¶18} Detective Johnson identified a second video shot on July 7, 2015, in which
Houston can be seen holding a gun and stating: “F[---] Archie.” According to the
detective, Archie was associated with Fleet and was a friend of the Bradford brothers; as
previously mentioned, Archie was shot and killed in June 2015. In another video also
shot on July 7, Houston stated: “F[---] Archie, f[---] the Fleet n[---] and f[---] Wayne
Bang and RIP Dro.” According to Detective Johnson, Pedro “Dro” Barnes was part of
Broadway and was shot and killed in May 2015.
{¶19} In a video shot July 26, 2015, after Houston’s arrest and filmed in jail,
Houston can be seen stating: “F[---] the Fleet n[---], LOH.” “LOH,” Detective Johnson
explained, stands for “Land of the Heartless,” which is a reference to the Heartless Felons
gang.
{¶20} The detective also identified a series of texts that were exchanged minutes
after the July 6, 2015 shooting at Maurice and Leonard’s house. “Ma,” identity
unknown, texted Houston, “I heard what you did. Stop it.” Houston replied, “What is
you talking about.” Ma responded, “TB.” Detective Johnson explained that Maurice’s
nickname is Teddy Bear and is often abbreviated TB.
{¶21} Detective Johnson discussed the difficulties of the investigation, including
the reluctance of victims and witnesses to come forward. He explained that
“snitching” when “it comes to people in a criminal life style” means that if someone were
to shoot them and they were to tell the police who just shot them, it would be considered
snitching and a reason for retaliation.
{¶22} In CR-15-597529-A, the jury convicted Houston of improper handling of a
firearm in a motor vehicle, carrying a concealed weapon, and aggravated menacing. The
jury acquitted him of receiving stolen property and one count each of improper handling
of a firearm in a motor vehicle and carrying a concealed weapon. The court found
Houston guilty of having weapons while under disability and of the repeat violent
offender specification as charged in the underlying indictment. The court sentenced
Houston to a total of 36 months in prison on this case.
{¶23} In CR-15-597826-A, the jury convicted Houston of two counts of felonious
assault with one-, three-, and five-year firearm specifications; two counts of attempted
felonious assault with one-, three-, and five-year firearm specifications; improper
discharge of a firearm at or into a habitation or school with one-, three-, and five-year
firearm specifications; carrying a concealed weapon; and discharging a weapon on or near
a prohibited premise with one-, three-, and five-year firearm specifications. The court
found Houston guilty of having weapons while under disability and of the repeat violent
offender specification as charged in the underlying indictment. After merging many of
the counts for the purposes of sentencing, the court sentenced Houston to a total of 44
years in this case to run consecutive to the 36-month sentence in CR-15-597529-A.
{¶24} In CR-15-599941-A, the jury returned a verdict of guilty of felonious
assault, including one-, three-, and five-year firearm specifications, discharging a weapon
on or near a prohibited premises, and improper handling of a firearm in a motor vehicle.
The court found Houston guilty of having weapons while under disability and of the
repeat violent offender specification as charged in the underlying indictment. The trial
court sentenced him to a total of 19 years in this case and ordered it be served
consecutively to the other two cases.
II. Assignments of Error
{¶25} Houston now appeals, raising the following assignments of error for our
review:
I. The trial court erred by allowing prejudicial joinder of the charge of
Aggravated Menacing et al. of [CR-]15-597529 to the offenses in CR
15-597529 and CR 15-599941.
II. The trial court erred by permitting witnesses to provide prejudicially
irrelevant testimony which allowed the jury to base its verdict on matters
other than evidence of the actual offense charged.
III. The trial court erred by allowing the jury to consider improper hearsay
by improperly finding the testimony to be admissible as an excited
utterance, Evid. R. 803(2).
IV. The evidence is insufficient to sustain two counts of Felonious
Assault or [attempted] Felonious Assault in CR 15-597826.
V. Defense counsel’s failure to object to hearsay violations and a
duplicitous indictment deprived the defendant of his right to effective
assistance of counsel.
III. Law and Analysis
A. Severance of Counts
{¶26} In the first assignment of error, Houston argues that the trial court erred to
his prejudice when it joined the three cases together.
{¶27} Crim.R. 13 provides that a trial court may order two or more indictments to
be tried together “if the offenses or the defendants could have been joined in a single
indictment or information.” Crim.R. 8(A) governs the joinder of offenses in a single
indictment. Under Crim.R. 8(A), two or more offenses may be charged together if the
offenses “are of the same or similar character, or are based on the same act or transaction,
or are based on two or more acts or transactions connected together or constituting parts
of a common scheme or plan, or are part of a course of criminal conduct.”
