State v. Howard , 2012 Ohio 3459 ( 2012 )

[Cite as State v. Howard, 2012-Ohio-3459.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 97695
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
ANDRE HOWARD, JR.
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-554036
BEFORE: S. Gallagher, J., Boyle, P.J., and E. Gallagher, J.
RELEASED AND JOURNALIZED: August 2, 2012
ATTORNEY FOR APPELLANT
Brooke Deines
Law Offices of Brooke Deines, LLC
P.O. Box 91426
Cleveland, OH 44101
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
By: Sanjeev Bhasker
Assistant Prosecuting Attorney
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, OH 44113
SEAN C. GALLAGHER, J.:
{¶1} Appellant, Andre Howard, Jr., appeals his conviction entered in the
underlying action. For the reasons stated herein, we affirm.
{¶2} Appellant was charged under a multi-count indictment in connection with a
drive-by shooting that occurred on June 13, 2011. He was charged with four counts of
felonious assault and two counts of improperly discharging a weapon into a habitation, all
with one-, three-, and five-year firearm specifications, along with one count of having
weapons while under disability. The state claimed that appellant aided and abetted in the
crimes by being the driver of the vehicle and the principal conspirator.
{¶3} Appellant pled not guilty to the charges, and the case proceeded to a bench
trial where the following evidence was presented: Appellant is the ex-boyfriend of
Madelyn Jenkins. On June 12, 2011, Dorian Jenkins, who is Madelyn’s cousin, called
appellant because she “wanted to smoke,” and she asked appellant to meet her at a house
located at East 141st Street and Shaw Avenue in East Cleveland. When Dorian arrived
at the location, Madelyn was there with her current boyfriend. Madelyn became upset
when Dorian told her that appellant would be arriving. Appellant arrived, driving a
rusted, gray-colored Delta with three passengers. According to Dorian, Madelyn and
appellant engaged in a verbal argument, after which appellant “sped off.”
{¶4} Dorian called Michael Jenkins out of fear of appellant retaliating. Michael
Jenkins is Madelyn’s father. Madelyn and Dorian and several others then went to
Michael Jenkins’s house at East 84th Street and Wade Park Avenue in Cleveland. On
the way, Dorian answered a call from appellant. Dorian testified that appellant asked
where they were heading. She told him a false location, but he responded by stating,
“You are on your way to East 84th.”
{¶5} After Madelyn and Dorian arrived at East 84th Street and informed Michael
Jenkins about the situation, appellant drove his gray Delta down the street. The same
vehicle passed the house four times. The first three times, there were four people in the
vehicle. During one of the trips, appellant stopped the car at a nearby stop sign and
yelled, “I’m coming right back.” The fourth time, the vehicle passed slowly. Appellant
was identified as driving the vehicle with one other person in the car. Two bikes
followed behind the car down the street. Shots were fired, and the car sped off. Dorian
testified the two men on the bikes and the person in the back seat of the gray Delta were
shooting.
{¶6} Madelyn, Dorian, Michael, and William Jenkins were outside when the
shooting occurred, and bullets were shot in their direction. William Jenkins was hit in
the head by a bullet and was taken to the hospital. Although William could not state who
was driving the vehicle, he had seen appellant driving the vehicle earlier that day, and he
told the hospital that appellant was involved in the incident. He also told the police that
someone was shooting from the bushes.
{¶7} Michael Jenkins testified that earlier in the day on June 12, 2011, appellant
drove to his East 84th Street house and they discussed appellant’s abusive relationship
toward Madelyn. Michael testified that appellant was driving the vehicle involved in the
shooting and that gunshots came from the car and the bikes that followed. He testified
that bullets entered two of his neighbors’ houses. Michael also testified that he saw
appellant drive by in his gray Delta the next day and appellant made a gun gesture with
his hand. Michael then called the police. Michael conceded that he initially told the
police the car involved in the shooting was a brown Delta. However, he testified it was
dark out and the car was rusted. When he saw the car the following day, he realized that
it was a rusted, gray car.
{¶8} Delrico Howard is appellant’s cousin. He testified that on the afternoon of
June 13, 2011, appellant picked him up at a bus station. Appellant told Delrico that “a
situation had happened.” The police later pulled them over, and the two were arrested.
