State v. Bolden , 2016 Ohio 8488 ( 2016 )

[Cite as State v. Bolden, 2016-Ohio-8488.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 104227
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
DEMETRIS A. BOLDEN
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-14-591698-A
BEFORE: Keough, P.J., Kilbane, J., and S. Gallagher, J.
RELEASED AND JOURNALIZED: December 29, 2016
ATTORNEYS FOR APPELLANT
Robert L. Tobik
Cuyahoga County Public Defender
By: Erika B. Cunliffe
Noelle A. Powell
Assistant Public Defenders
310 Lakeside Avenue, Suite 200
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
By: Daniel A. Cleary
Glen Ramdhan
Assistant Prosecuting Attorneys
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
KATHLEEN ANN KEOUGH, P.J.:
{¶1} Defendant-appellant, Demetris A. Bolden (“Bolden”), appeals his
convictions. For the reasons that follow, we affirm.
{¶2} In December 2014, Bolden was named in a twelve count indictment charging
him with two counts of aggravated murder, one count of murder, two counts of
aggravated robbery, three counts of felonious assault, and one count each of aggravated
burglary, burglary, tampering with evidence, and failure to comply. Both one- and
three-year firearm specifications were included in the indictment. Bolden waived his
right a jury trial, and the following evidence, relevant to this appeal, was presented to the
bench.
{¶3} In the early morning hours of December 5, 2014, Tiffany Smith was
murdered. Detective David Borden testified that he had been investigating Smith’s
homicide that morning when he saw Smith’s vehicle approaching. Because Smith’s
vehicle was missing from the scene, Detective Borden walked into the street, displayed
his police badge, and ordered the driver of Smith’s vehicle to stop. Detective Borden
testified that Bolden was driving the vehicle and that rather than comply with police
commands, Bolden revved the engine, causing the vehicle to accelerate. Detective
Borden testified that he had to get out of the vehicle’s path to avoid being struck.
{¶4} After a brief chase, Bolden bailed out the car and fled on foot. The police
searched the area, and eventually, Robert Poole, who lived in the downstairs residence at
3030 East 128th Street alerted police that someone was possibly in his basement. The
police entered the Poole residence, and after giving multiple commands, Bolden emerged
from the basement and was taken into custody. While Bolden was being escorted out the
residence, his girlfriend, Kyeisha Allen was standing on the sidewalk across the street.
After speaking with Allen, the police reentered the Poole residence and recovered a
handgun from the top of the refrigerator located near the basement steps.
{¶5} At the close of all the evidence, the trial court found Bolden not guilty of all
charges related to the murder of Tiffany Smith — aggravated murder, murder, aggravated
robbery, and two counts of felonious assault. However, the court found Bolden guilty of
one count of felonious assault, aggravated burglary, burglary, failure to comply, and
tampering with evidence, including the one-year firearm specifications attendant to each
offense. The court sentenced Bolden to a total prison term of 17 years.
{¶6} Bolden now appeals, raising three assignments of error, which will be
addressed out of order.
I. Sufficiency of the Evidence — Aggravated Burglary and Burglary
{¶7} In his second assignment of error, Bolden contends that he was denied federal
and state due process under the Fifth and Fourteenth Amendments to the United States
Constitution and Article I, Section 10 of the Ohio Constitution when he was convicted on
evidence that was insufficient as a matter of law to sustain the conviction for the offenses
of aggravated burglary and burglary.
{¶8} The test for sufficiency requires a determination of whether the prosecution
met its burden of production at trial. State v. Bowden, 8th Dist. No. 92266,
2009-Ohio-3598, ¶ 12. An appellate court’s function when reviewing the sufficiency of
the evidence to support a criminal conviction is to examine the evidence admitted at trial
to determine whether such evidence, if believed, would convince the average mind of the
defendant’s guilt beyond a reasonable doubt. 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. Thompkins, 78 Ohio St. 3d 380, 386, 678 N.E.2d 541 (1997). The Supreme
Court of Ohio has held that when reviewing the sufficiency of the evidence, an appellate
court is to consider all of the evidence admitted at trial, even if the evidence was
improperly admitted. State v. Brewer, 121 Ohio St. 3d 202, 2009-Ohio-593, 903 N.E.2d
284, ¶ 19; State v. Roseberry, 197 Ohio App. 3d 256, 2011-Ohio-5921, 967 N.E.2d 233
(8th Dist.).
