State v. Davis

[Cite as State v. Davis, 2022-Ohio-2797.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NOS. C-210538
C-210539
Plaintiff-Appellee, : TRIAL NOS. B-2002302A
B-2004898
vs. :
O P I N I O N.
GEORGE DAVIS, :
Defendant-Appellant. :
Criminal Appeals From: Hamilton County Court of Common Pleas
Judgments Appealed From Are: Affirmed and Remanded in C-210539; Appeal
Dismissed in C-210538
Date of Judgment Entry on Appeal: August 12, 2022
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Mary Stier, Assistant
Prosecuting Attorney, for Plaintiff-Appellee,
Angela J. Glaser, for Defendant-Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS
MYERS, Presiding Judge.
{¶1} In the appeal numbered C-210539, defendant-appellant George Davis
appeals from the trial court’s judgment convicting him, following a bench trial, of
felony murder, an accompanying firearm specification, aggravated robbery, and
having a weapon while under a disability.
{¶2} In two assignments of error, Davis argues that the trial court erred in
imposing sentences on both the offenses of felony murder and aggravated robbery
because they are allied offenses subject to merger, and that his convictions for felony
murder and aggravated robbery were not supported by the weight or the sufficiency of
the evidence. We find no merit to Davis’s arguments and we affirm the trial court’s
judgment. But because the sentencing entry omitted the trial court’s order that the
offenses of felony murder and aggravated robbery were to be served consecutively, we
remand for the trial court to correct the clerical error in its sentencing entry.
{¶3} In the appeal numbered C-210538, Davis appeals from the trial court’s
judgment convicting him of two counts of promoting prostitution. But because Davis
has advanced no assignments of error with respect to those convictions, we dismiss
the appeal.
Factual and Procedural Background
{¶4} In the case numbered B-2004898, Davis was indicted for murder,
felony murder, felonious assault, aggravated robbery, and having a weapon while
under a disability for his role in the death of Mohamed Ndiaye. With the exception of
the offense of having a weapon while under a disability, all charged offenses carried
two accompanying firearm specifications. In the case numbered B-2002302A, Davis
was indicted for two counts of promoting prostitution.
2
OHIO FIRST DISTRICT COURT OF APPEALS
{¶5} The cases were tried together in a bench trial, where testimony
established that officers were dispatched to 302 South Wayne Avenue in Lockland for
reports of a shooting at approximately 2:30 a.m. on May 10, 2020. The responding
officers found Ndiaye lying face down on his driveway. He had suffered gunshot
wounds to his torso, left arm, and right thigh. Ndiaye was unresponsive at the time
the officers arrived, and he died shortly thereafter. Neighbors who had gathered
outside told the officers that two suspects had fled from the scene and were seen
leaving in a vehicle described as a dark-colored Dodge Dart.
{¶6} The state presented testimony from Davis’s codefendant Donna Sparks.
Sparks explained that she had known Davis since 2016, and she described their
relationship as “friends with benefits,” stating that they “would get high, have sex,
hang out.” Sparks told the court that she engaged in prostitution to obtain money for
drugs, and that Davis often accompanied her when she met with “johns.” He would
wait in the car and was there to protect her if something went wrong. Sparks testified
that one of her clients in her prostitution business rented a Dodge Charger for her to
drive. She often let Davis drive the car as well.
{¶7} Sparks testified that she met Ndiaye on May 9, 2020, at a liquor store
on Reading Road. After they introduced themselves, Ndiaye told Sparks that he was
“looking for a girl to have some fun.” Sparks expressed interest, and the two
exchanged numbers. Sparks went to Ndiaye’s house later that night, where they did
drugs, partied, and engaged in sex. Ndiaye paid Sparks for her services with drugs.
After Sparks and Ndiaye were finished, Davis drove Sparks back to the Gateway Motel
on Reading Road, where she was staying at the time.
3
OHIO FIRST DISTRICT COURT OF APPEALS
{¶8} At the motel, Sparks learned that Davis was “plotting on” Ndiaye, and
that he intended to rob Ndiaye later that night. Sparks testified that Davis instructed
her to text Ndiaye that she was coming back over. According to Sparks, her role was
to get Ndiaye outside so that Davis could rob him. Both Sparks and Davis changed
into black clothing, and they picked up a third person named Eric on their way to
Ndiaye’s to help with the robbery.