{¶9} Appellant testified that he had dated Madelyn for nine months, that their
relationship was based on violence, and that they had only been “broken up” for two
weeks. He admitted that earlier in the day on June 12, 2011, he had driven by the East
84th Street house and spoken to Madelyn’s father. He testified that later he went to meet
Dorian at East 141st Street and Shaw Avenue. He admitted he drove a 1988
gray-colored Delta and that three other males were in his car. He claimed that Dorian
invited him to the East 84th Street house to fight.
{¶10} Appellant admitted driving by the East 84th Street house with three other
males in his car. He denied anyone having a gun or being involved in a shooting. He
stated he only drove by once, that nobody was outside, and that he went to his aunt’s
house and then home. Although he denied witnessing the shooting, he testified that he
had obtained information that two males on bikes were firing guns and that one of the
males was his cousin Delrico Grace. He admitted that he filed an alibi statement
indicating he never went near East 84th Street and that he lied to cover himself. He
denied telling Delrico Howard about a situation happening.
{¶11} William Jenkins’s medical records reflecting a gunshot wound to the head
were admitted into evidence. Photos of bullet holes in the neighboring homes were
introduced, as well as testimony from the neighbors. Nobody saw a gun in appellant’s
hands. Madelyn returned to her mother’s house in Youngstown and was not cooperative
in the investigation. The parties stipulated to appellant’s prior conviction for drug
trafficking.
{¶12} The trial court found appellant guilty of all charges with the corresponding
gun specifications. The court sentenced him to a total aggregate prison term of 12 years,
which included the sentences on all counts running concurrent.
{¶13} Appellant timely filed this appeal. He raises three assignments of error for
our review. Under his first and second assignments of error, appellant claims that his
convictions are against the manifest weight of the evidence and that there was insufficient
evidence to sustain his convictions.
{¶14} When an appellate court reviews a claim of insufficient evidence, “‘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.’” State v. Leonard, 104 Ohio St.3d 54,
2004-Ohio-6235, 818 N.E.2d 229, ¶ 77, quoting State v. Jenks, 61 Ohio St.3d 259, 574
N.E.2d 492 (1991), paragraph two of the syllabus. The weight given to the evidence and
the credibility of the witnesses are primarily for the trier of fact. State v. Tenace, 109
Ohio St.3d 255, 2006-Ohio-2417, 847 N.E.2d 386, ¶ 37. When reviewing a claim
challenging the manifest weight of the evidence, the test is as follows:
The court, reviewing the entire record, weighs the evidence and all
reasonable inferences, considers the credibility of witnesses and determines
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. The discretionary power to grant a new
trial should be exercised only in the exceptional case in which the evidence
weighs heavily against the conviction.
State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997), quoting State v.
Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). A finding that a
conviction was supported by the manifest weight of the evidence necessarily includes a
finding of sufficiency. See Thompkins at 388.
{¶15} Felonious assault is defined by R.C. 2903.11(A) as follows: “(A) No
person shall knowingly do either of the following: (1) Cause serious physical harm to
another * * *; (2) Cause or attempt to cause physical harm to another * * * by means of a
deadly weapon or dangerous ordnance.”
{¶16} Improperly discharging a weapon into a habitation is defined by R.C.
2923.161(A)(1) as follows: “(A) No person, without privilege to do so, shall knowingly
do any of the following: (1) Discharge a firearm at or into an occupied structure that is a
permanent or temporary habitation of any individual[.]”
{¶17} Having weapons while under disability is defined by R.C. 2923.13(A)(3) as
follows: “ (A) Unless relieved from disability * * *, no person shall knowingly acquire,
have, carry, or use any firearm or dangerous ordnance, if * * * (3) The person * * * has
been convicted of any felony offense involving the illegal possession * * * or trafficking
in any drug of abuse[.]”
{¶18} Appellant argues that there was not sufficient evidence to place him at the
scene of the crime or to justify his convictions on all counts. He claims that the
witnesses were inconsistent in their testimony as to where the gunshots came from and as
to the color of the car, that he was not identified in the 911 calls that were made, and that
he testified he was at his aunt’s house watching a ball game on television. He further
claims there was no physical evidence to show that a gun was fired by him or a passenger
from his car.
