State v. Wachee

[Cite as State v. Wachee, 2021-Ohio-2683.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 110117
v. :
KNEE WACHEE, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: August 5, 2021
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-19-640498-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting Attorney,
and Kerry A. Sowul, Assistant Prosecuting Attorney, for
appellee.
Cullen Sweeney, Cuyahoga County Public Defender, and
Francis Cavallo, Assistant Public Defender, for appellant.
MICHELLE J. SHEEHAN, J.:
Defendant-appellant Knee Wachee was indicted for aggravated
murder, murder, and felonious assault in connection with his wife’s death. At the
bench trial, the state produced evidence to show that he strangled her to death on
the same day he caught her engaging in sexual conduct with another man. The trial
court found him guilty of murder and felonious assault and sentenced him to an
indefinite term of 15 years to life. On appeal, Wachee raises the following two
assignments of error for our review:
I. There was insufficient evidence produced at trial to support a
finding of guilt on any counts.
II. The trial court erred by finding the defendant guilty against the
manifest weight of the evidence.
After a review of the evidence presented by the state, we find no merit
to Wachee’s claims and affirm the judgment of the trial court.
Trial
The evidence presented at the trial shows that Wachee and his wife
Maiya Latimer (“the victim” hereafter) were married in 2018. Their marriage
deteriorated, and the couple had discussed divorce. In the morning of May 21, 2019,
Wachee caught his wife engaging in sexual conduct with Mylz Reed — who is her
best friend Terrion Reed’s brother — inside Mylz’s vehicle, parked in the garage of
the Wachees’ apartment building. After they were discovered, Mylz Reed and the
victim sped away, hitting another vehicle in the garage. The victim then went to
work at the Target store in Richmond Heights, where Terrion also worked. The
victim went home in the afternoon after her shift. Terrion became concerned when
the victim failed to answer several phone calls from her. The next morning, Terrion
asked her family to contact the Richmond Heights police. The police arrived at the
couple’s apartment to find the victim’s body on the floor in the foyer. She had been
strangled to death. There was no forced entry into the apartment.
A. Testimony of Victim’s Boyfriend
Mylz Reed, Terrion’s brother, met the victim in the beginning of 2019.
The friendship turned into a sexual relationship. In the morning of May 21, 2019,
he went to pick up the victim from her apartment to drive her to work. When the
two were inside his vehicle parked in the garage of the apartment building, she
performed oral sex on him. While engaging in the sexual conduct, they were startled
to see Wachee walking up to the vehicle and screaming her name. Mylz quickly
backed out of the garage, hitting another vehicle in the garage.
Mylz took the victim to work afterward. He received a call around noon
from the victim, saying her husband called her to tell her the person in the other
vehicle struck by Mylz’s vehicle earlier was dead and he was picking her up so she
could talk to the police. He did not talk to the victim after that phone call. He texted
her at 7 p.m., asking her what she was up to. He received no response until 12 a.m.,
when a message saying “fucking” was sent from her cellphone.
On cross-examination, Mylz acknowledged that the last location the
victim’s cellphone “pinged” was in the city of Hudson, where he lives.
B. Testimony of Victim’s Friend
Terrion Reed, Mylz’s sister, knew the victim before the victim and
Wachee were married. Terrion and the victim were best friends, and they worked
together at the Target store. They constantly communicated by phone calls and text
messages when they were not at work. The victim confided in Terrion about her
marital problems with Wachee. A week or two before the victim was killed, she sent
Terrion a video in which Wachee was heard saying that if he ever caught her with
another man, he would kill her.
On May 21, 2019, the victim finished her shift around 3:30 p.m. Before
she left, she told Terrion to call her three times and to come looking for her if she
did not answer.
Terrion called the victim sometime after the victim left. The victim did
not answer. Terrion called again at 11:00 p.m. but again received no answer.
Terrion called the victim at 6 a.m. the next morning, and again there was no answer.
She became very concerned and used a location sharing app on her cellphone to
locate the victim’s cellphone and learned her cellphone was at Boston Mills Road.
Alarmed by the cellphone’s location, Terrion contacted her family,
who then contacted the Richmond Heights police for a welfare check on the victim.
Terrion’s sister drove her to the victim’s apartment building. The police arrived
around the same time, and she was eventually told about the victim’s death.
Terrion also testified that, several months before the victim’s death,
the victim told her Wachee had choked her. She told Terrion she did not want to be
with Wachee anymore but she had to continue to live with him for financial reasons.
The victim tried to get a restraining order against Wachee, but was told that she
needed proof of physical harm.
