State v. Sommerville , 2022 Ohio 4168 ( 2022 )

[Cite as State v. Sommerville, 2022-Ohio-4168.]
COURT OF APPEALS
DELAWARE COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. William B. Hoffman, P. J.
Plaintiff-Appellee Hon. John W. Wise, J.
Hon. Craig R. Baldwin, J.
-vs-
Case No. 21 CAA 11 0059
LEVON SOMMERVILLE
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common
Pleas, Case No. 21 CR I 03 0157
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: November 22, 2022
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
MELISSA A. SCHIFFEL APRIL F. CAMPBELL
PROSECUTING ATTORNEY CAMPBELL LAW, LLC
CORY J. GOE 545 Metro Place South
ASSISTANT PROSECUTOR Suite 100
140 North Sandusky Street Dublin, Ohio 43017
Delaware, Ohio 43015
Delaware County, Case No. 21 CAA 11 0059 2
Wise, J.
{¶1} Appellant Levon Sommerville appeals his conviction on one count of
Felonious Assault, with a firearm specification, one count of Inducing Panic, and one
count of Having a Weapon While Under Disability, entered in the Delaware County Court
of Common Pleas following a bench trial.
{¶2} Appellee is the state of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶3} The relevant facts and procedural history are as follows:
{¶4} On March 3, 2021, at approximately 12:27 p.m., City of Columbus police
officers were dispatched to the area of 1500 Polaris Parkway, in Delaware County, on
report of a shooting. (T. at 141-142). Upon arrival, officers located the crime scene inside
and outside of the Carter’s retail store. Multiple interviews were conducted and multiple
video sources capturing the incident were reviewed. (T. at 322-325).
{¶5} The video footage showed that Appellant Levon Sommerville entered the
Carter’s store with a young woman later identified as Zebie Jackson. Ms. Jackson’s
former boyfriend and father of her child, Anthony Truss, and a friend were also shopping
inside the Polaris Fashion Place mall, along with the friend’s child. At some point, Truss
approached Sommerville and Jackson. Truss picked-up his child and showed the baby
to some relatives that were with him. Truss then put the baby back in the carriage and
the two groups continued to separately browse the same store.
{¶6} After a few minutes, Truss approached Jackson again and attempted to take
the carriage with the child inside it. An argument ensued over whether Truss could have
custody of the baby that day. From the video surveillance footage provided to the trial
Delaware County, Case No. 21 CAA 11 0059 3
court, it appears that words were exchanged and the parties both seem to be agitated.
Next, Sommerville pulled Jackson behind him and withdrew a firearm from his jacket
pocket. The two men continue to verbally jab for about ten seconds before Sommerville
pushed Truss. Truss then lunged forward and the pair scuffled. Sommerville withdraws
backwards, eventually falling to the ground with the firearm still in hand. While falling
backwards, Sommerville is seen pointing the firearm upward in the area of where Truss
is standing. Sommerville fired one gunshot. Sommerville then turns his back and slowly
walks out of the store. Sommerville is seen on camera footage simply walking away
through the main aisle ways of Polaris Fashion Place with his back towards the entrance
of the store. A short time later, Truss is seen withdrawing his own firearm and quickly
walking through the store with the firearm at his side. Truss exits the store. When Truss
sees Sommerville, he shoots at least four times in the direction of Sommerville. This
occurred in the main walkway of Polaris Fashion Place where a handful of other
shoppers were located. Truss and Sommerville both run in opposite directions and exit
the mall.
{¶7} After exiting the mall area, Sommerville tossed his handgun under a vehicle
in the South parking lot of the mall. (T. at 187-190). Westerville police assisting on the
scene located a handgun in the parking lot. Id. The recovered firearm had a live round
in the chamber. Id.{¶8} Both Sommerville and Truss fled to the state of Georgia and were arrested
a month later. (T. at 352-353). Both eventually gave statements, each claiming they were
acting in self-defense.
