State v. Walton , 2012 Ohio 2597 ( 2012 )

[Cite as State v. Walton, 2012-Ohio-2597.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. Patricia A. Delaney, P. J.
Plaintiff-Appellee Hon. John W. Wise, J.
Hon. Julie A. Edwards, J.
-vs-
Case No. 2011 CA 00214
CORTNEY L. WALTON
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common
Pleas, Case No. 2011 CR 00918
JUDGMENT: Affirmed in Part; Reversed in Part and
Remanded
DATE OF JUDGMENT ENTRY: June 11, 2012
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JOHN D. FERRERO DEREK LOWRY
PROSECUTING ATTORNEY 116 Cleveland Avenue NW
KATHLEEN O. TATARSKY 800 Courtyard Centre
ASSISTANT PROSECUTOR Canton, Ohio 44702
110 Central Plaza South, Suite 510
Canton, Ohio 44702-1413
Stark County, Case No. 2011 CA 00214 2
Wise, J.
{¶1} Appellant Cortney L. Walton appeals his convictions, in the Court of
Common Pleas, Stark County, for murder and improper discharge of a firearm into a
habitation. Appellee is the State of Ohio. The relevant facts leading to this appeal are as
follows.
{¶2} On the night of April 26, 2011, Diamond Singleton, age sixteen, was
visiting the apartment of Brittany Nickol at 818 Shorb Avenue NW in Canton. Kasey
Stone and her preschool-age son were also visiting. At the time, Nickol, the lessee of
the apartment, was dating Appellant Walton. As Singleton sat in the apartment eating
her dinner, several bullets flew through the living room. One of them struck Singleton in
the chest.
{¶3} Canton Police Officer Gary Premier and his partner, Officer Rastetter, who
were proceeding to another incident about five blocks north of 818 Shorb, immediately
responded to a “shots fired” call. Sergeant Scott Prince also responded to the scene.
The apparent shooter was gone. The officers tried to keep Singleton calm until
paramedics arrived. Singleton was thereupon transported to Aultman Hospital, but she
subsequently died as a result of her gunshot wound.
{¶4} Law enforcement investigators determined that at least five spent bullets
had entered the Nickol apartment. The five that were analyzed were determined to have
come from a 9 millimeter High Point pistol. Police were unable to find any shell casings
near the house, and thus theorized that the incident had been a drive-by shooting.
Investigators also found out that Nickol and appellant had argued earlier on the day of
the shooting. Appellant had followed Nickol down the street, calling her names. Shortly
Stark County, Case No. 2011 CA 00214 3
thereafter, some men sitting on a porch near Ninth and Shorb had intervened and
“jumped” appellant. Appellant had subsequently gone to see his friend Carlos Jackson,
at which time appellant threatened in Jackson’s presence to “wet the block up.” Later
that day, shortly before dusk, appellant, in reference to Nickol, had also told a neighbor,
Larry Blair: “I should shake this bitch up.”
{¶5} Following further investigation, appellant was indicted on one count of
murder, R.C. 2903.02(B) and one count of improperly discharging a weapon into a
habitation R.C. 2923.161(A)(1). The matter proceeded to a three-day jury trial held on
September 6, 7, and 8, 2011. Following the presentation of evidence, appellant was
found guilty on both counts, as well as corresponding firearm specifications. Appellant
was sentenced to fifteen years to life in prison on the count of murder, eight years on
the count of discharging a firearm into a habitation,1 and an additional three years on
the firearm specifications, which were merged for sentencing. Appellant's total sentence
was thus twenty-six years to life in prison.
{¶6} Appellant filed a notice of appeal on September 26, 2011. He herein
raises the following four Assignments of Error:
{¶7} “I. THE TRIAL COURT ERRED BY ADMITTING HEARSAY
STATEMENTS IN VIOLATION OF THE APPELLANT'S SIXTH AMENDMENT RIGHT
TO CONFRONT WITNESSES.
