[Cite as State v. Binford, 2018-Ohio-90.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 105414
STATE OF OHIO PLAINTIFF-APPELLEE
vs.
CARLOS BINFORD DEFENDANT-APPELLANT
JUDGMENT: AFFIRMED
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-16-610418-A
BEFORE: Keough, P.J., E.A. Gallagher, A.J., and Kilbane, J.
RELEASED AND JOURNALIZED: January 11, 2018 ATTORNEY FOR APPELLANT
Allison S. Breneman 1220 West 6th Street, Suite 303 Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Michael C. O’Malley Cuyahoga County Prosecutor By: Kelly Needham Assistant County Prosecutor The Justice Center, 9th Floor 1200 Ontario Street Cleveland, Ohio 44113 KATHLEEN ANN KEOUGH, P.J.:
{¶1} Defendant-appellant Carlos Binford (“Binford”) appeals from the judgment
of the common pleas court, rendered after a jury verdict, finding him guilty of felonious
assault, having weapons while under disability, and improperly handling firearms in a
motor vehicle. Binford contends that his convictions were not supported by sufficient
evidence and are against the manifest weight of the evidence; his trial counsel was
ineffective; and the trial court abused its discretion in sentencing him to 11 years in
prison. Finding no merit to the appeal, we affirm.
I. Facts and Procedural Background
{¶2} A grand jury indicted Binford in multicount indictment as follows: Count 1,
felonious assault in violation of R.C. 2903.11(A)(1); Count 2, felonious assault in
violation of R.C. 2903.11(A)(2); Count 3, having weapons while under disability in
violation of R.C. 2923.13(A)(3); and Count 4, improperly handling firearms in a motor
vehicle in violation of R.C. 2923.16(B). The felonious assault charges carried one- and
three-year firearm specifications. Binford pleaded not guilty, and the case proceeded to
trial.
{¶3} Deandre Rencher (“Rencher”) testified that on June 26, 2016, he called his
ex-girlfriend, Shennell Owens (“Owens”), and told her that he wanted to speak to
Binford, her current boyfriend, because several people had told him that Binford had
broken out the window in Rencher’s car several months earlier. Rencher then called his son, Deandre Ward (“Ward”) to meet him at Owens’s apartment “to watch his back.” At
that time, Rencher only knew Binford’s name as “Los.”
{¶4} Binford and his cousin, Maurice Henderson, met Rencher and Ward at
Owens’s apartment. Rencher and Binford argued about the window. Rencher told
Binford that he owed him $300, the cost to repair the window, and Binford denied
breaking the window. Eventually everyone left.
{¶5} Rencher said that later that day, he went to a park and met up with a friend
of his. As they sat on a park bench talking, he saw a car park on a street next to the park.
Rencher saw Binford and two other men, one of them Henderson, get out of the car.
Rencher testified that Binford then walked up to him and said, “I ain’t got nothing for you
man,” which Rencher understood to mean that Binford was not going to pay him for the
window. Rencher then stood up and began fighting with Binford. He said he eventually
pinned Binford against a nearby tree but the other men pulled him and Binford apart, and
Binford ran to his car.
{¶6} Rencher began walking toward Binford’s car. He testified that as he
reached the street, he saw Binford open the back door of his car, reach in the back seat,
pull out a gun, and shoot twice in the air. Binford then got in the driver’s seat of his car.
{¶7} Rencher said that as he turned around, he noticed his son Ward fighting
with Henderson. He saw Henderson run away but then fall. Ward ran after him. As
Ward neared Henderson, Rencher saw Binford driving his car up the street. Rencher
said that the passenger window of Binford’s car was open and as Binford drove by Henderson and Ward, he saw Binford “hanging out the window shooting.” Rencher said
he heard at least five shots. Rencher then heard Ward say, “Dad, I’m hit,” and he ran
over to Ward. Henderson jumped off the ground, ran to Binford’s car and got in, and
they drove away. Rencher testified that several people who were at the park told him
Binford’s name, and Rencher gave the name to the police when they arrived at the scene.