{¶9} Bolden was charged with aggravated burglary in violation of R.C.
2911.11(A)(2). Count 7 of the indictment read that on or about December 5, 2014,
Bolden
did, by force, stealth, or deception, trespass as defined in [R.C.]
2911.21(A)(1) * * * in an occupied structure or in a separately secured or
separately occupied portion of an occupied structure, when Robert Poole, a
person other than the accomplice, was present, with purpose to commit in
the structure or in the separately secured or separately occupied portion of
the structure a criminal offense, to wit: Tampering, [R.C.] 2921.12, and the
offender had a deadly weapon or dangerous ordnance, to wit: Taurus 9mm,
Serial #CTS02801, on or about his person or under his control.
{¶10} Bolden was also charged with burglary in violation of R.C. 2911.12(A)(1).
Count 8 of the indictment read that on or about December 5, 2014, Bolden
did, by force, stealth, or deception, trespass as defined in [R.C.]
2911.21(A)(1) * * * in an occupied structure or in a separately secured or
separately occupied portion of an occupied structure, when Robert Poole, a
person other than the accomplice, was present, with purpose to commit in
the structure or in the separately secured or separately occupied portion of
the structure a criminal offense, to wit: Tampering, [R.C.] 2921.12.
{¶11} Bolden contends on appeal that the state failed to produce evidence
explaining how he gained entry into the Poole residence; thus, the state did not prove that
Bolden acted by means of force, stealth, or deception. He also contends that no
testimony was presented that he was in the basement.
{¶12} Bolden directs this court to review State v. Howard, 8th Dist. Cuyahoga No.
85500, 2005-Ohio-5135, and State v. Isom, 8th Dist. Cuyahoga No. 78959, 2001 Ohio
App. LEXIS 5312 (Nov. 29, 2001), wherein this court determined that the absence of
evidence going to the element of force, stealth, or deception mandated reversal of the
convictions.
{¶13} In Howard, this court reversed the defendant’s conviction for an aggravated
burglary conviction where the evidence did not indicate the manner in which the
defendant made entry and did not demonstrate that he entered through force, stealth, or
deception. In Isom, this court reversed a conviction for burglary where the evidence
demonstrated that defendant was observed in the garage but did not demonstrate that he
entered through force, stealth, or deception.
{¶14} However, these cases are distinguishable from this matter and we find this
court’s decision in State v. Dowell, 166 Ohio App. 3d 773, 2006-Ohio-2296, 853 N.E.2d
354 (8th Dist.), more instructive. In Dowell, this court concluded that the defendant’s
conduct of ducking down after entering an open garage and remaining in the garage until
apprehended was sufficient evidence to prove that the defendant used stealth to remain in
the garage without permission. Id. at ¶ 20. The Ohio Supreme Court indicated that a
proper definition of “stealth” would be “any secret, sly, or clandestine act to avoid
discovery and to gain entrance into or to remain within a residence of another without
permission.” State v. Lane, 50 Ohio App. 2d 41, 47, 361 N.E.2d 535 (10th Dist.1976);
State v. Carter, 8th Dist. Cuyahoga No. 86396, 2006-Ohio-1072; see also State v. Bacon,
8th Dist. Cuyahoga No. 85475, 2005-Ohio-6238, ¶ 80-82 (peeking into windows
constitutes a sly act).
