State v. Fulford , 2021 Ohio 356 ( 2021 )

[Cite as State v. Fulford, 2021-Ohio-356.]
COURT OF APPEALS
MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. Craig R. Baldwin, P. J.
Plaintiff-Appellee Hon. William B. Hoffman, J.
Hon. John W. Wise, J.
-vs-
Case No. CT2020-0021
DAVRION K. FULFORD, JR.
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common
Pleas, Case No. CR2019-0675
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: February 9, 2021
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
D. MICHAEL HADDOX JAMES ANZELMO
PROSECUTING ATTORNEY ANZELMO LAW
TAYLOR P. BENNINGTON 446 Howland Drive
ASSISTANT PROSECUTOR Gahanna, Ohio 43230
27 North Fifth Street, P.O. Box 189
Zanesville, Ohio 43702-0189
Muskingum County, Case No. CT2020-0021 2
Wise, J.
{¶1} Defendant-Appellant Davrion K. Fulford, Jr. appeals his conviction and
sentence entered in the Muskingum County Court of Common Pleas on four counts of
discharging a firearm at or into a habitation, following a guilty plea.
{¶2} Plaintiff-Appellee is the State of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶3} The relevant facts and procedural history are as follows:
Incident #1
{¶4} On December 10, 2018, at 2:30 a.m., law enforcement received a call that
there were shots fired at 728 Indiana Street, which is a known drug house in Zanesville.
Officers were advised that there were four (4) gunshots at the house. Upon their arrival,
officers located four (4) empty shell casings in the middle of Indiana Street. One of the
rounds went into the front door at 722 Indiana Street, which was occupied by victim Rich
Archer. Three of the rounds when into 728 Indiana Street, which was occupied by Jennifer
Brozi, Felicia Mercer, Carolyn Faye, Chris Cooper, and Brett Alexander.
{¶5} Individuals were interviewed from each of these addresses and a
description of a small SUV was obtained. Surveillance video was collected which showed
a small SUV turning off of Pine Street, heading southbound onto Indiana Street at the
time of the shooting.
{¶6} Later, another shooting occurred on Race Street, also in Zanesville, which
involved a vehicle matching the same small SUV description.
Muskingum County, Case No. CT2020-0021 3
Incident #2:
{¶7} On January 3, 2019, law enforcement received a call regarding shots fired
in the area of Race Street in Zanesville. Officers arrived on scene and located shell
casings and glass in the roadway.
{¶8} An hour later, officers received a call from Shane Donovan, who stated his
brother's car had been shot. Shane's brother is Justin Donovan. Officers then responded
to that scene. After a thorough investigation, it was found that Appellant and another
individual had shot up Justin Donovan's vehicle on Race Street over the issue of obtaining
drugs. Justin was inside the vehicle as it was being shot.
Incident #3:
{¶9} On January 19, 2019, around 6:00 a.m., the Morgan County Sheriff’s Office
received a call in reference to a home invasion in Morgan County. The caller advised that
she was tied up and held against her will by three (3) males. At least two (2) shots were
fired during the incident. The caller also stated that the men had taken a hostage from the
residence. The hostage was identified as Tammy Jenkins. The three men were identified
as Dashawn Kepler, Jamal Mayle, and Appellant.
{¶10} Later that afternoon, officers with the Zanesville Police Department located
Tammy Jenkins at a residence off of Spangler Avenue in Zanesville. Jenkins told the
police that Appellant had taken her against her will and had taken her to a hotel in the
downtown Zanesville area. Officers searched hotel parking lots and located a vehicle
matching the description given. The vehicle came back as belonging to Erin Evans, who
is known to be Appellant's girlfriend. Evans had rented Room 201 at the hotel.
Muskingum County, Case No. CT2020-0021 4
{¶11} As officers were surveilling the room, Evans exited the room and was taken
into custody. She gave permission for officers to enter the hotel room. As the SRT team
was assembling, Appellant was found walking the hallway of the hotel and was taken into
custody. Kepler was also located inside the hotel room and was detained for Morgan
County. While he was being taken into custody, two (2) .22 caliber bullets were found
lying on the floor next to the couch on which he had been sleeping. Also on that couch
with Kepler was Evans' six (6) month old daughter. Kepler advised the police that he had
marijuana on his person.
{¶12} Items found inside the room included a fanny pack with $2,311.00 inside, a
lockbox that smelled like marijuana, .22 caliber bullets, and a purse containing 20.91
grams of heroin, 6.21 grams of cocaine, and $414.96. A set of keys was also located that
opened a safe. Inside the safe was a large amount of marijuana and three (3) handguns.
