State v. Houston ( 2014 )

[Cite as State v. Houston, 2014-Ohio-3911.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 100655
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
CHRISTOPHER D. HOUSTON
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-13-573551-A
BEFORE: Blackmon, P.J., McCormack, J., and Stewart, J.
RELEASED AND JOURNALIZED: September 11, 2014
-i-
ATTORNEY FOR APPELLANT
Joseph V. Pagano
P.O. Box 16869
Rocky River, Ohio 44116
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
By: Alison Foy
Assistant County Prosecutor
9th Floor Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
PATRICIA ANN BLACKMON, P.J.:
{¶1} Appellant Christopher D. Houston (“Houston”) appeals his conviction for
aggravated robbery and assigns the following four errors for our review:
I. Appellant’s convictions were not supported by sufficient evidence and
the trial court erred by denying his motion for acquittal.
II. The convictions are against the manifest weight of the evidence.
III. Appellant was deprived of the effective assistance of counsel because
there was no objection to the admission of state’s Exhibit 2 even though the
state failed to establish proper chain of custody.
IV. Appellant’s Sixth Amendment Rights were violated because
appellant’s case should have been transferred to the mental health court.
{¶2} Having reviewed the record and relevant facts, we affirm Houston’s
convictions. The apposite facts follow.
{¶3} The Cuyahoga County Grand Jury indicted Houston for aggravated robbery
with prior notification and a repeat violent offender specification attached. Houston
waived his right to a jury; the matter proceeded before the bench.
{¶4} On the evening of April 15, 2013, the victim was walking to the bus station
located at West 25th Street and Lorain Avenue to purchase a bus ticket for his ride to
work the next day. After stopping at a convenience store to purchase a drink, the victim
noticed Houston walking on the opposite side of the street. Several minutes later, Houston
walked up behind the victim and placed a gun to the side of the victim’s face. Houston
ordered the victim to empty his pockets and to “not try anything.”
{¶5} The victim stated that at that point, traffic was approaching them, which
distracted Houston. The victim took this opportunity to punch Houston a few times and
attempt to wrestle the gun from him. After retrieving the weapon, the victim threw the
gun over a fence. Houston continued to act aggressively so the victim pulled out a
pocket knife to warn Houston to stay on the ground. The victim then flagged down an
RTA bus and got on. As the bus drove away, Houston banged on the driver’s side
window and yelled that it was he who had been robbed. The bus driver called the police
and took the victim to the West 25th Street rapid station.
{¶6} The police met the victim at the bus station. A description of the assailant
was broadcasted. The officers proceeded to take the victim back to the location of the
attack. On the way, they saw another patrol car near the scene with officers attempting
to subdue Houston. The victim identified Houston as the robber.
{¶7} Houston told officers he had a gun on him, but it was fake. A gun was
removed from Houston’s waistband. The police confirmed that it was a BB gun.
Officer O’Neill stated that on the way to the jail, Houston contended he was the victim.
She noted that he looked like he had been punched in the face. Once they arrived at the
jail, Houston’s demeanor changed. She heard him use a racial epithet and say the victim
was “lucky he’s alive.”
{¶8} Houston testified in his own defense and claimed that the victim was the
aggressor. According to Houston, he was in the area of West 25th Street to attend a
party. The person that was supposed to drive him home was drunk; therefore, Houston
decided to take a bus home. On his way to the station, he saw the victim and asked him
if he could use his cell phone because he was going to try and call someone to pick him
up. He claimed he did not use his own cell phone because there were no minutes left.
{¶9} Houston stated that the victim looked at him like Houston was “crazy” and
“looked scared.” Houston threatened the victim that he could “take the phone if he
wanted to.” The victim then began to beat him up. Although Houston’s BB gun was
tucked in his waistband, he claimed he never took it out.
{¶10} The trial court found Houston guilty of aggravated robbery with prior
notification and a repeat violent offender specification. The court sentenced Houston to
eight years in prison.
Sufficiency of the Evidence
{¶11} In his first assigned error, Houston argues his conviction for aggravated
robbery was not supported by sufficient evidence.
{¶12} Crim.R. 29 mandates that the trial court issue a judgment of acquittal where
the state’s evidence is insufficient to sustain a conviction for the offense. Crim.R. 29(A)
and a sufficiency of the evidence review require the same analysis. State v. Tenace, 109
Ohio St. 3d 255, 2006-Ohio-2417, 847 N.E.2d 386.