{¶19} Our review of the record reflects that the testimony of the witnesses was
mostly consistent. Multiple witnesses who were familiar with appellant identified him as
the driver of the vehicle involved in the shooting and described his vehicle as a rusted,
gray-colored Delta. The witnesses testified that the vehicle passed the house several
times; that four persons were in the vehicle; that on the last trip, the car drove slowly with
two persons in the vehicle followed by two persons on bicycles; and that shots came from
the males on the bikes and from the passenger in the vehicle. Four persons were outside
the house in the line of fire. One person was struck by a bullet, and two neighboring
houses had bullet holes. Madelyn’s father testified that appellant drove by the next day
and made a gun-like gesture.
{¶20} Appellant and Madelyn had recently broken up. Appellant conceded that
their relationship had been violent. He admitted that he was by the East 84th Street
house earlier in the day, that he had gone to the house at 141st Street and Shaw Avenue
and encountered Madelyn, and that he later drove by the East 84th Street house upon what
he claims was an invitation to fight. He also admitted that he drove a gray Delta and that
there were four persons in his car. While appellant denied any involvement in the
shooting, he admitted he filed an alibi statement indicating he never went near East 84th
Street and that he lied to cover himself. There was also testimony that appellant told
Delrico Howard that “a situation had happened.”
{¶21} Upon our review, we find there was ample evidence to support the state’s
claims that appellant was complicit in the crimes and that he was the driver of the vehicle
and instigator of the shooting. While appellant claims there was no physical evidence
that he had a gun or that a gun was shot from his vehicle, the testimony and evidence
clearly establish that guns were involved in the incident. William Jenkins sustained a
gunshot wound to his head, and two neighboring houses had bullet holes in them.
Further, it was never contended that appellant was one of the gunmen. Rather, the record
supports the conclusion that he aided and abetted in the offenses.
{¶22} Ohio’s complicity statute, R.C. 2923.03(A), provides, in pertinent part:
“No person, acting with the kind of culpability required for the commission of an offense,
shall do any of the following: (2) Aid or abet another in committing the offense; * * *.”
Pursuant to R.C. 2923.03(F), a person who is guilty of complicity in the commission of an
offense “shall be prosecuted and punished as if he were a principal offender. A charge
of complicity may be stated * * * in terms of the principal offense.”
{¶23} As stated by this court in State v. Langford, 8th Dist. No. 83301,
2004-Ohio-3733, ¶ 20, 21:
In order to constitute aiding and abetting, the accused must have taken some
role in causing the commission of the offense. State v. Sims (1983), 10
Ohio App.3d 56, 10 Ohio B. 65, 460 N.E.2d 672. “The mere presence of an
accused at the scene of the crime is not sufficient to prove, in and of itself,
that the accused was an aider and abettor.” State v. Widner (1982), 69
Ohio St.2d 267, 269, 431 N.E.2d 1025, 1027. Additionally, even if the
accused has knowledge of the commission of the crime, his presence at the
scene is not enough to convict him of aiding and abetting. State v.
Cummings (Apr. 21, 1992), Franklin App. No. 90AP-1144, 1992 Ohio App.
LEXIS 2139, citing United States v. Head (C.A.6, 1991), 927 F.2d 1361,
1373; State v. Woods (1988), 48 Ohio App.3d 1, 2, 548 N.E.2d 954. A
person aids or abets another when he supports, assists, encourages,
cooperates with, advises, or incites the principal in the commission of the
crime and shares the criminal intent of the principal. State v. Johnson, 93
Ohio St.3d 240, 245-246, 2001-Ohio-1336, 754 N.E.2d 796. “Such intent
may be inferred from the circumstances surrounding the crime.” Id. at 246,
754 N.E.2d 796.
Aiding and abetting may be shown by both direct and circumstantial
evidence, and participation may be inferred from presence, companionship,
and conduct before and after the offense is committed. State v. Cartellone
(1981), 3 Ohio App.3d 145, 150, 3 Ohio B. 163, 444 N.E.2d 68, citing State
v. Pruett (1971), 28 Ohio App.2d 29, 34, 273 N.E.2d 884. Aiding and
abetting may also be established by overt acts of assistance such as driving
a getaway car or serving as a lookout. Id. at 150, 444 N.E.2d 68. See
State v. Trocodaro (1973), 36 Ohio App.2d 1, 301 N.E.2d 898.
{¶24} “It is well settled that an unarmed accomplice can be convicted of an
underlying felony, together with a firearm specification, based on an aider and abettor
status.” State v. Porch, 8th Dist. No. 65348, 1994 Ohio App. LEXIS 1936, *11 (May 5,
1994), citing State v. Chapman, 21 Ohio St.3d 41, 487 N.E.2d 566 (1986); State v.
