State v. Collins ( 2020 )

[Cite as State v. Collins, 2020-Ohio-4136.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 108878
v. :
SENYON L. COLLINS, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: August 20, 2020
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-18-627168-B
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Anthony T. Miranda, Assistant Prosecuting
Attorney, for appellee.
Jennifer N. McTernan L.L.C., and Jennifer L. McTernan,
for appellant.
EILEEN A. GALLAGHER, J.:
Defendant-appellant Senyon Collins appeals after a jury convicted him
of felonious assault, improper discharging firearm at or into habitation or school,
discharge of firearm on or near prohibited premises and two counts of improperly
handling firearms in a motor vehicle. Each count contained a one-, three- and five-
year firearm specification. The trial court sentenced Collins to an aggregate 14 years
in prison. We affirm.
I. Factual Background and Procedural History
Tuquisha Oliver and Collins were romantically involved, on and off, for
about a year. During that time, they believed that Collins had fathered a child born
of Tuquisha. However, following a paternity test, it was determined that Collins was
not the child’s father.
The paternity test was taken at the behest of codefendant Brittany
Lawson. Collins and Lawson were romantically involved prior, and subsequent, to
his relationship with Tuquisha.
When Collins learned that he was not the child’s father, he was angry
and engaged in several verbal altercations with Tuquisha. One evening when
Tuquisha was staying at her mother, Rochelle Oliver’s, home in Cleveland Heights,
Ohio she talked with Collins on the phone. She informed him that she had permitted
another man to visit with the child. This angered Collins, she explained, because he
did not like the child being around other men. He yelled at her and told her he was
coming over to the home. He did not appear that evening, but showed up the
following morning driving a gray truck. Rochelle answered the door and told Collins
that Tuquisha was not present even though she was in another room. Collins left
shortly thereafter and when he did, Tuquisha and Rochelle went to the home of
Tunisha Oliver, Tuquisha’s sister, in Euclid, Ohio
According to Tuquisha, she and Rochelle stopped briefly at Tunisha’s
house before proceeding to a dental appointment. While en route to the
appointment, Rochelle received a call from Tunisha who was in tears. Collins,
accompanied by Lawson, had come to the Tunisha’s home looking for Tuquisha and,
when told she was not there, he pointed a gun at Tunisha while seated in his gray
truck and he proceeded to fire a single round into the house.
Tunisha called 911 after she called her mother. She reported that “my
house has been shot up” and that “my sister’s boyfriend” was the person who did it.
Tunisha testified that at the time of the crime she did not know Collins’ legal name,
but confirmed that she was “a hundred percent sure” that it was he who fired the
shot.
The bullet struck the house near Tuquisha’s room there. Officer Trevor
Thomas testified that when he arrived on the scene Tunisha was “visibly upset.”
Thomas observed three children playing in the house, none of whom were injured.
He described “what appeared to be a bullet hole in the second floor window sill,”
although no bullet was recovered.
Detective Joshua Schultz testified as to his experience with firearms
and ballistics, including the fact that he had been a military sniper and that he has
been trained in shooting incident reconstruction. Schultz had familiarity with
trajectory ballistics and the effect on different mediums when struck by a bullet.
Schultz assessed the defect in the window sill and described “some
tearing from the aluminum siding, as, you know, a high velocity projectile would
proceed through a medium.” He observed “shiny aluminum inside the impact site”
which indicated that the damage occurred recently and that it was caused by a bullet.
Schultz confirmed that it was “very common” for this kind of damage to be caused
by a bullet.
The day trial was set to begin, the prosecutor informed the court of a
discovery issue. Collins had not been given three pieces of evidence: (1) surveillance
video footage taken from a gas station near Tunisha’s house that depicted a gray
truck, (2) a video recording of Lawson’s police interview and (3) Lawson’s cell site
location data obtained from a cell phone company that showed her location was
consistent with the crime. The prosecutor accepted responsibility for the failure to
provide the evidence and asserted that it was an unintentional oversight. Collins did
not suggest otherwise.