{¶28} The law favors joining multiple offenses in a single trial if the requirements
of Crim.R. 8(A) are satisfied. State v. Diar, 120 Ohio St. 3d 460, 2008-Ohio-6266, 900
N.E.2d 565, ¶ 94. “[J]oinder and the avoidance of multiple trials is favored for many
reasons, among which are conserving time and expense, diminishing the inconvenience to
witnesses and minimizing the possibility of incongruous results in successive trials before
different juries.” State v. Torres, 66 Ohio St. 2d 340, 421 N.E.2d 1288 (1981). See
also State v. Schiebel, 55 Ohio St. 3d 71, 86-87, 564 N.E.2d 54 (1990); State v. Schaim, 65
Ohio St. 3d 51, 58, 600 N.E.2d 661 (1992).
{¶29} Under Crim.R. 14, however, the trial court may grant a severance if it
appears that the defendant would be prejudiced by the joinder. The defendant bears the
burden of proving prejudice. State v. Brinkley, 105 Ohio St. 3d 231, 2005-Ohio-1507,
824 N.E.2d 959, ¶ 29.
{¶30} The state may refute the defendant’s claim of prejudice under two methods.
Under the first method, the state must show that the evidence from the other case could
have been introduced pursuant to the “other acts” test of Evid.R. 404(B); under the
second method (referred to as the “joinder test”), the state does not have to meet the
stricter “other acts” admissibility test but only need to show the evidence of each crime
joined at trial is “simple and direct.” State v. Lott, 51 Ohio St. 3d 160, 163, 555 N.E.2d
293 (1990). “[W]hen simple and direct evidence exists, an accused is not prejudiced by
joinder regardless of the nonadmissibility of evidence of these crimes as ‘other acts’
under Evid.R. 404(B).” Id.
{¶31} “Simple and direct” evidence means the evidence of each crime is “so
clearly separate and distinct as to prevent the jury from considering evidence of [one
crime] as corroborative as the other.” State v. Quinones, 11th Dist. Lake No.
2003-L-015, 2005-Ohio-6576, ¶ 48. See also State v. Varney, 4th Dist. Hocking Nos.
07CA18 and 07AP18, 2008-Ohio-5283 (the purpose of the “joinder test” is to prevent the
finder of fact from confusing the offenses).
{¶32} Houston argues that there was a significant risk of unfair prejudice, so the
case where the gun was recovered, Case No. CR-15-597529-A, should not have been
joined with the other two cases. The state claims that even if there was a risk of
prejudice, the evidence of the gun would have been allowed in pursuant to Evid.R.
404(B). We agree with the state’s position.
{¶33} The evidence demonstrates that over a course of two days in July 2015,
Houston committed two drive-by shootings against members of the same family who
were involved in a rival gang. Then, just five days later, the gun used in one of the
shootings was recovered from the car Houston was riding in. In all three events,
Houston was using a gun while riding in the backseat of a car driven by a female.
{¶34} The evidence in all three cases showed that the offenses shared a common
purpose, motive, or scheme and were thus part of the kind of course of criminal conduct
contemplated by Crim.R. 8. Accordingly, the multiple indictments may be tried together
under Crim.R. 13.
{¶35} The first assignment of error is overruled.
B. Gang Testimony
{¶36} In the second assignment of error, Houston argues that the trial court erred
by allowing Detective Johnson to provide prejudicial and irrelevant testimony that
allowed the jury to base its verdict on matters other than evidence of the actual offenses
charged. Houston claims that Detective Johnson erroneously opined that Houston was a
member of the Broadway gang and discussed unsolved murders and that would have led
the jury to believe that because Houston was a member of a violent gang, he had a
propensity for violence and must have committed the crimes with which he was charged.
He also contends that the cell phone videos Detective Johnson played for the jury unfairly
prejudiced him because it made it appear as though he was affiliated with the Heartless
Felons.
{¶37} Detective Johnson testified about the unsolved murder of Broadway gang
member Pedro “Dro” Barnes, who was shot and killed in May 2015, and Arthur “Archie”
Davis, a member of Fleet, who was shot and killed the next month.
{¶38} The admission or exclusion of relevant evidence rests within the sound
discretion of the trial court. State v. Morris, 132 Ohio St. 3d 337, 2012-Ohio-2407, 972
N.E.2d 528, syllabus. We, therefore, will not disturb the trial court’s judgment absent an
abuse of discretion. State v. Webster, 8th Dist. Cuyahoga No. 102833, 2016-Ohio-2624,
¶ 45.
