State v. Harris , 2020 Ohio 4461 ( 2020 )

[Cite as State v. Harris, 2020-Ohio-4461.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 108624
v. :
LOWELL HARRIS, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: September 17, 2020
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-18-628118-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting Attorney,
and Kristin M. Karkutt and Carson Strang, Assistant Prosecuting
Attorneys, for appellee.
James J. Hofelich, for appellant.
MICHELLE J. SHEEHAN, J.:
Defendant-appellant Lowell Harris (“Harris”) appeals his convictions
for murder, felonious assault, and having weapons while under
disability. Because we find sufficient evidence supported the convictions, the
convictions were not against the manifest weight of the evidence, and the trial court
did not err in permitting the detective’s opinion testimony, we affirm.
I. Procedural History
On May 7, 2018, Harris was charged in a multiple-count indictment as
follows: Count 1 — murder in violation of R.C. 2903.02(A), with one- and three-
year firearm specifications; Count 2 — murder in violation of R.C. 2903.02(B), with
one- and three-year firearm specifications; Count 3 — felonious assault in violation
of R.C. 2903.11(A)(1), with one- and three-year firearm specifications; Count 4 —
grand theft in violation of R.C. 2913.02(A)(1); and Count 5 — having weapons while
under disability in violation of R.C. 2923.13(A)(2). The state dismissed Count 4
prior to trial. And the parties stipulated that Harris had a prior felony conviction
of violence for purposes of Count 5. The indictment stems from the April
2018 shooting death of Harris’s friend with whom he lived, Holly Watkins (“Holly”
or “the victim”).
Following a trial, the jury returned a guilty verdict on all counts and the
attached specifications. Thereafter, the court held a sentencing hearing. At this
time, the state conceded that Counts 1 through 3 merged for sentencing
and it elected to proceed with sentencing on Count 1. The court then sentenced
Harris to 15 years to life in prison on the murder charge, plus three years on the
firearm specification, to be served consecutively. The court also sentenced Harris to
3 years in prison on the charge of having weapons while under disability, to be
served concurrently with his sentence in Count 1.
Harris now appeals his conviction, assigning the following errors for
our review: (1) his convictions were not supported by sufficient evidence; (2) his
convictions were against the manifest weight of the evidence; and (3) the trial court
erred in permitting the opinion testimony of a lay witness in violation
of Evid.R. 701. In the interest of judicial economy, we will address the assignments
of error out of order.
II. Substantive Facts
A jury trial commenced on May 2, 2019, during which the following
witnesses testified on behalf of the state: (1) Clarence Perry, the victim’s
nephew; (2) Charles Carter; (3) Sherrai Watkins (“Sherrai”), the victim’s
daughter; (4) Tiffany Parker, the victim’s coworker; (5) Latoya Watkins (“Latoya”),
the victim’s daughter; (6) Michael Stewart, paramedic; (7) Eric Croft, Cleveland
police officer; (8) Tommy Manson, Cleveland police detective; (9) David Borden,
Cleveland police detective; (10) Wade Westerfield, U.S. Marshals Service task force
officer; (11) Cheryl Schwebs; (12) Anthony Jadud; (13) Denise Walker-McCall; (14)
Dr. Andrea McCollom, deputy examiner with the Cuyahoga County Medical
Examiner’s office; (15) Loundon Hardy, the victim’s son; and (16) Curtiss
Jones, Cuyahoga County Medical Examiner’s trace evidence supervisor. Harris
testified on his own behalf.
Clarence Perry, the victim’s nephew, worked with the victim and her
son, Kareem, at Larchwood Nursing Home. Perry stated that Kareem has
Down syndrome and lives with his mother and Harris (who Perry also
called “Derek”). Perry testified that on April 17, 2018, at 7:00 a.m., he arrived at
work to find that Holly had not yet arrived, which was unusual for Holly. When
Kareem arrived at 10:00 a.m. without Holly, Perry became concerned. Perry
testified that he and his boss phoned Holly several times but got no answer. Perry
then asked Tiffany Parker to drive him to Holly’s house on Emery Avenue. Kareem
gave Perry a key to Holly’s house.
Upon arriving at Holly’s house, Perry entered the home just past the
door and into the living room and called for Holly, Harris, and their dogs. When
Perry got no response, he went to his grandmother’s house, which is one block
away. Perry saw Sherrai and Carter at his grandmother’s house, and they
all expressed concern over Holly’s whereabouts. Perry and Carter then returned to
Holly’s house and began calling Holly’s name. Perry testified that Carter then
knocked on the bedroom door and broke the door in when he received
no response. Perry saw his “auntie laying there,” bloody, on the side of the
bed. Both men ran out of the house upon seeing Holly. Perry testified that he
saw Sherrai enter the bedroom, and she held her mother and
cried. Perry also saw other family members and Parker enter Holly’s bedroom at
that time. Perry did not see any firearms in the bedroom, and he testified that he
did not remove anything from Holly’s room, nor did any of the other family
members who entered the room. Perry stated that Parker called 911.