{¶9} Sparks testified that after being dropped off at Ndiaye’s, she lured him
outside by asking him if he wanted to smoke a cigarette. Once Sparks and Ndiaye were
outside on the porch, Davis ran up with a gun and demanded money from Ndiaye.
Ndiaye reached for his own weapon, and Davis fired at him. After being shot, Ndiaye
fell off the porch and landed in the driveway. Eric, the intended third participant in
the robbery, got scared and ran off after Davis fired at Ndiaye. Sparks and Davis ran
into Ndiaye’s house, where they stole drugs and a gun. While inside the home, Davis
shot one of Ndiaye’s dogs. Sparks and Davis ran from the home to their car, where
they fled from the scene.
{¶10} According to Sparks, she and Davis then went to the home of Davis’s
friend George, and Davis instructed Sparks to call her drug dealer, Tip, because he and
George intended to rob Tip. The two men hid in the trunk of the Dodge Charger,
preparing to jump out and rob Tip when he arrived. But Sparks testified that when
Tip pulled up, she jumped in his car, warned him about the planned robbery, and the
two of them drove off, leaving Davis and George in the trunk.
{¶11} During Sparks’s testimony, the state played video surveillance from the
Gateway Motel from the night of Ndiaye’s murder. As Sparks watched the video, she
identified clips of her and Davis coming and going from the motel in a pattern that
4
OHIO FIRST DISTRICT COURT OF APPEALS
matched the testimony that Sparks had provided about their actions the evening of the
murder. Sparks first identified the two arriving at the motel at approximately 12:45
a.m. on May 10, 2020, after leaving Ndiaye’s home for the first time. She then
identified them leaving the motel a little over an hour later to go back to Ndiaye’s. She
last identified Davis returning to the motel by himself at 5:12 a.m. in the Dodge
Charger, and herself being dropped off at the motel in a different car at 5:32 a.m.
{¶12} Sparks testified that she was indicted for murder and aggravated
robbery for her role in Ndiaye’s death. She stated that the prosecutor had made no
specific promises to her, but that if she testified truthfully in Davis’s trial, the
prosecutor would let the judge know that she had done so and recommend some type
of case consideration. She also acknowledged that in the first statement she gave to
the police, which was given prior to an indictment being issued against her, she did
not identify Davis as having participated in the crimes.
{¶13} The state also presented testimony from Justine Porter and David Allen,
who lived together in a building down the street from Ndiaye’s home. Both Porter and
Allen heard gunshots around 2:30 a.m. on May 10, 2020. After hearing the shots, they
looked out their window and saw two figures running across the street and behind an
apartment complex. Within seconds of the figures running behind the building, they
saw a car pull out from behind the apartment complex and drive away. Porter testified
that she told officers that the car looked like either a Dodge Dart or a Dodge Charger.
{¶14} Michael Gardner testified that he met Sparks online and hired her to
have sex for money. Gardner met Davis through Sparks, and the three “hung out”
together frequently in April and May of 2020. Gardner testified that he helped Sparks
pay for her motel room and that he rented her a Dodge Charger.
5
OHIO FIRST DISTRICT COURT OF APPEALS
{¶15} Kasi Powell, an intelligence analyst for the Hamilton County Sheriff’s
Department, testified that she retrieved information from the cell phones of Davis,
Sparks, and Ndiaye. She identified text messages between Ndiaye and Sparks that she
retrieved from Ndiaye’s phone. Powell testified that the messages showed that Ndiaye
and Sparks first began communicating around 6:20 p.m. on May 9, 2020. At
approximately 12:45 a.m. on May 10, 2020, Ndiaye texted Sparks to ask if she was sure
that she was coming back over. Sparks responded affirmatively, and Ndiaye asked
how long it would be until she arrived. The two continued to text back and forth about
when Sparks would get there.