{¶8} Ward testified that there were “just words” but no physical altercation when
Rencher confronted Binford at Owens’s apartment earlier in the day about the broken
window. Ward said that later that day, he went to the park to meet his father to borrow
$20 from him. He testified that as he parked his car, he saw his father standing in the
middle of the street, his shirt ripped and his neck bleeding. Ward also saw Binford, who
was getting in his car, and Henderson, who was standing next to Binford’s car.
{¶9} Ward testified that he went up to Henderson and asked him what was going
on. According to Ward, he and Henderson “locked up” and tried to slam each other to
the ground. As they were fighting, Binford began pulling away. Henderson broke loose
from Ward and began running toward the car but then fell down. Ward testified that he
ran after Henderson and, as he reached him and was about to kick him, he heard about
five shots. Ward said he looked up, saw Binford’s hand “hanging out the window,” and
felt that he had been shot. At the same time, Henderson got up, ran toward Binford’s car
and got in, and the car pulled away.
{¶10} Ward testified that he told the police on the scene that he did not know who
shot him because he did not know Binford’s name. Later, after he learned Binford’s name from his father, he called the police and gave them the name. Cleveland police
detective John Kraynik testified that he showed a photo lineup to Ward, who picked
Binford out of the lineup. Ward told Kraynik that he was 100 percent positive of his
identification.
{¶11} Owens testified that when Rencher was arguing with Binford at her
apartment, she told him that he knew that Binford had not broken his window, and that he
was merely trying to get back with her by causing problems with Binford. She concurred
that everyone left before there was any physical altercation.
{¶12} At the close of the state’s evidence, Binford moved for Crim.R. 29 acquittal,
which the trial court denied.
{¶13} Henderson testified in Binford’s defense. He said that he was with Binford
at Owens’s apartment earlier in the day on June 26, 2016, and that he spent most of the
day with Binford. He said that Binford went up to Rencher at the park and tried to have
a conversation with him but the two men started fighting. Henderson admitted that he
fought with Ward when Ward showed up at the park. He said that as he was fighting
with Ward, he heard shots, so he began running toward Binford’s car. He said he fell but
then got up and ran to Binford’s car, and when he got in, Binford drove away.
{¶14} Henderson testified that no shots were fired from the car as they drove away.
He testified further that he never saw a gun in Binford’s car that day, and he denied that
Binford retrieved a gun from his car at the park or that he shot in the air or at anyone. Henderson acknowledged that as a prior felon, he is not allowed to carry or be around
guns, and said that he would never have gotten in Binford’s car if Binford had a gun.
{¶15} The trial court denied Binford’s renewed Crim.R. 29 motion, and the case
went to the jury, who found Binford guilty as indicted. The trial court sentenced him to
seven years each on the felonious assault charges, plus three years for the firearm
specification, to run concurrent. The court sentenced him to twelve months each on the
having weapons while under disability and improperly handling firearms in a motor
vehicle charges, to run concurrent to each other but consecutive to the felonious assault
charges, for a total sentence of eleven years. This appeal followed.
II. Law and Analysis
A. Sufficiency of the Evidence
{¶16} In his second assignment of error, Binford contends that his convictions
were not supported by sufficient evidence.
{¶17} The test for sufficiency requires a determination of whether the prosecution
met its burden of production at trial. State v. Bowden, 8th Dist. Cuyahoga No. 92266,
2009-Ohio-3598, ¶ 12. 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. Thompkins, 78
Ohio St.3d 380, 386, 1997-Ohio-52, 678 N.E.2d 541.
{¶18} In Count 1, Binford was convicted of felonious assault in violation of R.C.
2903.11(A)(1), which provides that no person shall knowingly cause physical harm to another. In Count 2, Binford was convicted of felonious assault in violation of R.C.
2903.11(A)(2), which provides that no person shall knowingly cause or attempt to cause
physical harm to another by means of a deadly weapon.
{¶19} Binford contends that his convictions for these offenses were not supported
by sufficient evidence because Ward and Rencher’s statements were biased and therefore
not credible, and were inconsistent with each other. He further contends that
Henderson’s testimony contradicts Ward and Rencher’s testimony.