Carter, Sherrai’s boyfriend, lived one street away from
Holly. Carter testified that Holly lived with her son, Kareem, “three or four dogs”
belonging to Harris, and Harris. Carter stated that Holly owns a jeep, but Harris
drove it. When Harris was not driving the jeep, he would park it at the end of the
driveway, blocking people from entering.
Carter testified that Perry came to his house on the morning of April 17,
2018. They both returned to Holly’s house where they found no jeep and no dogs.
Both Carter and Perry entered the home and called for Holly. When they received
no response, Carter phoned Holly. He thought he heard Holly’s phone ringing in
the bedroom, so he tried to turn the doorknob but it was locked. He then kicked in
the bedroom door and found Holly unresponsive on the floor. He did not enter the
room past the door but saw Sherrai enter the room from behind him
and she “reached down and grabbed her mom and lift[ed] her up and put her in her
arms.” Carter then walked outside, crying. Carter testified that he did not see any
firearms in the room, he did not remove anything from the room, and he did not see
anyone remove anything from Holly’s bedroom. Carter further testified that he had
seen Holly the evening before and she “sounded all right” and did not seem upset.
Sherrai, the victim’s daughter, lived one street away from Holly, with
her boyfriend, Carter, and her grandmother. Sherrai testified that she
would typically see her mother every day, but since Holly had begun dating
Harris, Sherrai stopped going to Holly’s home because “everything changed when
[Harris] came into the picture.” Sherrai testified that Holly began meeting her
children at the door, talking to them on the porch. Sherrai also stated that Harris
would park the jeep at the end of the driveway so that “nobody can get in.” He left
just enough room to get his motorcycle in and out of the driveway. According
to Sherrai, Holly also began drinking daily, as opposed to only on weekends or social
occasions, and she did not appear to be happy in her relationship with
Harris. Sherrai testified that Harris kept guns at the house, but Holly did not like
guns or violence.
Sherrai testified that Holly’s son, Kareem, lived with Holly and was
dependent upon Holly for his care because he has Down syndrome. Holly and
Kareem worked together at the nursing home. Sherrai stated that Holly would wake
in the morning, prepare Kareem’s clothes and lunch, and leave for work, while
Kareem would later take the bus to work.
Sherrai testified that on the morning of April 17,
2018, she overheard a conversation between Carter and Perry and learned that her
mother had not shown up for work. She then became concerned for her
mother. Carter, Perry, and Tiffany Parker went to Holly’s house to check on
Holly. By the time Sherrai got dressed, Carter had returned and was in
tears. Sherrai then went to her mother’s house where she found her mother on her
back with one arm up. She did not move her mother, but she held her in her
arms. Sherrai did not see any guns or weapons in Holly’s room, and she did not see
anyone else in the home until the ambulance arrived and the emergency responders
pulled her from her mother’s body. Sherrai dropped her cell phone on her mother’s
body when she held her.
Tiffany Parker worked with the victim, Carter, and Kareem at the
nursing home. Parker testified that on April 17, 2018, she arrived at work
approximately 10:15 a.m. and Holly was not there. She “immediately started texting
and calling her phone” and got no answer. Parker then drove Carter to Holly’s
house. Upon arriving, Carter entered the house, called out to Holly “a few times,”
then returned to the car. Carter asked Parker to drive him to his grandmother’s
house, which was the next street over. Parker waited in the car while Carter went
inside his grandmother’s house. Parker testified that shortly thereafter,
Carter and another family member exited the house, got into a different vehicle, and
headed to Holly’s house. Parker followed them to the house.
Parker testified that by the time she had arrived at Holly’s house,
she saw Carter and other family members exit the house yelling and crying. After
learning that Holly had been killed, Parker asked Carter to take her into the house,
where she observed Holly with blood “coming down off her face.” Parker testified
that she did not see any weapons near Holly, nor did she see anyone exit the house
with weapons. After running out of the house, Parker called 911.
Latoya, one of Holly’s children, spoke with Holly the evening before
Holly’s death. Latoya could tell that Holly had been drinking but stated that she
“seemed fine.” She stated that Holly did not have a problem with drinking. Latoya
testified that she did not have any concerns that Holly might want to harm herself
in any way. Latoya also testified that Holly told her she thought
Harris was cheating on her with a woman in Atlanta.
Latoya typically called her mother every morning on the way into
work, but on the morning of April 17, 2018, Holly did not answer her call. Later that
morning, her sister’s boyfriend, Carter, called Latoya, asking her if she had spoken
with Holly that morning. When she told him that she had not, Carter advised that
he was going to check on Holly. When Carter called back, he was screaming. After
speaking with Carter, Latoya threw her phone and began to cry. A co-
worker then drove Latoya home, and Latoya drove on to Holly’s house. When she
arrived, she observed detectives and other family members on the scene.