{¶8} “II. THE TRIAL COURT ABUSED ITS DISCRETION BY GIVING AN
INADEQUATE AND MISLEADING JURY INSTRUCTION.
1
A nunc pro tunc entry was filed on October 11, 2011, to correct the sentence for the
count of discharging a firearm into a habitation to eight years rather than “eight years to
life” as originally written.
Stark County, Case No. 2011 CA 00214 4
{¶9} “III. THE TRIAL COURT ERRED IN NOT FINDING THE CHARGES OF
MURDER AND DISCHARGING A FIREARM INTO A HABITATION TO BE ALLIED
OFFENSES AND MERGING THESE COUNTS FOR SENTENCING.
{¶10} “IV. THE TRIAL COURT'S FINDING OF GUILTY WAS AGAINST THE
MANIFEST WEIGHT OF THE EVIDENCE AND WAS NOT SUPPORTED BY
SUFFICIENT EVIDENCE.”
I.
{¶11} In his First Assignment of Error, appellant argues the trial court erred in
admitting statements which were hearsay and/or in violation of his right to confront
witnesses under the Sixth Amendment to the United States Constitution. We disagree.
{¶12} Hearsay is “a statement, other than one made by the declarant while
testifying at the trial or hearing, offered in evidence to prove the truth of the matter
asserted.” Evid.R. 801(C). The admission or exclusion of evidence rests in the sound
discretion of the trial court. State v. Sage (1987), 31 Ohio St.3d 173, 180. As a general
rule, all relevant evidence is admissible. Evid.R. 402; cf. Evid.R. 802. Our task is to look
at the totality of the circumstances in the case sub judice, and determine whether the
trial court acted unreasonably, arbitrarily or unconscionably. State v. Oman (Feb. 14,
2000), Stark App.No. 1999CA00027.
{¶13} In regard to appellant’s claim of a confrontation violation, in Crawford v.
Washington (2004), 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177, the United States
Supreme Court held that under the Confrontation Clause, “testimonial” statements of a
witness who does not appear at trial may not be admitted or used against a criminal
Stark County, Case No. 2011 CA 00214 5
defendant unless the declarant is unavailable to testify and the defendant has had a
prior opportunity for cross-examination.
{¶14} Issues concerning the Confrontation Clause and established hearsay
exceptions are separate and distinct considerations. State v. Love, Gallia App.No.
10CA7, 2011-Ohio-4147, ¶23. “Although we have recognized that hearsay rules and the
Confrontation Clause are generally designed to protect similar values, we have also
been careful not to equate the Confrontation Clause's prohibitions with the general rule
prohibiting the admission of hearsay statements. The Confrontation Clause, in other
words, bars the admission of some evidence that would otherwise be admissible under
an exception to the hearsay rule.” (Internal citations omitted.) Id., quoting Idaho v.
Wright (1990), 497 U.S. 805, 814, 110 S.Ct. 3139, 111 L.Ed.2d 638.
{¶15} In the case sub judice, appellant challenges the introduction, over defense
objection and motion in limine, of a hearsay statement made by the now-deceased
victim, Diamond Singleton, which Brittany Nickol repeated in a taped telephone
conversation between Nickol and appellant after the shooting, which was played for the
jury. In the taped phone call, Nickol tells appellant that Singleton told her about
appellant’s threats made in another call earlier: “You got 10 minutes or I’m wettin’ your
house up. You told Diamond that. She told me.”
{¶16} Diamond Singleton’s repeated comment indeed appears to be hearsay,
and even though she falls under the category of an unavailable declarant, we are
unable to find that any of the hearsay exceptions under Evid.R. 803 or 804 would apply
to her statement. However, even where we conclude the challenged comment was
hearsay, the issue on appeal becomes whether appellant was prejudiced by the
Stark County, Case No. 2011 CA 00214 6
testimony, as error in admitting hearsay does not justify reversal where it is harmless.
