State v. Bolden

2016 Ohio 8488

Opinion

[Cite as State v. Bolden, 2016-Ohio-8488.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 104227

STATE OF OHIO PLAINTIFF-APPELLEE

vs.

DEMETRIS A. BOLDEN DEFENDANT-APPELLANT

JUDGMENT: AFFIRMED

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-14-591698-A

BEFORE: Keough, P.J., Kilbane, J., and S. Gallagher, J.

RELEASED AND JOURNALIZED: December 29, 2016 ATTORNEYS FOR APPELLANT

Robert L. Tobik Cuyahoga County Public Defender By: Erika B. Cunliffe Noelle A. Powell Assistant Public Defenders 310 Lakeside Avenue, Suite 200 Cleveland, Ohio 44113

ATTORNEYS FOR APPELLEE

Timothy J. McGinty Cuyahoga County Prosecutor By: Daniel A. Cleary Glen Ramdhan Assistant Prosecuting Attorneys The Justice Center, 9th Floor 1200 Ontario Street Cleveland, Ohio 44113 KATHLEEN ANN KEOUGH, P.J.:

{¶1} Defendant-appellant, Demetris A. Bolden (“Bolden”), appeals his

convictions. For the reasons that follow, we affirm.

{¶2} In December 2014, Bolden was named in a twelve count indictment charging

him with two counts of aggravated murder, one count of murder, two counts of

aggravated robbery, three counts of felonious assault, and one count each of aggravated

burglary, burglary, tampering with evidence, and failure to comply. Both one- and

three-year firearm specifications were included in the indictment. Bolden waived his

right a jury trial, and the following evidence, relevant to this appeal, was presented to the

bench.

{¶3} In the early morning hours of December 5, 2014, Tiffany Smith was

murdered. Detective David Borden testified that he had been investigating Smith’s

homicide that morning when he saw Smith’s vehicle approaching. Because Smith’s

vehicle was missing from the scene, Detective Borden walked into the street, displayed

his police badge, and ordered the driver of Smith’s vehicle to stop. Detective Borden

testified that Bolden was driving the vehicle and that rather than comply with police

commands, Bolden revved the engine, causing the vehicle to accelerate. Detective

Borden testified that he had to get out of the vehicle’s path to avoid being struck.

{¶4} After a brief chase, Bolden bailed out the car and fled on foot. The police

searched the area, and eventually, Robert Poole, who lived in the downstairs residence at 3030 East 128th Street alerted police that someone was possibly in his basement. The

police entered the Poole residence, and after giving multiple commands, Bolden emerged

from the basement and was taken into custody. While Bolden was being escorted out the

residence, his girlfriend, Kyeisha Allen was standing on the sidewalk across the street.

After speaking with Allen, the police reentered the Poole residence and recovered a

handgun from the top of the refrigerator located near the basement steps.

{¶5} At the close of all the evidence, the trial court found Bolden not guilty of all

charges related to the murder of Tiffany Smith — aggravated murder, murder, aggravated

robbery, and two counts of felonious assault. However, the court found Bolden guilty of

one count of felonious assault, aggravated burglary, burglary, failure to comply, and

tampering with evidence, including the one-year firearm specifications attendant to each

offense. The court sentenced Bolden to a total prison term of 17 years.

{¶6} Bolden now appeals, raising three assignments of error, which will be

addressed out of order.