C. Testimony of Defendant’s Friend
Braxton Wright knew Wachee since middle school. They were close
friends and talked daily. Wright was aware that the relationship between Wachee
and the victim had deteriorated and they both wanted a divorce. Wright advised
Wachee to get a divorce and move on.
On May 21, 2019, Wachee called Wright sometime in the morning to
tell him he caught his wife with another man. Concerned with Wachee’s anger and
what he may do, Wright told Wachee to just leave. Later in the day, Wright received
a phone call from Wachee, saying he and his wife got into an argument and he
“choked his wife out.” Wachee asked Wright to come over to the apartment to help
him dispose of the body because it was very heavy. Wachee called him again later,
telling him he had thrown away his wife’s cellphone and credit card. Wachee also
told him his idea of moving the body to a freeway. Wright did not help Wachee with
the victim’s body but did not call the police either because he was scared. When
interviewed by Detective Duffy several days later, he revealed Wachee’s phone
conversations with him on the day of the victim’s death.
D. Richmond Heights Police
The state presented seven witnesses involved in the investigation of
the homicide. Sergeant Joseph Arbogast was among the first officers who arrived at
the scene. The door to the couple’s apartment was unlocked, and he found the
victim’s body on the floor of the foyer as soon as he entered the apartment. There
were red marks on her throat. No forced entry into the apartment was found.
1. The Investigation
Detective Darren Porter executed a warrant and searched Wachee’s
vehicle. Inside the vehicle, the police found a backpack containing many items with
the victim’s name on it, including her debit card and birth certificate.
Detective Charles Duffy, the lead detective in this case, testified that
Terrion Reed, using a location sharing app on her phone, “pinged” the victim’s
cellphone and found the phone’s last location to be at Boston Mills Road in Hudson,
four miles from The Gardens at Liberty Park in Streetsboro, an assisted living
complex where Wachee worked. The location, however, was also close to Mylz
Reed’s residence. The police searched for the phone but were unable to recover it.
During his interview with Wright, Wright told him he tried everything
in his power to persuade Wachee, whom he considered his best friend, to walk away
from his marital problems. He was devastated by Wachee killing his wife. Wright
also told Detective Duffy about the long phone calls he had with Wachee on the day
of the victim’s death. On cross-examination, the defense counsel insinuated Wright
had engaged in sexual intercourse with the victim on multiple occasions and asked
the detective if he was aware of it. Duffy answered no.
2. Key Fobs and Surveillance Video
Detective Steve Molle contacted the apartment management and
obtained key fob data regarding Wachee’s and the victim’s key fob usage on May 21,
2019. The data shows the victim used her key fob to enter the garage at 8:03 a.m.
At 6:18 p.m., her key fob was used to enter the front door to the lobby of the building,
and that was the last time her key fob was used. Wachee’s key fob was used 15 times
throughout the day, from 8:41 a.m. until 12:23 a.m.
Detective Molle also obtained the surveillance video of the apartment
building’s main entry and matched them with the key fob usages. The video shows
the victim entered the lobby of the apartment building at 4:18 p.m., went to the
mailroom, and then walked to the elevator. The video also shows Wachee entered
the building and walked towards the center stairwell soon after, at 4:35 p.m.
At 6:36 p.m., the video shows Wachee came from the center stairwell
to the main exit of the building, carrying a clear plastic bag. Between 6:36 p.m. and
6:58 p.m., he was seen multiple times on the video coming in and out of the building
carrying plastic bags. The last time he was seen on the video was 12:23 a.m., when
he used his key fob to enter the garage from the lobby.
3. DNA
The DNA evidence was inconclusive. Forensic DNA analyst Christine
Scott testified that she analyzed swabs from under the victim’s fingernails and from
the back of her neck, as well as swabs from Wachee and Mylz Reed. The DNA
profiles from under the victim’s fingernails are mixtures, and the foreign DNA in
these mixtures is inclusive due to insufficient information.
The partial “Y-STR” DNA profile obtained from the victim’s neck
swab is a mixture of major and minor components, and Wachee or his male relatives
cannot be excluded as the source of the major “Y-STR” DNA component; Mylz Reed
was excluded as the source of the major “Y-STR” DNA. The minor “Y-STR” DNA
component was inconclusive due to insufficient information.
4. Cellphone Messages and Search History
FBI Special Agent Andrew Burke assisted in the investigation of the
homicide. To analyze Wachee’s cellphone, which Wachee turned into the police,
Burke utilized a special software program called “Cellebrite,” which can recover
deleted text messages as well as the search history in the cellphone’s browser.