{¶15} In this case, Robert Poole testified that when he arrived back home in the
early morning hours, he saw someone, later identified as Bolden, peeking out of the door
— seeing Bolden’s head coming out of the side door. (Tr. 853, 857.) This observation
and the noises he and other family members heard coming from the basement led him to
believe that someone was in the basement of his residence. Additionally, multiple
members of the team that apprehended Bolden in the Poole residence testified that after
giving three verbal commands and threatening to send the K-9 unit down the basement
steps, Bolden surrendered and emerged from the basement with his hands up. Finally,
Bolden’s girlfriend, Kyeisha Allen testified that he told her he was hiding from police in a
residence on East 128th Street.
{¶16} We believe that Bolden’s action of peeking out of the door and subsequently
hiding in the basement was a sly or clandestine act and any rationale trier of fact could
conclude that Bolden used stealth to remain in the Poole residence without permission,
thus satisfying the element of “force, stealth, or deception” for both aggravated burglary
and burglary.
{¶17} Bolden also challenges his aggravated burglary conviction by contending
that no testimony was presented to establish that he left behind the gun that was recovered
from the Poole residence, thus failing to prove that he had a gun on or about his person
when he entered the home. We disagree.
{¶18} The occupants of the Poole residence each testified that they did not own a
firearm. Furthermore, Carolyn Poole, testified that she found her frying pan on top of the
refrigerator, a place where it did not belong. When she moved the pan, she discovered a
handgun hiding behind the pan. (Tr. 731.) Moreover, Allen testified that Bolden told
her that the gun was hiding on top of the refrigerator in the house where he was hiding.
(Tr. 938-940.) Detective Rhonda Gray testified that after she learned that Allen
disclosed where the gun was hiding to other officers, she located the gun on top of the
refrigerator in the Poole residence. (Tr. 480-481.) Based on the testimony, the trier of
fact could reasonably conclude that Bolden hid the gun on top of the refrigerator while
trespassing in the Poole residence.
{¶19} Viewing the evidence in the light most favorable to the prosecution,
sufficient evidence was presented to support Bolden’s convictions for both aggravated
burglary and burglary. Accordingly, the second assignment of error is overruled.
II. Manifest Weight of the Evidence — Felonious Assault
{¶20} Bolden contends in his first assignment of error that his conviction for
felonious assault as charged in Count 6 is contrary to the weight of the evidence.
Specifically, he contends that because there was testimony that Bolden swerved the car or
veered past the Detective Borden, he did not act knowingly to be convicted of felonious
assault.
{¶21} In contrast to a sufficiency argument, a manifest weight challenge questions
whether the state met its burden of persuasion. Bowden, 8th Dist. No. 92266,
2009-Ohio-3598, at ¶ 12. A reviewing court “weighs the evidence and all reasonable
inferences, considers the credibility of witnesses and determines whether in resolving
conflicts in the evidence, the jury clearly lost its way and created such a manifest
miscarriage of justice that the conviction must be reversed and a new trial ordered.”
Thompkins, 78 Ohio St. 3d at 388, 678 N.E.2d 541. A conviction should be reversed as
against the manifest weight of the evidence only in the most “exceptional case in which
the evidence weighs heavily against the conviction.” Id.
{¶22} Bolden was charged in Count 6 with felonious assault in violation of R.C.
2903.11(A)(2), which provides in relevant part that no person shall knowingly cause or
attempt to cause physical harm to another by means of a deadly weapon or dangerous
ordnance. A person acts knowingly, regardless of his purpose, “when he is aware that
his conduct will probably cause a certain result or will probably be of a certain nature.”
R.C. 2901.22(B).
{¶23} A motor vehicle can be classified as a “deadly weapon” under R.C. 2923.11
when it is “‘used in a manner likely to produce death or great bodily harm.’” State v.
Andre, 8th Dist. Cuyahoga No. 101023, 2015-Ohio-17, ¶ 37, quoting State v. Sternbach,
8th Dist. Cuyahoga No. 100653, 2014-Ohio-4203, ¶ 24; see also State v. Tate, 8th Dist.