Michael Stewart, a paramedic with Cleveland Emergency Medical
Service, responded to a call regarding a gunshot on Emery Avenue on April 17,
2018. Upon arriving at the scene, he found the victim “slumped against [the] bed,”
with a gunshot wound to the neck, “just below the jaw,” and “blood spatter” near the
victim’s body. Stewart testified that the victim’s body was cold, no weapon was
found, and the room was “disheveled, cluttered.” He further stated that there were
“a lot of people milling about” and the police eventually ushered the family members
into the living room.
Cleveland police officer Eric Croft responded to the scene on April 17,
2018, where he observed other first responders and distraught family
members. Officer Croft secured the scene and looked for evidence. The officer
testified that he did not observe any weapons on the scene and did not observe
anyone remove a firearm from the home.
Cleveland police detective Tommy Manson also responded to the
scene and collected evidence. He observed forced entry into the bedroom and a
female victim lying on her back on the bedroom floor “with a defect under her left
jaw.” The detective also observed blood spatter on the bed and a sandal
with suspected blood that was tucked under the bed. Detective Manson testified
that aside from a .22 caliber rifle found leaning against the bed, he did not locate any
other weapons. He did not recover any shell casings.
Cleveland police detective David Borden, who responded to the scene
on April 17, 2018, and was assigned to investigate Holly’s death, testified concerning
his training and experience. He has been a law enforcement officer for 23 years and
has been assigned to the homicide unit since 2012. Over the course of his
employment with the Cleveland Police Department, he attended multiple training
seminars and received extensive firearm training.
Upon arriving on the scene, Detective Borden observed that other
first responders had already secured the crime scene. The detective spoke with the
other officers on the scene, gathered information regarding their initial
investigation, viewed the crime scene and the victim, and interviewed individuals on
the scene. He observed the victim lying on the bedroom floor with a gunshot wound
to her left neck and “pool of blood” under her head.
Detective Borden learned that Harris, a jeep, and dogs were missing
from the home. While canvassing the neighborhood, the detective located the
missing jeep and ultimately had it towed and processed for evidence. During the
course of his investigation, the detective identified Harris as a suspect and obtained
a warrant for his arrest. Detective Borden notified the Ohio Violent Offender Task
Force to begin searching for Harris.
Wade Westerfield, a task force officer for the U.S. Marshals Service,
learned through his investigation that Harris was staying at a friend’s home on
Royalton Road in Columbia Station. And on April 20, 2018, the U.S. Marshals
surrounded the home. Before knocking on the door, a female resident exited the
house and inquired as to what was going on. When shown a picture of Harris, the
woman advised the officers that Harris was inside, in the bathroom. When Harris
did not respond to the officers, the officers entered the home and discovered Harris
in the bathroom with the door closed. Ultimately, Harris surrendered.
Cheryl Schwebs lives on Royalton Road in Columbia Station with her
husband, Robert. Her husband is a retired master builder and mechanic who builds
and repairs motorcycles and has previously worked on
Harris’s motorcycle. Schwebs testified that on April 17, 2018, Harris came to
the Schwebs’ home to have his motorcycle fixed and he wanted to help Robert work
on it. Harris stayed with the Schwebs until he was apprehended on April 20,
2018. Schwebs observed law enforcement officers surround her house on
April 20. She went to the front door before the police forcibly entered the home and
she spoke with the officers, confirming that Harris was in the bathroom inside her
home.
Anthony Jadud is an auto mechanic with D&K Automotive, which is
located on Bellaire Road in Cleveland. Jadud testified that he noticed a maroon jeep
parked in front of the auto shop on Bellaire Road when he arrived for work at
approximately 8:15 a.m. the morning of April 17, 2018. He recognized this jeep as
belonging to Harris because he had worked on the jeep previously. He testified that
he did not believe the jeep was normally parked in that location.
Denise Walker-McCall grew up with Holly, and in April
2018, Holly lived just behind her. Walker-McCall testified that she did not see
Holly’s jeep parked on the street when she arrived home from work at about
4:30 p.m. on April 16, 2018, nor did she see it when she went to bed at about
10:15 p.m. She stated that she always looks outside at night before bed “[to] make
sure [her] door is locked and everything is okay outside of [her] house.” Walker-
McCall testified that she was certain the jeep was not in the street when she retired
for the evening. She also testified that when she awoke
at approximately 7:00 a.m. the next morning and opened her curtains, she saw the
jeep on the street. Walker-McCall stated that the maroon jeep is not typically
parked on the street in front of her house.
Dr. Andrea McCollom, deputy medical examiner with the Cuyahoga
County Medical Examiner’s Office, conducted the autopsy on
Holly. Dr. McCollom testified that Holly suffered a gunshot wound to her left neck
with an exit wound in her left upper back. She explained that the bullet entered the
left side of her neck below the jaw, “transected” the left carotid artery, fractured her
fifth and sixth vertebrae, and “transected” the spinal cord. Dr. McCollom stated that
Holly would have been immediately paralyzed by the gunshot and “would not [have
been] able to move purposefully” thereafter. Dr. McCollom further testified that the
bullet traveled “left to right, toward the back and downward” in Holly’s body.
