State v. Maxey

[Cite as State v. Maxey, 2021-Ohio-438.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 109305
v. :
DREQUELL MAXEY, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED IN PART; VACATED IN PART;
AND REMANDED
RELEASED AND JOURNALIZED: February 18, 2021
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-19-640032-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Brian Kraft, Assistant Prosecuting Attorney,
for appellee.
John F. Corrigan, for appellant.
EILEEN A. GALLAGHER, J.:
A jury found defendant-appellant Drequell Maxey guilty of two
counts of felonious assault and four counts of improperly discharging a firearm at
or into a habitation. Maxey was acquitted of counts attempted murder, rape and
felonious assault. On appeal in his two assignments of error, Maxey challenges the
evidence underlying his convictions. We affirm in part, vacate in part and remand.
Assignments of Error
I. Appellant’s four discharge into a habitation convictions were not
supported by legally sufficient evidence as required by state and federal
due process.
II. Appellant’s convictions were against the manifest weight of the
evidence.
Relevant Background
During the late hours of April 12, 2019, and early the next morning,
bullets were fired into both the first- and second-floor apartments located 10808
Parkview Avenue in Cleveland, Ohio. Gunfire into the first-floor apartment struck
and injured the victim, C.W. The bullet fired into the second-floor apartment lodged
into the couch upon which Cymone Wilson rested. Both C.W. and Alexis Stewart
reported and later testified with certainty that Maxey was the shooter.
The police investigation revealed that inside the first-floor apartment
there was a defect in the ceiling that was consistent with a bullet being fired from
inside the first-floor unit. Officers recovered a spent .380 shell casing in the
immediate vicinity. Tracing the path of the bullet into the upstairs apartment,
officers found the corresponding bullet hole through the floor and recovered the
bullet itself from the nearby couch in the second-floor unit.
The investigation also revealed a defect in the front door of the first-
floor unit consistent with a bullet being fired into the apartment from the outside.
Officers recovered a second spent .380 caliber shell casing from the front yard near
the door.
Eyewitness testimony further explained the crimes and implicated
Maxey as the perpetrator.
C.W.
C.W. testified that she met Maxey before April 12 and knew him by
the nickname, “Lightbright.” She explained that her first encounter with him
occurred at her apartment and that Maxey and his “cousin” came over for “a few
hours” and that she had sexual intercourse with Maxey during that encounter. C.W.
saw Maxey again at a nightclub the week before April 12. C.W. stated that on that
occasion they “just spoke, cussed it out, coughed up it, kept pushing,” though she
did not further elaborate about the interaction.
On April 12, C.W. and Stewart went to the same nightclub and again
encountered Maxey there. C.W. bumped into him as the club was closing and gave
him a hug. She explained that they “spoke,” and were “giggling and laughing.” C.W.
and Stewart were picked up from the club by a friend named “Antwone.”
C.W., Stewart and Antwone went back to C.W.’s apartment that she
shared with Stewart. Stewart was texting with Maxey and informed C.W. that Maxey
“missed [C.W.],” “wanted to see [her],” “spend the night” and “wanted to come over”
with his brother. Although C.W. was not enthusiastic about Maxey coming to the
home, Stewart nevertheless wanted to “see” Maxey’s brother.
Shortly thereafter, Maxey arrived at the apartment with his brother.
C.W. observed that Maxey was intoxicated and “barely” able to “stand up straight.”
C.W. explained that he was “too touchy feely” with her despite her demonstrated
lack of interest. Maxey persisted and followed C.W. around the house. C.W. asked
Antwone to leave. Maxey continued to “grab all on [her] and yank all on [her]” as
she was seeing Antwone out.
Ultimately C.W. had enough of Maxey’s belligerence and wanted to
extricate herself from the situation. She told Stewart that Maxey and his brother
could stay in the living room but that she was going to take a shower and go to bed.
While C.W. was in the bathroom, Maxey continued after her, tried to get into the
bathroom and waited by the door. When she came out, Maxey grabbed her.
C.W. told Maxey that she would have sex with him, but that after that
he had to leave. Before that, C.W. went to put some food away in the kitchen and
while she was doing so, Maxey moved C.W.’s daughter out of C.W.’s bed, taking the
child to her own bedroom. C.W. was not happy about Maxey doing this and yelled
at him.