Delaware County, Case No. 21 CAA 11 0059 4
{¶9} Upon arriving back in Ohio, Sommerville was interviewed at the Delaware
County Sheriff’s office. (T. at 354). This interview took place on May 3, 2021. During the
interview, Sommerville described the incident and stated “[a]nd that when the gun went
off, I was handing the gun over to my baby girl.” Id. “I wasn’t even going to shoot”. Id.Appellant also remarked “I remember he hit me first; that’s when I shot. When I fell, I
leaned back and tried to shoot, but it went off. I ain’t really even trying to shoot; it just
went off.” Id.{¶10} In his interview, Sommerville admitted that he was the person in the video
firing the shot in the Carter’s store. He also admitted to hiding the gun underneath the
car and fleeing to Georgia. (T. at 359). He admitted to knowledge that he was under a
disability prohibiting him from possessing a firearm at the time of the events. Id. He also
admitted that Truss did not have his gun out at the time that he took out his weapon. (T
at 449). He admitted that Truss did not threaten him prior to the time that he pushed him.
(T. at 450). He also admitted that the incident which gave rise to him pulling out his gun
was not serious. (T. at 489).
{¶11} In April 2021, Truss and Sommerville were jointly indicted for attempted
murder in violation of R.C. §2923.02, a first-degree felony; felonious assault with a deadly
weapon in violation of R.C. §2903.11(A)(2), a second-degree felony; and inducing panic
in violation of R.C. §2917.31(A)(3), a third-degree felony. Each count included a firearm-
use specification under R.C. §2941.145. Additionally, Sommerville was separately
charged with having a weapon while under disability in violation of R.C. §2923.13, a
third-degree felony.
Delaware County, Case No. 21 CAA 11 0059 5
{¶12} Appellant waived his right to a jury trial, and a bench trial commenced on
September 14, 2021, and continued for two days.
{¶13} At trial, the court heard testimony from a number of witnesses, including
Zebie Jackson and Detective Federer. The court also had before it the surveillance video
from the store and the mall and the audio/video of Sommerville’s interview with Det.
Federer.
{¶14} Appellant claimed he acted in self-defense.
{¶15} At the conclusion of the trial, the court returned a verdict of guilty on the
charges of felonious assault with the attached firearm specification, having weapons
under disability, and a lesser included offense of inducing panic, a first-degree
misdemeanor. The trial court returned a verdict of not guilty on the count of attempted
murder.
{¶16} On October 18, 2021, the trial court held a sentencing hearing. The court
sentenced Appellant to an indefinite prison term of 8 to 12 years on the felonious assault
charge, plus an additional three-year term for the firearm specification and a definite
prison term of 24 months on the charge of having a weapon while under disability. The
sentences for the felonious assault charge and the having a weapon while under
disability charge were ordered to run consecutive to each other and consecutive to the
sentence for the firearm specification. The sentence for inducing panic was ordered to
run concurrent to the other sentences. The total aggregate term imposed was 13 to 17
years in prison.
Delaware County, Case No. 21 CAA 11 0059 6
{¶17} Appellant was also sentenced to an additional 500 consecutive days
pursuant to R.C. §2929.141(A)(1) for committing this offense while under post-release
control.
{¶18} Appellant now appeals, assigning the following errors for review.
ASSIGNMENTS OF ERROR
{¶19} “I. SOMMERVILLE’S TRIAL COUNSEL WAS INEFFECTIVE WITH
RESULTING PREJUDICE, FOR FAILING TO SEEK SUPPRESSION OF
SOMMERVILLE’S INTERVIEW UNDER THE SIXTH AMENDMENT, WITH
RESULTING PREJUDICE.
{¶20} “II. THE STATE’S EVIDENCE THAT SOMMERVILLE COMMITTED
FELONIOUS ASSAULT AND DID NOT ACT IN SELF-DEFENSE OR DEFENSE OF
OTHERS WAS LEGALLY INSUFFICIENT, REQUIRING REVERSAL OF
SOMMERVILLE’S CONVICTION.