I. Sufficiency of the Evidence — Aggravated Burglary and Burglary

{¶7} In his second assignment of error, Bolden contends that he was denied federal

and state due process under the Fifth and Fourteenth Amendments to the United States

Constitution and Article I, Section 10 of the Ohio Constitution when he was convicted on

evidence that was insufficient as a matter of law to sustain the conviction for the offenses

of aggravated burglary and burglary. {¶8} The test for sufficiency requires a determination of whether the prosecution

met its burden of production at trial. State v. Bowden, 8th Dist. No. 92266,

2009-Ohio-3598, ¶ 12. An appellate court’s function when reviewing the sufficiency of

the evidence to support a criminal conviction is to examine the evidence admitted at trial

to determine whether such evidence, if believed, would convince the average mind of the

defendant’s guilt beyond a reasonable doubt. 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, 678 N.E.2d 541 (1997). The Supreme

Court of Ohio has held that when reviewing the sufficiency of the evidence, an appellate

court is to consider all of the evidence admitted at trial, even if the evidence was

improperly admitted. State v. Brewer, 121 Ohio St.3d 202, 2009-Ohio-593, 903 N.E.2d

284, ¶ 19; State v. Roseberry, 197 Ohio App.3d 256, 2011-Ohio-5921, 967 N.E.2d 233

(8th Dist.).

{¶9} Bolden was charged with aggravated burglary in violation of R.C.

2911.11(A)(2). Count 7 of the indictment read that on or about December 5, 2014,

Bolden

did, by force, stealth, or deception, trespass as defined in [R.C.] 2911.21(A)(1) * * * in an occupied structure or in a separately secured or separately occupied portion of an occupied structure, when Robert Poole, a person other than the accomplice, was present, with purpose to commit in the structure or in the separately secured or separately occupied portion of the structure a criminal offense, to wit: Tampering, [R.C.] 2921.12, and the offender had a deadly weapon or dangerous ordnance, to wit: Taurus 9mm, Serial #CTS02801, on or about his person or under his control. {¶10} Bolden was also charged with burglary in violation of R.C. 2911.12(A)(1).

Count 8 of the indictment read that on or about December 5, 2014, Bolden

did, by force, stealth, or deception, trespass as defined in [R.C.] 2911.21(A)(1) * * * in an occupied structure or in a separately secured or separately occupied portion of an occupied structure, when Robert Poole, a person other than the accomplice, was present, with purpose to commit in the structure or in the separately secured or separately occupied portion of the structure a criminal offense, to wit: Tampering, [R.C.] 2921.12.

{¶11} Bolden contends on appeal that the state failed to produce evidence

explaining how he gained entry into the Poole residence; thus, the state did not prove that

Bolden acted by means of force, stealth, or deception. He also contends that no

testimony was presented that he was in the basement.

{¶12} Bolden directs this court to review State v. Howard, 8th Dist. Cuyahoga No.

85500, 2005-Ohio-5135, and State v. Isom, 8th Dist. Cuyahoga No. 78959, 2001 Ohio

App. LEXIS 5312 (Nov. 29, 2001), wherein this court determined that the absence of

evidence going to the element of force, stealth, or deception mandated reversal of the

convictions.

{¶13} In Howard, this court reversed the defendant’s conviction for an aggravated

burglary conviction where the evidence did not indicate the manner in which the

defendant made entry and did not demonstrate that he entered through force, stealth, or

deception. In Isom, this court reversed a conviction for burglary where the evidence

demonstrated that defendant was observed in the garage but did not demonstrate that he

entered through force, stealth, or deception. {¶14} However, these cases are distinguishable from this matter and we find this

court’s decision in State v. Dowell, 166 Ohio App.3d 773, 2006-Ohio-2296, 853 N.E.2d

354 (8th Dist.), more instructive. In Dowell, this court concluded that the defendant’s

conduct of ducking down after entering an open garage and remaining in the garage until

apprehended was sufficient evidence to prove that the defendant used stealth to remain in

the garage without permission. Id. at ¶ 20. The Ohio Supreme Court indicated that a

proper definition of “stealth” would be “any secret, sly, or clandestine act to avoid

discovery and to gain entrance into or to remain within a residence of another without

permission.” State v. Lane, 50 Ohio App.2d 41, 47, 361 N.E.2d 535 (10th Dist.1976);

State v. Carter, 8th Dist. Cuyahoga No. 86396, 2006-Ohio-1072; see also State v. Bacon,

8th Dist. Cuyahoga No. 85475, 2005-Ohio-6238, ¶ 80-82 (peeking into windows

constitutes a sly act).