C.W. heard yelling and thought the brother and Stewart were arguing.
She heard the brother yelling about wanting to leave. Maxey, who was naked,
wanted to finish having sex first and repeatedly told his brother to “hold up” and
“wait a minute.” The argument between the brother and Stewart escalated. Stewart
informed C.W. that the brother was “trying to have some girl pull up and fight
[C.W.]”
Maxey again told his brother to “hold on” and the brother informed
Maxey that he was going to leave because his ride was there. Maxey told him again
to “hold up” and “wait a minute,” and tried to start having sex with C.W. again. C.W.
was no longer interested in sex and told him so. The brother went outside to a car
driven by an unknown woman that was parked in front of the apartment. C.W. told
Maxey to stop and that she wanted him to leave. C.W. testified that Maxey
proceeded to force himself on her.
After Maxey finished, he got up and began to get dressed. C.W. saw
that Maxey was “feeling happy” and that he “bust out laughing and stuff.” C.W.
“went into a panic” and started “flipping out” and was trying to force him out of her
apartment. An altercation ensued. Maxey called her “all type of names” and told
her that “that’s why I f***** your friend too. And she sucked my d***.” He laughed
at her.
C.W. testified that the brother came back in the house and she told
him to “come get [Maxey].” The brother thought this was funny and began recording
C.W. before going outside to sit in the car.
Maxey was still in the apartment. The altercation with C.W. escalated
and became physical. C.W. tried to force Maxey out of the house while he was still
getting dressed. He put his hands around her neck and in her face and shoved her.
C.W. fought back, punched him in the face while still trying to get him out of the
house. After she hit Maxey, he drew a pistol and fired once into the ceiling. C.W.
continued to try to force Maxey out of the apartment and yelled for Stewart to go
check on her daughter. After C.W. stated that Maxey was “just screaming. Like he
found it funny. He was screaming, laughing. Like screaming, laughing.”
C.W. testified that she was finally able to force Maxey out the door
and that he was still holding the gun when she did this. As she was closing the door,
Maxey began to shoot again, shooting three more times and hitting C.W. When
asked if she was able to see Maxey fire these shots, C.W. responded “[y]es. He was
shooting them as he was going down the stairs. But I was closing my door. I didn’t
know if they were going to hit me or not.” She further explained that there was no
one on the front porch when she forced Maxey outside and he started shooting
again. C.W. stated that “[t]he brother was standing in front of the car still.” C.W.
confirmed that she was able to see Maxey fire the shots into her apartment.
According to C.W., Maxey was the only person with a gun.
C.W. testified that she had to have surgery to remove the bullet
fragments, that she has five separate scars as a result of being shot and that she
stayed in the hospital for “about a week and a half.”
Cymone Wilson
Cymone Wilson testified that she lived in the second-floor unit with
her mother and son and that, at the time of these events, she was pregnant. Wilson
was friends with C.W. and knew that Stewart was staying in her apartment. On the
night of the shooting, Wilson heard C.W., Stewart and two men talking loudly in the
apartment below. Wilson recognized C.W.’s voice but did not recognize either of the
men’s voices. Wilson explained that the “walls are pretty thin.” She testified that
she never saw either of the men whose voices she heard.
Wilson stated that when she first heard the voices downstairs, “[i]t
wasn’t no argument. It wasn’t even a sign that there was going to be an argument,
you know, just coming back from drinks and, you know, that’s the loudness that I
heard at the beginning.”
At some point, the music stopped and Wilson heard C.W. arguing
with one of the men. “It sounded like it started in [C.W.’s] bedroom.” Wilson did
not know about what they were arguing, but heard them “going back and forth
calling each other names, not necessarily [C.W.] calling him a name but he was
calling [her] names.” Wilson heard C.W. trying to get the man to leave and testified
that “[i]t sounded like there was some type of scuffle going on between them.”
Wilson heard a gunshot, but, in that moment, did not recognize it as
such, explaining “I was — where it came through, it was the couch right there which
I was laying on. And this — it vibrated the whole floor basically.”
She heard Stewart repeatedly yelling to the man who was outside
“[c]ome get your brother, come get your brother.” She then heard a male voice
outside respond “I don’t have nothing to do with that. That’s not my business.”
