State v. Yowpp

[Cite as State v. Yowpp, 2020-Ohio-5215.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY
State of Ohio Court of Appeals No. L-19-1176
Appellee Trial Court No. CR0201901181
v.
Kron J. Yowpp DECISION AND JUDGMENT
Appellant Decided: November 6, 2020
*****
Julia R. Bates, Lucas County Prosecuting Attorney, and
Alyssa Breyman, Assistant Prosecuting Attorney, for appellee.
Laurel A. Kendall, for appellant.
*****
PIETRYKOWSKI, J.
{¶ 1} Appellant, Kron Yowpp, appeals the judgment of the Lucas County Court of
Common Pleas, convicting him following a jury trial of one count of felonious assault in
violation of R.C. 2903.11(A)(2) and (D), a felony of the second degree with an attached
firearm specification in violation of R.C. 2941.145, and one count of improperly
discharging a firearm into a habitation in violation of R.C. 2923.161(A)(1) and (C), a
felony of the second degree with an attached firearm specification in violation of R.C.
2941.145. For the reasons that follow, we affirm.
I. Facts and Procedural Background
{¶ 2} The facts and testimony from the trial reveal that on December 21, 2018,
Timothy Ciboro was hosting a Christmas party at his house on Boston Place in Toledo,
Lucas County Ohio, when around 11:30 p.m. an unknown woman, K.C., ran into the
home claiming that her boyfriend was chasing her with a gun. K.C.’s hair was
disheveled, she had a black eye, and she was wearing a short sleeve shirt and carrying her
shoes in her hands. Ciboro locked the door behind K.C.
{¶ 3} Within a minute, a male began knocking on the door and saying something
that was not discernable. No one at the party saw the person who was knocking. The
knocking lasted for about one minute. Shortly thereafter, after the knocking stopped,
multiple gunshots were fired from the vacant lot next door into the side of the house. No
one in the house saw the person firing the shots.
{¶ 4} When the police arrived a few moments later, K.C. reported that appellant
had assaulted her and kept her against her will for the past couple of days. She told the
responding officers that she had just escaped from appellant’s residence nearby, and that
he was chasing after her. K.C. stated that appellant must have seen her go into the house
on Boston Place, and that he was the one who was knocking on the door and who fired
shots into the house. K.C., however, did not observe appellant fire the gunshots.
2.
{¶ 5} The police recovered multiple 9 mm shell casings in one location near the
side of the house. The police also found one .45-caliber shell casing a little further away
in the yard. Toledo Police Officer Michael Benninghoff testified that the 9 mm shell
casings appeared to be “fresh” in that there was still a shine to the casings, while the
.45-caliber shell casing appeared to have more dirt on it and looked to have been in the
yard for a while.
{¶ 6} During the trial, several 911 calls about the shooting were played for the
jury. In one of the calls, the caller describes that the police are on scene and have Boston
Place blocked. The caller reported that after the police had blocked the street, he
observed a gray Ford Taurus driving down the street, which he believed had been
involved in a nearby shooting a week earlier.
{¶ 7} Following appellant’s arrest, appellant made approximately 1,200 phone
calls from jail to K.C. between January 23, 2019, and the trial. Three of those phone calls
from June 2019 were played for the jury. In the calls, appellant encourages K.C. to talk
to the prosecutor and tell the prosecutor that she does not want the video of her speaking
with the police to be played at the trial. Appellant also encourages K.C. to talk to the
prosecutor to try and get the case dismissed.
{¶ 8} In addition to the above evidence, the state introduced a typed letter that it
received postmarked February 25, 2019, purportedly from K.C. Notably, the envelope
was hand-addressed with K.C. as the return addressee, and the letter was printed with
K.C.’s name, but it was not signed. The letter stated:
3.