Although Collins only received this evidence on the day of trial, he
admitted he had previously received the detective’s report that referred to this
evidence. The trial court conducted a hearing and inquired about the nature of the
violation and the evidence. The court gave Collins an opportunity to review the new
evidence and stated that if there was anything prejudicial or materially inconsistent
with the detective’s report, Collins could seek a continuance. Collins did not identify
anything prejudicial or materially inconsistent and he did not seek a continuance.
II. Assignments of Error
Collins asserts five assignments of error:
1. Defendant-appellant’s rights to due process and a fair trial were
violated when the state failed to provide discoverable evidence to
defense prior to the day of trial.
2. The trial court abused its discretion in failing to adequately address
the state’s discovery violations.
3. The trial court abused its discretion in failing to grant defendant’s
motion for a mistrial after a state’s witness testified in front of the jury
regarding defendant-appellant not speaking to law enforcement.
4. Defendant-appellant was denied the effective assistance of counsel
in violation of Amendments V, VI, and XIV of the United States
Constitution, and Article 1, Sections 10 and 16 of the Ohio Constitution.
5. The jury found against the manifest weight of the evidence that the
defendant-appellant committed the acts alleged in Counts 1, 2, 3, 4 and
5 of the indictment.
1. Discovery Violation
In the first assignment of error, Collins argues that the state violated
Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), by providing
him additional discovery the morning trial was set to begin.
“[T]he suppression by the prosecution of evidence favorable to an
accused upon request violates due process where the evidence is material either to
guilt or to punishment * * *.” Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10
L.Ed.2d 215 (1963). A Brady violation occurs where suppressed exculpatory
evidence is discovered after trial. State v. Sheline, 8th Dist. Cuyahoga No. 106649,
2019-Ohio-528, ¶ 164. There is no Brady violation where evidence is disclosed or
introduced during trial. Id.Here, the discovery materials were provided to Collins prior to trial.
As such, Brady was not implicated. See State v. Mills, 8th Dist. Cuyahoga No.
90383, 2008-Ohio-3666, ¶ 11. Moreover, we note that Collins merely assumes, and
does not explain how, the evidence was favorable and material to guilt or
punishment. See Brady at 87.
We overrule the first assignment of error.
2. Discovery Violation Sanction
In the second assignment of error, Collins argues that the trial court
abused its discretion by failing to adequately address the discovery violation. He
asserts that the court should have delayed trial so that he could review the newly
produced discovery materials. He claims that delaying trial would have given him
the opportunity to “seek out review by an independent expert if necessary” to
analyze Lawson’s cell site location data.
A trial court enjoys broad discretion in regulating discovery and,
where a discovery violation has occurred, in determining the appropriate sanction.
State v. Smiler, 8th Dist. Cuyahoga No. 100255, 2014-Ohio-1628, ¶ 13, citing State
v. Wiles, 59 Ohio St.3d 71, 78, 571 N.E.2d 97 (1991). A trial court abuses its
discretion where it makes an arbitrary, unconscionable or unreasonable decision.
State v. Darmond, 135 Ohio St.3d 343, 2013-Ohio-966, 986 N.E.2d 971, ¶ 34. An
abuse of discretion includes a situation where the trial court engaged in an unsound
reasoning process. Id.Crim.R. 16(L)(1) details the trial court’s authority to issue orders in
response to a party’s failure to comply with its discovery obligations. Id. at ¶ 33.
Where a party fails to comply with the discovery rules, the court has discretion to
order the party to produce the discovery at issue, prohibit the party from introducing
the nondisclosed material into evidence, grant a continuance or “make such other
order as it deems just under the circumstances.” Crim.R. 16(L)(1).
The Supreme Court has identified three factors that should inform a
trial court’s decision to sanction the state in the event it commits a discovery
violation:
(1) [W]hether the failure to disclose was a willful violation of Crim.R.
16, (2) whether foreknowledge of the undisclosed material would have
benefited the accused in the preparation of a defense, and (3) whether
the accused was prejudiced.
