State v. Chisolm , 2023 Ohio 604 ( 2023 )

[Cite as State v. Chisolm, 2023-Ohio-604.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 111364
v. :
DEANDRA DE MARRIO CHISOLM, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: March 2, 2023
_______________________________________
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-21-658290-A
_______________________________________
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Kristin Karkutt, Assistant Prosecuting
Attorney, for appellee.
Mary Catherine Corrigan, for appellant.
LISA B. FORBES, J.:
Appellant Deandra De Marrio Chisolm (“Chisolm”) appeals the trial
court’s order convicting him of two counts of murder, two counts of felonious
assault, and one count of abuse of a corpse. After reviewing the facts of the case
and the pertinent law, we affirm.
I. Facts and Procedural History
This case arose following the shooting death of D.J. In the early
morning hours of March 20, 2021, D.J.’s body was found on the side of the highway
with a gunshot wound to the neck.
Following a jury trial, Chisolm was found guilty of murder, an
unspecified felony in violation of R.C. 2903.02(A) as charged in Count 2 of the
indictment; murder, an unspecified felony in violation of R.C. 2903.02(B) as
charged in Count 3 of the indictment; felonious assault, a felony of the second
degree in violation of R.C. 2903.11(A)(1) as charged in Count 4 of the indictment;
felonious assault, a felony of the second degree in violation of R.C. 2903.11(A)(2)
as charged in Count 5 of the indictment; and abuse of a corpse, a felony of the fifth
degree in violation of R.C. 2927.01(B) as charged in Count 6 of the indictment. The
murder and felonious assault convictions each included a one-year firearm
specification pursuant to R.C. 2941.141 and a three-year firearm specification
pursuant to R.C. 2941.145. The jury returned a verdict of not guilty of aggravated
murder in violation of R.C. 2903.01(A) as charged in Count 1 of the indictment.
All but the abuse of a corpse offense merged for sentencing. The
state elected to sentence on murder in violation of R.C. 2903.02(A). In addition,
the one- and three-year firearm specifications merged, and the state elected to
sentence on the three-year specification.
The trial court sentenced Chisolm to “3 years on the gun
specification to be served prior to and consecutive with 15 years to life” for the
murder conviction and 12 months in prison for the abuse of a corpse conviction.
The trial court ordered the sentences to run consecutively for a total prison term
of “life with parole eligibility after 19 years.”
It is from this order that Chisolm appeals.
II. Pertinent Trial Testimony and Evidence
The state called 20 witnesses and admitted over 200 exhibits into
evidence. The following testimony, pertinent to this appeal, was proffered.
A. Witnesses to the Incidents of March 20, 2021
On March 19, 2021, D.J. and Chisolm went out to a bar with D.J.’s
cousin, Shantail DeVaughn (“DeVaughn”), and a friend of D.J.’s named
“Shaniece.” The group stayed at the bar for “about an hour” having drinks, playing
pool, and listening to music. DeVaughn stated that “[e]verything seem[ed] to be
going fine.” As the night wound down, DeVaughn left with Shaniece. D.J. and
Chisolm left together in D.J.’s Mazda (“the Mazda”).
D.J. and her sister, Celia Thomas (“Thomas”) planned to meet each
other for an “after hours” on West 150th street. D.J. was supposed to meet Thomas
at Thomas’s house around midnight. When D.J. did not arrive at Thomas’s house,
Thomas called her. The first two calls went unanswered. On the third phone call,
Chisolm answered D.J.’s phone and explained to Thomas “that somebody followed
them from the bar and shot the car up on * * * West 90 on Broadway exit.” Chisolm
told Thomas that he “got out of the car and * * * shot back at them.” Thomas asked
where D.J. had been shot and recalled that Chisolm “got real quiet.” Asked if he
would call the police until Thomas could get there, Chisolm responded, “No.”
In addition to speaking with Thomas, Chisolm called D.J.’s mother,
Cynthia Austin (“Austin”), and told her about the shooting. Austin stated that
“Chisolm called me and told me my daughter got shot in the freeway.” After telling
her that D.J. had been shot, Chisolm told Austin, “‘Some guys followed us from the
bar, and followed us on the freeway, and [D.J.] rolled down the window and they
shot her * * * in the neck.’” Chisolm told Austin that he had called the police.