{¶20} But in a sufficiency analysis, this court does not make determinations of
credibility. State v. Wilson, 8th Dist. Cuyahoga No. 92148, 2010-Ohio-550, ¶ 52.
Rather, we decide based on the evidence presented whether any rational trier of fact could
have found the defendant guilty. Id. In light of Ward and Rencher’s testimony, a
rational trier of fact could have concluded that Binford knowingly caused physical harm
to Ward by means of a deadly weapon.
{¶21} In Count 3, Binford was convicted of having weapons while under disability
in violation of R.C. 2923.13(A)(3), which provides that no person shall knowingly have,
acquire, carry, or use a firearm if the person has been convicted of a felony offense
involving the illegal possession, use, sale, distribution or trafficking of any drug of abuse.
Binford and the state stipulated to Binford’s prior conviction for drug possession in
violation of R.C. 2925.11, a fifth-degree felony. Nevertheless, Binford contends that the
state’s evidence was not sufficient because the state did not produce any physical
evidence that he possessed a firearm. {¶22} Binford’s argument is without merit. Physical evidence is not required to
sustain a conviction. State v. Lopez, 8th Dist. Cuyahoga No. 94312, 2011-Ohio-182, ¶
62, citing State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph one of the
syllabus. “Proof of guilt may be made by circumstantial evidence as well as by real
evidence and direct or testimonial evidence or any combination of these three classes of
evidence.” Jenks at 272. Here, Ward and Rencher’s testimony, if believed, is sufficient
to establish that Ward had a gun in his possession.
{¶23} In Count 4, Binford was convicted of improperly handling firearms in a
motor vehicle in violation of R.C. 2923.16(B), which states that “no person shall
knowingly transport or have a loaded firearm in a a motor vehicle in such a manner that
the firearm is accessible to the operator or any passenger without leaving the vehicle.”
Binford contends that his conviction for improperly handing firearms in a motor vehicle
was not supported by sufficient evidence because Henderson testified that he did not see
Binford in possession of a firearm and that he would not have gotten in Binford’s vehicle
if he had seen a gun. Binford also contends the evidence was insufficient because
Henderson testified that the shots were fired before he or Binford got in the car.
{¶24} But Rencher testified that he saw Binford “hanging out the window
shooting” as he drove by Ward and Henderson, and that he heard five shots. Ward
likewise testified that he saw Binford’s arm “hanging out the window” and that he heard
five shots and then was hit. This testimony, if believed, is sufficient to establish that
Binford had a loaded firearm in his car. {¶25} The second assignment of error is overruled.
B. Manifest Weight of the Evidence
{¶26} A manifest weight challenge questions whether the state met its burden of
persuasion. State v. Hill, 8th Dist. Cuyahoga No. 98366, 2013-Ohio-578, ¶ 32. To
determine whether a conviction is against the manifest weight of the evidence, the
reviewing court must look at the entire record, weigh the evidence and all reasonable
inferences, consider the credibility of the witnesses, and determine whether in resolving
the conflicts in the evidence, the trier of fact clearly lost its way and created such a
manifest miscarriage of justice that the conviction must be reversed and a new trial
ordered. Thompkins at 388.
{¶27} Although we review credibility when considering the manifest weight of the
evidence, we are cognizant that determinations regarding the credibility of witnesses and
the weight given to the evidence are primarily matters for the trier of fact to decide.
State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967). The trier of fact is best able
“to view the witnesses and observe their demeanor, gestures, and voice inflections, and
use these observations in weighing the credibility of the proffered testimony.” State v.
Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, ¶ 24. Thus, an
appellate court will overturn a conviction due to the manifest weight of the evidence only
in extraordinary circumstances where the evidence presented at trial weighs heavily
against the conviction. Thompkins at 388. {¶28} In his first assignment of error, Binford contends that his convictions are
against the manifest weight of the evidence because Rencher and Ward were not credible
witnesses because they were biased against him. He argues that Rencher was trying to
get back with Owens by causing problems with him, and thus would have had a good
reason to lie and accuse him of shooting his son. He further contends that Henderson
contradicted Ward and Rencher’s testimony, and there was no physical evidence linking
him to the shooting.