Darmond at ¶ 35, citing State v. Parson, 6 Ohio St.3d 442, 453 N.E.2d 689 (1983),
at the syllabus. Put differently, “[t]he [trial] court does not abuse its discretion in
admitting evidence undisclosed in discovery unless the record shows that the
prosecutor’s discovery violation was willful, that foreknowledge would have
benefitted the accused in preparing his defense, or that the accused was unfairly
prejudiced.” State v. Haddix, 12th Dist. Warren No. CA2011-07-075, 2012-Ohio-
2687, ¶ 39, quoting State v. Otte, 74 Ohio St.3d 555, 563, 660 N.E.2d 711 (1996).
In addressing a discovery violation, the trial court “must inquire into
the circumstances surrounding [the] violation, must balance the competing
interests, and ‘must impose the least severe sanction that is consistent with the
purpose of the rules of discovery.’” (Emphasis sic.) Darmond at ¶ 21, quoting
Lakewood v. Papadelis, 32 Ohio St.3d 1, 5, 511 N.E.2d 1138 (1987). If the trial court
failed to properly cure a discovery violation we consider whether any resulting error
was a harmless error. State v. Newell, 8th Dist. Cuyahoga No. 106584, 2019-Ohio-
976, ¶ 42, citing Middleburg Hts v. Lasker, 2016-Ohio-5522, 76 N.E.3d 372, ¶ 16
(8th Dist.), (permitting an undisclosed witness to testify was harmless error where
the testimony was merely cumulative).
In this case, before the jury was selected, on the day trial was
scheduled to begin, the prosecutor informed the court of an issue with discovery,
because she had that day produced three additional pieces of discovery: (1)
surveillance video footage from a gas station near the crime scene at the relevant
time, (2) a video recording of Collins’ codefendant, Brittany Lawson’s police
interview and (3) Lawson’s historic cell site location data.
The court conducted an extensive hearing into the attendant
circumstances including discussion of the evidence and the nature of the violation,
hearing argument from both parties. The prosecutor stated that the detective’s
report “included narration of all the evidence” that she provided to Collins earlier
that day. Collins admitted that he was in possession of the detective’s report.
The prosecutor informed the court that her failure to provide the
evidence to Collins was unintentional. Collins’ attorney did not dispute this, and
observed that she was a “good prosecutor.” The prosecutor explained that multiple
attorneys had worked on the case before her and that she herself had received the
video recordings that same day, shortly before she produced it to Collins.
Nevertheless, she accepted responsibility for the error.
The court inquired into the nature of the videos. The prosecutor
stated that only a few seconds of the gas station surveillance video were relevant,
depicting a gray truck in the vicinity of the crime that was described as matching
Collins’ truck. As to Lawson’s recorded police interview, the court inquired whether
the prosecutor was planning on calling Lawson as a witness. The prosecutor
indicated that Lawson would be testifying at trial and was providing her testimony
in exchange for a diversion agreement and confirmed that Lawson’s statement was
contained in the detective’s report that was in Collins’ possession. Collins agreed
that Lawson’s statement was reflected in the detective’s report.
Addressing the cell site location data, the prosecutor stated that the
records indicated that Lawson was within four miles of the crime scene and that the
detective’s report reflected any probative information from the records. The court
confirmed that “to the extent that [the prosecutor] would use any of [the cell site
location information] and call [Lawson as a witness], that’s already been provided
to defense counsel.”
At multiple points during the hearing, the court addressed Collins and
informed him that it would give him time to review the evidence before the jury was
sworn “so if there is something that you can raise between now and tomorrow from
the video that would materially prejudice you or information that you didn’t already
have through the detective report, then we’ll address a Motion for Continuance at
that time * * *.” The court opined that, from the parties’ statements it did not believe
the discovery violation was intentional or malicious, but was rather a “mutual miss”
to the extent that Collins knew the evidence existed because of the detective’s report
and the prosecutor was unaware that Collins did not have it.
The following day, before trial began, the court continued its inquiry
into the discovery violation and asked whether Collins’ counsel reviewed the video
recordings and whether there was anything materially different from what was
contained in the detective’s report. Counsel stated that he did not review the gas
station video but confirmed that “stills” taken from it did depict a gray truck.
The court asked counsel if, after his review, he saw anything that was
materially different from the detective’s report, prejudicial or whether there was
anything that would cause him to change his approach to the case. Counsel
responded “[n]o, your Honor.”