{¶13} Appellant Davrion Fulford, Jr. and Dashawn Kepler were arrested. The
vehicle they were driving at the time of their arrest was a Honda CR-V, a small SUV. A
comparison of this vehicle to the vehicle in the surveillance video from the 728 Indiana
shooting appeared to be a match. A .22 caliber handgun was also recovered.
{¶14} Kepler was interviewed and advised that he, Appellant, and a third male he
did not know went to Morgan County to rob people. Kepler stated he drove to a house in
Morgan County, and Appellant and the third male exited the vehicle and robbed a
residence. Kepler stated he was just the getaway driver. He stated they then robbed a
total of three (3) houses in Morgan County. At the last house, they picked up Tammy
Jenkins. He said that Jenkins told the men about a place in The Plains in Athens County
that they could rob. It was at this time that they drove to The Plains, and all the individuals
Muskingum County, Case No. CT2020-0021 5
robbed that house for a large bag of marijuana. They then drove back to Zanesville, where
they dropped Jenkins off at a residence.
{¶15} Kepler was also interviewed regarding the 728 Indiana Street shooting. He
indicated that he was not involved in that shooting, but that immediately after the shooting,
Appellant showed up in a red Honda CR-V and told Kepler that he had just shot up a
place on Indiana Street. Appellant told Kepler that it was his turf and nobody was going
to be trapping on his turf.
{¶16} Appellant was also interviewed. During his interview he stated that he had
been with Kepler during the Morgan County incident. He claimed he did not rob or kidnap
anyone, but that Jenkins had advised them about a house in The Plains. Appellant stated
they drove to The Plains and robbed the people, taking marijuana and two guns from the
house. Appellant then indicated that he had a gun on him while in Morgan County and at
The Plains. He also stated the heroin found inside the purse at the hotel room was his.
{¶17} Appellant was then asked about the shooting on Race Street. He advised
he was also involved in that shooting. Appellant also admitted to being involved in the
shooting at 728 Indiana Street. Appellant stated Kepler was driving the vehicle at the time
of the shooting. He stated it involved four (4) shots being fired over the roadway from the
vehicle, and that the shots were fired into houses. Appellant stated he was the shooter in
this incident, and that he shot Brett Alexander's house because the male living there had
previously shot at him.
{¶18} On November 14, 2019, Appellant was indicted on: Four (4) counts of
Discharging a firearm at/into a habitation, with drive-by specifications, and with firearm
specifications, felonies of the second degree, in violation of R.C. §2923.16(A)(1) (Counts
Muskingum County, Case No. CT2020-0021 6
1-4); five (5) counts of Discharging a firearm over a roadway with drive-by specifications,
and with firearm specifications, felonies of the third degree, in violation of R.C.
§2923.162(A)(3) (Counts 5-8, 11); two (2) counts of Having a weapon while under
disability, felonies of the third degree, in violation of R.C. §2923.13(A)(3) (Counts 9-10);
two (2) counts of Having a weapon while under disability, with forfeiture specifications,
felonies of the third degree, in violation of R.C. §2923.13(A)(3) (Counts 12-13); one count
of Possession of drugs (marijuana), with a firearm specification, with a forfeiture
specification a felony of the fifth degree, in violation of R.C. §2925.11(A) (Count 14); and
one count of Possession of drugs (heroin), with a firearm specification and with a forfeiture
specification a felony of the second degree, in violation of R.C. §2925.11(A) (Count 15).
{¶19} On February 24, 2020, Appellant pled guilty to the following:
Counts 1-4: Discharging a firearm at/into a habitation, with drive-by
specifications, and with firearm specifications, felonies of the second degree, in
violation of R.C. §2923.161(A)(1)
Counts 5-8: Discharging a firearm over a roadway with drive-by
specifications, and with firearm specifications, felonies of the third degree, in
violation of R.C. 2923.162(A)(3)
Count 9: Having a weapon while under disability, a felony of the third
degree, in violation of R.C. §2923.13(A)(3)
Count 11: Discharging a firearm over a roadway with a firearm specification,
AS AMENDED, a felony of the third degree, in violation of R.C. §2923.162(A)(3)
Count 12: Having a weapon while under disability, with a forfeiture
specification, a felony of the third degree, in violation of R.C. §2923.13(A)(3)
Muskingum County, Case No. CT2020-0021 7
Count 15: Possession of drugs (heroin), with a firearm specification and with
a forfeiture specification a felony of the second degree, in violation of R.C.
