State v. Hall , 2024 Ohio 2029 ( 2024 )

[Cite as State v. Hall, 2024-Ohio-2029.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
ALLEN COUNTY
STATE OF OHIO,
CASE NO. 1-23-32
PLAINTIFF-APPELLEE,
v.
DEVEON L. HALL, OPINION
DEFENDANT-APPELLANT.
Appeal from Allen County Common Pleas Court
Trial Court No. CR2023 0016
Judgment Affirmed
Date of Decision: May 28, 2024
APPEARANCES:
Chima Ekeh for Appellant
John R. Willamowski, Jr. for Appellee
Case No. 1-23-32
GWIN, J.,
{¶1} Appellant Deveon L Hall appeals from the judgment entry of the Allen
County Court of Common Pleas. Appellee is the State of Ohio.
Facts & Procedural History
{¶2} On February 16, 2023, appellant was charged with one count of
domestic violence, a felony of the fifth degree, in violation of R.C. 2919.25(A) and
(D)(5), one count of abduction, a felony of the third degree, in violation of R.C.
2905.02(A)(2) and (C), with a firearm specification, and one count of felonious
assault, a felony of the second degree, in violation of R.C. 2903.11(A)(2) and
(D)(1)(a), with a firearm specification.
{¶3} The trial court held a jury trial beginning on April 6, 2023.
{¶4} At the time of the incident on January 7, 2023, Angela Roldan was
appellant’s girlfriend. Roldan described how she and appellant got into an argument
on that day because she received a call from her doctor that she tested positive for a
sexually transmitted disease. After the argument, appellant left Roldan’s apartment.
Roldan left her apartment to go to her friend’s house, but left her door unlocked so
appellant could get some items he left in her apartment.
{¶5} Roldan drank some wine at her friend’s house. On her way home, she
was stopped by police on suspicion of OVI. The officers released her, and dropped
her off at her apartment at approximately 5:00 a.m. When the officers dropped her
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off, appellant was at her apartment. Appellant was saying some “offensive words”
to Roldan.
{¶6} Roldan was trying to sleep, but appellant was drinking and watching
television. Roldan got angry, and punched appellant’s television. Appellant then
came behind her and punched her in the eye. Roldan pushed appellant away, but
appellant grabbed her, smacked her face, and pulled her hair. Roldan tried to leave,
but appellant grabbed her, dragged her by her hair, told her to sit down, and told her
she “wasn’t going nowhere.”
{¶7} At that point, appellant went into the closet and got a gun. Appellant
cocked the gun back and put it to Roldan’s head. Roldan stated the gun was
physically touching her head. Appellant was on the phone with his cousin. Roldan
testified appellant stated he was “about to crash out,” “he was gonna do some dumb
shit,” and “he had enough money on his bank account for a funeral.” Roldan stated
appellant had the gun to her head, went back to get his drink, but when she tried to
get up, he would put the gun back to her head. When asked what Roldan thought
appellant meant by “about to crash out,” she stated, “like he was about to shoot me
or something.” Appellant also pointed the gun to her thigh.
{¶8} When appellant’s cousin came over, appellant left the bedroom. Roldan
grabbed the gun from the table and threw it out the window. Appellant still would
not let her leave, and kept shoving her down when she attempted to leave.
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Appellant’s cousin left, saying he wanted nothing to do with the situation. Appellant
told Roldan to lay down in bed. He asked her where the gun was, and she told him
she did not know. At that point, appellant told Roldan the gun was not loaded. He
slid the magazine out of his pocket and showed it to her.
{¶9} Appellant placed a chair at the end of the bed and watched Roldan fall
asleep. Approximately two hours later, she woke up and found appellant sleeping
next to her. Roldan found her phone in appellant’s shoe, and texted several people
to come get her. As she was leaving, Roldan grabbed the gun from in front of her
air conditioner window. She called the police from her friend’s home.
{¶10} Officer Blake VanVorce is a police officer with the Lima Police
Department. He received a call about an incident at 531 Browder Road. When he
found Roldan at another apartment in the complex, she pulled a black handgun out
of her purse and handed it to him. VanVorce cleared the gun, making sure there
was no magazine or bullet inside of it. There was no magazine in the firearm and
no bullet in the chamber of the firearm. He then secured the firearm in the trunk of
his cruiser. VanVorce identified Exhibits 4 and 5 as photographs of the firearm he
secured on January 7, 2023. It had been rendered safe at the time he took the
photographs. The photographs show the gun is a Smith & Wesson SW99.