Cuyahoga No. 87008, 2006-Ohio-3722, ¶ 23. In Andre, this court reasoned that “aiming
a vehicle in the direction of persons in a parking lot and quickly accelerating the vehicle
towards those persons is likely to result in someone being seriously injured or killed.”
Id.
{¶24} In this case, Detective Borden testified that as he and other officers were
wrapping up the investigation at the Smith residence, he noticed Smith’s vehicle coming
eastbound toward the house. He testified that he stepped into the middle of the street,
displayed his police badge, and ordered Bolden to stop the car. “Bolden looked at me, I
looked at him. I told him, pull over, please pull over. He revved the engine accelerator,
and I ran back between the cars.” (Tr. 273.) Detective Borden further explained that
Bolden “accelerated, he stomped on the gas, he accelerated the engine. I heard the
engine roar, and I went back between the cars” and Bolden drove off. (Tr. 275.)
Borden testified that he would have been struck by the vehicle had he not moved out of
the way. (Tr. 275-276, 282-283.)
{¶25} Detective Borden’s testimony was corroborated by Sergeant Michael Quinn
who testified that he saw Detective Borden in the street displaying his police badge while
ordering the driver to stop the vehicle. He testified that he heard the engine of the
vehicle “rev up as it was flying past,” causing Detective Borden to get out of the path of
the vehicle. (Tr. 869.)
{¶26} Although Detective Borden testified that the car veered left of center as it
passed him, the testimony at trial demonstrates that Bolden knowingly accelerated the
moving vehicle directly at Detective Borden, who was forced to move out of the way to
avoid being struck by the vehicle.
{¶27} Accordingly, this is not the exceptional case where Bolden’s conviction for
felonious assault must be reversed as being against the manifest weight of the evidence.
The first assignment of error is overruled.
III. Effective Assistance of Counsel
{¶28} In his third assignment of error, Bolden contends that he was denied
effective assistance of counsel when his attorney failed to object to inadmissable hearsay.
{¶29} To establish ineffective assistance of counsel, a defendant must
demonstrate (1) that counsel’s performance fell below an objective standard of reasonable
representation and (2) that he was prejudiced by that performance. Strickland v.
Washington, 466 U.S. 668, 687-688, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Prejudice
is established when the defendant demonstrates “a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been different.
A reasonable probability is a probability sufficient to undermine confidence in the
outcome.” Strickland at 694.
{¶30} The failure to prove either prong of the Strickland two-part test makes it
unnecessary for a court to consider the other prong. State v. Madrigal, 87 Ohio St. 3d
378, 388-389, 721 N.E.2d 52 (2000), citing Strickland at 697. “In particular, a court
need not determine whether counsel’s performance was deficient before examining the
prejudice suffered by the defendant as a result of the alleged deficiencies. * * * If it is
easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice
* * * that course should be followed.” Strickland at id.
{¶31} In this case, Robert Poole testified that his grandmother told him that she
saw “somebody walk through the front, went out the back.” (Tr. 857.) On appeal,
Bolden contends his counsel was ineffective for failing to object to this hearsay testimony
from Robert and also for failing to object to its use during the state’s closing argument.
According to Bolden, this “stray piece of inadmissible hearsay is the only thing that
suggests where [he] may have entered 3030 E. 128th and is the only account that places
him in the Poole’s apartment.”
{¶32} We disagree. Although Robert’s testimony was hearsay, Bolden was not
prejudiced by his counsel’s failure to object to this testimony or to the state’s closing
argument. As previously explained when addressing Bolden’s second assignment of
error, Robert’s testimony about what his grandmother told him would have been of little
import considering the additional testimony and evidence that was presented placing
Bolden inside the Poole residence.
{¶33} Accordingly, we cannot say that Bolden was sufficiently prejudiced by his
counsel’s failure to object such that a reasonable probability exists that the outcome of the
trial would have been different. The third assignment of error is overruled.
{¶34} 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 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.
KATHLEEN ANN KEOUGH, PRESIDING JUDGE
MARY EILEEN KILBANE, J., and
SEAN C. GALLAGHER, J., CONCUR