{¶16} Powell additionally testified about the information that she retrieved
from Davis’s phone, which included multiple internet searches about a Lockland
homicide. And she testified that she retrieved information regarding cell-phone tower
pings, which she explained by stating “on your physical device, when you go to make
a phone call, they create a thing called radio frequency, which connects to the closest
tower or a tower that is available.” She further explained that a record is kept on the
phone placing the outgoing call of which cell-phone tower the phone “pings” off.
Davis’s phone pinged off a tower near the Gateway Motel at 1:59 a.m. on the day of
Ndiaye’s murder. At approximately 2:13 a.m., his phone pinged off a tower near
Ndiaye’s home. The phone continued to ping off a tower near Ndiaye’s home at 2:38
a.m. Powell identified on a map the area containing the tower off which the phone
pinged. She also identified Davis’s home on the map and testified that it was located
very near to Ndiaye’s home.
{¶17} Davis testified on his own behalf. He corroborated Sparks’s testimony
that the two were “friends with benefits” and that he assisted her in her prostitution
6
OHIO FIRST DISTRICT COURT OF APPEALS
business for her safety. Davis stated that he met Ndiaye in either 2007 or 2008, when
he and his mother had lived in a home behind Ndiaye. He and Ndiaye became friends,
and he would often provide escorts for Ndiaye. On May 9, 2020, Davis ran into Ndiaye
at a liquor store, and Ndiaye told Davis that he was looking for a date for that night.
Davis directed Ndiaye to Sparks, who was outside in the parking lot. Davis
subsequently dropped Sparks off at Ndiaye’s home that evening and then later picked
her up when she texted him to do so. Davis testified that after leaving Ndiaye’s, he and
Sparks returned to the Gateway Motel and smoked crack. He denied planning to rob
Ndiaye, stating that he would not want to rob a good client.
{¶18} Davis testified that he and Sparks left the Gateway Motel together. He
went to his mother’s home, where he “hung out” with his nephew Eliah Smith.
According to Davis, Sparks went back to Ndiaye’s after dropping Davis off. Sparks
returned later to pick up Davis. Her ex-boyfriend Tip was with her. Davis testified
that Tip was shaken up, distraught, in pain, and bleeding. Tip and Sparks told Davis
that Tip had shown up at Ndiaye’s, tussled with him, and was shot. According to Davis,
Tip and Sparks had a ride waiting for them in Carthage. They went with the other ride,
and Davis took the car to his drug dealer’s house, where he did more drugs before
returning to the Gateway Motel.
{¶19} Davis also presented testimony from his nephew, Eliah Smith. Smith
stated that he had been playing video games at his grandmother’s house on the evening
of May 9, 2020, going into the early hours of May 10, 2020. He testified that he saw
Davis around 2:00 a.m. that morning, stating “I remember he was just being normal,
for real. He was just chillin’ in the room.” On cross-examination, Smith was confused
as to whether he had seen Davis on a Friday night into a Saturday morning, or on a
7
OHIO FIRST DISTRICT COURT OF APPEALS
Saturday night into a Sunday morning (May 10, 2020, the day on which Ndiaye was
shot, was a Sunday).
{¶20} After the trial was concluded, the trial court acquitted Davis of the first
count of murder in violation of R.C. 2903.02(A), which alleged that he had purposely
killed Ndiaye. It found him guilty of the remaining offenses, which included felony
murder in violation of R.C. 2903.02(B) (where the underlying felony was felonious
assault), felonious assault in violation of R.C. 2903.11(A)(2), aggravated robbery in
violation of R.C. 2911.01(A)(1), and having a weapon while under a disability in
violation of R.C. 2929.13(A)(2). Davis was also found guilty of the firearm
specifications accompanying these offenses. And he was found guilty of both counts
of promoting prostitution.
{¶21} The trial court sentenced Davis to 15 years to life on the felony-murder
count, along with a consecutive three years for the mandatory firearm specification
(merging it with the one-year specification). The court merged the felonious-assault
count with the murder count. With respect to the aggravated-robbery count, the trial
court imposed a sentence of seven years, which it ordered to be served consecutively
to the sentence imposed for murder. The trial court further imposed a sentence of 36
months for having a weapon while under a disability, to be served concurrently with
the other sentences that had been imposed.