D.J.’s aunt, Lamare Talley (“Talley”), testified that Chisolm also
called her on the night that D.J. died and told her that D.J. “was shot on the
freeway.” Chisolm explained to Talley that he and D.J. had been at a bar where a
group of guys were “pocket watching” them. When they left the bar, the “dudes
was following them, and * * * [Chisolm] told [D.J.] that they was following them,
and to roll down his window he was gonna shoot at their car.” Chisolm told Talley
that D.J. “rolled down the window. First [Chisolm] said he shot at their car first.
And then he switched it up and said that he never shot his gun, and they just shot
at the car and her head dropped.” After that, Chisolm told Talley that “he put the
car in neutral and he left [D.J.] * * * [o]n the freeway.”
On the night that D.J. died, D.J.’s 14-year-old son, T.J., was at D.J.’s
apartment with D.J.’s friend Richard Woodland (“Woodland”). T.J. testified that
Chisolm lived at D.J.’s apartment with her.
At “around 3:00 in the morning,” Chisolm came to the apartment
and “was talkin’ on the phone.” T.J. stated that he noticed D.J. was not with
Chisolm; Chisolm told him, “she be up in a minute.” According to T.J., Chisolm
was at the apartment for approximately four to five minutes.
Woodland recalled he “let [Chisolm] in” the apartment that evening.
Before Chisolm arrived, Chisolm called Woodland from D.J.’s phone. Chisolm told
Woodland “[t]hat he needed to get in and he wanted me to let him in.” After
Woodland let Chisolm into the apartment, Chisolm “was on the phone the whole
time.”
Patricia Penn (“Penn”) was D.J.’s “best friend.” Penn testified that
Chisolm contacted her via “text messages” on Facebook the day D.J. died. The
message exchange between Penn and Chisolm was admitted into evidence. In the
messages, Chisolm told Penn about the shooting and stated that “they followed us.
* * * They was parking lot pimpin’ watchin’ us.” Chisolm explained to Penn that
D.J. “was driving. We was on 67 and Denison. * * * They pulled up on us [and]
shot in [the] car.” Penn asked who pushed D.J. out of the car, to which Chisolm
responded, “They took the car.” The two continued sending messages back and
forth. Penn asked again, “Can you please tell me what happened to my friend?”
Chisolm responded, “I did this s**t. Traumatic stress. * * * I’m traumatized by
keep telling the story.” Penn responded, “so you killed my friend?” In response,
Chisolm sent a video to Penn with another text saying, “We was having a good a**
time.” Chisolm eventually told Penn:
I love the f**k outta [D.J.]. That’s my fiancée. Like n****s trying to
retaliate for [D.J.] understandable, but I’m not the one who they
should be lookin’ for. It’s two suspects out there that killed my life
right in my hands. I’m trying not to feed into it because it’s not about
— because it’s about our love one it’s unthinkable for me to do it.
B. Additional Witnesses
Lyzmabeth Rodriguez (“Rodriguez”) testified that she knew Chisolm
and that the two of them had “been together for about ten years” in an “on and off”
relationship. However, in March of 2021 they were not together. At that time,
Chisolm did not live with Rodriguez, but he used her address as his place of
residence.
On March 20, 2021, between 1:30 and 2:00 a.m., Rodriguez received
a call from Chisolm who was “crying and telling [her] that he was scared, and if
[she] could come get him.” Rodriguez recalled that she picked Chisolm up around
East 55th Street. When she arrived, Chisolm was wearing “dark jeans” and “[a]
dark jacket” and “[h]e had two phones.” Rodriguez described Chisolm as “frantic”
and “crying.” When Rodriguez asked what was happening Chisolm responded, “I
don’t want to talk right now.” The two went back to Rodriguez’s apartment where
Chisolm stayed for the next three days. At some point during that time, Chisolm
asked Rodriguez “[t]o see if he had a warrant.” On March 24, 2021, Chisolm was
arrested at Rodriguez’s apartment.