Wilson testified that after she heard the first gunshot, “literally like two or three
seconds later,” she heard two more shots. Wilson clarified that “it was about two,
two or three gunshots after” she heard the first. Wilson then went downstairs to see
what was going on and saw Stewart running out the door and C.W. on the floor.
Wilson testified that after she heard the first gunshot, she looked out
the window “to see if somebody was outside and then that’s when I just seen the
other guy going back and forth and [Stewart] was telling him to come in the house
* * * to get his brother.” It was dark outside and Wilson was not able to see the man’s
face. Wilson did not see a car in front of the house, but did see one parked “next
door.”
Alexis Stewart
Alexis Stewart testified that she was previously acquainted with
Maxey by way of his “cousin” and that she knew Maxey by the nickname “Drakey.”
Stewart stated that she met the man referred to as Maxey’s “brother” on the evening
in question, at a nightclub. Stewart testified that she and C.W. returned to the
apartment with a man named “Antwone,” but that he did not stay.
Although Stewart said there was no plan for anyone else to join them
at the apartment, there came a time that they heard a knock at the door. They
determined it was Maxey and let him in. At some point, the brother whom Stewart
met earlier at the club came to the apartment asking for Maxey. Stewart told him
that Maxey was “in the back with [C.W.]” Stewart allowed him to come in and they
sat on the couch and smoked marijuana until “they were done doing what they were
doing.” Stewart stated that at one point the brother was on his phone arguing with
his girlfriend and that he went outside to continue arguing with her. Stewart
testified that the brother had a gun. She explained that the brother was “not a
problem” that night and that she “kept trying tell him to come get [Maxey]” when he
was inside fighting with C.W.
Stewart testified that she heard arguing and commotion and went to
check on C.W.’s daughter. When she came back, she saw C.W. trying to push Maxey
out the door. Stewart saw Maxey reach for a gun at his hip and shoot into the ceiling.
She explained that Maxey looked “very angry like he was – like he was ready to kill
us both.” Stewart stated she went back to C.W.’s daughter’s room and heard more
gunshots approximately five to ten seconds after the first shot. She also heard C.W.
screaming that she had been shot. Stewart testified that she did not see C.W. get
shot.
Law and Analysis
Sufficiency of the Evidence
In the first assignment of error, Maxey challenges his four improper
discharge convictions as being based on insufficient evidence. The state concedes
that it failed to prove two of those counts with sufficient evidence. We agree with
the state that two improper discharge convictions are improper. As Maxey observed,
in this case only “two habitations were involved,” Wilson’s second-floor apartment
and C.W.’s first-floor apartment. See State v. Grayson, 2017-Ohio-7175, 95 N.E.3d
1025, ¶ 8 (8th Dist.) (“[Improper discharge] occurs when an offender fires a gun into
someone’s habitation.”). Accordingly, two of the convictions are erroneous. As to
the remaining two counts of improper discharge, as discussed below, we find the
state presented sufficient evidence to establish that Maxey fired a gun into both.
A challenge to the sufficiency of the evidence supporting a conviction
requires a determination as to whether the state met its burden of production at
trial. State v. Hunter, 8th Dist. Cuyahoga No. 86048, 2006-Ohio-20, ¶ 41. When
reviewing sufficiency of the evidence, an appellate court 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. 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. In a sufficiency inquiry, an appellate court does not
assess whether the evidence is to be believed but whether, if believed, the evidence
admitted at trial would support a conviction beyond a reasonable doubt. State v.
Starks, 8th Dist. Cuyahoga No. 91682, 2009-Ohio-3375, ¶ 25; Jenks at paragraph
two of the syllabus.
R.C. 2923.161(A)(1) provides:
No person, without privilege to do so, shall knowingly * * * [d]ischarge
a firearm at or into an occupied structure that is a permanent or
temporary habitation of any individual.
R.C. 2901.22(B) provides:
A person acts knowingly, regardless of purpose, when the person is
aware that the person’s conduct will probably cause a certain result or
will probably be of a certain nature. A person has knowledge of
circumstances when the person is aware that such circumstances
probably exist. When knowledge of the existence of a particular fact is
an element of an offense, such knowledge is established if a person
subjectively believes that there is a high probability of its existence and
fails to make inquiry or acts with a conscious purpose to avoid learning
the fact.