At 8:08 a.m. on May 21, 2019, a text message from Wachee to the
victim said “come out the car.” At 8:11 a.m., a text message from him to her said
“[a]ll your shit is going out the house.” Wachee then made several calls to the
victim’s phone. At 8:14 a.m., he texted her to say “[t]alk to me” and “[a]ll your shit
is gone.” Multiple calls were then made to Terrion Reed and then to the victim again.
At 8:46 a.m., his text message to her said “the police is [here] the car crash.” During
an exchange of text messages, Wachee asked the victim how long the affair was going
on and how many men was she involved with, and the victim asked him if he had a
gun.
Wachee then received a text message from Braxton Wright asking
“[w]hat happen,” followed by several phone calls from Wachee to Wright. Around
12:42 p.m., there was a message from Wachee to the victim saying “[w]ould you
please help me pack up my stuff after work I’m already getting started have a lot of
stuff to put in my car & we can split up the material thing too,” to which the victim
responded “okay.” In the early afternoon, there were long phone calls between
Wachee and Wright.
At 4:44 p.m., Wachee’s cellphone shows a Google search “Homeless
shelters near me.” At 5:05 p.m., 5:10 p.m., and 5:16 p.m., Wright called Wachee but
there was no response. Wright then sent text messages to Wachee, asking “[w]hat
happen” at 5:25 p.m. and again 5:48 p.m. At 5:53 p.m., there was a long phone call
from Wachee to Wright, lasting 3 hours and 26 minutes.
At 8:47 p.m., Wachee’s cellphone shows searches for “open forest
near me.” Between 10:30 p.m. and 10:36 p.m., Wachee made two short phone calls
to Wright. At 10:44 p.m., there was a Google search for The Gardens at Liberty Park,
which is the name of the assisted living complex where Wachee worked, four miles
from where the victim’s cellphone last “pinged.”
At 10:45 p.m., Wright sent Wachee a text message saying “[o]kay I
call you at 10:55 I got you bro.” The message was followed by more phone calls
between Wright and Wachee.
Beginning at 11:38 p.m., Wachee’s cellphone shows a series of Google
searches: “How to get [rid] of a dead body,” “How to carry a dead body,” “Bleach on
a dead body,” “How to get rid of DNA off a dead body,” “How to dispose of a dead
body without any trace,” and “Choking someone out dead body.” The search history
also reflects an inquiry for how to get away with murder by using a detergent.
There were then several phone calls to Wright, which went
unanswered, and messages to Wright saying “You sleep” and “Call me.” After 5 a.m.,
there were text messages from Wachee to his mother “Mom can you hold me” and
“I’m coming home I’m very sad,” followed by short phone calls to his mother and
Wright. At 10:06 a.m., there was a Google search “When does a dead body start to
smell” and at 12:38 p.m., a search for “[c]an police tell how long a body has been
dead.” At 6:59 p.m. there were searches for “[e]vidence of a dead body,” followed by
“[m]arks on the neck after death” and “[d]eleted text messages police.”
Verdict and Appeal
After the bench trial, the trial court found Wachee not guilty of
aggravated murder but guilty of murder and felonious assault, and sentenced him
to an indefinite term of 15 years to life for his offenses. Wachee now appeals, arguing
his convictions were not supported by sufficient evidence and were against the
manifest weigh of the evidence. We address these two claims together.
Standard of Review for Sufficient Evidence and Manifest Weight
When reviewing a challenge to the sufficiency of the evidence, we
review the evidence admitted at trial and determine whether such evidence, if
believed, would convince the average mind of the defendant’s guilt beyond a
reasonable doubt. State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991),
paragraph two of the syllabus. “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.”
Id. A reviewing court is not to assess “whether the state’s evidence is to be believed,
but whether, if believed, the evidence against a defendant would support a
conviction.” State v. Thompkins, 78 Ohio St.3d 380, 390, 678 N.E.2d 541 (1997).
While the test for sufficiency requires a determination of whether the
state has met its burden of production at trial, a manifest weight challenge questions
whether the state has met its burden of persuasion. Id. Unlike a claim that the
evidence is insufficient to support a conviction, which raises a question of law,
manifest-weight challenges raise factual issues. When a defendant argues his or her
conviction is against the manifest weight of the evidence, 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.”
Thompkins at 387, quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d
717 (1st Dist.1983).
Circumstantial Evidence
Wachee claims the state produced insufficient evidence to prove he
killed his wife and also his convictions were against the manifest weight of the
evidence. He argues there was no direct evidence such as eyewitnesses and
conclusive DNA evidence; Mylz Reed and Braxton Wright were biased and not
credible; and the search history on his cellphone only reflects that he was present
with her body and is consistent with “a man struggling to process and deal with his
wife’s murder.”