VanVorce also identified Exhibit 3 as the firearm he collected and secured on
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January 7, 2023. Counsel for appellee stated that Exhibit 3, the firearm, had been
“rendered safe with a zip tie through the barrel.”
{¶11} VanVorce testified that appellant would not come out of the apartment
when the police arrived. An officer used a crowbar to pry the door open. Some
officers went into the apartment, but VanVorce heard a yell, and went to assist
another officer who was chasing appellant through the apartment complex. The
other officer attempted to tase appellant, but that did not work. VanVorce tackled
appellant and arrested him.
{¶12} Angela Khrestian works at the Bureau of Criminal Investigation as a
forensic scientist in the DNA section. She conducted an analysis on the firearm in
this case. The DNA profile obtained from a swab of the trigger and trigger guard
was not sufficient for comparison due to the number of contributors. The DNA
swab of the grip showed one major contributor was Roldan. Swabs of the slide and
buttons were not sufficient for comparison due to low levels of DNA. The swab of
the front sight area detected DNA from both Roldan and appellant.
{¶13} Officer Austin Michel works for the City of Lima Police Department.
Michel described how the officers attempted to get appellant to come out of the
apartment. Michel remained in the apartment while officers apprehended appellant.
Michel transported appellant to the police department. When they got to the station,
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it appeared as if appellant had something in his hands. Michel asked appellant to
open his hands. When appellant opened his hands, Michel found a live forty round.
{¶14} Officer Kylie Archer with the Lima Police Department was one of the
last officers to arrive on the scene. She waited outside in case appellant jumped out
the window. Archer observed appellant actually escape out the window, and ran
after him. She attempted to use her taser, but the probes landed in appellant’s jacket.
{¶15} Officer Roger Lybarger went inside the apartment to look for a gun
magazine because Roldan informed the police appellant had the magazine for the
gun inside his pocket. Lybarger located a loaded magazine inside a duffle bag in
the bedroom closet. Lybarger identified the magazine and forty-caliber rounds.
Lybarger took the magazine (Exhibit 18) and placed the magazine into the firearm
(Exhibit 3). The magazine fit into the firearm.
{¶16} The parties agreed to the following stipulation: “both parties do
stipulate that the firearm in State’s Exhibit 3 is capable of expelling or propelling
one or more projectiles by the action of an explosive or combustible propellant.”
Counsel for appellant made a Criminal Rule 29 motion at the conclusion of
appellee’s case. Counsel renewed the motion at the conclusion of the presentation
of the evidence. The trial court overruled the motions.
{¶17} The jury found appellant guilty of domestic violence, felonious
assault, and the firearm specification for the felonious assault charge. The jury
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found appellant not guilty of the abduction charge. The trial court issued a judgment
entry of conviction on April 10, 2023, and set a sentencing hearing for May 19,
2023.
{¶18} The trial court held a sentencing hearing on May 19, 2023. On the
same day, the court entered a judgment entry of sentencing, sentencing appellant as
follows: mandatory 11 months on the domestic violence count; three years
(minimum) to four years (maximum) on the felonious assault count; and three years
mandatory on the firearm specification, to be served prior to and consecutive to the
term imposed for the felonious assault count. The trial court ordered the terms
imposed on the domestic violence and felonious assault counts to be served
concurrently, for a total aggregate term of seven years (minimum) to nine years
(maximum), three years and eleven months of which were mandatory.
{¶19} Appellant appeals the May 19, 2023 judgment entry of the Allen
County Court of Common Pleas and assigns the following as error:
“I. APPELLANT’S CONVICTION FOR FELONIOUS ASSAULT WAS
NOT SUPPORTED BY LEGALLY SUFFICIENT EVIDENCE.
“II. APPELLANT’S CONVICTION FOR FELONIOUS ASSAULT WAS
AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
“III. APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF
COUNSEL.”
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I. & II.
{¶20} In appellant’s first and second assignments of error, he argues his
conviction on the felonious assault count was against the manifest weight and
sufficiency of the evidence.