Maxey argues that the state’s evidence is insufficient to prove
improper discharge into Wilson’s apartment because it failed to prove that he was
“aware or probably aware” that there was a separate apartment above C.W.’s
apartment. Maxey’s claim is that the state, therefore, failed to prove he knowingly
shot into Wilson’s apartment. Maxey admits that he did fire a gun into the ceiling,
but now asserts “the very purpose of firing a gun into a ceiling is to do no harm.”
The evidence presented through testimony, photographs, and police
body camera footage clearly established that C.W.’s unit was one of multiple units
in the house. From it, the jury could have found beyond a reasonable doubt that
when Maxey fired into the ceiling, he did so knowing that he was doing so into a
separate apartment. Put differently, none of the evidence introduced at trial
indicated any possibility that the building was a single habitation.
Testimony established that on the night of the shooting, Maxey was
in C.W.’s apartment and, moreover, specifically places him in every room of that
apartment but for the bathroom. C.W. testified that Maxey was in the living room,
kitchen, C.W.’s bedroom and her daughter’s bedroom. The evidence also
established Maxey had previously been in C.W.’s apartment for “a few hours.”
The jury could reasonably conclude that Maxey was aware that he was
in a first-floor apartment and that by shooting into the ceiling, the bullet would
probably go into the apartment upstairs. See R.C. 2901.22(B) (“A person acts
knowingly, regardless of purpose, when the person is aware that the person’s
conduct will probably cause a certain result * * *.); see also State v. Dean, 146 Ohio
St.3d 106, 2015-Ohio-4347, 54 N.E.3d 80, ¶ 160 (“the jury could reasonably
conclude that [defendant] was aware he would probably hit the house behind the
car if his shots ricocheted * * * or missed the vehicle”).1
Maxey also argues that the state’s evidence was insufficient to prove
he was guilty of improper discharge into C.W.’s apartment because “[n]o one saw
[him] discharge the gun from the outside,” and that “[t]he jury necessarily drew an
inference that he did.”
C.W. testified that after Maxey fired into the ceiling, she pushed him
out the door and closed the door “real fast.” Maxey was still holding the gun as C.W.
pushed him out the door and she testified that she did see him shoot as she closed
the door.
Nevertheless, there is still one bullet hole through the door and C.W.
admitted there is no window or peep hole in the door. Disregarding for the moment
the evidence that there were multiple shots fired, and assuming that there was no
direct evidence that it was Maxey who fired the bullet through the door, there is
nevertheless ample circumstantial evidence that he did exactly that. See State v.
Martin, 151 Ohio St.3d 470, 2017-Ohio-7556, 90 N.E.3d 857, ¶ 112, quoting State v.
Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph one of the syllabus.
1 Maxey argues that this court’s decision in State v. Tango, 2015-Ohio-5133, 53
N.E.3d 961, ¶ 12 (8th Dist.) “is in error” to the extent that it “seems to suggest that the
mens rea, knowingly is limited to the discharge of the firearm” and that “knowledge of the
occupied structure” is “[i]nconsequential.” We need not address this issue here because
the evidence at trial clearly established both.
(“‘Circumstantial evidence and direct evidence inherently possess the same
probative value * * *.’”).
We sustain the first assignment of error as to two improper discharge
counts and overrule the assignment of error as to the remaining two improper
discharge counts.
Manifest Weight of the Evidence
In the second assignment of error, Maxey argues that his convictions
are against the manifest weight of the evidence. We disagree.
“Weight of the evidence concerns ‘the inclination of the greater
amount of credible evidence, offered at trial, to support one side of the issue rather
than the other.’” (Emphasis deleted.) State v. Thompkins, 78 Ohio St.3d 380, 387,
678 N.E.2d 541 (1997), quoting Black’s Law Dictionary 1594 (6th Ed.1990). A
manifest weight challenge attacks the credibility of the evidence presented and
questions whether the prosecution met its burden of persuasion at trial. State v.
Whitsett, 8th Dist. Cuyahoga No. 101182, 2014-Ohio-4933, ¶ 26. It “addresses the
evidence’s effect of inducing belief,” i.e., whether the state’s or the defendant’s
evidence is more persuasive. State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202,
865 N.E.2d 1264.
When considering an appellant’s claim that a conviction is against the
manifest weight of the evidence, the appellate court functions as a “thirteenth juror”
and may disagree “with the factfinder’s resolution of * * * conflicting testimony.”