Robert Euerle (“Euerle”) testified that he owns and manages the
Parma Armory, which is “a firearms retail shop and shooting range.” Euerle
testified that Chisolm purchased a “IWI-Israel/IWI-USA * * * Masada 9 ORP”
firearm from the Parma Armory on March 3, 2021, as well as “two boxes of 9mm
ammo, 115 grain full metal jacket.” The firearm was described as a “pistol.”
C. Police and Forensic Pathology Witnesses
On March 20, 2021, Detective Eric Strick (“Det. Strick”) and Officer
Matthew Diffenbacher responded to the scene of I-77 North near the Woodland
exit because “There was a body on the shoulder of the highway just before the
Woodland exit.” Det. Strick identified the victim as D.J. According to Det. Strick,
no shell casings were found near the victim’s body.
Police executed search warrants at D.J.’s apartment in East
Cleveland and Rodriguez’s apartment in Cleveland. Detective Troy Edge (“Det.
Edge”) testified regarding the search performed at D.J.’s apartment on March 23,
2021. Police collected various pieces of evidence including “a Masada firearm box”
for a “Masada * * * four-inch barrel 9mm firearm,” several rounds of “CBC 9mm
Luger ammunition,” a pair of jeans “with small stains” that were “a rust color,” and
“a white T-shirt with suspected blood” staining. The receipt inside the Masada
firearm box states that the firearm was purchased from “Parma Armory Shooting
Center.”
Detective Walter Emerick (“Det. Emerick”) assisted in executing a
search warrant for Rodriguez’s apartment on March 24, 2021. Police collected a
red iPhone, a black iPhone, a pair of Nike “Air Force 1 black shoes,” “a pair of black
pants,” “a gray hoodie jacket, [and a] shirt” from Rodriguez’s apartment. Police
determined that the black iPhone belonged to Chisolm and the red iPhone
belonged to D.J. Police could not extract data from D.J.’s phone because it had
“been factory reset. So when you powered the phone on, it asked you to set up a
new device with this phone.”
On the same day, Detective Shane Bauhof (“Det. Bauhof”)
responded to a radio call that the Mazda was located on West 11th Street in
Tremont. Det. Bauhof “noticed there were cameras on the address across where
the car was parked” and “spoke to the resident there and asked them about the
vehicle.” The resident gave Det. Bauhof access to three videos from a Ring doorbell
camera. The videos showed that the Mazda was parked on West 11th Street on
March 20, 2021, at 2:10 p.m. but did not show when it arrived there.
The Mazda was towed to the “Cleveland Division of Police impound
unit” where it was examined by Detective Larry Smith (“Det. Smith”). Det. Smith
testified that the Mazda had “no damage or defects” on any of its sides nor were
there any defects to the windows. Detective Smith claimed that when he examined
the Mazda it was “a pretty well decent car, no damage at all.” Asked what
specifically he was looking for regarding defects, Det. Smith stated that he was
“[l]ooking for any defects on the side of the car to see if holes where a gun could
have been shot from going in or even out of the vehicle. Defects within the vehicle.”
A search of the interior of the Mazda showed that the “front seat area
where the driver would be sitting” had “blood on the floorboard on the doorjamb.”
Additionally, there was “blood on the steering wheel.” According to Det. Smith,
the driver’s “door was saturated in blood.” No blood was found on the passenger
side of the Mazda. No firearms or shell casings were recovered from the Mazda.
Detective Michael Legg (“Det. Legg”) obtained video surveillance
that showed the Mazda arriving at the bar at approximately 10:49 p.m. on
March 19, 2021, and leaving at 12:04 a.m. on March 20, 2021. Another video
showed the Mazda on West 14th Street and Starkweather at 2:58 a.m. on March
20, 2021. That video showed a blue minivan “consistently behind [the] Mazda.”
According to Det. Legg, when the Mazda got to West 11th Street and Starkweather,
the video showed “[t]he black Mazda SUV turning in the corner here, and the blue
minivan appearing to be following the SUV.” The blue minivan was familiar to
police because “[i]t resembled an auto that was parked in the driveway of
[Rodriguez’s apartment] during the execution of the search warrant.” The videos
were played in court and admitted into evidence.