{¶39} Relevant evidence is admissible unless prohibited by an evidentiary rule,
statute, or constitutional provision. Evid.R. 402. Evid.R. 403(A) provides that relevant
evidence is not admissible if its probative value is substantially outweighed by the danger
of unfair prejudice, of confusion of the issues, or of misleading the jury. Although most
evidence presented by the state is prejudicial, not all evidence is unfairly prejudicial.
Webster at ¶ 46, citing State v. Skatzes, 104 Ohio St. 3d 195, 2004-Ohio-6391, 819 N.E.2d
215, ¶ 107. The court must balance the prejudicial effect of evidence against its
probative value. Webster at id.
{¶40} Evidence of gang membership is analyzed under Evid.R. 404. State v.
Garcia, 8th Dist. Cuyahoga No. 102546, 2016-Ohio-585, ¶ 71, citing State v. Huff, 145
Ohio App. 3d 555, 565, 763 N.E.2d 695 (1st Dist.2001). Evid.R. 404(B) provides that
evidence of other acts is inadmissible to prove that the accused acted in conformity with
his bad character. In other words, such evidence is not admissible to prove that a
defendant is a person of bad character and therefore more likely to commit the alleged
offense. Garcia at id. citing Huff. However, evidence of prior “bad acts” may be
admitted for other purposes such as proof of motive, opportunity, intent, preparation,
plan, knowledge, identity, or absence of mistake or accident. Evid.R. 404(B).
{¶41} The Ohio Supreme Court has held that evidence of a defendant’s gang
affiliation is admissible pursuant to Evid.R. 404(B) to show motive. Webster, 8th Dist.
Cuyahoga No. 102833, 2016-Ohio-2624, at ¶ 49, citing State v. Bethel, 110 Ohio St. 3d
416, 2006-Ohio-4853, 854 N.E.2d 150, ¶ 170. This is particularly the case where ‘“the
interrelationship between people is a central issue.”’ Webster at id., quoting Bethel at id.
{¶42} Detective Johnson’s testimony was relevant to show the relationship
between Houston and the Bradfords and to put the crimes into context. That said, the
trial court did not give the state carte blanche to introduce any and all testimony of
Houston’s gang activities. The court limited evidence related to the Heartless Felons,
Broadway, and Fleet gangs and sustained multiple defense objections.
{¶43} During his testimony, Detective Johnson testified about and showed videos
pulled from Houston’s cell phone that the police confiscated after his arrest and pursuant
to a search warrant. During the July 5, 2015 video, filmed one day prior to the shooting
involving Maurice and Larry Bradford, Detective Johnson explained that Houston and a
friend are “twisting” their “fingers” into a specific hand sign identified as a Heartless
Felon gang sign. Houston is also seen holding the gun used in the July 8, 2015 shooting
involving Brad Bradford.
{¶44} During the video shot on July 7, 2015, Detective Johnson explains when
Houston says, “F[---] the Fleet n[---], LOH,” that “LOH” stands for “Land of the
Heartless,” which is a reference to the Heartless Felons.
{¶45} In other videos and text messages entered into evidence, references were
made to both Fleet and Broadway and to individual gang members. Evidence of
Houston’s gang involvement and evidence of his text messages, phone calls, and videos
were necessary because they were probative of his guilt and explained his motive for the
crimes — to seek revenge on a rival gang. They were, therefore, admissible under
Evid.R. 404(B). See Webster, 8th Dist. Cuyahoga No. 102833, 2016-Ohio-2624, at ¶ 52.
{¶46} In light of the above, the second assignment of error is overruled.
C. Excited Utterances
{¶47} In the third assignment of error, Houston argues that the trial court
erroneously admitted hearsay into evidence under the excited utterance exception to
hearsay, Evid.R. 803(2).
{¶48} The Sixth Amendment to the United States Constitution states: “In all
criminal prosecutions, the accused shall enjoy the right * * * to be confronted with the
witnesses against him.” Hearsay is an out-of-court statement offered to prove the truth
of the matter asserted. Evid.R. 801(C). Thus, whenever the state seeks to introduce
hearsay into evidence in a criminal proceeding, the court must determine not only whether
the evidence fits within an exception to the hearsay rule, but also whether the introduction
of such evidence offends an accused’s right to confront witnesses against him or her.
State v. Kilbane, 8th Dist. Cuyahoga No. 99485, 2014-Ohio-1228, ¶ 29.