See, e.g., State v. Loch, Franklin App.No. 02-AP-1065, 2003-Ohio-4701, ¶ 13, citing
State v. Carter (1995), 72 Ohio St.3d 545, 550, 651 N.E.2d 965. See, also,
Westinghouse Elect. Corp. v. Dolly Madison Leasing & Furniture Corp. (1975), 42 Ohio
St.2d 122, 326 N.E.2d 651. In the case sub judice, the trial court gave the jury a limiting
instruction that the call could only be considered for purposes of showing how appellant
reacted to Nickol’s accusation (see our discussion as to appellant’s second assigned
error, infra.) Furthermore, the record reveals that Singleton’s statement about appellant
threatening to shoot the house was properly admitted later in the trial by the testimony
of Carlos Jackson, who heard appellant say it over the phone in his presence. Tr. at
379. As such, we find Singleton’s hearsay statement to be cumulative evidence and
therefore harmless under the facts and circumstances of this case.
{¶17} Finally, in regard to the issue of the Confrontation Clause, Crawford only
applies if the out-of-court statements are “testimonial,” which have been generally
defined as “statements made during a police investigation or court proceedings” or
statements that were “made under circumstances that would lead a reasonable person
to conclude that such statements would later be available for use at trial ***.” State v.
Douglas, Marion App.No. 9-05-24, 2005-Ohio-6304, ¶44. The record does not support
the conclusion that Singleton’s statement to Nickol meet this definition. Accordingly, we
find appellant’s claim of a Confrontation Clause violation to be without merit.
{¶18} Accordingly, appellant's First Assignment of Error is overruled.
Stark County, Case No. 2011 CA 00214 7
II.
{¶19} In his Second Assignment of Error, appellant contends the trial court
committed reversible error in giving a jury instruction concerning the contents of a taped
telephone call heard by the jury. We disagree.
{¶20} As noted previously, the State introduced a recorded telephone call,
arranged with the assistance of a detective with the Canton Police Department,
between appellant and Brittany Nickol. In the recorded call, Nickol repeated statements
she said she had heard from the victim, Diamond Singleton, concerning threats made
by appellant. Part of the conversation between appellant and Nickol was recorded as
follows:
{¶21} “Nickol: Bitch you called me talkin’ crazy. You called and talked to
Diamond and told Diamond I had 10 minutes to be in the alley or you was wettin’ my
house up. And then the next thing I know a couple hours later I’m across the street…
{¶22} “Walton: It wasn’t me.
{¶23} “”***
{¶24} “Nickol: It wasn’t you but you called me. You called me and told me
that.
{¶25} “Walton: It wasn’t me.
{¶26} “Nickol: You got 10 minutes or I’m wettin’ your house up. You told
Diamond that. She told me.
{¶27} “***
{¶28} “Nickol: So explain to me how somebody shoot up my house but
coincidentally the same night, not even a few hours later, you tell me, right? You tell my
Stark County, Case No. 2011 CA 00214 8
sister, you ain’t even tell me. You told Diamond like I, she got 10 minutes to be in the
alley or I’m wetting’ that bitch up.
{¶29} “Walton: I don’t know nothin’ about that.
{¶30} “***”.
{¶31} State’s Exhibit 14.
{¶32} Appellant presently challenges the following instructions, which were given
after the jury heard the recorded call:
{¶33} “As part of this phone call, the Court by way of the pretrial discovery where
the parties exchanged the various pieces of evidence, I have had the opportunity to
review the phone call that you’re going to hear.
{¶34} “And on part of that conversation there are some statements made by the
witness who’s on the stand now, by Ms. Nickol, to an individual who she identifies as
Mr. Walton about a previous phone call that had been made to Diamond Singleton on
the evening in question.
{¶35} “And it’s my finding that these are her allegations to him that you made
this phone call and you said certain things, his response is back to that.
{¶36} “The fact as to whether a phone call was made or not is relevant to this
case. That may be a relevant piece of evidence, and his responses back to that may be
relevant to the facts of this case.