§2925.11(A)
{¶20} Appellant then waived a presentence investigation and a sentencing
hearing was held. The parties stipulated that Counts 1-8 would merge for the purposes
of sentencing. The State elected to sentence under Count 1. The parties further stipulated
that the specifications for Counts 1-8 would also merge, resulting in a single specification.
The State elected the five (5) year drive-by specification.
{¶21} Appellant then received the following sentence:
{¶22} • Count 1: six (6) years
{¶23} • Specification: five (5) years
{¶24} • Count 9: twenty-four (24) months
{¶25} • Count 11: twelve (12) months
{¶26} • Specification: three (3) years, mandatory consecutive
{¶27} • Count 12: twenty-four (24) months
{¶28} • Count 15: five (5) years
{¶29} The trial court found the periods of incarceration imposed for Counts 9 and
12 would be served concurrently with all other counts; and the period of incarceration
imposed for Counts 1, 11, and 15 would be served consecutively with each other, for an
aggregate sentence of twenty (20) years in prison, with thirteen (13) years being a period
of mandatory incarceration.
{¶30} Appellant now appeals, raising the following assignments of error for review:
Muskingum County, Case No. CT2020-0021 8
ASSIGNMENTS OF ERROR
{¶31} “I. THE TRIAL COURT PLAINLY ERRED BY FAILING TO MERGE ALL OF
FULFORD'S OFFENSES.
{¶32} “II. FULFORD RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL, IN
VIOLATION OF THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION
AND SECTION 10, ARTICLE I OF THE OHIO CONSTITUTION.
{¶33} “III. THE TRIAL COURT UNLAWFULLY ORDERED FULFORD TO SERVE
CONSECUTIVE SENTENCES, IN VIOLATION OF HIS RIGHTS TO DUE PROCESS,
GUARANTEED BY SECTION 10, ARTICLE I OF THE OHIO CONSTITUTION AND THE
FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES
CONSTITUTION.”
I.
{¶34} In his first assignment of error, Appellant argues the trial court erred by
failing to merge all of Appellant’s offenses. We disagree.
{¶35} A review of the record reflects that Appellant and the state of Ohio entered
into a negotiated plea agreement in this case. At sentencing, the parties stipulated that
counts one through eight merged for purposes of sentencing. (T. at 6). The state elected
count one for sentencing. Id. The parties also stipulated that the specifications for counts
one through eight would also merge with each other, resulting in just one specification.
The state elected the five (5) year drive-by specification for sentencing. Id. The state
agreed to dismiss counts ten, thirteen, and fourteen, and the drive-by specification only
as contained in count eleven. The parties further stipulated, on the record, that with the
exception of counts one through eight, the specifications and the remaining counts do not
Muskingum County, Case No. CT2020-0021 9
merge. (T. at 7). During the plea colloquy, the trial court specifically asked Appellant if he
understood that when there are multiple offenses that do not merge, the court could order
the sentences be served consecutively, to which Appellant stated that he did understand.
(T. at 11).
{¶36} By failing to seek the merger of these convictions as allied offenses of
similar import in the trial court, Appellant forfeited all but plain error. State v. Rogers, 143
Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, ¶ 3. To prevail on a claim of plain error,
Appellant must “demonstrate a reasonable probability that the convictions are for allied
offenses of similar import committed with the same conduct and without a separate
animus.” Id.{¶37} In State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, the
Ohio Supreme Court set forth the test to determine if two offenses are allied offenses of
similar import:
Rather than compare the elements of two offenses to determine
whether they are allied offenses of similar import, the analysis must focus
on the defendant's conduct to determine whether one or more convictions
may result, because an offense may be committed in a variety of ways and
the offenses committed may have different import. No bright-line rule can
govern every situation.
As a practical matter, when determining whether offenses are allied
offenses of similar import within the meaning of R.C. 2941.25, courts must
ask three questions when the defendant's conduct supports multiple
offenses: (1) Were the offenses dissimilar in import or significance? (2)
Muskingum County, Case No. CT2020-0021 10
Were they committed separately? and, (3) Were they committed with
separate animus or motivation? An affirmative answer to any of the above
will permit separate convictions. The conduct, the animus, and the import
must all be considered.
{¶38} Id. at ¶ 30–31.
{¶39} Appellant herein asserts that he committed all of the offenses with the same
animus and under a common scheme of activity. Upon review, we find said argument to
be unpersuasive.
{¶40} Appellant herein was sentenced on Counts 1, 9, 11, 12 and 15. Appellant
committed Count 9 (having weapons while under disability) on December 10, 2018, when
he knowingly carried a firearm that day. He then separately committed Count 1
(discharging a firearm at/into a habitation) when he decided to travel to 722 Indiana Street
on December 10, 2018, and fire a weapon into the residence located at that address. We
find these offenses were committed with a separate animus and motivation and caused
separate, identifiable harms. We therefore find Counts 1 and 9 do not merge.