Dr. McCollom also testified concerning the stippling and fouling that
occurs when a gun is fired. She explained that fouling is “soot deposition onto the
skin” and occurs when the muzzle of a handgun is within 12 inches from its target.
Stippling is “the abrasion made by those unburned gunpowder particles” and occurs
when the muzzle of the gun is within 3 feet of the target. Dr. McCollom testified that
there was no fouling on Holly’s skin, but there was stippling. Thus,
Dr. McCollom opined that the muzzle of the handgun was between 12 inches and 3
feet away from Holly when it was fired, stating that “[i]t’s closer to 3-feet than it is
to 1-foot because they’re so far spread apart.” The determination of the exact
distance is not possible, though, because the gun was not recovered.
Finally, Dr. McCollom testified that the cause of death was a gunshot
wound to the neck “with vascular spinal cord and skeletal injuries,” and the manner
of death was homicide. Dr. McCollom ruled out suicide for several reasons. She
stated that there was no gun near the victim’s body or at the scene, nor was there
fouling on the victim’s skin, which would indicate the gun was close to her
body. Dr. McCollom stated that “because there’s no fouling or — and the stippling
is far away — in order for her to have shot the gun herself, she would have to hold it
pretty far away from her body, and it would be impossible for her to do that.” On
cross-examination, however, Dr. McCollom conceded that “if [the victim is] holding
it, like normal, * * * and it’s way far out, it could be possible.” Dr. McCollom also
ruled out suicide because of the injury sustained, stating that “[u]sually [with] a
suicide [it is] a contact wound either to the head or chest or near contact for it to
cause death.”
Dr. McCollom also ruled out accidental death because there was
insufficient evidence at the scene to make that conclusion. Dr. McCollom noted that
Holly’s blood alcohol content was .211 at the time of her death, which was more than
two times the legal limit.
Four days after Holly’s body was discovered, Harris was
apprehended at the home of Cheryl and Robert Schwebs in Columbia
Station. Detective Borden testified that Harris was in possession of a “burner”
phone, which the detective stated is a prepaid cell phone that Harris had purchased
the day after Holly’s death. The cell phone was analyzed and, according to the
detective, the analysis revealed that Harris had researched California, Illinois, and
burner phones on it.
Detective Borden also interviewed Harris, who provided an
explanation for Holly’s death. The detective testified that he compared Harris’s
statement to the crime scene photos and other evidence from the scene. He noted
that the photos do not depict blood stains on the bed and it did not “look like
anybody was in that bed.” When asked about Harris’s explanation regarding Holly’s
location when the gun “discharged,” Detective Borden stated as follows: “He said
he was on the bed on his half, which would have been closer to the window, and she
was on her half, lying on the bed, which you can see from the photos there’s a lot of
blood. And if she was shot on the bed, lying on the bed, there would be blood
staining on the bed. * * * There’s not.”
And when asked about Harris’s explanation “for how and who was
holding the gun at the time [the gun] ‘discharged,’” the detective stated as follows,
“Well, he said that she was holding the gun below her head turned around with her
thumbs in the trigger, so that would give an upward trajectory of the bullet that was
expelled from the gun.” Detective Borden explained that “the wound that Holly
sustained is not an upward trajectory.” He continued:
If it was truly being held like this (indicating) by Holly, when the gun
discharged you would expect the bullet to go up through her neck and
come out through the back of her neck or out the back of her head and
either go up into the ceiling or continue on until a loss of energy and
fell on the floor.
That’s not the injury she sustained.
You can see the burn mark. It’s at a downward angle and it goes out
— comes out the middle of her back, in the back, so the firearm had to
be above her.
Detective Borden further testified that the cell phone recovered from
Holly’s clothing was also analyzed. The detective stated that the last text messages
sent from Holly’s phone were to Harris on April 16, 2018. These messages
include, “Sorry, can’t do this. Say I owe you wish I’m going to pay you, but what
about the bitch you sending gifts to?” — sent at 7:22 p.m., and “I’m done,” sent at
7:23 p.m.
Loundon Hardy, Holly’s son, was one of the individuals who entered
Holly’s home the morning of April 17, 2018. He testified that he did not enter past
the bedroom door because he was in shock as he watched his sister “holding [his]
mom in a pool full of blood.” Hardy stated that he did not remove anything from
Holly’s house that day and he did not see a gun. Hardy also testified that he helped
clean his mother’s house after Harris was arrested and he threw out Harris’s
belongings, including a magazine with ammunition, but neither he nor his family
members “touched [Holly’s] room.”
Curtiss Jones, the trace evidence supervisor with the Cuyahoga
County Medical Examiner’s Office, performed a trace metal detection test to
determine whether Holly had handled a metal object, such as a gun. Jones noted
there was “no reaction observed on either hand.”