{¶37} “However, the fact that anyone claims that Diamond Singleton actually
received the call and what was actually said on that call is not relevant because that’s
hearsay, and therefore, you cannot accept this for the fact or to prove that Diamond
Stark County, Case No. 2011 CA 00214 9
Singleton actually received such a call or that Diamond Singleton may have stated to
someone afterwards what was said on that call. Those facts you may not accept.
{¶38} “So you’re getting it for the limited purpose as to basically someone is
saying to someone else you said this, you did this. That is relevant. Their response to
that is relevant, but the fact is whether it actually occurred or not, that’s not why this is
being provided to you and you may not accept it for that purpose.
{¶39} “I know you need to think that through in your mind a little bit, but I think it
will be apparent when you hear the call.”
{¶40} Tr. at 292-293.
{¶41} We note defense counsel did not object to the pertinent jury instructions
as required by Crim.R. 30(A). However, under Crim.R. 52(B), “[p]lain errors or defects
affecting substantial rights may be noticed although they were not brought to the
attention of the court.” In State v. Cooperrider (1983), 4 Ohio St.3d 226, 448 N.E.2d
452, the Ohio Supreme Court discussed the application of the plain error doctrine in the
context of an allegedly erroneous jury instruction. The Court stated: “ * * * [A]n
erroneous jury instruction ‘does not constitute a plain error or defect under Crim.R.
52(B) unless, but for the error, the outcome of the trial clearly would have been
otherwise.’ State v. Long (1978), 53 Ohio St.2d 91, 97, 372 N.E.2d 804. Additionally,
the plain error rule is to be applied with utmost caution and invoked only under
exceptional circumstances, in order to prevent a manifest miscarriage of justice.” Id. at
227, 372 N.E.2d 804.
{¶42} In the telephone call at issue, it is noteworthy that the jurors were able to
hear appellant repeatedly deny any participation in the shooting. Appellant nonetheless
Stark County, Case No. 2011 CA 00214 10
maintains that the court’s instruction was inconsistent with the details of the telephone
call and actually misled the jury into thinking that appellant had admitted wrongdoing.
See Appellant’s Brief at 10. However, upon review, we find that appellant has failed to
demonstrate that the outcome of the trial clearly would have been otherwise, but for the
alleged jury instruction error. As such, we find no demonstration of plain error under the
circumstances presented.
{¶43} Accordingly, appellant's Second Assignment of Error is overruled.
III.
{¶44} In his Third Assignment of Error, appellant argues the trial court erred in
failing to find the charges of murder and improperly discharging a firearm at or into a
habitation to be allied offenses of similar import. We agree.
{¶45} R.C. 2941.25 reads as follows:
{¶46} “(A) Where the same conduct by defendant can be construed to constitute
two or more allied offenses of similar import, the indictment or information may contain
counts for all such offenses, but the defendant may be convicted of only one.
{¶47} “(B) Where the defendant's conduct constitutes two or more offenses of
dissimilar import, or where his conduct results in two or more offenses of the same or
similar kind committed separately or with a separate animus as to each, the indictment
or information may contain counts for all such offenses, and the defendant may be
convicted of all of them.”
{¶48} For the first decade of the millennium, law interpreting R.C. 2941.25 was
based on State v. Rance, 85 Ohio St.3d 632, 636, 710 N.E.2d 699, 1999–Ohio–291,
wherein the Ohio Supreme Court had held that offenses are of similar import if the
Stark County, Case No. 2011 CA 00214 11
offenses “correspond to such a degree that the commission of one crime will result in
the commission of the other.” Id. The Rance court further held that courts should
compare the statutory elements in the abstract. Id.{¶49} However, the Ohio Supreme Court, in State v. Johnson, 128 Ohio St.3d
153, 942 N.E.2d 1061, 2010–Ohio–6314, specifically overruled the 1999 Rance
decision. The Court held: “When determining whether two offenses are allied offenses
of similar import subject to merger under R.C. 2941.25, the conduct of the accused
must be considered.” Id., at the syllabus. As recited in State v. Nickel, Ottawa App.No.