Dr. David Dolinak (“Dr. Dolinak”) testified as an expert in forensic
pathology. He conducted the autopsy of D.J. The autopsy report was admitted
into evidence. Dr. Dolinak reported to the scene where D.J.’s body was found so
that he could “better appreciate the circumstances of [her] demise, and also get a
better idea of what injuries [she] might have so that the investigation can proceed
with that in mind.”
Dr. Dolinak reported that D.J. “had a gunshot wound of her neck.
The entrance of the bullet was in the right side of the neck. It was a contact-type
gunshot wound” meaning “the end of the gun was actually in contact with the skin
when it was fired.” The fact that the gun was pressed against the skin when fired
was also demonstrated by the presence of “an abundant amount of grainy black
and gray gunpowder soot is in the subcutaneous tissue and skeletal muscle
underlying the entrance wound.” In other words, “gun powder was forced
underneath the skin.” The farthest the gun could be from the skin to cause this
was “less than an inch.”
After conducting his autopsy, Dr. Dolinak found that D.J.’s manner
of death “was a homicide.” He made this finding due to “[t]he circumstances of
her death, and the nature of the injuries, and the police investigation.”
Dr. Dolinak did not find D.J.’s death to be accidental because of “the
circumstances; how the body was found, the missing gun, and the police
investigation.” Further, given the nature of the gunshot wound, “[a]n accidental
shooting, that would seem odd. If a gun is placed right against a person’s neck, I
don’t really see how that would be an accident.” Dr. Dolinak was asked whether
D.J.’s injuries were consistent with a self-inflicted gunshot wound, and responded,
“Yes.” However, Dr. Dolinak did not find that D.J.’s death was accidental “because
it does not look like an accidental gunshot wound” and “the circumstances
wouldn’t support that.” Dr. Dolinak explained:
[A]ccidental discharge of firearms don’t happen often. But when they
do, the unexpected discharge of the gun, the gun is in a lot of different
positions around the body. It’s not actually pressed against the body
part.
Suicide was excluded because “after this wound was sustained, [D.J.
would] be paralyzed and not be able to move. There was no gun at the scene. [D.J.]
didn’t have any history of depression, or suicidal, or psychiatric problems, and I
didn’t have any indication that there were any problems that would cause her to
end her life.”
Here, because the gun was pressed against D.J.’s neck when it went
off, according to Dr. Dolinak’s investigation he did not “believe that she shot
herself” and found her manner of death to be homicide.
D. Defense Witness
Chisolm testified in his own defense. Chisolm testified to the
following events regarding D.J.s death.
Chisolm drove himself and D.J. to “Henry’s [bar] on West 44th” in
the Mazda. They arrived at approximately 11 p.m., had drinks, and played pool.
They left at approximately 12:15 a.m. and went to another bar on “West 65th and
Dennison.” D.J. drove when they left the second bar, heading towards downtown
Cleveland on I-77. Chisolm recalled having four shots of Hennessy and smoking
marijuana that evening. However, he stated he was not intoxicated.
In the car, Chisolm had a loaded 9mm firearm that he purchased at
Parma Armory on his lap as well as D.J.’s cellphone and a bottle of liquor.
According to Chisolm, D.J. reached for the liquor bottle and he told her “[n]o”
because she was driving. At that point:
She actually reached for the bottle. And I pushed her arm like, no,
that’s enough, and she grabbed the gun off my lap thinking I was
gonna give her the bottle.
D.J. began waiving the gun around in a circle and then “[t]he gun went off. She
playin’ with the gun and it went off.”
Chisolm stated that when the gun “went off” D.J.’s car was in “one
lane * * * turning on the curve.” The car did not hit anything because it “instantly
stop[ped] because she let her feet off the gas.”
Chisolm called D.J.’s sister because he “really didn’t know what to
do in that type of situation.” He stated that he told D.J.’s sister that D.J. “just got
shot.” He claimed he did not tell her how that happened. Chisolm also claimed
he told her to call the police.
Chisolm then took D.J.’s car to Tremont and “got a ride” from his
friend Melvin who took him to 55th Street. Chisolm claimed that Melvin “took me
to East 55th all the way to East Cleveland, and from East Cleveland back to 55th.”