The court turned to the video of Lawson’s police interview and again
inquired whether counsel found anything materially different from that which was
recorded in the detective’s report, prejudicial or that would make him approach the
case differently.
Counsel did not directly answer the question, instead noting that “new
information” was contained in the video recording including statements about
alleged conversations between the victims and Lawson. The court asked counsel if
Collins wanted a continuance in light of this information or whether he would be
able to proceed with trial and address any concern he had with Lawson or the victims
via cross-examination. Counsel responded that the video contained “new
information” and that he had not had the opportunity to “do the necessary follow-
up” with Lawson or the victims. Counsel also wanted Collins to have the ability to
review the video. The court confirmed that Lawson and the victims were on the
witness list and that counsel, therefore, had the opportunity to talk with them:
There is nothing that prevents you from talking to any witness. The
diversion agreement does not prevent you from speaking to [Lawson].
And if she chose not to speak to you, that’s every right of any witness
on the advice of counsel or not * * * but you do have these person’s [sic]
names on the witness list. The fact that two people that were known to
each other after the incident; one called in and said, “I’m calling the
police on you,” I don’t think demands further investigation more than
being able to discuss it with them because they’re on the witness list
and call them and just discuss generally the case, but also this is cross-
examination.
The state sought to clarify that the “new information” Collins’ counsel
found in the interview video, stating:
[A]lot [sic] of those facts are already within the police report * * * and
that was provided to defense many months ago.
Not only that, jail calls were provided and social media was provided, I
believe back in January or February. The social media shows ongoing
threats by the defendant provided by the victims so, you know, there is
ongoing communication.
The state then confirmed that “the sum and substance of what
[Lawson] said in her interview is also the same thing that was provided elsewhere in
other forms of discovery.”
The court agreed that Collins should have the opportunity to review
the video and adjourned for a recess to provide Collins time to review the video of
Lawson’s interview. After the recess, the court addressed Collins’ counsel:
The Court: Okay. And so it’s my understanding that the substance of
[Lawson’s statement] * * * was partially in the detective’s supplement.
But the same substance or allegations or claims or basis for her
statements were also found elsewhere in other discovery.
Counsel: Yes, that’s correct.
The Court: Okay. All right. So then we can continue.
Counsel: Yes, your Honor.
Collins argues that the trial court erred because it did not delay trial in
response to the discovery violation. He claims, without offering any support or
explanation, that the violation “materially altered” his trial strategy and denied him
a fair trial. We disagree. Review of the record does not indicate that the prosecutor’s
failures were willful, that foreknowledge would have aided Collins in preparing his
defense or that he was unfairly prejudiced. See Darmond, 135 Ohio St.3d 343, 2013-
Ohio-966, 986 N.E.2d 971 at ¶ 35.
We find nothing in the record to indicate that the discovery violation
was willful. To the contrary, and as the trial court observed, the violation appears to
be unintentional.
As to whether foreknowledge of the evidence would have aided his
defense, we note that Collins admitted he was in possession of the detective’s report
that details the video and phone record evidence. The trial court noted that Collins
was thus on notice that the evidence existed. This is not to suggest that it became
Collins’ burden to obtain the video recordings and phone records after he was made
aware of them through the detective’s report, or that such reference in a detective’s
report is tantamount to the evidence itself for discovery purposes. See State v.
Wilson, 8th Dist. Cuyahoga No. 97465, 2012-Ohio-3567, ¶ 18 (failure to disclose
audio recording of detective interview potentially to be used at trial violated Crim.R.
16; indication in detective’s statement that recording existed does not shift burden
to defendant to seek out recording). Nevertheless, in this case, the extent to which
the detective’s report detailed the video and phone records minimizes the potential
impact of not having the evidence itself for defense preparation.
Moreover, Collins does not actually claim to have suffered any unfair
prejudice as a result of the discovery violation. Instead, he speculates that were the
trial court to delay the trial he would have had more time for “adequate review” of
the evidence, “additional discussions regarding trial strategy” and “an opportunity
to seek out review by an independent expert if necessary.” Collins does not explain
how any of this speculation would have provided him any benefit.