{¶21} The standard of review for a challenge to the sufficiency of the
evidence is set forth in State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), in
which the Ohio Supreme Court held, “an appellate court’s function when reviewing
the sufficiency of the evidence to support a criminal conviction is to examine the
evidence admitted at trial to determine whether such evidence, if believed, would
convince the average mind of the defendant’s guilt beyond a reasonable doubt. 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.”
{¶22} In determining whether a conviction is against the manifest weight of
the evidence, the court of appeals functions as the “thirteenth juror,” and after
“reviewing the entire record, weighs the evidence and all reasonable inferences,
considers 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 overturned and a new trial ordered.” State v.
Thompkins, 78 Ohio St.3d 380, 678 N.E.2d 541 (1997). Reversing a conviction as
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being against the manifest weight of the evidence and ordering a new trial should
be reserved for only the “exceptional case in which the evidence weighs heavily
against the conviction.” Id.{¶23} It is well-established, though, that the weight of the evidence and the
credibility of the witnesses are determined by the trier of fact. State v. Yarbrough,
95 Ohio St.3d 227, 2002-Ohio-2126, 767 N.E.2d 216. The jury is free to accept or
reject any and all of the evidence offered by the parties and assess the witness’s
credibility. Id.{¶24} At issue in these assignments of error is Count 3 of the indictment,
felonious assault. Appellant contends his statements to a third party (his cousin)
were not explicit or implicit threats directed at the victim and thus there was not
sufficient evidence to demonstrate an attempt to cause the victim physical harm.
Appellant also argues there was no overt act directed towards causing the victim
physical harm with a firearm and thus his conviction is against the manifest weight
and sufficiency of the evidence.
R.C. 2903.11 provides, in pertinent part, as follows:
(A) No person shall knowingly * * * (2) cause or attempt to cause
physical harm to another or to another’s unborn by means of a deadly
weapon or dangerous ordnance. * * *
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(D)(1)(a) Whoever violates this section is guilty of felonious assault
* * *.
{¶25} Appellant cites to a line of cases including the State v. Brooks case
from the Ohio Supreme Court to argue there is not sufficient evidence that appellant
intended to cause physical harm with a gun because the act of pointing the gun at
the victim, without additional evidence, is insufficient for a felonious assault
conviction. State v. Brooks, 44 Ohio St.3d 185, 542 N.E.2d 636 (1989). However,
subsequent to Brooks, the Ohio Supreme Court held that the additional evidence
needed to uphold a felonious assault charge can include verbal threats as perceived
by a reasonable person under the circumstances, and that the act of pointing a deadly
weapon at another coupled with a threat, which indicates an intention to use such
weapon, is sufficient to convict a defendant of felonious assault. State v. Green, 58
Ohio St.3d 239, 569 N.E.2d 1038 (1991).
{¶26} In this case, Roldan testified that when appellant held the gun to her
head, he stated she “wasn’t going nowhere.” State v. Smiley, 8th Dist. Cuyahoga
No. 97047, 2012-Ohio-1742 (pointing a gun at a victim and instructing them not to
run or move demonstrates intent to cause physical harm); State v. Helms, 7th Dist.
Mahoning No. 08 MA 199, 2012-Ohio-1147 (pointing a weapon at a victim
combined with a general threat is sufficient to establish the necessary intent to
commit felonious assault). Roldan also testified that anytime she attempted to get
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up or leave, appellant grabbed her or dragged her by her hair, told her to sit down,
and pointed the gun at either her head or thigh. Further, Roldan testified that, while
appellant was holding the gun to her head, he was talking to is cousin and stated he
“was gonna do some dumb shit” and “he had enough money on his bank account
for a funeral.” This evidence demonstrates appellant pointed the deadly weapon at
the victim and there was a threat that indicated the intent to use such a weapon.
{¶27} Appellant also contends he took no overt act towards causing the
victim physical harm with a firearm because the gun was unloaded. However,
Roldan’s testimony is that appellant did not tell her the gun was unloaded until after
he held the gun to her head and threatened her. Further, Roldan testified appellant
had the magazine and bullets in his pocket. The jury, as the trier of fact, was free to
accept or reject any or all of the evidence offered by the parties and assess the
witness’s credibility. State v. Johnson, 5th Dist. Stark No. 2014CA00189, 2015-
Ohio-3113, citing State v. Nivens, 10th Dist. Franklin No. 95AP09-1236, 1996 WL
284714 (May 28, 1996). The Ohio Supreme Court has held that pointing an
unloaded firearm at a victim, even if the offender does not pull the trigger and is
aware the weapon is unloaded, is sufficient to sustain a felonious assault with a
deadly weapon conviction pursuant to R.C. 2903.11(A)(1). State v. Tate, 54 Ohio
St.2d 444, 377 N.E.2d 778 (1978).