He stated that Melvin drove him to D.J.’s apartment in East Cleveland after D.J.
had been shot. Rodriguez picked him up on Woodland. However, Chisolm later
testified that Melvin picked him up from West 14th Street and took him to 55th
Street, “[a]nd [Rodriguez] picked me up from 55th. “
Chisolm claimed that after D.J. shot herself, he put his gun in the
glove compartment, which is where it was when he left D.J.’s car in Tremont. He
admitted that he lied when he told police he gave the gun to a “tall,” “bald,”
“crackhead” “with a mustache” on “25th street.” Chisolm claimed he did so
because he was scared “of being blamed for this.”
When initially asked on direct examination how D.J.’s body ended
up on the side of the road, Chisolm answered, “I guess I pushed her out.”
Responding to follow-up questions, Chisolm stated he did not know if he pushed
her out; he said, “I blacked out at that point.”
During his testimony, Chisolm admitted that he lied to Thomas,
Austin, Talley, and Penn when he told them how D.J. was shot. Chisolm admitted
that it was not true that a man in a mask was “pocket watching” him and D.J. at
the bar and that it was not true that he and D.J. were shot at from another car while
they were driving. He claimed he did not tell D.J.’s friends and family what really
happened because he “didn’t know how they was gonna retaliate, and [he] was
scared.” Chisolm maintained on the stand that D.J. shot herself accidentally.
Chisolm also admitted to lying when he told the police that a man in
a mask who was “pocket watching” him and D.J and when he told the police that
he and D.J. were shot at from another car while they were driving. Chisolm
testified that he did not tell the police what really happened because he “was afraid
how they’d look at [him] as a black male.”
III. Law and Analysis
Chisolm raises the following two assignments of error:
The verdict[s] as to Count(s) Two (2) through Five (5) cannot be
upheld as the evidence does not prove [Chisolm] guilty beyond a
reasonable doubt.
The verdicts as to Count(s) Two (2) through Five (5) were against the
manifest weight of the evidence.
A. Sufficiency
Chisolm challenges his convictions arguing that the state presented
insufficient evidence when it “did not prove the mens rae [sic] as to Count(s) Three
(3) to Six (6).” Chisolm goes on to argue the evidence as insufficient to sustain his
convictions on Counts 2 through 5 consistent with his assignment of error.
Chisolm clarifies on appeal that his conviction for abuse of a corpse is an
“uncontested conviction[.]” Accordingly, we review whether the state presented
sufficient evidence of the requisite mens rea for Chisolm’s convictions for murder,
Counts 2 and 3, and felonious assault, Counts 4 and 5.
“[A]n 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 defendant’s guilt beyond a reasonable doubt.” State v. Jenks, 61
Ohio St.3d 259, 273, 574 N.E.2d 492 (1991). “In essence, sufficiency is a test of
adequacy. Whether the evidence is legally sufficient to sustain a verdict is a
question of law.” State v. Thompkins, 78 Ohio St. 3d 380, 386, N.E.2d 541 (1997).
We review de novo whether sufficient evidence on every element of an offense was
presented. State v. Smith, 167 Ohio St. 3d 220, 2022-Ohio-269, 191 N.E.3d 418,
¶ 5; State v. Messenger, Slip Opinion No. 2022-Ohio-4562, ¶ 13.
“Circumstantial and direct evidence are of equal evidentiary value.”
Cleveland v. Turner, 2019-Ohio-3378, 132 N.E.3d 766, ¶ 35 (8th Dist.),
discretionary appeal not accepted, 157 Ohio St.3d 1512, 2019-Ohio-5193, 136
N.E.3d 510, ¶ 35, citing State v. Santiago, 8th Dist. Cuyahoga No. 95333, 2011-
Ohio-1691, ¶ 12. A “conviction can be sustained based on circumstantial evidence
alone.” State v. Franklin, 62 Ohio St.3d 118, 124, 580 N.E.2d 1 (1991), citing State
v. Nicely, 39 Ohio St.3d 147, 154-155, 529 N.E.2d 1236 (1988).