As discussed, the trial court afforded Collins and his attorney time to
review the evidence and it ensured that the evidence was not materially different or
prejudicial from what was contained in the detective’s report or was otherwise
information that “[he] should have known earlier.” Collins did not identify anything
of substance. He did not dispute the prosecutor’s claim that the gas station
surveillance video was merely cumulative of other evidence addressed in the
detective’s report that identified Collins and his truck at the crime scene, namely the
victim’s statement.
With regard to Lawson’s interview video, Collins agreed that the
detective’s report was only a partial reflection of the entire interview. However, he
admitted that anything in the video that was not reflected in the detective’s report
was otherwise established in discovery that he possessed.
As to the cell site location data, Collins did not dispute that any
relevant information was contained in the detective’s report and that any
information that the state would use had previously been provided to Collins.
This was a minimal discovery violation. Nevertheless, even if we were
to assume that the trial court failed to properly cure the discovery violation, the error
would be harmless because, as discussed, Collins fails to identify any prejudice that
resulted from the discovery violation. See State v. Newell, 8th Dist. Cuyahoga No.
106584, 2019-Ohio-976, ¶ 42.
We overrule the second assignment of error.
3. Denial of Motion for Mistrial
In the third assignment of error, Collins argues the trial court erred by
denying his motion for a mistrial after Detective Schultz testified that his attempt to
interview Collins was unsuccessful. Collins asserts that this testimony constitutes a
violation of his Fifth Amendment right to remain silent.
Collins argues that the detective impermissibly referred to his pre-
arrest silence twice, once during his direct examination and again during his cross-
examination. During his direct examination the prosecutor inquired about the
course of the investigation and Schultz testified:
So after identifying [Collins and Lawson] I attempted to reach out to
them to set up potential interviews to get their side of the story, if there
was any foundation of the allegations against them at some point. I was
unable to schedule those interviews.
There was no objection. During cross-examination, in the midst of a
line of questions relating to whether the detective was biased in his investigation,
the following exchange occurred between Collins’ attorney and Schultz:
Q. To the extent that you, as being a detective, the person that is
unbiased and the person who is just supposed to call it just the way it
is, you’re the type of person you have to talk to everyone that provides
information critical to your case because you’re not on one side or the
other.
A. Correct.
***
Q. So it’s your job to interview people that provided information so
you know the integrity of what you’re receiving.
A. Correct. * * * But I also did attempt to have Mr. Collins and Ms.
Lawson speak to me regarding this matter.
Collins’ attorney objected.
In general, “[u]se of a defendant’s pre-arrest silence as substantive
evidence of guilt violates the Fifth Amendment privilege against self-incrimination.”
State v. Leach, 102 Ohio St.3d 135, 2004-Ohio-2147, 807 N.E.2d 335, at syllabus.
However, one exception to this rule exists where the state uses a defendant’s pre-
arrest silence as evidence of the “course of the investigation.” Id. at ¶ 32.
In Leach, the defendant’s conviction was predicated solely upon the
credibility of the state’s witness. Leach at ¶ 29. During trial, an officer testified that
he contacted the defendant during the course of the investigation:
I asked [the defendant], I told him that I had been made aware that he
wanted to talk to the police about what had occurred at the house that
night, and I made arrangements. He said he would come in and talk to
me at 2:30 in the afternoon [later that day].
Id. at ¶ 5. When the officer was asked whether the defendant kept the appointment
or whether he had any further contact with the defendant, he testified:
No. * * * I believe I contacted him. Either I contacted him — I know he
left a message on my machine in regards to he wanted to speak with an
attorney before talking with the police.
Id. The Supreme Court found that the officer’s testimony that the defendant had
made an appointment to speak with police but had not kept that appointment was
legitimate evidence as related to the course of the investigation. Id. at ¶ 32.
In this case, the detective’s statement during direct examination about
being unable to schedule an interview with Collins and his statement on cross-
examination about attempting to speak with Collins were admissible to explain the
course of the investigation. See State v. Stone, 8th Dist. Cuyahoga No. 100794,
2014-Ohio-4803, ¶ 26 (“[T]estimony about defendant’s silence] was not elicited * * *
as substantive evidence of his guilt. Rather it was elicited to explain to the jury why
* * * the company initiated a police investigation.”).
