State v. Nicholson , 2018 Ohio 4909 ( 2018 )

[Cite as State v. Nicholson, 2018-Ohio-4909.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY
State of Ohio Court of Appeals No. L-17-1187
Appellee Trial Court No. CR0201602818
v.
Davonte Nicholson DECISION AND JUDGMENT
Appellant Decided: December 7, 2018
*****
Julia R. Bates, Lucas County Prosecuting Attorney, and
Evy M. Jarrett, Assistant Prosecuting Attorney, for appellee.
Brad F. Hubbell, for appellant.
*****
OSOWIK, J.
{¶ 1} This is an appeal from a June 19, 2017 judgment of the Lucas County Court
of Common Pleas, convicting appellant on one count of murder, in violation of R.C
2903.02(B), with an accompanying firearm specification, pursuant to R.C. 2941.145.
Appellant was sentenced to a term of incarceration of 15 years to life on the murder
conviction, and a consecutive three-year term of incarceration on the firearm
specification. For the reasons set forth below, this court affirms the judgment of the trial
court.
{¶ 2} Appellant, Davonte Nicholson, sets forth the following assignment of error:
Did the jury err when it found [appellant] guilty because the
evidence was insufficient to support the finding and the finding was not
sustained by the manifest weight of the evidence?
{¶ 3} The following undisputed facts are relevant to this appeal. On September 9,
2016, the victim, the victim’s girlfriend, and her children were driving together to a
birthday party for the victim’s minor son. They stopped en route at an area 7-Eleven
store in order to pick up several pizzas for the party.
{¶ 4} Coincidentally, the clerk working at the 7-Eleven store recognized the victim
as someone who the clerk’s drug dealer wanted to locate. The victim had allegedly stolen
$3,000 and several mobile phones from the drug dealer on a prior occasion.
{¶ 5} In response to observing the victim at her place of employment, the clerk
immediately called her drug dealer and conveyed to him the victim’s current location.
Several minutes later, the drug dealer called the clerk back and indicated that he was
heading to the store and he asked that in the interim, she attempt to delay the victim’s
departure.
{¶ 6} The drug dealer arrived at the location several minutes later, accompanied
by several of his cohorts. Appellant, one of the drug dealer’s associates who had traveled
2.
with the drug dealer to confront the victim, walked up to the driver’s side window of the
vehicle where the victim was located, put a firearm into the victim’s window, shot the
victim at point-blank range, killing the victim. Security video cameras at the 7-Eleven
store captured these events.
{¶ 7} During the subsequent police investigation, the victim’s girlfriend positively
identified the shooter from the store security camera footage of the incident. In addition,
the store clerk admitted that she had called the drug dealer and alerted him to the
presence of the victim at the 7-Eleven store.
{¶ 8} The clerk further admitted to the investigating officers that she was familiar
with appellant and that she witnessed him shoot the victim. The clerk also conveyed to
the investigating officers that the drug dealer called the clerk back later that day
confirming that the victim had been eliminated and threatening the clerk that she would
be as well if she shared her information on the matter with anyone.
{¶ 9} On September 30, 2016, appellant was indicted on one count of aggravated
murder, in violation of R.C. 2903.01, and one count of murder, in violation of R.C.
2903.02, both counts with accompanying firearm specifications.
{¶ 10} On June 19, 2017, appellant’s case proceeded to a jury trial. Appellant was
convicted of the lesser offense of murder, in violation of R.C. 2903.02, along with the
accompanying firearm specification. Appellant was sentenced to a term of incarceration
of 15 years to life imprisonment, with a consecutive three-year term of incarceration for
the firearm specification. This appeal ensued.
3.
{¶ 11} In the sole assignment of error, appellant contends that his conviction was
not supported by sufficient evidence and that it was against the manifest weight of the
evidence. We do not concur.
{¶ 12} It is well-established that in assessing the veracity of sufficiency of the
evidence claims on appeal, the relevant inquiry is whether upon viewing the evidence in
the light most favorable to the prosecution, a rational trier of fact could have found the
elements of the crime proven beyond a reasonable doubt. State v. Jenks, 61 Ohio St.3d
259, 574 N.E.2d 492 (1991), paragraph two of the syllabus.
{¶ 13} We have reviewed and considered the record of evidence submitted in this
matter. The record contains security camera video footage reflecting the occurrence of
this event. The video footage shows the person positively identified to be appellant
approaching the victim’s vehicle and shooting the victim at point-blank range.
{¶ 14} The record further contains the eyewitness testimony of the store clerk.
The store clerk conceded in her testimony to calling a drug dealing friend of appellant’s
and telling him that the victim whom he was looking for in connection to a past theft of
$3,000 from the drug dealer was currently at the store. The clerk further testified that the
drug dealer called her back in order to ensure that the victim did not depart prior to his
arrival. The clerk testified that she observed the drug dealer and two of his associates
arrive at the scene. Significantly, the clerk gave additional eyewitness testimony of
directly observing appellant walk up to the driver side window of the vehicle and shoot
the victim.
4.
{¶ 15} The record further reflects the testimony of one of appellant’s accomplices.
The accomplice testified that he, the drug dealer, and appellant sped to the 7-Eleven store
upon learning the victim was there. The accomplice further testified that he walked to the
passenger side of the vehicle, while appellant walked up to the driver side of the vehicle.
The accomplice gave additional eyewitness testimony of witnessing appellant shoot the
victim through the motor vehicle window at point-blank range.
{¶ 16} Conversely, appellant unpersuasively testified on his own behalf simply
unilaterally denying all of these events despite the testimony of numerous eyewitnesses,
and despite the collaborating video security camera footage reflecting the event. In
addition, appellant conceded to various falsehoods that he conveyed to the investigating
officers during the police investigation.
{¶ 17} We find that the record of evidence encompasses ample evidence from
which a rational trier of fact could conclude that on September 9, 2016, appellant was
present at the 7-Eleven store were the victim was located, walked up to the victim’s
motor vehicle window, pulled out a loaded firearm, and shot the victim through the
window, killing the victim.
{¶ 18} With respect to appellant’s manifest weight of the evidence argument on
appeal, it is well-established that when assessing whether a disputed conviction is against
the manifest weight, this court must review the record, weigh the evidence and
inferences, consider witness credibility, and decide whether in resolving evidentiary
conflicts, the trier of fact clearly lost its way and caused a manifest miscarriage of justice
5.
necessitating a new trial. State v. Prescott, 190 Ohio App.3d 702, 2010-Ohio-6048, 943
N.E.2d 1092, ¶ 48 (6th Dist.).
{¶ 19} As discussed above, the record of evidence encompasses extensive
eyewitness testimony of multiple witnesses observing appellant shoot the victim. The
eyewitness testimony was collaborated by security camera footage captured at the
7-Eleven store. Conversely, appellant gave generic, unsupported, unpersuasive testimony
on his own behalf. The record is devoid of any evidence that the disputed conviction was
a manifest miscarriage of justice.
{¶ 20} On consideration whereof, we find that substantial justice has been done in
this matter. Appellant’s assignment of error is found not well-taken. The judgment of
the Lucas County Court of Common Pleas is hereby affirmed. Appellant is ordered to
pay the costs of this appeal pursuant to App.R. 24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
6.
State v. Nicholson
C.A. No. L-17-1187
Mark L. Pietrykowski, J. _______________________________
JUDGE
Arlene Singer, J.
_______________________________
Thomas J. Osowik, J. JUDGE
CONCUR.
_______________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.
7.