B. Chisolm’s Convictions
1. Murder
Chisolm was found guilty of murder pursuant to R.C. 2903.02(A) and
2903.02(B).
Murder is defined in R.C. 2903.02(A) in part as follows: “No person
shall purposely cause the death of another * * *.”
Murder is defined in R.C. 2903.02(B) as follows: “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.”
2. Felonious Assault
Chisolm was found guilty of felonious assault pursuant to
R.C. 2903.11(A)(1) and (2).
Felonious assault is defined in R.C. 2903.11(A) in part as follows:
“No person shall knowingly do either of the following:”
(1) Cause serious physical harm to another * * *;
(2) Cause or attempt to cause physical harm to another * * * by means
of a deadly weapon or dangerous ordnance.
C. Mens Rea
A person acts purposely “when it is the person’s specific intention
to cause a certain result, or, when the gist of the offense is a prohibition against
conduct of a certain nature, regardless of what the offender intends to accomplish
thereby, it is the offender’s specific intention to engage in conduct of that nature.”
R.C. 2901.22(A). “‘Purpose,’ therefore, depends on an intended result.” State v.
Harris, 8th Dist. Cuyahoga No. 108624, 2020-Ohio-4461, ¶ 63, quoting State v.
Orr, 8th Dist. Cuyahoga No. 100841, 2014-Ohio-4680, ¶ 72.
An offender’s purpose or intent may be demonstrated through
circumstantial evidence. State v. Martin, 8th Dist. Cuyahoga No. 91276, 2009-
Ohio-3282, ¶ 23. “The determination of whether an offender had the specific
intent to kill is made upon consideration of the facts and circumstances
surrounding the crime.” State v. Lucas, 2020-Ohio-1602, 154 N.E.3d 262, ¶ 71
(8th Dist.), citing State v. Barrow, 8th Dist. Cuyahoga No. 101356, 2015-Ohio-525,
¶ 16. In determining whether the offender had the requisite intent, “the nature of
the instrument used, the lethality of the instrument, and the manner in which the
wound was inflicted” can be considered. Id., citing State v. Majid, 8th Dist.
Cuyahoga No. 96855, 2012-Ohio-1192, ¶ 23.
The specific intent to kill may be reasonably inferred from the fact that
a firearm is an inherently dangerous instrument, the use of which is
likely to produce death, coupled with relevant circumstantial
evidence. State v. Searles, 8th Dist. [Cuyahoga] No. 96549, [2011-
Ohio-6275, ¶ 11], citing State v. Widner, 69 Ohio St.2d 267, 431
N.E.2d 1025 (1982). “[P]ersons are presumed to have intended the
natural, reasonable and probable consequences of their voluntary
acts.” State v. Garner, 74 Ohio St.3d 49, 60, 1995-Ohio-168, 656
N.E.2d 623 (1995). “The act of pointing a firearm and firing it in the
direction of another human being is an act with death as a natural and
probable consequence.” State v. Brown, 8th Dist. [Cuyahoga]
No. 68761, 1996 Ohio App. LEXIS 801, 6 (Feb. 29, 1996).
Majid at id.“A person acts knowingly, regardless of purpose, when the person is
aware that the person’s conduct will probably cause a certain result or will probably
be of a certain nature.” R.C. 2901.22(B).
D. Analysis
Chisolm claims on appeal that D.J. shot herself accidentally and
that the state “did not present any evidence to speak of as to * * * Chisolm’s mens
rae [sic].” We disagree.
The circumstantial evidence presented by the state demonstrates
Chisolm’s specific intent to kill D.J. and that he knowingly caused her serious
bodily injury when he shot her in the neck.
There is no dispute that D.J. died of a gunshot wound to the neck.
Further, Chisolm does not dispute that it was his firearm, which he purchased a
few weeks before D.J.’s death that was used to shoot D.J. in the neck. The medical
examiner concluded that D.J.’s manner of death was a homicide based upon the
circumstances surrounding her death and the nature of the gunshot wound
inflicted.