{¶29} The trier of fact, however, is free to accept or reject any or all of the
testimony of any witness. State v. Smith, 8th Dist. Cuyahoga No. 93593,
2010-Ohio-4006, ¶ 16. The jury heard Ward and Rencher’s account of the shooting, as
well as Henderson’s testimony contradicting their version of events. The jury also heard
Owens’s testimony that Rencher was trying to get back with her by causing problems
with Binford, as well as Henderson’s testimony that Binford is his cousin and he did not
want to see him go to prison. The jury is in the best position to weigh the credibility of
the witnesses, and apparently decided that Ward and Rencher were more credible than
Henderson. And as discussed above, there is no requirement that the state produce
physical evidence that Binford possessed a gun.
{¶30} We do not find that in considering the evidence and the credibility of the
witnesses, the jury lost its way in convicting Binford. This is not the exceptional case
where the evidence weighs heavily against the conviction. Accordingly, the first
assignment of error is overruled. C. Ineffective Assistance of Counsel
{¶31} Patrolman Frank Garmbach testified at trial that he responded to the scene
of the shooting on June 26, 2016, and that he turned his body camera on when he exited
his patrol car. He said that when he arrived, he approached Rencher, who was applying
pressure to Ward’s leg to stop the bleeding.
{¶32} The record reflects that during his cross-examination of Rencher, defense
counsel asked Rencher about statements he made to the police on the video. Counsel
asked Rencher if he remembered telling an officer at the scene “that you were fighting
somebody, and somebody else drove up and shot your son in the leg?” Rencher said he
did not remember making this statement. Defense counsel also questioned Rencher
regarding whether he had told the police that Ward chased Binford to his car, and that
Binford then got a gun out of the car and shot him. When Rencher denied that Ward had
chased Binford to his car, counsel questioned, “[s]o if that were to be on the body cam,
that’s not correct?’ Rencher then stated, “That’s not correct.”
{¶33} In his third assignment of error, Binford contends that his trial counsel failed
to put on an adequate defense because he did not introduce the body camera video into
evidence and thus could not refer in closing argument to Rencher’s alleged inconsistent
statements on the video.
{¶34} To establish ineffective assistance of counsel, a defendant must demonstrate
that counsel’s performance fell below an objective standard of reasonable representation
and that he was prejudiced by that performance. State v. Drummond, 111 Ohio St.3d 14, 2006-Ohio-5084, 854 N.E.2d 1038, ¶ 205, citing Strickland v. Washington, 466 U.S. 668,
80 L.Ed.2d 674, 104 S.Ct. 2052 (1984). Prejudice is established when the defendant
demonstrates “a reasonable probability that but for counsel’s unprofessional errors, the
result of the proceeding would have been different. A reasonable probability is a
probability sufficient to undermine confidence in the outcome.” Strickland at 694. We
find no prejudice.
{¶35} The record reflects that counsel asked Rencher about the alleged
inconsistent statements during cross-examination, and thus the jury heard his testimony
about the statements. The statements were not necessarily helpful to Binford’s defense,
however. Rencher’s statement that “somebody” drove by and shot Ward as Rencher was
fighting “somebody else” does not necessarily mean that the shooter was not Binford.
And Rencher’s alleged statement on the body camera video that Ward chased Binford to
his car, where he pulled out a gun and shot Ward, is obviously not helpful to Binford.
Accordingly, Binford has failed to demonstrate a reasonable probability that he would not
have been convicted had defense counsel been able to refer during closing argument to
the alleged inconsistent statements on the body cam video.
{¶36} The third assignment of error is therefore overruled.
D. Sentencing
{¶37} Appellate review of felony sentences is governed by R.C. 2953.08, which
provides that when reviewing felony sentences, this court may increase, reduce, or
modify a sentence, or vacate and remand for resentencing if we clearly and convincingly find that the record does not support the sentencing court’s statutory findings, if
applicable, or the sentence is contrary to law. R.C. 2953.08(G)(2). A sentence is
contrary to law if (1) the sentence falls outside the statutory range for the particular
degree of offense, or (2) the trial court failed to consider the purposes and principles of
felony sentencing set forth in R.C. 2929.11 and the sentencing factors in R.C. 2929.12.