OT–10–004, 2011–Ohio–1550, ¶ 5, the new test in Johnson for determining whether
offenses are subject to merger under R.C. 2921.25 is two-fold: “First, the court must
determine whether the offenses are allied and of similar import. In so doing, the
pertinent question is ‘whether it is possible to commit one offense and commit the other
offense with the same conduct, not whether it is possible to commit one without
committing the other.’ (Emphasis sic.) Id. at ¶ 48. Second, ‘the court must determine
whether the offenses were committed by the same conduct, i.e., “a single act,
committed with a single state of mind.” ’ Id. at ¶ 49, quoting State v. Brown, 119 Ohio
St.3d 447, 2008–Ohio–4569, ¶ 50 (Lanzinger, J., concurring in judgment). If both
questions are answered in the affirmative, then the offenses are allied offenses of
similar import and will be merged. Johnson, at ¶ 50.”
{¶50} As an initial matter, we note the State herein maintains that appellant has
waived any allied offense argument on appeal by failing to raise the issue when given
opportunities to address the trial court both before and after the sentence was
pronounced. However, it is generally recognized in Ohio that even where defense
Stark County, Case No. 2011 CA 00214 12
counsel fails to challenge the trial court for its failure to merge, the imposition of multiple
sentences for allied offenses of similar import constitutes plain error. See, e.g, State v.
May, Lake App.No. 2010–L–131, 2011-Ohio-5233, ¶ 31, citing State v. Underwood, 124
Ohio St.3d 365, 922 N.E.2d 923, 2010–Ohio–1, ¶ 31.
{¶51} Appellant herein was convicted of murder under R.C. 2903.02(B), which
reads as follows:
{¶52} “(B) No person shall cause the death of another as a proximate result of
the offender's committing or attempting to commit an offense of violence that is a felony
of the first or second degree and that is not a violation of section 2903.03 or 2903.04 of
the Revised Code.”
{¶53} Appellant's murder charge was predicated on the underlying offense of
improperly discharging a firearm at or into a habitation under R.C. 2923.161(A)(1),
which charge was also the basis for Count II. Said statute states as follows:
{¶54} “No person, without privilege to do so, shall knowingly *** [d]ischarge a
firearm at or into an occupied structure that is a permanent or temporary habitation of
any individual.”
{¶55} In the case sub judice, the State does not dispute that the first question
under Johnson, i.e., whether it is possible to commit one offense and commit the other
offense with the same conduct, would be answered in the affirmative under the
circumstances. See Appellee’s Brief at 21.
{¶56} We thus proceed to an examination of the second question under
Johnson. The State responds that the firing of the five rounds into the front door area of
Nickol’s occupied apartment, and the resultant killing of Singleton by the impact of one
Stark County, Case No. 2011 CA 00214 13
of those rounds, constituted two separate acts. However, we note that the State indicted
appellant on a total of two counts in this instance, along with firearm specifications. The
count of murder was expressly based on the theory that Singleton’s death was the
proximate result of appellant’s underlying unlawful act of firing a gun into a habitation.
While our conclusions would not necessarily apply to every conceivable scenario of a
killing from a drive-by shooting into a house, under the circumstances of the case sub
judice, we are persuaded that the act and animus of murder as charged herein under
R.C. 2903.02(B) are inextricably part of the same conduct as the count of improper
discharge of a weapon into a habitation under R.C. 2923.161(A)(1).
{¶57} We therefore find the trial court committed reversible error in convicting
and sentencing appellant on both of the aforesaid counts.
{¶58} Accordingly, appellant's Third Assignment of Error is sustained.
IV.
{¶59} In his Fourth Assignment of Error, appellant contends his conviction for
murder, based on the improper discharge of a firearm into a habitation, was not
supported by sufficient evidence and was against the manifest weight of the evidence.