Moore, 16 Ohio St.3d 30, 476 N.E.2d 355 (1985); see also State v. Drane, 2d Dist. No.
23862, 2010-Ohio-5898, ¶ 18 (“an aider and abetter can be found guilty of a firearm
specification”); In re J.H., 8th Dist. No. 85753, 2005-Ohio-5694, ¶ 33. Moreover, “[a]n
accomplice to a crime * * * is subject to the same prosecution and punishment, including
sentencing enhancements, as the principal offender.” State v. Fulton, 8th Dist. No.
96156, 2011-Ohio-4259, ¶ 42.
{¶25} In this case, there is sufficient evidence showing that the shooting was a
joint and concerted effort and that appellant acted in complicity with the men carrying the
weapons. Appellant’s participation in the crimes can be inferred from his conduct before
and after the offenses, as well as his identification as the driver of the vehicle involved in
the shooting and the concerted actions of the offenders. As such, the record supports the
conclusion that appellant aided and abetted the commission of the crimes.
{¶26} When viewing the evidence in a light most favorable to the prosecution, we
find any rational trier of fact could have found the essential elements of the crimes proven
beyond a reasonable doubt. Further, after reviewing the entire record, weighing the
inferences and examining the credibility of witnesses, we cannot say that the jury clearly
lost its way and created a manifest miscarriage of justice. Therefore, there is sufficient
evidence to support the convictions, and the convictions are not against the manifest
weight of the evidence.
{¶27} Under his third assignment of error, appellant claims that he was denied
effective assistance of counsel. In order to substantiate a claim of ineffective assistance
of counsel, the appellant must show that (1) counsel’s performance was deficient and (2)
the deficient performance prejudiced the defendant so as to deprive him of a fair trial.
State v. Trimble, 122 Ohio St.3d 297, 2009-Ohio-2961, 911 N.E.2d 242, ¶ 98, citing
Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
Judicial scrutiny of defense counsel’s performance must be highly deferential.
Strickland at 689. In Ohio, there is a presumption that a properly licensed attorney is
competent. State v. Calhoun, 86 Ohio St.3d 279, 1999-Ohio-102, 714 N.E.2d 905. The
defendant has the burden of proving his counsel rendered ineffective assistance. State v.
Perez, 124 Ohio St.3d 122, 2009-Ohio-6179, 920 N.E.2d 104, ¶ 223.
{¶28} Appellant argues that his trial counsel was ineffective because he advised
appellant to waive a jury trial, failed to call alibi witnesses, did not adequately
cross-examine witnesses regarding inconsistencies surrounding the shooting, and
provided no alternative theory in the case. We find no merit to appellant’s ineffective
assistance of counsel claim.
{¶29} The record reflects that the court appropriately advised appellant of his right
to a jury trial and supports the trial court’s conclusion that the jury waiver was made
knowingly, voluntarily, and intelligently. Appellant conceded on the record that he lied
with regard to his alibi statement, which indicated he never went near East 84th Street.
He testified that he had driven by the East 84th Street house on the night of the shooting
and that his alibi statement was incorrect. Further, the record reflects that defense
counsel conducted a thorough cross-examination of the witnesses and adequately
challenged the evidence against appellant. Insofar as appellant claims defense counsel
should have provided an alternative theory of the case, he fails to articulate what other
theory should have been presented. While he referenced his cousin, Delrico Grace, as
having been rumored to be one of the shooters, there was eyewitness testimony that
appellant was the driver of the gray Delta involved in the shooting.
{¶30} We find defense counsel’s actions fell within the scope of reasonable trial
strategy. “Trial tactics and strategies do not constitute a denial of effective assistance of
counsel.” State v. Vargas, 8th Dist. No. 97376, 2012-Ohio-2767, ¶ 14, citing State v.
Gooden, 8th Dist. No. 88174, 2007-Ohio-2371, ¶ 38. Additionally, appellant has failed
to demonstrate any prejudice resulting from counsel’s trial strategy. Accordingly, we
overrule appellant’s third assignment of error.
{¶31} Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common
pleas court to carry this judgment into execution. The defendant’s conviction having
been affirmed, any bail pending appeal is terminated. 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.
SEAN C. GALLAGHER, JUDGE
MARY J. BOYLE, P.J., and
EILEEN A. GALLAGHER, J., CONCUR