{¶21} “III. SOMMERVILLE’S CONVICTION SHOULD BE REVERSED BECAUSE
THE EVIDENCE WEIGHED MANIFESTLY AGAINST CONVICTING HIM OF
FELONIOUS ASSAULT.”
I.
{¶22} In his first assignment of error, Appellant argues that he received ineffective
assistance of counsel at trial. We disagree.
{¶23} A properly licensed attorney is presumed competent. State v. Hamblin, 37
Ohio St.3d 153, 524 N.E.2d 476 (1988). Therefore, in order to prevail on a claim of
ineffective assistance of counsel, a defendant must demonstrate: (1) deficient
performance by counsel, i.e., that counsel's performance fell below an objective standard
Delaware County, Case No. 21 CAA 11 0059 7
of reasonable representation, and (2) that counsel's errors prejudiced the defendant, i.e.,
a reasonable probability that but for counsel's errors, the result of the trial would have
been different. Strickland v. Washington, 466 U.S. 668, 687–688, 694, 104 S.Ct. 2052,
80 L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989),
paragraphs two and three of the syllabus. “Reasonable probability” is “probability
sufficient to undermine confidence in the outcome.” Strickland at 694. In other words,
Appellant must show counsel's conduct so undermined the proper functioning of the
adversarial process that the trial cannot be relied upon as having produced a just result.
Id.{¶24} Appellant argues that his counsel was ineffective in failing to file a motion to
suppress the statements he made in his interview to police under the Sixth Amendment.
Appellant argues that because he was already under arrest at the time of the interview,
he was guaranteed the right to legal counsel. Appellant further argues that his right to
counsel attached because legal counsel was appointed while his interview with the police
was taking place.
{¶25} Initially, we note that a trial counsel's failure to file a suppression motion does
not per se constitute ineffective assistance of counsel. State v. Madrigal, 87 Ohio St.3d
378, 389, 721 N.E.2d 52 (2000). Counsel can only be found ineffective for failing to file
a motion to suppress if, based on the record, the motion would have been granted. State
v. Lavelle, 5th Dist. No. 07 CA 130, 2008-Ohio-3119, 2008 WL 2571700, at ¶ 47; State
v. Cheatam, 5th Dist. No. 06-CA-88, 2007-Ohio-3009, 2007 WL 1731619, at ¶ 86.
Delaware County, Case No. 21 CAA 11 0059 8
{¶26} Here, upon review of the record, we find that Appellant had been read his
Miranda warnings and acknowledged and waived those rights prior to speaking with
Detective Federer.
{¶27} In Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966),
the United States Supreme Court outlined procedural safeguards needed for securing
the privilege against self-incrimination guaranteed by the Fifth Amendment to the United
States Constitution. “Miranda requires police to give a suspect certain prescribed
warnings before custodial interrogation commences and provides that if the warnings
are not given, any statements elicited from the suspect through police interrogation in
that circumstance must be suppressed.” State v. Petitjean, 140 Ohio App.3d 517, 523,
748 N.E.2d 133 (2d Dist.2000). “If a suspect provides responses while in custody without
having first been informed of his or her Miranda rights, the responses may not be
admitted at trial as evidence of guilt.” Cleveland v. Oles, 152 Ohio St. 3d 1, 2017-Ohio-
5834, 92 N.E.3d 810, ¶ 9, citing Miranda at 479, 86 S.Ct. 1602. Furthermore, if, after
Miranda warnings are given, the suspect indicates that he or she wishes to remain silent,
or if the suspect states that he or she wants an attorney, the interrogation must cease.
Maryland v. Shatzer, 559 U.S. 98, 104, 130 S.Ct. 1213, 175 L.Ed.2d 1045 (2010).
{¶28} “When a suspect invokes his right to counsel, police officers must cease
interrogation until counsel is present.” State v. Adams, 144 Ohio St. 3d 429, 2015-Ohio-
3954, 45 N.E.3d 127, ¶ 171, citing Edwards v. Arizona, 451 U.S. 477, 484-485, 101 S.Ct.