We disagree.2
{¶60} In reviewing a claim of insufficient evidence, “[t]he relevant inquiry is
whether, after viewing the evidence in a light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the crime proven beyond
a reasonable doubt.” State v. Jenks (1991), 61 Ohio St.3d 259, 574 N.E.2d 492,
paragraph two of the syllabus.
2
Based on our holding in regard to appellant’s third assigned error, we will herein focus
on the more serious charge of murder.
Stark County, Case No. 2011 CA 00214 14
{¶61} In the case sub judice, appellant does not dispute that a fatal shooting
took place at 818 Shorb Avenue. Appellant further does not dispute he had been
outside Brittany Nickol’s apartment earlier in the evening on the night of the shooting,
and that the two of them frequently argued. He emphasizes, however, that no
eyewitnesses as to the actual shooter or a getaway vehicle were presented at trial. He
also points out that no search warrant was ever pursued as to appellant and his
residence or belongings.
{¶62} However, it is well-established in Ohio that circumstantial evidence has
the same probative value as direct evidence. See, e.g., State v. Pryor, Stark App.No.
2007CA00166, 2008–Ohio–1249, ¶ 34, citing State v. Jenks (1991), 61 Ohio St.3d 259,
574 N.E .2d 492. The jury in this case was presented with evidence from three
individuals, as further discussed infra, that appellant had either admitted to or
threatened to shoot up Nickol’s residence as a means of retaliation for an earlier
altercation and for appellant being “jumped” by some men in the neighborhood.
Appellant’s friend Carlos Jackson saw appellant change into some darker clothing on
the night of the shooting, and when Jackson later talked to him about the shooting,
appellant said “it was an accident.” Tr. at 386. When first interviewed by law
enforcement, appellant denied even knowing the victim, Singleton. After the shooting,
appellant fled to Alabama, later turning himself in after a traffic stop.
{¶63} Upon review of the aforesaid and the additional record before us, we find
sufficient evidence, both circumstantial and in the form of appellant’s own admissions,
existed for reasonable fact finders to convict on the charge of murder under R.C.
2903.02(B). The conviction was thus supported by the sufficiency of the evidence.
Stark County, Case No. 2011 CA 00214 15
{¶64} Our standard of review on a manifest weight challenge to a criminal
conviction is stated as follows: “The court, reviewing 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 .” State v. Martin (1983), 20 Ohio App.3d 172, 175, 485 N.E.2d
717. See also, State v. Thompkins (1997), 78 Ohio St.3d 380, 678 N.E.2d 541. The
granting of a new trial “should be exercised only in the exceptional case in which the
evidence weighs heavily against the conviction.” Martin at 175, 485 N.E.2d 717.
{¶65} Appellant commences his manifest weight argument by pointing out
certain discrepancies in the various witnesses’ testimony. He notes, for example, that
Brittany Nickol and Kasey Stone portrayed different versions of the background of
appellant’s relationship with Nickol. Stone recalled that Nickol was trying to end the
relationship; Nickol denied that this was the case. Additionally, Stone described
appellant as Nickol's boyfriend; Nickol stated it was only a sexual relationship.
Additional evidence was adduced that Nickol was actually seeing another man,
Riccardo Hunt, who lived nearby. Stone also stated that appellant “smacked” Nickol
during the argument that preceded the shooting; Nickol instead recalled that appellant
pushed her face away. Appellant also notes that Officer Premier, who was nearby when
he heard the dispatch for shots fired, recalled hearing just two bursts of gunfire. See Tr.
at 197.
{¶66} Appellant also maintains that the State, in order to establish appellant as
the shooter, relied upon the testimony of three witnesses with felony records – Larry
Stark County, Case No. 2011 CA 00214 16
Blair, Carlos Jackson, and Eric Edwards - two of whom were expecting some benefit in
their own criminal cases by testifying in the case sub judice.