{¶49} Evid.R. 803(2) provides an exception to the hearsay rule if the
out-of-court statement constituted an “excited utterance,” which the rule
defines as a “statement relating to a startling event or condition made while
the declarant was under the stress of excitement caused by the event or
condition.” Reactive excited statements are considered more trustworthy
than hearsay generally on the dual grounds that, first, the stimulus renders
the declarant incapable of fabrication and, second, the impression on the
declarant’s memory at the time of the statement is still fresh and intense.
State v. Taylor, 66 Ohio St. 3d 295, 300, 612 N.E.2d 316 (1993).
{¶50} To qualify as an “excited utterance” the following four factors must be
established:
(1) there was an event startling enough to produce a nervous excitement in
the declaran[t], (2) the statement must have been made while under the
stress of excitement caused by the event, (3) the statement must relate to the
startling event, and (4) the declarant must have had an opportunity to
personally observe the startling event.
State v. Boles, 190 Ohio App. 3d 431, 2010-Ohio-5503, 942 N.E.2d 417, ¶ 34 (6th Dist.),
citing State v. Duncan, 53 Ohio St. 2d 215, 373 N.E.2d 1234 (1978). The controlling
factor comes down to whether the declaration resulted from impulse as opposed to reason
and reflection. State v. Nixon, 12th Dist. Warren No. CA2011-11-116, 2012-Ohio-1292,
¶ 13.
{¶51} Houston argues that it was improper for Patrolwoman Crews and
Patrolwoman Cuba to testify to statements Maurice made to them after the July 6, 2015
shooting because the statements occurred more than 20 minutes after the shooting and
were the result of reflective thought. We disagree.
{¶52} Maurice, who did not testify at trial, made statements to police within
minutes of the robbery, during which he, his young daughter, and his wheelchair-bound
brother were shot at out of a moving car. Patrolman Crews described Maurice’s
demeanor when they arrived on scene as “nervous and upset.” Patrolman Cuba
described Maurice as “excited and upset.” Maurice told Patrolman Cuba that his house
had just been shot at by a man named Antonio Curry, who was known to him. Maurice
described the car the shooter was riding in as a black Mitsubishi SUV with dark tinted
windows; the shooter was riding in the rear driver’s side seat and used a chrome handgun.
{¶53} Based on these facts, Maurice’s statements to police fall within the “excited
utterances” exception to the hearsay rule. Therefore, we must now determine whether
Houston’s right of confrontation was violated.
{¶54} In Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177
(2004), the United States Supreme Court held that the Confrontation Clause bars the
admission of “testimonial statements of witnesses absent from trial.” Id. at 59. The
court explained that “[w]here testimonial statements are at issue, the only indicium of
reliability sufficient to satisfy constitutional demands is the one the Constitution actually
prescribes: confrontation.” This means that the state may not introduce “testimonial”
hearsay against a criminal defendant, regardless of whether such statements are deemed
reliable, unless the defendant has an opportunity to cross-examine the declarant. Id. at
53-54, 68.
{¶55} However, the Crawford court also held that the Confrontation Clause only
requires exclusion of “testimonial” as opposed to “nontestimonial” evidence. “It is the
testimonial character of the statement that separates it from other hearsay that, while
subject to traditional limitations upon hearsay evidence, is not subject to the
Confrontation Clause.” Davis v. Washington, 547 U.S. 813, 821, 126 S. Ct. 2266, 165
L. Ed. 2d 224 (2006). If a statement is not testimonial, the principles embodied in the
Confrontation Clause do not apply. Whorton v. Bockting, 549 U.S. 406, 420, 127 S. Ct.
1173, 167 L. Ed. 2d 1 (2007).
{¶56} Although the Crawford court did not specifically define the term
“testimonial,” it explained that hearsay statements are implicated by the Confrontation
Clause when they are “made under circumstances which would lead an objective witness
reasonably to believe that the statement would be available for use at a later trial.”
Crawford at 52.
{¶57} In Davis at 822, decided two years after Crawford, the court held that
“[s]tatements are nontestimonial when made in the course of police interrogation under
circumstances objectively indicating that the primary purpose of the interrogation is to
enable police assistance to meet an ongoing emergency.” By contrast, statements are
testimonial when the circumstances indicate that there “is no such ongoing emergency,
and that the primary purpose of the interrogation is to establish or prove past events
potentially relevant to later criminal prosecution.” Davis at id. See also State v. Siler,
116 Ohio St. 3d 39, 2007-Ohio-5637, 876 N.E.2d 534, paragraph one of the syllabus.
{¶58} As previously stated, the shooting occurred only 20 minutes prior to the
police arriving on scene. Maurice, his brother, and his young daughter were present.