1880, 68 L.Ed.2d 378 (1981). “A request for an attorney must be clear and unambiguous
such that a reasonable police officer in the circumstances would understand the
statement to be an invocation of the right to counsel.” State v. Hatten, 186 Ohio App.3d
Delaware County, Case No. 21 CAA 11 0059 9
286, 2010-Ohio-499, 927 N.E.2d 632, ¶ 57 (2d Dist.), citing Davis, 512 U.S. at 459, 114
S.Ct. 2350, 129 L.Ed.2d 362. “If the suspect's statement is not an unambiguous or
unequivocal request for counsel, the officers have no obligation to stop questioning him.”
Davis at 461-62, 114 S.Ct. 2350. Whether a suspect has unequivocally invoked his right
to counsel is an objective inquiry. State v. Cepec, 149 Ohio St.3d 438, 2016-Ohio-8076,
75 N.E.3d 1185, ¶ 37, citing Davis at 459, 114 S.Ct. 2350.
{¶29} Nowhere during his interview with the detective does Appellant state that he
wants an attorney or that he wished to remain silent.
{¶30} Further, neither Appellant nor Detective Federer were aware that an Entry
Appointing Counsel was executed elsewhere while the interview was being conducted,
and trial counsel did not file his Notice of Appearance of Counsel until the following day.
{¶31} We further find that having the interview played at trial, rather than
suppressed, could have been counsel’s trial strategy as it allowed for Appellant to put
forth his self-defense claim without taking the witness stand and being subject to cross-
examination.
{¶32} Based on the foregoing, we do not find that counsel was ineffective in failing
to file a motion to suppress in this matter or that prejudice resulted therefrom.
{¶33} Appellant’s first assignment of error is overruled.
II., III.
{¶34} In his second and third assignments of error, Appellant argues that his
conviction for felonious assault was against the manifest weight and sufficiency of the
evidence. We disagree.
Delaware County, Case No. 21 CAA 11 0059 10
Sufficiency of the Evidence
{¶35} On review for sufficiency, a reviewing court is to examine the evidence at
trial to determine whether such evidence, if believed, would support a conviction. State
v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991). “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.” Jenks at paragraph two of the syllabus, following Jackson v. Virginia, 443 U.S.
307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
{¶36} Appellant herein was charged and convicted of Felonious Assault, pursuant
to R.C. §2903.11(A)(2), which states:
(A) No person shall knowingly do either of the following:
***
(2) Cause or attempt to cause physical harm to another or to another's
unborn by means of a deadly weapon or dangerous ordnance.
{¶37} At trial, the state presented evidence through testimony and video that
Appellant fired a gun at Anthony Truss during an altercation between to the two men.
Self-Defense
{¶38} A defendant claiming self-defense concedes that he had the purpose to
commit the act, but asserts that he was justified in his actions. State v. Davis, 8th Dist.
Cuyahoga No. 109890, 2021-Ohio-2311, 2021 WL 2838407, ¶38. “By its terms, self-
defense presumes intentional, willful use of force to repel force or to escape force.” State
v. Hubbard, 10th Dist. Franklin No. 11AP-945, 2013-Ohio-2735, 2013 WL 3341171, ¶54.
Self-defense is a “confession and avoidance” defense in which appellant admits the
Delaware County, Case No. 21 CAA 11 0059 11
elements of the crime but seeks to prove some additional element that absolves him of
guilt. State v. White, 4th Dist. Ross No. 97 CA 2282, 1998 WL 10226 (Jan. 14, 1998).
{¶39} Under a theory of self-defense, the defendant claims that (1) he was not at
fault in creating the situation giving rise to the affray; (2) he had a bona fide belief that
he was in imminent danger of death or great bodily harm and that his only means of
escape from such danger was in the use of such force; and (3) he did not violate any
duty to retreat or avoid the danger. State v. Robbins, 58 Ohio St.2d 74, 388 N.E.2d 755(1979), paragraph two of the syllabus. If the evidence tends to support that the defendant
acted in self-defense, then the prosecution must prove beyond a reasonable doubt that
the defendant did not act in self-defense. R.C. §2901.05(B)(1). State v. Gatewood, 1st
Dist., 2021-Ohio-3325, 177 N.E.3d 693, ¶ 68. The state need only disprove one of the
elements of self-defense beyond a reasonable doubt at trial to sustain its burden. State
v. Jackson, 22 Ohio St.3d 281, 284, 490 N.E.2d 893 (1986). Accord, State v. Carney,
10th Dist. Franklin No. 19AP-402, 2020-Ohio-2691, 2020 WL 2042924, ¶31; State v.