To whom this may concern Hello I’m writing this letter to inform
you that I will not be proceeding with the charges on Kron Yowpp. It was
just a very big misunderstanding I didn’t mean for all this to happen
because the statement I told was not true. The day this took place yes I was
intoxicated and mad at my boyfriend Kron Yowpp. I don’t think its ok for
him to be in jail committing a crime he did not do that night me and my
boyfriend had a disagreement and I left he did not chase me .i told police he
hit me with a gun but I did make that up again because I was angry no he
did not fire a firearm at me or at nobody else home. I been living with him
for the last past 2 years and never seen a firearm also that night it was a guy
following me I went to Kron home that night got mad at him left his home
and as I left it was a strange car following me but I know it was not Kron
Yowpp because he was at home and he also has no vehicle My face was
bruised because I got jumped by a group of girls so buy me being angry at
him yes I did make the statement up and I will not be showing up to court
sorry for the inconvenience (sic).
{¶ 9} K.C. was subpoenaed to testify for the state on the first two days of the trial,
but the state did not call her as a witness. Appellant subpoenaed K.C. to appear on the
second and third days of the trial. On the morning of the third day, counsel for appellant
informed the court that K.C. was present, but that he made the decision not to call her as
a witness and released her from the subpoena.
4.
{¶ 10} Following the state’s presentation of evidence, appellant moved for
acquittal pursuant to Crim.R. 29, which the trial court denied. Appellant then rested
without calling any witnesses.
{¶ 11} Ultimately, the jury returned with a verdict of guilty on both counts. At
sentencing, the trial court ordered appellant to serve a total prison term of 14 years.
II. Assignments of Error
{¶ 12} Appellant has timely appealed his judgment of conviction, and now asserts
two assignments of error for our review:
1. The trial court abused its discretion when it denied appellant’s
motion for acquittal pursuant to Crim.R. 29, because the evidence presented
was insufficient to support a conviction in this matter.
2. Appellant’s convictions for felonious assault and domestic
violence (sic) were against the manifest weight of the evidence.
III. Analysis
{¶ 13} In his first assignment of error, appellant argues that the trial court erred in
denying his Crim.R. 29 motion for acquittal, and that his convictions are based upon
insufficient evidence.
{¶ 14} A Crim.R. 29 motion for acquittal is governed by the same standard as the
one for determining whether a verdict is supported by sufficient evidence. State v.
Tenace, 109 Ohio St.3d 255, 2006-Ohio-2417, 847 N.E.2d 386, ¶ 37. In reviewing a
record for sufficiency, “[t]he relevant inquiry is whether, after viewing the evidence in a
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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. Jenks, 61
Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus.
{¶ 15} In this case, appellant does not challenge the elements of the crimes of
felonious assault and improperly discharging a firearm into a habitation. Rather,
appellant argues that there is no evidence that he was the person who committed the
crimes. Appellant notes that there is no physical evidence linking him to the crime, such
as ballistics, fingerprint, or DNA analysis. In addition, none of the partygoers at the
house could identify appellant as the person who was knocking at the door, and none of
them could even place appellant in the neighborhood around that time. Furthermore,
there is no eyewitness testimony identifying appellant as the shooter. Finally, the one
person that identified appellant, K.C., recanted her statements in the February 25, 2019
letter to the prosecutor. Thus, appellant concludes that his convictions are based upon
insufficient evidence.
{¶ 16} We disagree. We find that the evidence, though circumstantial, is
sufficient to support appellant’s convictions when viewed in a light most favorable to the
prosecution. See State v. Franklin, 62 Ohio St.3d 118, 124, 580 N.E.2d 1 (1991)
(“[C]ircumstantial evidence can have the same probative value as direct evidence. * * *
A conviction can be sustained based on circumstantial evidence alone.” (Internal
citations omitted.)).
6.
{¶ 17} Here, K.C. burst into Ciboro’s home around 11:30 p.m. claiming that her
boyfriend was chasing her with a gun. K.C.’s hair was disheveled, she had a black eye,
and she was wearing a t-shirt and was barefoot on a cold night in the middle of
December. Within a minute of K.C. entering the home, a person with a male voice began
knocking on the door of Ciboro’s residence. Moments after the knocking stopped, shots
were fired into the residence. The abnormality of the events and their close proximity in
time point to the conclusion that K.C.’s entrance to the home, the knocking on the door,
and the shooting into the residence are all related. That is, the circumstantial evidence
demonstrates that the person who was chasing K.C. is the same person that knocked on
the door, and is the same person that fired shots into the home. K.C. identified this
person as appellant. Therefore, we hold that a rational trier of fact could have found that
appellant was the person who committed the crimes beyond a reasonable doubt, and
appellant’s convictions are not based upon insufficient evidence.