Jones also conducted a gunshot residue test on Holly to determine
whether she had fired a gun, had been in close proximity to a firearm at the time it
was fired, or touched a surface containing primer residue. Jones stated that he looks
for “gunpowder grains” on a decedent’s clothing, which are equivalent to stippling
on skin, to determine the muzzle-to-target distance. He found powder grains on
Holly’s shirt but no fouling. Jones therefore concluded that “[t]he presence of the
powder grains and the reaction from the chemical testing * * * is suggestive of an
intermediate or closer muzzle-to-target distance,” which Jones explained was one to
three or four feet away, “maybe out to 5 feet potentially.”
Harris testified on his own behalf. He previously served as a city dog
warden, a military police officer in the U.S. Army, club security, and numerous
assorted jobs thereafter. Harris was trained in the use of firearms during his
military service. Harris had known Holly before his military service and was
reunited with her years later, when he returned to Cleveland. According to Harris,
Holly allowed Harris to move in with her after his mother died. He described his
relationship with Holly as platonic, although they shared a bed. Harris testified that
he would sleep on top of the covers and use his own blanket if he was cold. Harris
stated that there were other rooms in the house where he could have slept.
Harris stated that he and Holly had different expectations for their
relationship, explaining that he had to repeatedly tell Holly that he was not her
boyfriend. Harris reported that Holly “carried a torch all those years” for him, but
Harris did not share those feelings. He explained that he was still mourning the
death of his previous girlfriend and his mother, and that his living with Holly
was temporary and came with “no strings attached.” On cross-examination,
however, Harris conceded that he told the detectives that he had been dating Holly
“for the last couple of years.” When asked about the inconsistency, Harris indicated
that he simply “went along with what [the detective] implied.”
According to Harris, Holly used to drink alcohol only on weekends
but then began drinking every day. And it was Holly’s idea that Harris park at the
end of her driveway so that family members could not “park the car and
disappear.” Harris had no interest in getting to know Holly’s family members, and
he would retreat to the bedroom when they came over. In response to a question
regarding a text wherein Holly sounded upset about a woman in Atlanta, Harris
stated that the woman from Atlanta was a friend.
Harris testified that on the morning of April 16, 2018, he awakened
at 4:00 a.m., made lunch, and took care of the dogs. He took Holly to work then
caught the 6:12 a.m. bus to his job. When he arrived home after
work at approximately 7:30 p.m., Holly was not home. He took care of the
dogs, made himself some dinner, and fell asleep in the bedroom.
Harris stated that he awakened, startled, to Holly “going on and off
about other women.” He began to get dressed, telling Holly, “I’m leaving. I don’t
want to do this anymore.” He then stated what happened next:
I felt her weight on the bed and the next thing I hear is the gun cocking,
and I turned around and I look over my shoulder. We’re sitting on the
bed; not laying in the bed, sitting on the bed.
And I turned around and she’s pointing the gun at me. I closed my
eyes and I said, “Don’t do this. Please don’t do this.” And then she
turns the gun around and points it at herself.
Harris testified that after a few seconds, Holly turned the gun on
herself, holding the gun with both hands, with “her thumbs in the trigger,” pointing
the gun. Harris explained that he tried to take the gun away, placing his right hand
on top of the gun, trying not to “jerk it” or “plane it.” He further stated that because
the gun was cocked, he attempted to “get [his] hand or [his] thumb near the hammer
so it couldn’t go off,” but Holly then “eased up on her grip,” and Harris “had one
hand on [the gun for] a hot second and it went off.” He stated that the shell never
ejected.
Harris then testified that he panicked, thinking “they’re not going to
believe I didn’t do this. * * * They’re not going to believe me. They’re going to think
I did something to her.” He left the gun on the bed where “it dropped.”
Harris also testified that the first thing he thought about was moving
his dogs because he knew he would be arrested. He also had a “hind thought” to
move his motorcycle. And he moved the bike to the same place he moved the
dogs. After dropping the dogs off, Harris parked the jeep on Brookfield Road, where
it was discovered. Harris later made arrangements to get the bike to
Robert Schwebs’s house. He never thought about Holly’s son, Kareem, who was
home at the time. And he “left the scene of a horrible crime.” He arrived at
the Schwebs’ home at approximately 10:00 p.m. on Tuesday.
Harris testified concerning the guns he kept in the home. He
admitted that he was not permitted to possess guns due to a prior conviction, but
he kept a gun “because of all the activity on the streets.” He stated that although he
had possession of three guns, he did not own all of them. He had a .38 revolver
that he kept in a lock box; a 9 mm handgun; and a .22-caliber pellet gun that
belonged to his mother’s boyfriend, which he kept next to the bed.
According to Harris, he kept the loaded 9 mm gun under a pillow in
the bedroom, “or in the bed,” when he was home and in a lock box when he was not
home. However, he also testified that when the grandchildren came over, Holly
would move the gun. When asked why Holly would need to move the gun if it was
in a lockbox, Harris answered, “Because it was not in the lock box. * * * I did keep it
in there. It wasn’t in there that particular time.” And on cross-examination,
he further stated that he “wasn’t sure if it was under the pillows or under the
[bed]spread, but it should have been somewhere in that area.”