Thompkins at 387, citing Tibbs v. Florida, 457 U.S. 31, 42, 102 S.Ct. 2211, 72 L.Ed.2d
652 (1982). Evaluating a challenge to the weight of the evidence requires this court
to review the record, weigh the evidence and reasonable inferences, consider witness
credibility and determine whether, in resolving conflicts in the evidence, the trier of
fact clearly lost its way and thereby created a manifest miscarriage of justice. Id.Reversal on the weight of the evidence is reserved for the “‘exceptional case in which
the evidence weighs heavily against the conviction.’” Id., quoting State v. Martin,
20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).
Maxey argues that the physical evidence established that there was
only a single bullet hole in the door and that this contradicts the testimony indicating
that multiple shots were fired. Maxey also attacks C.W.’s and Stewart’s testimony
as “exaggerated, embellished, and fabricated” and further describes them as
“volatile women.” Finally, Maxey relates in this appeal that, after the shooting, C.W.
and Stewart “became estranged” and he then speculates that Stewart provided
testimony favorable to C.W. based on an ulterior motive to once again live with C.W.,
rent free. All of these claims are meritless.
As to the purported discrepancy between the single bullet defect in
the door and the testimony that multiple shots were fired, as previous stated, C.W.
testified that Maxey began to shoot before she closed the door. When asked if she
was able to see Maxey fire the shots she answered, “[y]es. He was shooting them as
he was going down the stairs. But I was closing my door. I didn’t know if they were
going to hit me or not.” This does not amount to a conflict in the evidence.
Moreover, we note that C.W.’s testimony about her subsequent
surgery further explains why there were not additional bullet defects in the house:
[The doctors] was trying to get the bullet that’s stuck in my ribs out but
they couldn’t, so they had to split me down the middle from my chest
on down to make sure there wasn’t no bullets up front or anything and
took two things out.
Maxey’s personal attacks, levied against C.W. and Stewart
notwithstanding, we do not find that the jury “clearly lost its way” creating a
“manifest miscarriage of justice.” Thompkins at 387.
We note that in this case there were de minimis inconsistencies in the
evidence. For example, C.W. testified that Maxey fired three shots after he fired the
shot into the ceiling. Wilson testified that after the first shot there were “about two,
two or three” more. Stewart testified that after the first shot she then heard “a couple
gunshots.” Similarly, C.W. testified that Maxey and his brother came over “it had to
be like 2:30, 3:00” in the morning. Stewart testified that Maxey came over at
approximately midnight or 1:00 AM.
These minor inconsistencies, in light of the otherwise unrefuted
evidence of guilt do not cause Maxey’s convictions to be against the manifest weight
of the evidence. See State v. Primous, 2020-Ohio-912, 152 N.E.3d 1002, ¶ 55 (8th
Dist.) (inconsistent testimony about color of gun pointed at victim, in light of other
evidence, does not render conviction against manifest weight).
Although Maxey’s second assignment of error challenges that his
“convictions” were against the manifest weight of the evidence, he fails to address,
in any way, the convictions for felonious assault.
There is no doubt, however, that there was ample evidence to support
these charges. C.W. testified that Maxey shot her and as a result, she was
hospitalized for over one week and underwent surgery to remove the bullet
fragments which had struck her.
Fundamentally, Maxey fails to identify any conflicts in the evidence,
that in so resolving, the jury lost its way and thereby created a manifest miscarriage
of justice. See State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997).
We overrule the second assignment of error.
We affirm Maxey’s two felonious assault convictions. We vacate
Maxey’s two of the four improper discharge convictions and remand the case to the
trial court for further proceedings for an election by the state of Ohio to be made as
to which of the four counts of Improperly Discharging Into Habitation they elect to
pursue and resentencing as to those counts.
It is ordered that appellant and appellee share the 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
Cuyahoga County Court of Common Pleas to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
_________________________
EILEEN A. GALLAGHER, JUDGE
SEAN C. GALLAGHER, P.J., and
LARRY A. JONES, SR., J., CONCUR