{¶ 18} Accordingly, appellant’s first assignment of error is not well-taken.
{¶ 19} In his second assignment of error, appellant argues that his convictions are
against the manifest weight of the evidence, raising the same points that he made in
support of his insufficiency argument.
{¶ 20} Sufficiency of the evidence and manifest weight of the evidence are
quantitatively and qualitatively different legal concepts. State v. Thompkins, 78 Ohio
St.3d 380, 386, 678 N.E.2d 541 (1997). A claim that a jury verdict is against the
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manifest weight of the evidence requires an appellate court to act as a “thirteenth juror.”
Id. at 387. In so doing, the appellate 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.
Id.
{¶ 21} Upon our review of the record, we find that this is not the exceptional case
in which the evidence weighs heavily against the conviction. The critical piece of
evidence in this case is K.C.’s statement to the police identifying appellant as the
perpetrator. Weighing against the reliability of this evidence is K.C.’s recantation of her
statement as described in the February 25, 2019 letter. In assessing the two conflicting
statements, we find K.C.’s statements to the police to be more credible.
{¶ 22} First, K.C.’s statements to the police are consistent with her exclamation
upon entering Ciboro’s home that her boyfriend was chasing her with a gun. There is no
indication in the record that K.C. had ever met Ciboro, and we can think of no reason
why K.C. would lie to Ciboro about who was chasing her. The fact that it was her
boyfriend chasing her with a gun, as opposed to someone else, would make it no more
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likely that Ciboro would provide sanctuary. Second, K.C.’s recantation is not believable.
K.C. explains that she had left appellant’s home when a strange car began following her.
However, she did not describe that anyone jumped out of the car and began chasing her,
nor did she describe why a person would do such a thing. More importantly, K.C.’s
assertion that she was not being chased until after she left the home is belied by the fact
that she had disheveled hair, a black eye, was not wearing her shoes, and was dressed in a
t-shirt when she showed up at Ciboro’s house at 11:30 p.m. on a cold night in the middle
of December. Lastly, K.C.’s recantation—although no evidence exists to show that it
was directed by appellant—is consistent with appellant’s encouragement to tell the
prosecutor not to use her recorded statements to the police at trial, and his encouragement
to K.C. to try to have the charges dismissed. Thus, we find that K.C.’s statements to the
police on the night of the incident weigh heavily in support of appellant’s conviction.
{¶ 23} As a final matter, appellant argues that the 911 call reporting the gray Ford
Taurus was evidence that appellant was not the shooter. However, the report concerning
the Ford Taurus indicated that it was involved in a shooting the week earlier, and there
was no indication that the two shootings were related. Additionally, the Ford Taurus was
not seen until after the police had arrived and blocked the street, and there was no
testimony that the shooter, or anyone else, was seen fleeing towards the car. Thus, we
find that the 911 call concerning the Ford Taurus provides little, if any, support for the
proposition that appellant was not the shooter.
9.
{¶ 24} Therefore, upon reviewing the record and weighing the evidence, we find
that the jury did not clearly lose its way and create a manifest miscarriage of justice, and
we hold that appellant’s convictions are not against the manifest weight of the evidence.
{¶ 25} Accordingly, appellant’s second assignment of error is not well-taken.
IV. Conclusion
{¶ 26} For the foregoing reasons, we find that substantial justice has been done the
party complaining, and the judgment of the Lucas County Court of Common Pleas is
affirmed. Appellant is ordered to pay the costs of this appeal pursuant to App.R. 24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J. _______________________________
JUDGE
Thomas J. Osowik, J.
_______________________________
Christine E. Mayle, J. JUDGE
CONCUR.
_______________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.
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