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{¶28} Finally, appellant contends his conviction for felonious assault is
against the manifest weight and sufficiency of the evidence because there was no
evidence the firearm was operable. We first note that counsel for appellant
stipulated to the operability of the firearm. As to appellant’s argument that when
the gun was entered into evidence it was zip-tied and thus inoperable, both counsel
for appellee and Officer VanVorce specifically testified that the zip-tie was placed
through the barrel of the gun to render the gun safe to be entered into evidence at
trial.
{¶29} When viewed in a light most favorable to appellee, we find appellant’s
act of pointing the gun at the victim’s head, coupled with the threats of she “wasn’t
going nowhere,” he was “about to crash out,” and “he had enough money on his
bank account for a funeral” constitutes sufficient evidence to convict appellant of
felonious assault.
{¶30} Having reviewed the entire record, weighing the evidence and all
reasonable inferences and making the considerations set forth above, we do not find
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.
{¶31} The jury verdict finding appellant guilty of felonious assault was not
against the manifest weight or sufficiency of the evidence. Appellant’s first and
second assignments of error are overruled.
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III.
{¶32} In his third assignment of error, appellant contends he was denied
effective assistance of counsel because trial counsel stipulated the firearm in State’s
Exhibit 3 was capable of expelling or propelling one or more projectiles by the
action of an explosive or combustible propellant.
{¶33} “Under Ohio law, ‘a properly licensed attorney is presumed to carry
out his duties in a competent manner.’” State v. Gee, 3rd Dist. Putnam No. 12-92-
9, 1993 WL 270995 (July 22, 1993). For this reason, the appellant “has the burden
of proving that he or she was denied the right to effective assistance of counsel.”
State v. Cartlidge, 3rd Dist. Seneca No. 13-19-44, 2020-Ohio-3615. “In order to
prove an ineffective assistance of counsel claim, the appellant must carry the burden
of establishing (1) that his or her counsel’s performance was deficient and (2) that
this deficient performance prejudiced the defendant.” Strickland v. Washington,
466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
{¶34} In order to establish deficient performance, appellant must
demonstrate that trial “counsel made errors so serious that counsel was not
functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.”
State v. Howton, 3rd Dist. Allen No. 1-16-35, 2017-Ohio-4349, quoting Strickland
v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). “[D]ebatable
trial tactics do not establish ineffective assistance of counsel.” State v. Queen, 3rd
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Dist. Logan No. 8-19-41, 2020-Ohio-618, quoting State v. Conway, 109 Ohio St.3d
412, 2006-Ohio-2815, 848 N.E.2d 810. Further, “[t]actical or strategic trial
decisions, even if unsuccessful, do not generally constitute ineffective assistance.”
State v. Harrison, 3rd Dist. Logan No. 8-14-16, 2015-Ohio-1419.
{¶35} A trial attorney is not required to “raise meritless issues or even all
arguably meritorious issues.” State v. Mayse, 3rd Dist. Marion No. 9-16-50, 2017-
Ohio-1483. Thus, as a general matter, “[d]efense counsel’s decision to stipulate to
evidence in a case is a tactical decision.” State v. Townsend, 9th Dist. Summit No.
23397, 2007-Ohio-4421. “Moreover, counsel is not deficient by stipulating to facts
for which there is ample evidence, or to evidence that is ‘unassailable.’” State v.
Mackey, 12th Dist. Warren No. CA99-06-065, 2000 WL 190033 (Feb. 14, 2000).
{¶36} “In order to establish prejudice, ‘the defendant must show a reasonable
probability that, but for counsel’s errors, the result of the proceeding would have
been different.’” State v. Berry, 3rd Dist. Union No. 14-20-05, 2021-Ohio-1132,
quoting State v. Bibbs, 3rd Dist. Hancock No. 5-16-11, 2016-Ohio-8396. “If the
appellant does not establish one of these two prongs, the appellate court does not
need to consider the facts of the case under the other prong of the test.” State v.