{¶13} In analyzing whether a conviction is supported by sufficient evidence, the
reviewing court must view the evidence “in the light most favorable to the prosecution”
and ask whether “any rational trier of fact could have found the essential elements of the
crime proven beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99
S. Ct. 2781, 61 L. Ed. 2d 560 (1979); State v. Jenks, 61 Ohio St. 3d 259, 574 N.E.2d 492
(1991), paragraph two of the syllabus; State v. Carter, 72 Ohio St. 3d 545, 651 N.E.2d 965
(1995).
{¶14} Houston was convicted of aggravated robbery, which is defined in R.C.
2911.01(A)(1) as:
(A) No person, in attempting or committing a theft offense, as defined in
section 2913.01 of the Revised Code, or in fleeing immediately after the
attempt or offense, shall do any of the following:
(1) Have a deadly weapon on or about the offender’s person or under the
offender’s control and either display the weapon, brandish it, indicate that
the offender possesses it, or use it; * * *.
{¶15} Houston argues the evidence was insufficient to convict him of aggravated
robbery because the state failed to present sufficient evidence showing the gun used in the
robbery was a “deadly weapon.”
{¶16} R.C. 2923.11(A) defines a “deadly weapon” as “any instrument, device, or
thing capable of inflicting death, and designed or specially adapted for use as a weapon,
or possessed, carried or used as a weapon.”
{¶17} There is no doubt that the BB gun in question was used as a weapon because
the victim stated that Houston held it to his head. The only question is whether the BB
gun was capable of inflicting death. Although it is not a firearm, a BB gun can be a
deadly weapon if the BB is expelled at a sufficient rate of speed. State v. Brown, 101
Ohio App. 3d 784, 788, 656 N.E.2d 741 (1st Dist.1995). The Ohio Supreme Court, in
dicta, acknowledged that:
[o]ne may use a BB gun (State v. Ewing [Mar. 27, 1980], Cuyahoga App.
No. 41080, unreported), or a pellet gun (State v. Scales [Sept. 27,
1979], Cuyahoga App. No. 39763, unreported) in the commission of a theft
offense and be found guilty of aggravated robbery.
State v. Gaines, 46 Ohio St. 3d 65, 68, 545 N.E.2d 68 (1986).
{¶18} Courts agree that regardless of whether a BB or pellet is powerful enough to
cause death, a BB gun can be a deadly weapon because the body of the gun itself can be
used to bludgeon. State v. Hicks, 14 Ohio App. 3d 25, 469 N.E.2d 992 (8th Dist.1984);
State v. Ginley, 8th Dist. Cuyahoga No. 90724, 2009-Ohio-4701. The gun’s capability as
a deadly weapon is a factual issue to be determined by the trier of fact. Brown at 788.
{¶19} Houston argues that because he did not threaten to use the gun as a
bludgeon, the weight of the gun cannot be considered in determining whether the BB gun
was a deadly weapon. This is not the precedent set forth in this district. In Hicks, this
court, in reviewing the sufficiency of the evidence, set out the testimony of the arresting
officers that the “toy” gun involved was metal, and that they had “investigated crimes
where such objects had been used as bludgeons.” The appellate court in Hicks also,
itself, examined the weapon involved and concluded it was heavy enough to be used as a
bludgeon. We found this even though there was no evidence that the robber used or
threatened to use the gun as a bludgeon. Houston cites to Brown at 788 in arguing this
district requires proof the weapon was used as bludgeon. However, Brown is a First
District case.
{¶20} In the instant case, like in Hicks, the trial court examined the weapon and
found that it was heavy enough to be used as a bludgeon. The trial court also noted that
on the barrel of the gun was an inscription that stated: “Not a toy. Misuse or careless use
may cause serious injury or death.” The court, relying on this evidence and this court’s
decision in State v. Hammond, 8th Dist. Cuyahoga No. 99074, 2013-Ohio-2466,
concluded the gun was a deadly weapon and overruled defense counsel’s motion for
acquittal. In Hammond, the gun at issue was a plastic toy gun. We concluded it was not
a deadly weapon because there was no evidence it was heavy enough to be used as a
weapon nor was evidence presented of its ability to cause death.