State v. Price, 8th Dist. Cuyahoga No. 104341, 2017-Ohio-533, ¶ 14.
{¶38} Binford concedes that his 11-year sentence is within the statutory range for
the degree of his offenses, but he argues that the trial court did not consider the purposes
and principles of felony sentencing in R.C. 2929.11 and the seriousness and recidivism
sentencing factors in R.C. 2929.12. The record belies Binford’s assertion.
{¶39} The trial court’s journal entry of sentence states, “the court considered all
required factors of the law. The court finds that prison is consistent with the purpose of
R.C. 2929.11.” These statements alone are sufficient to satisfy the trial court’s
obligations under the law. State v. Clayton, 8th Dist. Cuyahoga No. 99700,
2014-Ohio-112, ¶ 9. The trial court is not required to make any findings in support of
the factors contained in R.C. 2929.11 or 2929.12. Price at ¶ 17, citing State v. Gay, 8th
Dist. Cuyahoga No. 103641, 2016-Ohio-2946, ¶ 23.
{¶40} The transcript of the sentencing hearing also reflects that the trial court
considered the purposes of felony sentencing set forth in R.C. 2929.11, which are to
protect the public from future crime by the offender and to punish the offender using the
minimum sanctions the court determines accomplishes these purposes. State v. Vinson, 8th Dist. Cuyahoga No. 103329, 2016-Ohio-7604, ¶ 60. The transcript also reflects that
the trial court considered the seriousness and recidivism factors of R.C. 2929.12.
{¶41} When sentencing Binford, the trial court considered his criminal history,
which the court noted dated back to 1988 and included prison terms for multiple drug
trafficking offenses, multiple drug possession offenses, offenses for possession of
criminal tools, aggravated robbery, and aggravated assault, as well as probation
violations. The court also found that Binford was not a candidate for community control
sanctions, and that prison was mandatory for the gun specifications. The court also noted
that Binford was on postrelease control at the time of the offenses. Accordingly, it is
apparent that the court considered the factors contained in R.C. 2929.11 and 2929.12, and
imposed a sentence after weighing those factors as it deemed appropriate.
{¶42} Also, despite Binford’s assertion otherwise, the trial court properly imposed
consecutive sentences. Consecutive sentences may be imposed only if the trial court
makes the required findings pursuant to R.C. 2929.14(C)(4). State v. Bonnell, 140 Ohio
St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659. Under the statute, consecutive sentences
may be imposed if the trial court finds that (1) consecutive sentences are necessary to
protect the public from future crime or to punish the offender, and (2) consecutive
sentences are not disproportionate to the seriousness of the offender’s conduct and to the
danger the offender poses to the public. In addition, the court must find that any of the
following applies: (1) the offender committed one or more of the multiple offenses while awaiting trial or sentencing, while under a sanction, or while under postrelease control for a prior offense;
(2) at least two of the multiple offenses were committed as part of one or more courses of the conduct, and the harm caused by two or more of the offenses was so great or unusual that no single prison term for any of the offenses committed as part of the courses of conduct adequately reflects the seriousness of the offender’s conduct; or
(3) the offender’s history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender.
{¶43} In order to impose consecutive sentences, the trial court must both make
the statutory findings mandated under R.C. 2929.14(C)(4) at the sentencing hearing and
incorporate those findings into its sentencing entry. Bonnell at the syllabus.
{¶44} At the sentencing hearing, the trial court specifically found that consecutive
terms were necessary to protect the public from future crime and not disproportionate to
the seriousness of Binford’s conduct and the danger posed to the public, and that at least
two of the offenses were committed as part of one or more courses of conduct, and the
harm caused by the multiple offenses was so great that a single prison term for the
offenses would not adequately reflect the seriousness of Binford’s conduct. The journal
entry of sentencing contains those findings.
{¶45} The trial court did not err in imposing an 11-year prison sentence and,
accordingly, the fourth assignment of error is overruled.
{¶46} 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.
KATHLEEN ANN KEOUGH, PRESIDING JUDGE
EILEEN A. GALLAGHER, A.J., and MARY EILEEN KILBANE, J., CONCUR