{¶67} Blair, who lived at 808 Shorb Avenue, told the jury he had seen appellant
on Shorb earlier on the day of the shooting, observing that appellant was upset about
being jumped earlier. Blair recalled hearing appellant state “I should shake this bitch
up." Tr. at 355. Blair, however, did not know to whom appellant was referring, until after
the shooting. See Tr. at 356.
{¶68} Appellant also points out that Carlos Jackson, appellant’s friend who lived
at 1105 Shorb, was awaiting sentencing on a felony case, with sex offender
classification potential, at the time of trial. Appellant maintains that the first time Jackson
spoke to detectives, he stated that he had seen appellant shoot at four males, a few
blocks from Nickol’s address, and that in a conversation with him appellant had denied
shooting at Nickol’s apartment. Tr. at 391-393. During his second interview with
detectives and at trial, Jackson stated that he did not see the shooting, but that he had
seen appellant with a gun and had heard appellant threaten to shoot up the block
shortly before the shooting. Jackson also claimed appellant had confessed to him that
he shot at Nickol’s apartment but that it was an accident. Tr. at 386.
{¶69} Finally, the State presented Eric Edwards, who testified that appellant
admitted to him to shooting up the apartment, but claimed “the State didn’t have shit on
him.” Tr. at 408. Appellant notes that Edwards disclosed this information after major
facts of the case were in the newspaper. He also notes Edwards has previous
convictions for robbery, domestic violence, theft and escape, and that he once pled not
guilty by reason of insanity to a criminal charge.
Stark County, Case No. 2011 CA 00214 17
{¶70} In sum, appellant proposes the possibility that he was falsely accused of
being the shooter, rather than one of those appellant had fought with in the street earlier
that night or the drug dealers in the area from whom Nickol had allegedly purchased
marijuana.
{¶71} Nonetheless, upon review, we hold the jury did not clearly lose its way and
create a manifest miscarriage of justice requiring that appellant's murder conviction be
reversed and a new trial ordered. The conviction was not against the manifest weight of
the evidence.
{¶72} Appellant's Fourth Assignment of Error is overruled.
{¶73} For the reasons stated in the foregoing opinion, the judgment of the Court
of Common Pleas, Stark County, Ohio, is hereby affirmed in part, reversed in part, and
remanded for the trial court to review the issue of merger.
By: Wise, J.
Delaney, P. J., concurs.
Edwards, J., dissents.
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JUDGES
JWW/d 0423
Stark County, Case No. 2011 CA 00214 18
EDWARDS, J., DISSENTING OPINION
{¶74} I respectfully dissent from the majority’s disposition of the third assignment
of error.
{¶75} R.C. 2941.25(B) states that where the defendant’s conduct results in two
or more offenses of the same or similar kind committed separately or with a separate
animus as to each, he may be convicted of all of them. In the instant case, appellant
fired five rounds into the front door of the apartment, killing one person by the impact of
one of those rounds. While the predicate offense for the felony murder charge was
improperly discharging a firearm at or into a habitation in violation of R.C.
2923.161(A)(1), appellant fired four additional rounds at the occupied apartment, any
one of which would support a conviction of R.C. 2923.161(A)(1). While the State chose
not to charge appellant with five separate counts of improperly discharging a firearm at
or into a habitation, I would find that firing four rounds which did not result in the death
of Singleton constituted a separate act from the felony murder of Singleton.
{¶76} Accordingly, I would find the offenses are not allied offenses of similar
import and should not merge for sentencing. I would overruled the third assignment of
error and affirm the judgment of the trial court.
_________________________________________
Judge Julie A. Edwards
JAE/rad/rmn
Stark County, Case No. 2011 CA 00214 19
IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
-vs- : JUDGMENT ENTRY
:
CORTNEY L. WALTON :
:
Defendant-Appellant : Case No. 2011 CA 00214
For the reasons stated in our accompanying Memorandum-Opinion, the
judgment of the Court of Common Pleas of Stark County, Ohio, is affirmed in part,
reversed in part, and remanded for further proceedings consistent with this opinion.
Costs to be split equally between the parties.
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JUDGES