Staats, 5th Dist. Stark No. 2019CA00181, 2021 WL 1502535, ¶ 28.
{¶40} Here, Appellant argues both that he accidentally discharged the firearm as
he was falling backwards and also that he acted in self-defense of himself and Ms.
Jackson.
{¶41} Appellant, during his interview, made conflicting statements to Det. Federer
as to whether he was in fear. He told the detective that Truss did not threaten him prior
to the time that he pushed Appellant and also stated that the confrontation which led to
him pulling out his gun was not serious. (T. at 450, 489). He explained that “[a]nd that
when the gun went off, I was handing the gun over to my baby girl.” Id. “I wasn’t even
Delaware County, Case No. 21 CAA 11 0059 12
going to shoot”. Id. Appellant also remarked “I remember he hit me first; that’s when I
shot. When I fell, I leaned back and tried to shoot, but it went off. I ain’t really even trying
to shoot; it just went off.” (T. at 354).
{¶42} Ms. Jackson testified that Truss was not angry with her she was not in
danger of death or great bodily harm. (T. at 63-66). She testified that it was Appellant
who began the physical altercation between the two men by pushing Truss. (T. at 65-
66).
{¶43} Here, Appellant does not claim that he was in fear for his life, and nothing
prevented him from fleeing the scene rather than firing his weapon at Truss. Thus, the
trier of fact could find that Appellant used more force than necessary to meet the
perceived threat.
{¶44} The trial court also had before it the video of the event as it happened and
was able to see for itself how the events transpired.
{¶45} Viewing this evidence in a light most favorable to the prosecution, we
conclude that a reasonable person could have found beyond a reasonable doubt that
Appellant did not have a bona fide belief that he was in imminent danger of death or
great bodily harm, that his only means of escape from such danger was in the use of
such force, that Appellant was at fault for creating the circumstances that resulted in the
charge of felonious assault, and/or that Appellant’s use of force was disproportionate to
the perceived danger.
{¶46} Finally, upon careful consideration of the record in its entirety, we find that
there is substantial evidence presented which if believed, proves all the elements of the
crime of felonious assault for which Appellant was convicted
Delaware County, Case No. 21 CAA 11 0059 13
Manifest Weight of the Evidence
{¶47} On review for manifest weight, a reviewing court is to examine the entire
record, weigh the evidence and all reasonable inferences, consider the credibility of
witnesses and determine “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.” State v. Martin, 20 Ohio App.3d 172, 175, 485
N.E.2d 717 (1st Dist.1983). See also, State v. Thompkins, 78 Ohio St.3d 380, 1997-
Ohio-52, 678 N.E.2d 541. The granting of a new trial “should be exercised only in the
exceptional case in which the evidence weighs heavily against the conviction.” Martin at
175.
{¶48} The reviewing court must bear in mind, however, that credibility generally is
an issue for the trier of fact to resolve. State v. Issa, 93 Ohio St.3d 49, 67, 752 N.E.2d
904 (2001); State v. Murphy, 4th Dist. Ross No. 07CA2953, 2008-Ohio-1744, 2008 WL
1061793, ¶ 31. Because the trier of fact sees and hears the witnesses and is particularly
competent to decide whether, and to what extent, to credit the testimony of particular
witnesses, the appellate court must afford substantial deference to its determinations of
credibility. Barberton v. Jenney, 126 Ohio St.3d 5, 2010-Ohio-2420, 929 N.E.2d 1047, ¶
20. In other words, “[w]hen there exist two fairly reasonable views of the evidence or two
conflicting versions of events, neither of which is unbelievable, it is not our province to
choose which one we believe.” State v. Dyke, 7th Dist. Mahoning No. 99 CA 149, 2002-
Ohio-1152, 2002 WL 407847, at ¶ 13, citing State v. Gore, 131 Ohio App.3d 197, 201,
722 N.E.2d 125 (7th Dist. 1999). Thus, an appellate court will leave the issues of weight
and credibility of the evidence to the fact finder, as long as a rational basis exists in the
Delaware County, Case No. 21 CAA 11 0059 14
record for its decision. State v. Picklesimer, 4th Dist. Pickaway No. 11CA9, 2012-Ohio-
1282, 2012 WL 1029466, ¶ 24.