{¶15} In this case, Robert Poole testified that when he arrived back home in the

early morning hours, he saw someone, later identified as Bolden, peeking out of the door

— seeing Bolden’s head coming out of the side door. (Tr. 853, 857.) This observation

and the noises he and other family members heard coming from the basement led him to

believe that someone was in the basement of his residence. Additionally, multiple

members of the team that apprehended Bolden in the Poole residence testified that after

giving three verbal commands and threatening to send the K-9 unit down the basement

steps, Bolden surrendered and emerged from the basement with his hands up. Finally, Bolden’s girlfriend, Kyeisha Allen testified that he told her he was hiding from police in a

residence on East 128th Street.

{¶16} We believe that Bolden’s action of peeking out of the door and subsequently

hiding in the basement was a sly or clandestine act and any rationale trier of fact could

conclude that Bolden used stealth to remain in the Poole residence without permission,

thus satisfying the element of “force, stealth, or deception” for both aggravated burglary

and burglary.

{¶17} Bolden also challenges his aggravated burglary conviction by contending

that no testimony was presented to establish that he left behind the gun that was recovered

from the Poole residence, thus failing to prove that he had a gun on or about his person

when he entered the home. We disagree.

{¶18} The occupants of the Poole residence each testified that they did not own a

firearm. Furthermore, Carolyn Poole, testified that she found her frying pan on top of the

refrigerator, a place where it did not belong. When she moved the pan, she discovered a

handgun hiding behind the pan. (Tr. 731.) Moreover, Allen testified that Bolden told

her that the gun was hiding on top of the refrigerator in the house where he was hiding.

(Tr. 938-940.) Detective Rhonda Gray testified that after she learned that Allen

disclosed where the gun was hiding to other officers, she located the gun on top of the

refrigerator in the Poole residence. (Tr. 480-481.) Based on the testimony, the trier of

fact could reasonably conclude that Bolden hid the gun on top of the refrigerator while

trespassing in the Poole residence. {¶19} Viewing the evidence in the light most favorable to the prosecution,

sufficient evidence was presented to support Bolden’s convictions for both aggravated

burglary and burglary. Accordingly, the second assignment of error is overruled.

II. Manifest Weight of the Evidence — Felonious Assault

{¶20} Bolden contends in his first assignment of error that his conviction for

felonious assault as charged in Count 6 is contrary to the weight of the evidence.

Specifically, he contends that because there was testimony that Bolden swerved the car or

veered past the Detective Borden, he did not act knowingly to be convicted of felonious

assault.

{¶21} In contrast to a sufficiency argument, a manifest weight challenge questions

whether the state met its burden of persuasion. Bowden, 8th Dist. No. 92266,

2009-Ohio-3598, at ¶ 12. A reviewing court “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.”

Thompkins, 78 Ohio St.3d at 388, 678 N.E.2d 541. A conviction should be reversed as

against the manifest weight of the evidence only in the most “exceptional case in which

the evidence weighs heavily against the conviction.” Id.

{¶22} Bolden was charged in Count 6 with felonious assault in violation of R.C.

2903.11(A)(2), which provides in relevant part that no person shall knowingly cause or

attempt to cause physical harm to another by means of a deadly weapon or dangerous ordnance. A person acts knowingly, regardless of his purpose, “when he is aware that

his conduct will probably cause a certain result or will probably be of a certain nature.”

R.C. 2901.22(B).

{¶23} A motor vehicle can be classified as a “deadly weapon” under R.C. 2923.11

when it is “‘used in a manner likely to produce death or great bodily harm.’” State v.

Andre, 8th Dist. Cuyahoga No. 101023, 2015-Ohio-17, ¶ 37, quoting State v. Sternbach,

8th Dist. Cuyahoga No. 100653, 2014-Ohio-4203, ¶ 24; see also State v. Tate, 8th Dist.