Maurice was still under the stress and shock of the shooting when he made statements to
police who were concerned with apprehending the suspects before it was too late. The
police were focused on apprehending the shooter, and Maurice was assisting them with
this, there was no evidence that anybody was reflecting on how Maurice’s statements
could be used at trial. Therefore, Maurice’s statements were nontestimonial and did not
violate the Confrontation Clause. Since Maurice’s statements qualified as an excited
utterance and there was no violation of the hearsay rule, we find the trial court acted
within its discretion in allowing the police officers to testify regarding Maurice’s
statements.
{¶59} The third assignment of error is overruled.
D. Sufficiency of the Evidence — Felonious Assault
{¶60} In the fourth assignment of error, Houston argues that there was insufficient
evidence to sustain his convictions for felonious assault and attempted felonious assault
as to the July 6, 2015 shooting.
{¶61} The test for sufficiency requires a determination of whether the prosecution
met its burden of production at trial. State v. Bowden, 8th Dist. Cuyahoga No. 92266,
2009-Ohio-3598, ¶ 12. 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. Jenks, 61
Ohio St. 3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus.
{¶62} Houston was convicted of two counts of felonious assault, in violation of
R.C. 2903.11(A)(2), which provides that no person shall knowingly cause or attempt to
cause physical harm to another by means of a deadly weapon or dangerous ordnance.
He was also convicted of two counts of attempted felonious assault in violation of R.C.
2923.02 (the attempt statute) and R.C. 2903.11(A)(1), which provides that no person shall
knowingly cause serious physical harm to another.
{¶63} Houston argues that there was insufficient evidence to show that he was the
shooter because the physical evidence did not show that more than one shot was fired, no
one testified that shots were fired in the Bradfords direction, and there was no proof that
the bullet hole in the Bradfords’ garage came from Houston’s gun.
{¶64} We find that there was sufficient evidence to support the convictions for
felonious assault and attempted felonious assault. Maurice told police that “Antonio
Curry,” who police later learned was Antonio Houston, shot out of the rear passenger
window of a moving car at Maurice and his brother Larry while the car was passing by
his house. Maurice was able to describe the car, the suspect, and that the shooter used
a chrome gun. Larry, who did not want to testify and said he was unable to remember
who shot at him in court, initially told Detective Toler that he was “110 percent positive”
it was “Papa” who shot at him. Larry chose Houston out of a photo lineup and identified
him as the shooter. During trial, he confirmed his signature on the photo lineup and that
he had written the name “Papa” next to Houston’s picture.
{¶65} In light of the above, we find that the state provided sufficient evidence of
felonious assault and attempted felonious assault. Therefore, the fourth assignment of
error is overruled.
E. Effective Assistance of Trial Counsel
{¶66} In the fifth assignment of error, Houston argues that he was denied the
effective assistance of trial counsel.
{¶67} To establish a claim for ineffective assistance of counsel, Houston must
show that his counsel’s performance was deficient and that the deficiency prejudiced his
defense. Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674
(1984); State v. Bradley, 42 Ohio St. 3d 136, 538 N.E.2d 373 (1989). Under Strickland,
our scrutiny of an attorney’s work must be highly deferential, and we must indulge “a
strong presumption that counsel’s conduct falls within the range of reasonable
professional assistance.” Id. at 688.
{¶68} Houston claims that his counsel was ineffective for counsel’s failure to
object to hearsay violations and for failing to ask for the dismissal of multiple counts of
attempted felonious assault as charged in CR-15-597826-A. We find no error.
{¶69} As Houston concedes, trial counsel objected throughout trial to what counsel
perceived to be hearsay violations; many of those objections the trial court sustained.
Next, as previously discussed, Houston was convicted under the attempt statute, R.C.
2923.03, and for felonious assault pursuant to R.C. 2903.11(A)(1) and 2903.11(A)(2) for
each victim, Maurice and Leonard. There is no evidence the charges were duplicitous.
Moreover, the offenses merged as to each victim for the purposes of sentencing.
{¶70} Thus, Houston has not shown that his counsel’s performance was deficient
and the fifth assignment of error is overruled.
{¶71} Judgment 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 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.
LARRY A. JONES, SR., JUDGE
TIM McCORMACK, P.J., and
PATRICIA ANN BLACKMON, J., CONCUR