State v. Drescher

Ohio Court of Appeals

State v. Drescher

2016 Ohio 403

Ohio Court of Appeals·Decided February 2, 2016·No. 2015CA00020·Published

Opinion

COURT OF APPEALS

STARK COUNTY, OHIO

FIFTH APPELLATE DISTRICT

STATE OF OHIO JUDGES:

Hon. W. Scott Gwin, P.J.

Plaintiff-Appellee Hon. William B. Hoffman, J.

Hon. John W. Wise, J.

-vs-

Case No. 2015CA00020

ALEX DRESCHER

Defendant-Appellant OPINION

CHARACTER OF PROCEEDING: Appeal from the Stark County Court of Common Pleas, Case No. 2014CR1238(A)

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: February 2, 2016

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

JOHN D. FERRRERO DONOVAN HILL Prosecuting Attorney 116 Cleveland Ave. North, Suite 808 Stark County, Ohio Canton, Ohio 44702

By: RENEE WATSON Assistant Prosecuting Attorney Appellate Section 110 Central Plaza, South – Suite 510 Canton, Ohio 44702-1413

Stark County, Case No. 2015CA00020 2 Hoffman, J.

{¶1} Defendant-appellant Alex Drescher appeals his convictions entered by the Stark County Court of Common Pleas on complicity to murder, complicity to felonious assault and complicity to tampering with evidence. Plaintiff-appellee is the state of Ohio.

STATEMENT OF THE FACTS AND CASE

{¶2} On the evening of July 24, 2014, and into the early morning hours of July 25, 2014, Appellant visited Gatsby’s Bar with X’Avire Cobb. Zebulum Schoolcraft, Dino Crawford and James Delgado were also at Gatsby’s Bar. At the time Gatsby’s Bar closed, the five left and got into a car driven by Schoolcraft. Everyone in the car was high and/ or drunk.

{¶3} Appellant was dropped off at a house, and Schoolcraft, Cobb, Crawford and Delgado proceeded in the car without him. Schoolcraft subsequently lost control of the car and crashed into a utility pole. As a result of the crash, X’Avire Cobb, who was seated in the backseat and unrestrained, hit his mouth and chipped and/or loosened a front tooth.

{¶4} After the accident, Schoolcraft, Cobb, Crawford and Delgado all took off running in separate directions to avoid being arrested. Cobb, who was upset about his tooth, went looking for Schoolcraft. Cobb asked Appellant to help him seek out Schoolcraft through the use of Facebook and to set up a meeting for a fight.

{¶5} Schoolcraft received messages via Facebook about the accident, and a fight was arranged at “Shakes”, an area ice cream parlor and meeting place.

{¶6} Dino Crawford testified at trial relative to the events of the evening/morning, including the meeting at “Shakes” and the incident leading up the shooting. He stated he observed Appellant pull a gun from his side, wave it around, point it at Crawford and

Schoolcraft, and offer it to Cobb. He testified Appellant urged Cobb during the fight to shoot Schoolcraft. Cobb then fired seven shots at Schoolcraft, ending his life.

{¶7} Testimony at trial also established Appellant later brokered a trade of the murder weapon for another firearm in the days following the shooting.

{¶8} The Stark County Grand Jury indicted Appellant on charges of complicity to murder, in violation of R.C. 2923.03(A)(2) and R.C. 2903.02(B); complicity to felonious assault, in violation of R.C. 2923.03(A)(2) and R.C. 2903.11(A)(1)/(A)(2); and complicity to tampering with evidence, in violation of R.C. 2923.03(A)(2) and R.C. 2921.12(A)(1). Both the murder and felonious assault charges carried attendant firearm specifications in violation of R.C. 2941.145.

{¶9} Following a jury trial, Appellant was convicted on all counts. On January 28, 2015, Appellant was sentenced to a total of twenty-one years to life imprisonment.

{¶10} Appellant appeals, assigning as error:

{¶11} I. APPELLANT’S CONVICTIONS WERE AGAINST THE MANIFEST WEIGHT AND SUFFICIENCY OF THE EVIDENCE.

{¶12} II. APPELLANT WAS DENIED DUE PROCESS AND A FAIR TRIAL WHEN THE COURT OVERRULED APPELLANT’S MOTION FOR A MISTRIAL AFTER THE JURY WAS MADE AWARE OF APPELLANT’S INCARCERATION.

I.

{¶13} In the first assignment of error, Appellant maintains his convictions are against the manifest weight and sufficiency of the evidence.

{¶14} The Supreme Court has explained the distinction between claims of sufficiency of the evidence and manifest weight. Sufficiency of the evidence is a question

Stark County, Case No. 2015CA00020 4

for the trial court to determine whether the State has met its burden to produce evidence on each element of the crime charged, sufficient for the matter to be submitted to the jury.

{¶15} Manifest weight of the evidence claims concern the amount of evidence offered in support of one side of the case, and is a jury question. We must determine whether the jury, in interpreting the facts, so lost its way that its verdict results in a manifest miscarriage of justice, State v. Thompkins (1997), 78 Ohio St.3d 387, citations deleted. On review for manifest weight, a reviewing court is “to examine the entire record, weigh the evidence and all reasonable inferences, consider the credibility of the witnesses and determine whether in resolving conflicts in the evidence, the trier of fact clearly lost its way and created such a manifest miscarriage of justice that the judgment must be reversed. The discretionary power to grant a new hearing should be exercised only in the exceptional case in which the evidence weighs heavily against the judgment.” State v. Thompkins, 78 Ohio St.3d 380, 387, 1997-Ohio-52, citing State v. Martin (1983), 20 Ohio App.3d 172, 175. Because the trier of fact is in a better position to observe the witnesses' demeanor and weigh their credibility, the weight of the evidence and the credibility of the witnesses are primarily for the trier of fact. State v. DeHass (1967), 10 Ohio St.2d 230, syllabus 1.

{¶16} The standard of review for a challenge to the sufficiency of the evidence is set forth in State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991) at paragraph two of the syllabus, in which the Ohio Supreme Court held, “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.

Stark County, Case No. 2015CA00020 5

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.”

{¶17} Specifically, Appellant maintains his convictions are unreliable in that they are based upon contradictory testimony, biased and impaired witnesses and insufficient evidence. In State v. Cobb, Stark App. No. 2014CA00218, 2015-Ohio-3661, this Court held, A fundamental premise of our criminal trial system is that ‘the jury is the lie detector.’ United States v. Barnard, 490 F.2d 907, 912 (C.A.9 1973)

(emphasis added), cert. denied, 416 U.S. 959, 94 S.Ct. 1976, 40 L.Ed.2d 310 (1974). Determining the weight and credibility of witness testimony, therefore, has long been held to be the ‘part of every case [that] belongs to the jury, who are presumed to be fitted for it by their natural intelligence and their practical knowledge of men and the ways of men.’ Aetna Life Ins. Co.

v. Ward, 140 U.S. 76, 88, 11 S .Ct. 720, 724–725, 35 L.Ed. 371 (1891)”.

United States v. Scheffer (1997), 523 U.S. 303, 313, 118 S.Ct. 1261, 1266– 1267.

The jury was free to accept or reject any and all of the evidence offered by the parties and assess the witness's credibility. “While the jury may take note of the inconsistencies and resolve or discount them accordingly * * * such inconsistencies do not render defendant's conviction against the manifest weight or sufficiency of the evidence”. State v. Craig (Mar. 23, 2000), Franklin App. No. 99AP–739, citing State v. Nivens (May

28, 1996), Franklin App. No. 95APA09–1236 Indeed, the jurors need not believe all of a witness' testimony, but may accept only portions of it as true.

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