{¶41} Count 11 (discharging a firearm over a roadway) was committed on January
3, 2019, when Appellant fired a weapon into Justin Donovan’s vehicle while Mr. Donovan
was in said vehicle. This offense occurred on a separate day, at a different location, and
with a different motivation than Counts 1 and 9, and therefore does not merge with those
offenses.
{¶42} Count 12 (having weapons while under disability) was committed on
January 19, 2019, when he knowingly carried a firearm on that day. Count 15 (possession
of drugs (heroin)) was committed separately on January 19, 2019, when he possessed
Muskingum County, Case No. CT2020-0021 11
heroin in the hotel room. These offenses were committed separately, caused separate,
identifiable harms and were committed with a separate animus or motivation. We
therefore find that these offenses do not merge with each other or with Counts 1, 9, or 11.
{¶43} Appellant’s first assignment of error is overruled.
II.
{¶44} In his second assignment of error, Appellant argues he was denied the
effective assistance of counsel. We disagree.
{¶45} To succeed on a claim of ineffectiveness, a defendant must satisfy a two-
prong test. Initially, a defendant must show that trial counsel acted incompetently. See,
Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984). In assessing such claims,
“a court must indulge a strong presumption that counsel's conduct falls within the wide
range of reasonable professional assistance; that is, the defendant must overcome the
presumption that, under the circumstances, the challenged action ‘might be considered
sound trial strategy.’ ” Id. at 689, citing Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct.
158 (1955).
{¶46} “There are countless ways to provide effective assistance in any given case.
Even the best criminal defense attorneys would not defend a particular client in the same
way.” Strickland, 466 U.S. at 689. The question is whether counsel acted “outside the
wide range of professionally competent assistance.” Id. at 690.
{¶47} Even if a defendant shows that counsel was incompetent, the defendant
must then satisfy the second prong of the Strickland test. Under this “actual prejudice”
prong, the defendant must show that “there is a reasonable probability that, but for
counsel's unprofessional errors, the result of the proceeding would have been different.”
Muskingum County, Case No. CT2020-0021 12
Strickland, 466 U.S. at 694. A court may dispose of a case by considering the second
prong first, if that would facilitate disposal of the case. State v. Bradley, 42 Ohio St.3d
136, 143, 538 N.E.2d 373 (1989), citing Strickland, 466 U.S. at 697. We note that a
properly licensed attorney is presumed competent. See Vaughn v. Maxwell, 2 Ohio St.2d
299, 209 N.E.2d 164 (1965); State v. Calhoun, 86 Ohio St.3d 279, 714 N.E.2d 905 (1999).
{¶48} Further, reviewing courts must refrain from second-guessing strategic
decisions and presume that counsel's performance falls within the wide range of
reasonable legal assistance. State v. Merry, 5th Dist. Stark No. 2011CA00203, 2012-
Ohio-2910, ¶ 42, citing State v. Carter, 72 Ohio St.3d 545, 558, 651 N.E.2d 965 (1995).
Debatable trial tactics do not establish ineffective assistance of counsel. State v. Wilson,
2018-Ohio-396, 106 N.E.3d 806, ¶ 36 (5th Dist.), citing State v. Hoffner, 102 Ohio St.3d
358, 365, 2004-Ohio-3430, 811 N.E.2d 48 (2004), ¶ 45.
{¶49} In the instant case, having found no error in the trial court’s decision to not
merge all of Appellant’s offenses, we find no ineffective assistance in trial counsel's failure
to object to same.
{¶50} Appellant’s second assignment of error is overruled.
III.
{¶51} In his third assignment of error, Appellant argues the trial court erred in
imposing consecutive sentences. We disagree.
{¶52} We review felony sentences using the standard of review set forth in R.C.
2953.08. State v. Marcum, 146 Ohio St.3d 516, 2016–Ohio–1002, 59 N.E.3d 1231, ¶ 22;
State v. Howell, 5th Dist. Stark No. 2015CA00004, 2015-Ohio-4049, ¶ 31
Muskingum County, Case No. CT2020-0021 13
{¶53} In State v. Gwynne, a plurality of the Supreme Court of Ohio held that an
appellate court may only review individual felony sentences under R.C. §2929.11 and
R.C. §2929.12, while R.C. §2953.08(G)(2) is the exclusive means of appellate review of
consecutive felony sentences. 158 Ohio St.3d 279, 2019-Ohio-4761, ¶16-18; State v.