Harris testified on direct examination that his cell phone was not
working because the dogs chewed it. But during his interview with the detectives,
Harris never told the detectives that the phone was not working; rather, he told
them only that he threw the phone out the window. When asked on cross-
examination regarding the discrepancy, Harris stated that he thought he “clarified
that later.” Harris testified that he did not call 911, stating, “[s]he was already
dead. * * * I was panicked.”
III. Evid.R. 701
In his third assignment of error, Harris contends that the trial court
erred in allowing Detective Borden to offer expert opinion testimony regarding the
“upward trajectory of the bullet.” Harris argues that the trial court erred in
admitting this opinion testimony because it did not meet the requirements for lay
opinion testimony under Evid.R. 701.
Evid.R. 701 governs opinion testimony by lay witnesses. It provides
that
[I]f the witness is not testifying as an expert, the witness’ testimony in
the form of opinions or inferences is limited to those opinions or
inferences which are (1) rationally based on the perception of the
witness and (2) helpful to a clear understanding of the witness’
testimony or the determination of a fact in issue.
To satisfy the first prong of Evid.R. 701, the opinion of the lay witness
must be “‘one that a rational person would form on the basis of the observed
facts.’” State v. Mulkey, 98 Ohio App.3d 773, 784, 649 N.E.2d 897 (10th Dist.1994),
quoting Lee v. Baldwin, 35 Ohio App.3d 47, 49, 519 N.E.2d 662 (1st Dist.1987). And
where a law enforcement officer “testified as a lay witness to opinions based on his
experience as a police officer, his previous investigations, and his perception of
evidence at issue,” this first prong is satisfied. State v. Walker-Curry, 8th Dist.
Cuyahoga No. 106228, 2019-Ohio-147, ¶ 12, citing State v. Grajales, 5th Dist.
Delaware No. 17CAC030020, 2018-Ohio-1124, ¶ 64.
The second prong of Evid.R. 701 requires that “the opinion * * * assist
the trier of fact in understanding the testimony of the witness or determining a fact
in issue.” State v. Sibert, 98 Ohio App.3d 412, 426, 648 N.E.2d 861 (4th Dist.1994),
citing Lee at 49. Under this prong, a police officer’s opinion testimony may be
admissible to explain a fact at issue even when it is based on specialized
knowledge. Walker-Curry at ¶ 13; State v. Maust, 8th Dist. Cuyahoga No. 103182,
2016-Ohio-3171, ¶ 19.
Under Evid.R. 701, “courts have permitted lay witnesses to express
their opinions in areas in which it would ordinarily be expected that an expert must
be qualified under Evid.R. 702.” State v. Primeau, 8th Dist. Cuyahoga No. 97901,
2012-Ohio-5172, ¶ 74, citing State v. McKee, 91 Ohio St.3d 292, 744 N.E.2d 737(2001). And, generally, if testimony is based on an officer’s training and experience,
related to the officer’s personal observations during an investigation, and helpful to
determine facts in issue, the testimony is properly admitted as lay testimony
under Evid.R. 701. See Maust at ¶ 18.
“Evid.R. 701 affords the trial court considerable discretion in
controlling the opinion testimony of lay witnesses.” Grajales, 5th Dist. Delaware
No. 17 CAC 03 0020, 2018-Ohio-1124, at ¶ 60, citing State v. Harper, 5th Dist.
Licking No. 07 CA 151, 2008-Ohio-6926, ¶ 37, citing Urbana ex rel. Newlin v.
Downing, 43 Ohio St.3d 109, 113, 539 N.E.2d 140 (1989). We therefore review a
trial court’s determination of the admissibility of lay witness opinion testimony for
an abuse of discretion. State v. Allen, 8th Dist. Cuyahoga No. 92482, 2010-Ohio-9,
¶ 46.
Here, Detective Borden, who was one of two detectives that
interviewed Harris, testified on direct examination concerning his review of the
evidence in the case and Harris’s statement to the police:
Question: * * * Did you then review, Detective, the photos in the
context of the information provided to you by the defendant?
Answer: Yes.
Question: And what, if any, observations did you make in comparison
with the information he provided?
Answer: Well, there’s no blood stains on the bed on the mattress on
top. Doesn’t look like anybody was in that bed to me.
Question: All right. And with respect to the defendant’s explanation
for how and who was holding the gun at the time it “discharged,” how
does that relate to the angle of her bullet wound?
Answer: Well, he said that she was holding the gun below her head
turned around with her thumbs in the trigger, so that would give an
upward trajectory of the bullet that was expelled from the gun. The
wound that [the victim] sustained is not an upward trajectory. If it
was truly being held like this (indicating) by [the victim], when the
gun discharged, you would expect the bullet to go up through her neck
and come out through the back of her neck or out the back of her head
and either go up into the ceiling or continue on until a loss of energy
and [fall] on the floor. That’s not the injury she sustained. You can
see the burn mark. It’s at a downward angle and it goes out — comes
out the middle of her back, in the back, so the firearm had to be above
her.