Gear, 3rd Dist. Van Wert No. 15-22-03, 2023-Ohio-1246.
{¶37} Appellant argues his trial counsel was ineffective in stipulating to the
operability of the firearm because there was no direct evidence establishing the gun
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appellant held to Roldan’s head was operable, and circumstantial evidence of
operability was speculative.
{¶38} The term “firearm” is defined as “any deadly weapon capable of
expelling or propelling one or more projectiles by the action of an explosive or
combustible propellant.” R.C. 2923.11(B)(1). That term “includes an unloaded
firearm, and any firearm that is inoperable but that can be readily be rendered
operable.” Id.{¶39} As to appellant’s argument regarding the lack of direct evidence of
operability of the firearm, circumstantial evidence may be used to “prove that the
firearm existed and that it was operable at the time of the offense.” State v.
Thompkins, 78 Ohio St.3d 380, 678 N.E.2d 541 (1997); State v. Elliott, 3rd Dist.
Logan No. 8-21-35, 2022-Ohio-3778; State v. Knight, 2nd Dist. Greene No. 2003
CA 14, 2004-Ohio-1941 (operability may be inferred from the facts and
circumstances); State v. Pope, 1st Dist. Hamilton No. C-180587, 2019-Ohio-3599(operability may be established by circumstantial evidence). Accordingly, the State
was not required to provide direct evidence of operability.
{¶40} The State may establish that a firearm was operable or capable of being
readilty rendered operable “by the testimony of lay witnesses who were in a position
to observe the instrument and circumstances surrounding the crime.” In re C.M.,
3rd Dist. Allen No. 1-21-31, 2022-Ohio-240. Roldan testified the gun was
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physically touching her head multiple times. Officer VanVorce testified he obtained
the gun from Roldan at the scene, cleared the gun, and secured the gun in the trunk
of his cruiser. He identified the gun during trial. Officer Michel stated appellant
had a live forty round in his hand at the police station. Officer Lybarger testified he
found a loaded magazine in the bedroom closet. Lybarger demonstrated at trial that
the magazine fit into the gun VanVorce identified. This testimony demonstrated the
gun was operable or could readily have been rendered operable at the time of the
offense.
{¶41} Further, in determining whether a firearm is operable, the trier of fact
may “rely upon * * * the representations and actions of the individual exercising
control over the firearm,” including “explicit or implicit threats made by the person
in control of the firearm.” State v. Elliott, 3rd Dist. Logan No. 8-21-35, 2022-Ohio-
3779. “Where an individual brandishes a gun and implicitly but not expressly
threatens to discharge the firearm at the time of the offense, the threat can be
sufficient to satisfy the state’s burden of proving that the firearm was operable or
capable of being readily rendered operable.” Id., citing Thomkins, 78 Ohio St.3d at
384. This Court has previously held that the act of holding a gun to the victim’s
head is evidence of operability. State v. Elliott, 3rd Dist. Logan No. 8-21-35, 2022-
Ohio-3779. Here, appellant held the gun to the victim’s head multiple times, and
stated he was “about to crash out” and had enough money in his bank account for a
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funeral. Appellant was acting in a manner that suggested the gun was operable at
the time.
{¶42} In his argument, appellant also cites the testimony during trial that the
gun was not operable due to a zip-tie through the barrel of the gun. However, both
counsel for appellee and Office VanVorce specifically testified that the zip-tie was
placed through the barrel of the gun to render the gun safe for trial.
{¶43} Given this context, we conclude the decision to make the stipulation
falls squarely within the realm of debatable trial tactics and strategies. This decision
does not constitute deficient performance. Appellant has failed to carry the burden
of establishing an ineffective assistance of counsel claim. Appellant’s third
assignment of error is overruled.
{¶44} Based on the foregoing, appellant’s assignments of error are overruled.
The judgment entry of the Allen County Court of Common Pleas is affirmed.
Judgement Affirmed
ZIMMERMAN and MILLER, J.J., concur.
**Judge W. Scott Gwin of the Fifth District Court of Appeals, sitting by
Assignment of the Chief Justice of the Supreme Court of Ohio.
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