Anthony, 11th Dist. Lake No. 2019-L-045, 2019-Ohio-5410, ¶60.
{¶54} R.C. §2953.08(G)(2) provides we may either increase, reduce, modify, or
vacate a sentence and remand for resentencing where we clearly and convincingly find
that either the record does not support the sentencing court’s findings under R.C.
§2929.13(B) or (D), §2929.14(B)(2)(e) or (C)(4), or §2929.20(l), or the sentence is
otherwise contrary to law. See, also, State v. Bonnell, 140 Ohio St.3d 209, 2014–Ohio–
3177, 16 N.E.2d 659, ¶ 28; State v. Gwynne, ¶16.
{¶55} Clear and convincing evidence is that evidence “which will provide in the
mind of the trier of facts a firm belief or conviction as to the facts sought to be established.”
Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118(1954), paragraph three of the
syllabus. See also, In re Adoption of Holcomb, 18 Ohio St.3d 361 (1985). “Where the
degree of proof required to sustain an issue must be clear and convincing, a reviewing
court will examine the record to determine whether the trier of facts had sufficient
evidence before it to satisfy the requisite degree of proof.” Cross, 161 Ohio St. at 477 120
N.E.2d 118.
{¶56} As the Ohio Supreme Court noted in Gwynne,
Because R.C. 2953.08(G)(2)(a) specifically mentions a sentencing
judge’s findings made under R.C. 2929.14(C)(4) as falling within a court of
appeals’ review, the General Assembly plainly intended R.C.
Muskingum County, Case No. CT2020-0021 14
2953.08(G)(2)(a) to be the exclusive means of appellate review of
consecutive sentences. See State v. Vanzandt, 142 Ohio St.3d 223, 2015-
Ohio-236, 28 N.E.3d 1267, ¶ 7 (“We primarily seek to determine legislative
intent from the plain language of a statute”).
While R.C. §2953.08(G)(2)(a) clearly applies to consecutive-
sentencing review, R.C. §2929.11 and §2929.12 both clearly apply only to
individual sentences. 2019-Ohio-4761, ¶¶16-17(emphasis in original).
{¶57} “In order to impose consecutive terms of imprisonment, a trial court is
required to make the findings mandated by R.C. 2929.14(C)(4) at the sentencing hearing
and incorporate its findings into its sentencing entry[.]” State v. Bonnell, 140 Ohio St.3d
209, 2014-Ohio-3177, ¶37. Otherwise, the imposition of consecutive sentences is
contrary to law. See Id. The trial court is not required “to give a talismanic incantation of
the words of the statute, provided that the necessary findings can be found in the record
and are incorporated into the sentencing entry.” Id.{¶58} Appellant herein concedes that the trial judge in his case made the requisite
findings to impose consecutive sentences under R.C. §2929.14(C)(4). Appellant argues
only that the imposition of consecutive sentences was not supported by the record.
{¶59} According to the Ohio Supreme Court, “the record must contain a basis
upon which a reviewing court can determine that the trial court made the findings required
by R.C. 2929.14(C)(4) before it imposed consecutive sentences.” Bonnell, ¶28. “[A]s long
as the reviewing court can discern that the trial court engaged in the correct analysis and
can determine that the record contains evidence to support the findings, consecutive
sentences should be upheld.” Id. at ¶29.
Muskingum County, Case No. CT2020-0021 15
{¶60} In the case at bar, the trial court considered the number of offenses
committed by Appellant and the serious nature of the offenses, finding “[a]s evidenced by
the stuff I just stated; by going around and up and down streets firing guns at houses. It’s
pretty serious.” (T. at 37). The trial court also had before it Appellant’s criminal history and
at least one letter from one of the victims. The court commented on the victim’s letter,
stating that Appellant may not realize the effect his actions have on his victims and that
anytime he picks up a gun and shoots it, it is possible that harm could come to someone.
(T. at 35).
{¶61} Upon review, as set forth above, we find the record supports the trial court
findings as required in order to impose consecutive sentences. We find that the trial
court's sentencing on the charges complies with applicable rules and sentencing statutes.
The sentence was within the statutory sentencing range. Further, the record contains
evidence supporting the trial court’s findings under R.C. §2929.14(C)(4). Therefore, we
have no basis for concluding that it is contrary to law.
Muskingum County, Case No. CT2020-0021 16
{¶62} Appellant’s third assignment of error is overruled.
{¶63} Accordingly, the judgment of the Court of Common Pleas, Muskingum
County, Ohio, is affirmed.
By: Wise, J.
Baldwin, P. J., and
Hoffman, J., concur.
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