{¶21} We agree with the trial court that there was sufficient evidence the gun was
a deadly weapon as the inscription on the label states that it could cause serious injury or
death. The court also found the gun heavy enough to be a bludgeon. Moreover, the
evidence showed that Houston placed the gun on the side of the victim’s face. It is
imaginable that shooting the BB into the side of the victim’s face at close range could
prove to be fatal. See State v. Valentin, 11th Dist. Portage No. 2009-P-0010,
2009-Ohio-6038 (construing the evidence “in a light most favorable to the state, a rational
trier of fact could have concluded that one or more shots fired from the BB gun at this
close range [gun was pointed at head and neck] was capable of inflicting death”); State v.
Thaler, 2d Dist. Montgomery No. 21129, 2006-Ohio-4017 (BB gun pointed at the
victim’s head and neck at close range “was far more vulnerable to life-threatening injury”
than if the gun’s target was the victim’s buttocks).
{¶22} Accordingly, construing the evidence in the light most favorable to the state,
under the facts of this case, there was sufficient evidence presented that the BB gun was
used as a “deadly weapon.” Accordingly, Houston’s first assigned error is overruled.
Manifest Weight of the Evidence
{¶23} In his second assigned error, Houston argues that his conviction for
aggravated robbery was against the manifest weight of the evidence.
{¶24} In State v. Wilson, 113 Ohio St. 3d 382, 2007-Ohio-2202, 865 N.E.2d 1264,
the Ohio Supreme Court addressed the standard of review for a criminal manifest weight
challenge, as follows:
The criminal manifest-weight-of-the-evidence standard was explained in
State v. Thompkins (1997), 78 Ohio St. 3d 380, 1997- Ohio-52, 678 N.E.2d
541. In Thompkins, the court distinguished between sufficiency of the
evidence and manifest weight of the evidence, finding that these concepts
differ both qualitatively and quantitatively. Id. at 386, 678 N.E.2d 541.
The court held that sufficiency of the evidence is a test of adequacy as to
whether the evidence is legally sufficient to support a verdict as a matter of
law, but weight of the evidence addresses the evidence’s effect of inducing
belief. Id. at 386-387, 678 N.E.2d 541. In other words, a reviewing court
asks whose evidence is more persuasive — the state’s or the defendant’s?
We went on to hold that although there may be sufficient evidence to
support a judgment, it could nevertheless be against the manifest weight of
the evidence. Id. at 387, 678 N.E.2d 541. “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 a ‘thirteenth juror’ and
disagrees with the factfinder’s resolution of the conflicting testimony.” Id.
at 387, 678 N.E.2d 541, citing Tibbs v. Florida (1982), 457 U.S. 31, 42, 102
S. Ct. 2211, 72 L. Ed. 2d 652.
Id. at ¶ 25.
{¶25} An appellate court may not merely substitute its view for that of the jury, but
must find that “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 at 387. Accordingly, reversal on manifest weight
grounds is reserved for “the exceptional case that the evidence weighs heavily against the
conviction.” Id.
{¶26} Houston contends the gun was wrongly admitted into evidence because the
state failed to establish the chain of custody for the weapon. “Any breaks in the chain of
custody go to the weight afforded to the evidence, not to its admissibility.” State v.
Smith, 8th Dist. Cuyahoga No. 96348, 2011-Ohio-6466, ¶ 37.
{¶27} Here, on cross-examination, Houston admitted that the gun was his.
Moreover, Officer Skernivitz, who retrieved the weapon from Houston, stated that he
“believed the weapon was marked, tagged, and entered” into evidence. When shown the
gun, the officer stated that it looked like the BB gun he retrieved, but he could not say it
was the exact one. Additionally, when the victim was shown the gun, he stated that he
recognized the weapon as the one Houston put to the victim’s face. The victim had in
fact handled the gun when he took it from Houston and threw it over the fence. He
would have been familiar with the gun. Thus, we conclude the admission of the gun did
not create such a manifest injustice that Houston’s conviction should be reversed.
Moreover, we held in the first assigned error that the fact the BB gun, if fired, could have
been fatal because it was held to the victim’s face.