Based on the evidence presented at trial, the circumstances
surrounding D.J.’s death include the weapon used was Chisolm’s gun, which is
inherently dangerous; Chisolm’s gun was pressed up against D.J.’s neck when it
was fired; the only other person in the Mazda was Chisolm; Chisolm left D.J.’s body
on the side of I-77 and then drove away in the Mazda; Chisolm abandoned the
Mazda in another neighborhood; no shell casings or firearms were located near
D.J.’s body on the side of the highway or in the Mazda; Chisolm communicated
with D.J.’s friend and family shortly after D.J.’s death, telling them that D.J. had
been shot by someone who followed them from the bar; Chisolm never called 911;
Chisolm called two different friends for rides after he abandoned the Mazda; D.J.’s
phone was found at Rodriguez’s apartment where Chisolm stayed in the days
following the shooting, and D.J.’s phone was factory reset so that no data could be
collected; Chisolm admitted he lied to the police and to D.J.’s friend and family on
the night of the murder when he told them he and D.J. had been “pocket watched”
by unnamed individuals, and when he told them he and D.J. were shot at on the
road; and Chisolm also lied when he initially told the police what he had done with
his gun following D.J.’s shooting.
Accordingly, we find that the state presented sufficient evidence,
including evidence of mens rea, to sustain Chisolm’s convictions for murder and
felonious assault. Chisolm’s first assignment of error is overruled.
E. Manifest Weight
A challenge to the manifest weight of the evidence “addresses the
evidence’s effect of inducing belief. * * * In other words, a reviewing court asks
whose evidence is more persuasive — the state’s or the defendant’s?” State v.
Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, ¶ 25. “When a
court of appeals reverses a judgment of a trial court on the basis that the verdict is
against the weight of the evidence, the appellate court sits as the ‘thirteenth juror’
and disagrees with the factfinder’s resolution of the conflicting testimony.”
Thompkins, 78 Ohio St.3d at 387, 678 N.E.2d 541, quoting Tibbs v. Florida, 457
U.S. 31, 42, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982). Reversing a conviction under a
manifest weight theory “should be exercised only in the exceptional case in which
the evidence weighs heavily against the conviction.” State v. Martin, 20 Ohio
App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).
In his second assignment of error, Chisolm argues that his
convictions are against the manifest weight of the evidence because “the state of
Ohio’s death investigator indicate[d] that the injuries sustained [were] consistent
with a self-inflicted injury * * *.” We disagree.
While Dr. Dolinak stated that the shooting could have been
consistent with an accident, he determined it was not an accident and ruled D.J.’s
death a homicide because of the surrounding circumstances mentioned in our
resolution of Chisolm’s first assignment of error. See State v. Perrien, 2020-Ohio-
798, 152 N.E.3d 897, ¶ 79 (8th Dist.) (Finding that a defendant’s homicide
conviction was “not against the manifest weight of the evidence merely because the
jury rejected the defense’s theory that the shooting was an accident and found the
state’s version of the events to be more believable.”). In particular, Dr. Dolinak
testified that an accidental shooting “would seem odd. If a gun is placed right
against a person’s neck, I don’t really see how that would be an accident.” In
addition to Dr. D0linak ruling D.J.’s death a homicide, the jury also heard Chisolm
admit that he lied when he told D.J.’s family a version of events that happened on
the evening of D.J.’s death and then told a different version of events on the stand
at trial. “‘[A] conviction is not against the manifest weight of the evidence simply
because the jury rejected the defendant’s version of the facts and believed the
testimony presented by the state.’” State v. Jallah, 8th Dist. Cuyahoga No. 101773,
2015-Ohio-1950, ¶ 71, quoting State v. Hall, 4th Dist. Ross No. 13CA3391, 2014-
Ohio-2959, ¶ 2.
We find that the jury did not lose its way in resolving the conflicting
theories of D.J.’s death based upon the evidence presented at trial and finding
Chisolm guilty of D.J.’s murder and felonious assault.
Chisolm’s second assignment of error is overruled.
Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
common pleas court to carry this judgment into execution. The defendant’s
convictions 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.
LISA B. FORBES, JUDGE
SEAN C. GALLAGHER, P.J., and
MARY EILEEN KILBANE, J., CONCUR