We find this testimony satisfies the first prong
of Evid.R. 701. Detective Borden has been a police officer for 23 years and a
homicide detective since 2012. Over the course of his employment with the
Cleveland Police Department, he attended multiple training seminars and received
extensive firearm training. Detective Borden testified that he participates in yearly
training with firearms. His testimony noted above related to his investigation of the
murder and his interview with Harris. Detective Borden’s testimony regarding the
trajectory of the bullet was rationally based on his perception of the evidence at issue
in the case and particularly addressed the fact that Harris’s explanation of the
position of the victim did not comport with the evidence.
We also find the detective’s testimony is helpful to a clear
understanding of the determination of a fact in issue: the use of a firearm and what
occurs when a firearm is discharged. The detective’s testimony therefore satisfies
the second prong of Evid.R. 701.
Moreover, the trial court advised the jury that Detective Borden was
not an expert in forensic sciences or pathology; rather, his testimony was based upon
his lengthy experience as a police officer. The court then instructed the jury to
"determine what weight, if any, to give to his testimony [concerning the trajectory
of the bullet].” This instruction did not “bolster” the detective’s testimony, as Harris
suggests. Rather, the instruction served as an explanation to the jury as to how to
consider Detective Borden’s testimony concerning the trajectory of the bullet.
In light of the above, we find the trial court did not abuse its discretion
in allowing Detective Borden’s opinion testimony concerning the trajectory of the
bullet.
Harris’s third assignment of error is overruled
IV. Sufficiency of the Evidence
In his first assignment of error, Harris generally contends that his
convictions are not supported by sufficient evidence. In support, he argues that the
only eyewitness to the shooting was Harris, his statement to the detectives was
corroborated by forensic evidence, there was no evidence of additional injuries to
the victim indicative of a struggle, the victim was intoxicated and therefore lacked
fine motor skills, and the medical examiner conceded that it would be possible for
someone to hold a gun backwards in front of herself and discharge the gun.
When assessing a challenge of sufficiency of the evidence, a reviewing
court examines the evidence admitted at trial and determines whether such
evidence, if believed, would convince the average mind of the defendant’s guilt
beyond a reasonable doubt. State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492(1991), paragraph two of the syllabus. “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.” Id. A reviewing court is not to assess “whether the state’s
evidence is to be believed, but whether, if believed, the evidence against a defendant
would support a conviction.” State v. Thompkins, 78 Ohio St.3d 380, 390, 678
N.E.2d 541 (1997).
Harris was convicted of murder in violation of
R.C. 2903.02(A). Under R.C. 2903.02(A), “[n]o person shall purposely cause the
death of another[.]” 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. Orr, 8th Dist. Cuyahoga No. 100841, 2014-Ohio-4680, ¶ 72.
Circumstantial evidence may be used to demonstrate purpose or
intent, and therefore, intent may be ascertained from the surrounding facts and
circumstances in the case. State v. Scarton, 8th Dist. Cuyahoga No. 108474,
2020-Ohio-2952, ¶ 72; State v. Peterson, 8th Dist. Cuyahoga Nos. 100897 and
100899, 2015-Ohio-1013, ¶ 80. These facts and circumstances include “‘the nature
of the instrument used, its tendency to end life if designed for that purpose, and the
manner in which any wounds were inflicted’” and “‘[a] jury can infer intent to kill by
the defendant’s use of a firearm, an inherently dangerous instrumentality, the use
of which is likely to produce death.’” State v. Martin, 8th Dist. Cuyahoga No. 91276,
2009-Ohio-3282, ¶ 23, quoting State v. Mackey, 8th Dist. Cuyahoga No. 75300,
1999 Ohio App. LEXIS 5902 (Dec. 9, 1999); see State v. Tibbs, 1st Dist. Hamilton
No. C-100378, 2011-Ohio-6716, ¶ 48 (shooting victim in the face and head from
close range during the course of aggravated robbery demonstrated a specific intent
to kill).
Harris was also convicted of murder in violation
of R.C. 2903.02(B). Under R.C. 2903.02(B), felony murder, “[n]o 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[.]” Harris was convicted of felonious assault in violation of
R.C. 2903.11(A)(1), which is a felony of the second degree. And under
R.C. 2903.11(A)(1), “[n]o person shall knowingly * * * [c]ause serious physical harm
to another * * *.” R.C. 2901.22(B) provides that 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. A person has knowledge of circumstances
when he is aware that such circumstances probably exist.”
Finally, Harris was convicted of having weapons while under
disability. R.C. 2923.13(A)(2) states that “[u]nless relieved from disability under
operation of law or legal process, no person shall knowingly acquire, have, carry, or
use any firearm or dangerous ordnance, if * * * [t]he person is under indictment for
or has been convicted of any felony offense of violence * * *.”