While there was no direct evidence such as witnesses or conclusive
DNA evidence linking Wachee to the victim’s murder, our review of the trial
transcript indicates that the state produced overwhelming circumstantial evidence
implicating Wachee in the victim’s death.
Direct evidence exists when “a witness testifies about a matter within
the witness’s personal knowledge such that the trier of fact is not required to draw
an inference from the evidence to the proposition that it is offered to establish.”
State v. Cassano, 8th Dist. Cuyahoga No. 97228, 2012-Ohio-4047, ¶ 13. In contrast,
circumstantial evidence requires “the drawing of inferences that are reasonably
permitted by the evidence.” Id. “Circumstantial evidence is the proof of facts by
direct evidence from which the trier of fact may infer or derive by reasoning other
facts in accordance with the common experience of mankind.” State v. Hartman,
8th Dist. Cuyahoga No. 90284, 2008-Ohio-3683, ¶ 37.
“Although there are obvious differences between direct and
circumstantial evidence, those differences are irrelevant to the probative value of the
evidence — circumstantial evidence carries the same weight as direct evidence.”
Cassano at ¶ 13, citing State v. Treesh, 90 Ohio St.3d 460, 485, N.E.2d 749 (2001).
Circumstantial evidence and direct evidence inherently possess the
same probative value. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492, at paragraph one
of the syllabus. “‘Circumstantial evidence is not only sufficient, but may also be
more certain, satisfying, and persuasive than direct evidence.’” State v. Hawthorne,
8th Dist. Cuyahoga No. 96496, 2011-Ohio-6078, ¶ 9, quoting Michalic v. Cleveland
Tankers, Inc., 364 U.S. 325, 330, 81 S.Ct. 6, 5 L.Ed.2d 20 (1960). Accordingly, “[a]
conviction can be sustained based on circumstantial evidence alone.” State v.
Franklin, 62 Ohio St.3d 118, 124, 580 N.E.2d 1 (1991), citing State v. Nicely, 39 Ohio
St.3d 147, 154-55, 529 N.E.2d 1236 (1988). “‘[C]ircumstantial evidence is sufficient
to sustain a conviction if that evidence would convince the average mind of the
defendant’s guilt beyond a reasonable doubt.’” State v. McKnight, 107 Ohio St.3d
101, 2005-Ohio-6046, 837 N.E.2d 315, ¶ 75, quoting State v. Heinish, 50 Ohio St.3d
231, 238, 553 N.E.2d 1026 (1990). Like any fact, the state can prove the identity of
the perpetrator by either circumstantial or direct evidence. State v. Tate, 140 Ohio
St.3d 442, 2014-Ohio-3667, 19 N.E.3d 888, ¶ 15.
The circumstantial evidence proving Wachee’s guilt is overwhelming.
The state produced evidence that Wachee discovered his wife engaging in sexual
conduct with Mylz Reed in the morning of May 21, 2019. She went home after work
and entered the apartment building at 4:18 p.m., and phone calls to her went
unanswered after that. Wachee entered the apartment building at 4:35 p.m. and
was in and out of the apartment building until sometime after midnight. Shortly
before midnight, he started to search the Internet looking for ideas for eliminating
evidence from a dead body and for disposing of a body. The next morning, the police
found the victim strangled to death in their apartment. In addition, the state
presented the testimony of Wright, who testified that Wachee told him he had
“choked his wife out” and asked him to help dispose of the body.
The evidence presented by the state is simply too incriminating to be
the product of mere coincidences. The substantial circumstantial evidence, viewed
in a light most in the state’s favor, would convince the average mind of Wachee’s
guilt beyond a reasonable doubt. Wachee’s claim that the state produced insufficient
evidence to prove his guilt is without merit.
Regarding his manifest-weight claim, Wachee challenges Mylz Reed’s
and Braxton Wright’s credibility. Their testimony, however, is well corroborated by
the call history, text messages, and Google search history found in Wachee’s
cellphone. This is not a case where the trier of fact “clearly lost its way and created
such a manifest miscarriage of justice that the conviction must be reversed.”
Wachee’s claim that his convictions were against the manifest weight of the evidence
is also without merit. The first and second assignments of error are overruled.
Judgment affirmed.
It is ordered that appellee recover of 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.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
___________________________
MICHELLE J. SHEEHAN, JUDGE
EILEEN A. GALLAGHER, P.J., and
EILEEN T. GALLAGHER, J., CONCUR