State v. Jackson, 8th Dist. Cuyahoga No. 88345, 2007-Ohio-2925, is
instructive as to this point. In Jackson, a detective testified that during the course
of a shooting investigation, he spoke with the defendant and attempted to set up an
interview with him. The detective testified that the defendant missed several such
appointments before finally coming to the police station for an interview. Id. On
appeal, the defendant argued that his right against self-incrimination was violated
when the state introduced evidence of his initial refusal to speak with police. Id. at
¶ 25. This court rejected the argument, explaining:
The testimony concerning the missed appointments was admissible to
explain the course of the investigation. Unlike the testimony found
impermissible in Leach, the testimony here did not involve defendant
invoking his right to counsel. Conversely, the testimony that defendant
had missed appointments is like the testimony the Ohio Supreme Court
found to be legitimate in Leach.
Id. at ¶ 30.
Similarly, in this case, the detective’s testimony only involves his
inability to set up an interview with Collins. There is no mention of Collins refusing
and invoking his right to counsel. As such, the testimony was admissible to explain
the course of the investigation. The trial court, therefore, did not err by denying
Collins’ motion for a mistrial based on his Fifth Amendment right to remain silent,
because there was no such violation.
We overrule the third assignment of error.
4. Ineffective Assistance of Counsel
In the fourth assignment of error, Collins argues that he was denied
the effective assistance of counsel based on counsel’s response to the discovery issue
that were the subject of the first two assignments of error. Collins argues that his
counsel was deficient because he did not (1) request a delay in trial, (2) object to
inclusion of the evidence or (3) move for a mistrial based on its inclusion.
A criminal defendant has the right to effective assistance of counsel.
Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674(1984). To establish ineffective assistance of counsel, a defendant must
demonstrate: (1) deficient performance by counsel, i.e., that counsel’s performance
fell below an objective standard of reasonable representation, and (2) that counsel’s
errors prejudiced the defendant, i.e., a reasonable probability that but for counsel’s
errors, the result of the trial would have been different. Id. at 687-688, 694; see also
State v. Ford, 158 Ohio St.3d 139, 2019-Ohio-4539, 140 N.E.3d 616, ¶ 391 (“Reversal
of a conviction for ineffective assistance of counsel requires that the defendant show,
first, that counsel’s performance was deficient and second, that the deficient
performance prejudiced the defendant so as to deprive the defendant of a fair trial.”).
“Reasonable probability” is “probability sufficient to undermine confidence in the
outcome.” Strickland at 694.
As discussed in the second assignment of error, the discovery violation
in this case was minimal and was appropriately addressed. Collins has thus
articulated no basis for us to conclude that his counsel’s performance was deficient.
Moreover, we note that aside from the mere statement that he was prejudiced by his
counsel’s actions, Collins has provided no explanation as to how he actually was
prejudiced.
We overrule the fourth assignment of error.
5. Manifest Weight of the Evidence
In the fifth assignment of error, Collins argues that his convictions are
against the manifest weight of the evidence.
Evaluating a manifest weight of the evidence challenge requires this
court to review the record, weigh the evidence and reasonable inferences, consider
witness credibility and determine whether, in resolving conflicts in the evidence, the
trier of fact clearly lost its way and thereby created a manifest miscarriage of justice.
State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997). In conducting
such a review, we remain mindful that witness credibility and the weight to be given
to evidence are primarily assessments for the trier of fact. State v. Bradley, 8th Dist.
Cuyahoga No. 97333, 2012-Ohio-2765, ¶ 14, citing State v. DeHass, 10 Ohio St.2d
230, 227 N.E.2d 212 (1967), paragraph one of the syllabus. Reversal on the weight
of the evidence is reserved for the “‘exceptional case in which the evidence weighs
heavily against the conviction.’” Thompkins at 387, quoting State v. Martin, 20 Ohio
App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).
Collins attacks the quality of the gas station surveillance video and cell
phone site location data and the conclusions that can be drawn from them. He
asserts that the video is “grainy,” and that, although it was clear enough to depict a
gray truck, he notes that the detective admitted during his testimony he could not
identify any occupant or make out the license plate number. These claims, and the
extent to which they pertain to whether Collins fired a bullet into Tunisha’s house-
aside, the jury was free to accept or reject that the video depicted Collins’ truck.