Cuyahoga No. 87008, 2006-Ohio-3722, ¶ 23. In Andre, this court reasoned that “aiming

a vehicle in the direction of persons in a parking lot and quickly accelerating the vehicle

towards those persons is likely to result in someone being seriously injured or killed.”

Id.

{¶24} In this case, Detective Borden testified that as he and other officers were

wrapping up the investigation at the Smith residence, he noticed Smith’s vehicle coming

eastbound toward the house. He testified that he stepped into the middle of the street,

displayed his police badge, and ordered Bolden to stop the car. “Bolden looked at me, I

looked at him. I told him, pull over, please pull over. He revved the engine accelerator,

and I ran back between the cars.” (Tr. 273.) Detective Borden further explained that

Bolden “accelerated, he stomped on the gas, he accelerated the engine. I heard the

engine roar, and I went back between the cars” and Bolden drove off. (Tr. 275.)

Borden testified that he would have been struck by the vehicle had he not moved out of

the way. (Tr. 275-276, 282-283.) {¶25} Detective Borden’s testimony was corroborated by Sergeant Michael Quinn

who testified that he saw Detective Borden in the street displaying his police badge while

ordering the driver to stop the vehicle. He testified that he heard the engine of the

vehicle “rev up as it was flying past,” causing Detective Borden to get out of the path of

the vehicle. (Tr. 869.)

{¶26} Although Detective Borden testified that the car veered left of center as it

passed him, the testimony at trial demonstrates that Bolden knowingly accelerated the

moving vehicle directly at Detective Borden, who was forced to move out of the way to

avoid being struck by the vehicle.

{¶27} Accordingly, this is not the exceptional case where Bolden’s conviction for

felonious assault must be reversed as being against the manifest weight of the evidence.

The first assignment of error is overruled.

III. Effective Assistance of Counsel

{¶28} In his third assignment of error, Bolden contends that he was denied

effective assistance of counsel when his attorney failed to object to inadmissable hearsay.

{¶29} To establish ineffective assistance of counsel, a defendant must

demonstrate (1) that counsel’s performance fell below an objective standard of reasonable

representation and (2) that he was prejudiced by that performance. Strickland v.

Washington, 466 U.S. 668, 687-688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (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.

{¶30} The failure to prove either prong of the Strickland two-part test makes it

unnecessary for a court to consider the other prong. State v. Madrigal, 87 Ohio St.3d

378, 388-389, 721 N.E.2d 52 (2000), citing Strickland at 697. “In particular, a court

need not determine whether counsel’s performance was deficient before examining the

prejudice suffered by the defendant as a result of the alleged deficiencies. * * * If it is

easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice

* * * that course should be followed.” Strickland at id.

{¶31} In this case, Robert Poole testified that his grandmother told him that she

saw “somebody walk through the front, went out the back.” (Tr. 857.) On appeal,

Bolden contends his counsel was ineffective for failing to object to this hearsay testimony

from Robert and also for failing to object to its use during the state’s closing argument.

According to Bolden, this “stray piece of inadmissible hearsay is the only thing that

suggests where [he] may have entered 3030 E. 128th and is the only account that places

him in the Poole’s apartment.”

{¶32} We disagree. Although Robert’s testimony was hearsay, Bolden was not

prejudiced by his counsel’s failure to object to this testimony or to the state’s closing

argument. As previously explained when addressing Bolden’s second assignment of

error, Robert’s testimony about what his grandmother told him would have been of little import considering the additional testimony and evidence that was presented placing

Bolden inside the Poole residence.

{¶33} Accordingly, we cannot say that Bolden was sufficiently prejudiced by his

counsel’s failure to object such that a reasonable probability exists that the outcome of the

trial would have been different. The third assignment of error is overruled.

{¶34} 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

MARY EILEEN KILBANE, J., and SEAN C. GALLAGHER, J., CONCUR