{¶49} An appellate court may not merely substitute its view for that of the trier of
fact, but must find that “ ‘the [trier of fact] clearly lost its way and created such a manifest
miscarriage of justice that the conviction must be reversed and a new trial ordered.’ ”
State v. Thompkins, supra, 78 Ohio St.3d at 387, 678 N.E.2d 541, quoting State v.
Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717, 720–721 (1st Dist. 1983). Accordingly,
reversal on manifest weight grounds is reserved for “the exceptional case in which the
evidence weighs heavily against the conviction.” Id.{¶50} The trial court as the trier of fact herein was free to accept or reject any and
all of the evidence offered by the parties and assess the witness' credibility. “While the
trier of fact may take note of the inconsistencies and resolve or discount them accordingly
* * * such inconsistencies do not render defendant's conviction against the manifest
weight or sufficiency of the evidence.” State v. Craig, 10th Dist. Franklin No. 99AP–739,
1999 WL 29752 (Mar 23, 2000) citing State v. Nivens, 10th Dist. Franklin No. 95APA09–
1236, 1996 WL 284714 (May 28, 1996). Indeed, the trier of fact need not believe all of a
witness’ testimony, but may accept only portions of it as true. State v. Raver, 10th Dist.
Franklin No. 02AP-604, 2003-Ohio-958, 2003 WL 723225, ¶ 21, citing State v. Antill, 176
Ohio St. 61, 67, 197 N.E.2d 548 (1964); State v. Burke, 10th Dist. Franklin No. 02AP-
1238, 2003-Ohio-2889, 2003 WL 21291042, citing State v. Caldwell, 79 Ohio App.3d
667, 607 N.E.2d 1096 (4th Dist. 1992).
{¶51} The trial court heard the witnesses subjected to cross-examination. The
court heard Appellant’s admissions made during his interview with the police. The court
Delaware County, Case No. 21 CAA 11 0059 15
saw the video of the incident as it occurred in real time. The court heard Appellant’s
attorney's arguments and explanations about the evidence and his actions. Thus, a
rational basis exists in the record for the trial court’s decision.
{¶52} Upon review, we find that this is not an “ ‘exceptional case in which the
evidence weighs heavily against the conviction.’ ” State v. Thompkins, 78 Ohio St.3d
380, 386–387, 678 N.E.2d 541 (1997), superseded by constitutional amendment on
other grounds as stated by State v. Smith, 80 Ohio St.3d 89, 684 N.E.2d 668, quoting
Martin, 20 Ohio App.3d at 175, 485 N.E.2d 717. Based upon the foregoing and the entire
record in this matter we find Appellant’s conviction is not against the sufficiency or the
manifest weight of the evidence. To the contrary, the trial court appears to have fairly
and impartially decided the matters before it. The court heard the witnesses, evaluated
the evidence, and was convinced of Appellant’s guilt. The court rejected Appellant’s
claim that he acted in self-defense. The court neither lost its way nor created a
miscarriage of justice in convicting Appellant of the offense of felonious assault.
Delaware County, Case No. 21 CAA 11 0059 16
{¶53} Appellant’s second and third assignments of error are overruled.
{¶54} For the forgoing reasons, the judgment of the Court of Common Pleas,
Delaware County, Ohio, is affirmed.
By: Wise, J.
Hoffman, P. J., and
Baldwin, J., concur.
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