{¶22} The two counts of promoting prostitution were merged at sentencing,
and the trial court imposed a sentence of 12 months, to be served concurrently with
the sentence imposed in the case numbered B-2004898. This resulted in an aggregate
sentence of 25 years to life.
8
OHIO FIRST DISTRICT COURT OF APPEALS
Allied Offenses
{¶23} In his first assignment of error, Davis argues that the trial court erred in
imposing consecutive sentences for the offenses of murder and aggravated robbery
because they are allied offenses.
{¶24} Prior to sentencing, Davis submitted a sentencing memorandum to the
court. In it, Davis argued that the offenses of murder and felonious assault were allied
offenses of similar import subject to merger because felonious assault was the
underlying predicate offense for the felony-murder offense. With respect to the
offenses of murder and aggravated robbery, Davis argued that the offenses were part
of the same continuing course of conduct and that the sentences imposed on those
counts should be served concurrently. He did not argue that they were allied offenses
subject to merger. At the sentencing hearing, Davis argued in accordance with the
sentencing memorandum and asked the trial court to impose concurrent sentences for
the offenses of murder and aggravated robbery. The state agreed that the murder and
felonious-assault charges should merge.
{¶25} Because Davis failed to raise at sentencing the issue of whether the
offenses of felony murder and aggravated robbery were allied offenses, we review for
plain error. State v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, ¶
3; State v. Cook, 1st Dist. Hamilton Nos. C-210142, C-210143 and C-210144, 2021-
Ohio-3841, ¶ 33. Plain error is only reversible if “it affected the outcome of the
proceeding and reversal is necessary to correct a manifest miscarriage of justice.”
Rogers at ¶ 3; Cook at ¶ 33.
{¶26} Under R.C. 2941.25, a trial court may impose separate sentences on a
defendant whose conduct supports multiple offenses if the offenses were dissimilar in
9
OHIO FIRST DISTRICT COURT OF APPEALS
import, were committed separately, or were committed with a separate animus. State
v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, paragraph three of the
syllabus; State v. Pettus, 1st Dist. Hamilton No. C-170712, 2019-Ohio-2023, ¶ 74.
{¶27} Davis was convicted of felony murder in violation of R.C. 2903.02(B),
which provides that “[n]o person shall cause the death of another as a proximate result
of the offender’s committing or attempting to commit an offense of violence that is a
felony of the first or second degree and that is not a violation of section 2903.03 or
2903.04 of the Revised Code.” The underlying offense of violence in this case was
felonious assault. Davis was also convicted of aggravated robbery in violation of R.C.
2911.01(A)(1), which provides that:
No person, in attempting or committing a theft offense, as defined in
section 2913.01 of the Revised Code, or in fleeing immediately after the
attempt or offense, shall do any of the following:
(1) Have a deadly weapon on or about the offender’s person or under
the offender’s control and either display the weapon, brandish it,
indicate that the offender possesses it, or use it.
{¶28} The evidence presented at trial established that Davis ran up to Ndiaye,
demanded money, and then shot Ndiaye when he saw Ndiaye reach for his own
weapon. Davis and Sparks then entered Ndiaye’s home and took drugs and a firearm.
On these facts, we find that the offenses of felony murder and aggravated robbery were
not allied offenses because they were committed with a separate animus.
{¶29} Animus refers to a defendant’s “purpose or, more properly, immediate
motive.” State v. Logan, 60 Ohio St.2d 126, 131, 397 N.E.2d 1345 (1979); State v.
Merz, 1st Dist. Hamilton No. C-200152, 2021-Ohio-2093, ¶ 10. A defendant’s animus
10
OHIO FIRST DISTRICT COURT OF APPEALS
may be inferred from the surrounding circumstances. State v. Parham, 2019-Ohio-
358, 121 N.E.3d 412, ¶ 78 (10th Dist.).
{¶30} Here, the offense of aggravated robbery was completed when Davis
pointed a weapon at Ndiaye and demanded money. Davis’s act of shooting Ndiaye
three times involved an act of force that was well in excess of that needed to commit
the robbery, demonstrating an animus to kill separate from the animus to commit
robbery. See Parham at ¶ 80-81 (where defendant pointed a gun at victim, demanded
his belongings, beat victim until victim was unconscious, and then continued to beat
victim, the trial court could infer that defendant’s motivation changed during the
course of the crime from robbery to causing life-threatening injury).