Interpreted in any light, the video is not evidence that Collins did not shoot the
house.
As to the cell phone records, Collins admits that the records do show
that Lawson’s phone pinged towers near the crime at the relevant time, but notes
that when the detective testified about these records he admitted that he did not
personally compile the data, that he would not know if there was any error in the
records and acknowledged he was not an “expert” in this kind of data interpretation.
Again, the jury had the ability to draw its own conclusion from these records. We
note that Lawson’s testimony that she was present with Collins at Tunisha’s house
is undisputed. Moreover, as was the case with the surveillance video, the cell phone
records are not evidence that Collins did not shoot the house.
Collins asserts that Tunisha’s testimony was not reliable or credible.
To substantiate this claim, Collins notes that, after he purportedly fired the gun,
Tunisha immediately called her mother rather than the police and that when she did
call the police “one or two minutes” later, she identified the shooter as “[her] sister’s
boyfriend” rather than providing Collins’ legal name. As noted, Tunisha testified
that she did not know Collins’ name when she called 911. Collins further complains
that Tunisha alleged in a written statement that he and Lawson “kept calling and
threatening her” but that she admitted during trial that neither Collins nor Lawson
actually called her. Again, the extent to which any of this bears on Tunisha’s
credibility is a determination within the purview of the jury. Regardless, none of it
constitutes evidence weighing against conviction.
Collins asserts that there were “significant inconsistencies” between
Tuquisha’s and Rochelle’s testimony, although he identifies only one. Tuquisha
claimed that after Collins left Rochelle’s house, she and Rochelle briefly stopped at
Tunisha’s before going to a dental appointment and that Tunisha called Rochelle
about the gunshot while they were en route. Rochelle’s testimony, in contrast, was
that she received Tunisha’s call about the gunshot while they were en route to
Tunisha’s house. Our disagreement with Collins’ characterization of this
inconsistency as “significant” aside, this inconsistency is unrelated to whether
Collins fired the shot and is not evidence weighing against conviction.
Collins also attacks Lawson’s credibility, claiming her testimony was
“conflicted” because she “wanted to avoid a warrant and maintain her placement in
the Diversion Program.” Lawson testified that she thought she remembered
“showing up at a house in Euclid,” though she testified that she did not recall any
details of the incident, including any conversation that transpired, whether anything
was out of the ordinary or whether any weapon was present. She explained “I think
I was on drugs or something.” After further discussion between the prosecutor and
Lawson the following exchange occurred:
Q. Okay. So now refreshing your memory, based on your interview
with the detective and you telling him about the gun, you remember
that there was a gun on March 6th of 2018?
A. Yeah, I guess.
Q. Yeah, you — I guess you remember there was a gun?
A. Yes.
Q. Do you remember who had the gun?
A. I didn’t have it.
Q. Okay. Do you remember it being in the car or the pickup truck?
A. I said that.
Q. Yes?
A. Yes.
Q. Okay. Do you remember anybody holding it?
A. No.
Q. Do you remember Senyon Collins holding it?
A. No, I really don’t remember.
Q. Okay. But you now remember the gun. Right?
A. Yes.
Q. You remember it being in the car. Right?
A. Yes.
To the extent that any of Lawson’s testimony conflicts with Tunisha’s
testimony about the incident that she was “a hundred percent sure” that Collins fired
the shot into her house, it was the jury’s obligation to resolve that conflict. We
cannot say that in so doing the jury lost its way.
It is the province of the jury to “believe or disbelieve any witness or
accept part of what a witness says and reject the rest.” State v. Antill, 176 Ohio St.
61, 67, 197 N.E.2d 548 (1964). This is not the exceptional case where the evidence
weighs heavily against conviction. State v. Thompkins, 78 Ohio St.3d 380, 387, 678
N.E.2d 541 (1997).
We overrule the fifth assignment of error.
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. The defendant’s
conviction having been affirmed, any bail pending 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.
EILEEN A. GALLAGHER, JUDGE
PATRICIA ANN BLACKMON, P.J., and
RAYMOND C. HEADEN, J., CONCUR