{¶28} Houston also argues his testimony was more credible than the alleged victim
because Houston suffered a black eye and swollen lip, while the victim’s injuries were
minor. This evidence was not inconsistent because the victim testified to punching
Houston several times in the face, which would account for Houston’s injuries. We
realize Houston contends the victim was the aggressor. However, when there are two
versions of events, neither of which is unbelievable, it is not our province to choose
which one should be believed. State v. Gore, 131 Ohio App. 3d 197, 201, 722 N.E.2d
125 (7th Dist.1999). Rather, we defer to the factfinder who was best able to weigh the
evidence and judge the credibility of witnesses by viewing the demeanor, voice
inflections, and gestures of the witnesses testifying. Seasons Coal Co. v. Cleveland, 10
Ohio St. 3d 77, 80, 461 N.E.2d 1273 (1994); State v. DeHass, 10 Ohio St. 2d 230, 231, 227
N.E.2d 212 (1967). The court obviously believed the victim’s version of events
{¶29} Houston also contends the victim testified the assailant had braids, but the
booking photo shows that he did not have braids. However, the victim explained that
because Houston was wearing a “doo-rag” during the robbery, he assumed he had braids.
Further, Houston admits having contact with the victim, but contends that the victim was
the aggressor. Therefore, this is not a case of misidentification.
{¶30} Houston argues that the testimony was inconsistent regarding whether he
was walking or running when the officers first saw him. Officer O’Neill testified she
saw Houston jogging, then later said he was walking. Officer Skernivitz testified that
Houston was running, and Houston stated he was walking. These inconsistencies are
inconsequential to Houston’s conviction given the victim’s testimony.
{¶31} Houston also argues that his conviction was against the manifest weight
because the state failed to dust the gun for fingerprints to see if the victim attempted to
wrestle the gun from Houston as he contended. This does not constitute an
inconsistency. Instead, it goes to the victim’s credibility because its only purpose would
be to bolster the victim’s credibility. Therefore, we defer to the finder of fact to
determine if the victim’s testimony was credible in spite of the fact the gun was not
dusted for fingerprints. Accordingly, Houston’s second assigned error is overruled.
Ineffective Assistance of Counsel
{¶32} In his third assigned error, Houston argues that his counsel was ineffective
for failing to object to the admission of the gun as evidence because the proper chain of
custody had not been established.
{¶33} To succeed on a claim of ineffective assistance, a defendant must establish
that counsel’s performance was deficient and that the defendant was prejudiced by the
deficient performance. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80
L. Ed. 2d 674 (1984); State v. Bradley, 42 Ohio St. 3d 136, 538 N.E.2d 373 (1989).
Counsel will only be considered deficient if his or her conduct fell below an objective
standard of reasonableness. Strickland at 688.
{¶34} When reviewing counsel’s performance, this court must be highly
deferential and “must indulge a strong presumption that counsel’s conduct [fell] within
the wide range of reasonable professional assistance.” Id. at 689. To establish resulting
prejudice, a defendant must show that the outcome of the proceedings would have been
different but for counsel’s deficient performance. Id. at 694.
{¶35} In the instant case, Houston acknowledged it was his gun and the victim
testified the gun was the one used by Houston. Moreover, as we stated above, even if the
gun were not admitted into evidence, there was sufficient evidence that it was used as a
deadly weapon by its close proximity to the victim’s face. Therefore, any failure to
establish the chain of custody was not prejudicial. Accordingly, Houston’s third
assigned error is overruled.
Mental Health Docket
{¶36} In his fourth assigned error, Houston argues his counsel was ineffective for
failing to request the case be transferred to the mental health docket.
{¶37} Loc.R. 30.1 of the Court of Common Pleas of Cuyahoga County, General
Division, controls the assignment of criminal cases to the mental health docket and
provides that “mental health dockets shall include cases where the defendant is deemed to
have a confirmed serious mental illness if within the previous six months prior to
arraignment, there is a clinical diagnosis of a severe mental illness with a psychotic
feature.”
{¶38} A review of the record does not indicate that Houston has a confirmed
serious mental illness. There was no evidence that he was not sane at the time of the
alleged acts, and the transcript shows he was competent to stand trial because he
appropriately answered the questions he was asked.
{¶39} The only evidence regarding Houston’s mental health was the fact he took
medication for depression and anxiety. There was no evidence that his mental condition
had a “psychosis element” to it. Therefore, it does not appear that Houston was eligible
for assignment to the mental health docket. Counsel’s failure to file a motion to transfer
the case to the mental health docket does not fall below an objective standard of
reasonable representation. Accordingly, Houston’s fourth assigned error is overruled.
{¶40} 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 be sent to the Cuyahoga County Court of
Common Pleas to carry this judgment into execution. 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.
PATRICIA ANN BLACKMON, PRESIDING JUDGE
TIM McCORMACK, J., and
MELODY J. STEWART J., CONCUR