{¶31} On this record, we find no plain error in the trial court’s imposition of
separate sentences for the offenses of felony murder and aggravated robbery.
{¶32} While the trial court did not err in imposing separate sentences, its
sentencing entry contains a clerical error with respect to these offenses. At the
sentencing hearing, the trial court ordered that the sentences for felony murder and
aggravated robbery be served consecutively. And it made the necessary findings to
support the imposition of consecutive sentences. But the trial court failed to include
in the sentencing entry the language ordering that the sentences were to be served
consecutively. The case must be remanded for the trial court to correct this clerical
error.
{¶33} Davis’s first assignment of error is overruled.
11
OHIO FIRST DISTRICT COURT OF APPEALS
Sufficiency and Weight of the Evidence
{¶34} In his second assignment of error, Davis argues that his convictions for
felony murder and aggravated robbery were not supported by sufficient evidence and
were against the manifest weight of the evidence.
{¶35} When reviewing the sufficiency of the evidence, we must determine
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. Walker, 150 Ohio St.3d 409, 2016-Ohio-8295,
82 N.E.3d 1124, ¶ 12, quoting State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991),
paragraph two of the syllabus. When reviewing a challenge to the weight of the
evidence, we must review the entire record, weigh the evidence, consider the
credibility of the witnesses, and determine whether the trier of fact clearly lost its way
and created a manifest miscarriage of justice. State v. Thompkins, 78 Ohio St.3d 380,
387, 678 N.E.2d 541 (1997).
{¶36} As set forth above, Davis was convicted of felony murder in violation of
R.C. 2903.02(B), which provides that “[n]o person shall cause the death of another as
a proximate result of the offender’s committing or attempting to commit an offense of
violence that is a felony of the first or second degree and that is not a violation of
section 2903.03 or 2903.04 of the Revised Code.” Felonious assault was the charged
underlying offense of violence in this case. He was also convicted of aggravated
robbery in violation of R.C. 2911.01(A)(1), which prohibits having a deadly weapon on
the offender’s person or under the offender’s control and either displaying,
brandishing, or indicating possession of the weapon while committing or attempting
to commit a theft offense.
12
OHIO FIRST DISTRICT COURT OF APPEALS
{¶37} Sparks testified that Davis plotted to rob Ndiaye and that she lured
Ndiaye outside of his apartment so that Davis could do so. She testified that Davis
approached Ndiaye with a firearm, demanded Ndiaye’s money, and then shot Ndiaye
after Ndiaye reached for his own weapon. Viewed in the light most favorable to the
prosecution, Sparks’s testimony, if believed, was sufficient to establish the elements of
felony murder and aggravated robbery beyond a reasonable doubt. See Walker at ¶
12. Davis’s convictions were supported by sufficient evidence.
{¶38} We further find that Davis’s convictions were not against the manifest
weight of the evidence. The trial court, as the trier of fact, was in the best position to
judge the credibility of the witnesses. See State v. DeHass, 10 Ohio St.2d 230, 227
N.E.2d 212 (1967), paragraph one of the syllabus; State v. Shepard, 1st Dist. Hamilton
No. C-190747, 2021-Ohio-964, ¶ 62. It was entitled to find Sparks’s testimony
credible, and to reject Davis’s version of events as incredible and self-serving. In fact,
the trial court stated that it found Davis’s account that a third person was the shooter
who accompanied Sparks to be not credible and to lack corroboration. The trial court
additionally specified that it found the alibi testimony offered by Davis’s nephew
Smith to lack credibility.
{¶39} This was not the rare case in which the trier of fact lost its way and
committed a manifest miscarriage of justice in convicting Davis. The second
assignment of error is overruled.
Conclusion
{¶40} The appeal numbered C-210538 is dismissed. The trial court’s
judgment is affirmed in the appeal numbered C-210539, and the case is remanded for
the trial court to correct the clerical error in its sentencing entry.
13
OHIO FIRST DISTRICT COURT OF APPEALS
Judgment accordingly.
ZAYAS and WINKLER, JJ., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
14