Upon our review, we find there was ample evidence to support
Harris’s convictions. Dr. McCollom testified that the cause of death was a gunshot
wound to the neck and the manner of death was homicide. She concluded that it
was not suicide because the victim sustained an injury to her neck and spine, rather
than her head or chest; there was no gun near the victim’s body or at the
scene; and there was no fouling on the victim’s skin, yet there was
stippling. Dr. McCollom explained that in order for her to have shot the gun herself,
she would have to have held the gun “pretty far away from her body.” The evidence
shows that the muzzle-to-target distance was somewhere between one and three
feet, but “closer to 3-feet.” Dr. McCollom also ruled out an accident because the
evidence at the scene did not support that conclusion.
Furthermore, as stated above, no gun was recovered from the
scene. Harris testified that he left the gun on the bed where it “dropped,” yet every
family member who entered Holly’s home that morning testified that they did not
see a gun nor did they remove any guns. And law enforcement officers were not able
to locate a gun on the scene. Additionally, there was no shell casing recovered from
the scene.
The evidence also shows that the bullet traveled “left to right, toward
the back and downward” in the victim’s body, exiting through her upper back. And
as Detective Borden testified, if the victim had been holding the gun in the position
described by Harris, that position would have given an upward trajectory of the
bullet.
Regarding Harris’s conviction for having weapons while under
disability, the record reflects that the parties stipulated that Harris had a prior felony
conviction of violence for purposes of this charge. And Harris testified that he knew
he was not allowed to have firearms, yet he possessed three firearms.
On this record, and in viewing the evidence in a light most favorable
to the prosecution, we find that any rational trier of fact could have found the
essential elements of the crimes proven beyond a reasonable doubt. We therefore
find sufficient evidence to support Harris’s convictions.
Harris’s first assignment of error is overruled.
V. Manifest Weight of the Evidence
In his second assignment of error, Harris contends that his
convictions are against the manifest weight of the evidence. Other than reiterating
the argument he raises for sufficiency, Harris argues that the jury lost its way
by “relying on the emotional and speculative testimony” of the victim’s family
members. He maintains that most of Holly’s family members disliked him, the
family acknowledged that Holly had begun to drink too much, and he simply
avoided Holly’s family members due to their admitted history of drug dealing.
A manifest weight challenge questions whether the state has met its
burden of persuasion. Thompkins, 78 Ohio St.3d at 390, 678 N.E.2d 541. This
challenge raises a factual issue:
“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. The
discretionary power to grant a new trial should be exercised only in
the exceptional case in which the evidence weighs heavily against the
conviction.”
Id. at 387, quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st
Dist.1983). The use of the word “manifest” in the standard of review “means that
we can only reverse the trier of fact if its decision is very plainly or obviously contrary
to the evidence.” State v. Hernandez, 8th Dist. Cuyahoga No. 106577,
2018-Ohio-5031, ¶ 20.
Here, we cannot say the jury lost its way in choosing not to believe
Harris’s version of the events. The medical examiner determined Holly’s
death was a homicide, ruling out suicide and accidental death. She opined that
based on the absence of fouling and the presence of stippling, the muzzle-to-target
distance was closer to three feet, and the victim would have to have held the gun
“pretty far away from her body” in order to shoot herself given the evidence. The
location of Holly’s injuries were not consistent with a suicide. The evidence
demonstrated that the bullet traveled downward in the victim’s body, which was
inconsistent with Harris’s version of the shooting. And no gun or shell casing
was recovered from the scene. Family members testified that they did not see a gun
at the scene nor did they remove anything from the scene. There is also evidence
that the bedroom door was locked and a family member had to break it down to gain
access to the victim.
Moreover, the evidence shows Harris’s consciousness of guilt. After
the shooting, Harris gathered his dogs, removed them from the home, and arranged
for their care. He also removed his motorcycle from the property and arranged to
have it repaired by a friend. Finally, he parked Holly’s jeep away from the scene,
and he absconded to his friend’s home until law
enforcement discovered him hiding in a bathroom four days later. The jury is free
to consider Harris’s actions in fleeing from the scene in determining his guilt. State
v. Taylor, 78 Ohio St.3d 15, 27, 676 N.E.2d 82 (1997), quoting State v. Eaton, 19
Ohio St.2d 145, 249 N.E.2d 897 (1969), paragraph six of the syllabus (“Flight from
justice * * * may be indicative of a consciousness of guilt.”); State v. Worley, 8th
Dist. Cuyahoga No. 103105, 2016-Ohio-2722, ¶ 22 (finding the jury was free to infer
consciousness of guilt from the defendant’s act of “absconding for four months,
immediately after the shooting and until apprehended by law enforcement”).
Finally, as previously stated, Harris had guns in his possession and
he knew he was not permitted to have them because of a prior conviction. And the
parties stipulated to that prior conviction.
Considering the totality of the evidence, we do not find that this is the
exceptional case in which the evidence weighs heavily against the
conviction. Harris’s second assignment of error is overruled.
Judgment affirmed.
It is ordered that appellee recover of appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
common pleas court to carry this judgment into execution. The defendant’s
conviction having been affirmed, any bail pending 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.
____________________________
MICHELLE J. SHEEHAN, JUDGE
EILEEN T. GALLAGHER, A.J., and
FRANK D. CELEBREZZE, JR., J., CONCUR