State v. Gill

2013 Ohio 5027

• Court: Ohio Court of Appeals
• Decided: November 14, 2013
• Docket: 99529
• Status: Published

Opinion

[Cite as State v. Gill, 2013-Ohio-5027.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 99529

STATE OF OHIO

PLAINTIFF-APPELLEE

vs.

FLOY GILL

DEFENDANT-APPELLANT

JUDGMENT: AFFIRMED IN PART; REVERSED IN PART AND REMANDED

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-565332

BEFORE: Jones, J., Celebrezze, P.J., and E.T. Gallagher, J.

RELEASED AND JOURNALIZED: November 14, 2013 ATTORNEY FOR APPELLANT

John T. Castele 614 West Superior Avenue Suite 1310 Cleveland, Ohio 44113

ATTORNEYS FOR APPELLEE

Timothy J. McGinty Cuyahoga County Prosecutor

BY: Brad S. Meyer Assistant County Prosecutor The Justice Center, 8th Floor 1200 Ontario Street Cleveland, Ohio 44113 LARRY A. JONES, SR., J.:

{¶1} Defendant-appellant, Floy Gill, appeals his felonious assault convictions with

firearm specifications that were rendered after a jury trial. He also appeals his having

weapons while under disability conviction that was rendered by the court. We affirm the

judgment of conviction; reverse the judgment of sentence; and remand for resentencing.

I. Procedural History

{¶2} In August 2012, Gill was charged in a three-count indictment for the

September 8, 2010 shooting of Rebeka Hurt. Counts 1 and 2 charged Gill with

alternative means of committing felonious assault against Hurt, and Count 3 charged Gill

with having weapons while under disability. The felonious assault charges contained

one- and three-year firearm specifications.

{¶3} The matter proceeded to trial, with the felonious assault and firearm

specification charges before a jury and the having weapons while under disability charge

before the bench. At the conclusion of trial, the jury found Gill guilty of the felonious

assault charges and firearm specifications, and the court found him guilty of having

weapons while under disability.

{¶4} For the purpose of sentencing, the felonious assault charged in Count 2

merged with the felonious assault charged in Count 1. The trial court sentenced Gill to a

three-year prison term on Count 1, to be served consecutively to a three- year term for the

firearm specification. The trial court further sentenced him to a one-year prison term on

Count 3, having weapons while under disability, and ordered that it be served consecutively to Count 1. Thus, the trial court sentenced Gill to a total seven-year

prison term.

II. Facts

{¶5} The victim, Rebeka Hurt, had known Gill for about seven or eight years at the

time of the incident; she had previously dated Gill’s brother, and she and the brother

maintained a good relationship. Hurt was also friends with Gill and would frequently

see him. Additionally, Hurt was good friends with Gill’s girlfriend, Sharonika Allen.

{¶6} Hurt testified that on the day of the incident, she and Allen were “hanging

out” at Hurt’s grandmother’s house. Hurt called a friend, Gregory Clark,1 to see what

he was doing; he and his roommate, Lewis Menefee, were watching a basketball game.

Hurt and Allen decided to join them.

{¶7} At Clark’s house, the four “hung out,” and by all accounts were drinking and

smoking marijuana. According to Hurt, Gill continuously called Allen’s cell phone

while they were at Clark’s house. Thus, after approximately three hours of “hanging

out” at Clark’s house, Clark drove Allen to East 139th Street and Beachwood Avenue,

where Allen was to meet up with Gill; Hurt went along for the ride. Hurt was the front

seat passenger and Allen was in the back seat. Hurt testified that Gill continued to call

and text Allen during the drive to take Allen to meet up with Gill.

{¶8} According to Hurt, when they arrived at the destination, she saw Gill standing

in the middle of the street. Clark drove slowly past Gill and stopped, whereupon Allen

Clark is also at times referred to as Gregory Demp in the transcript. 1 got out of the car and walked around to the back of the car where Gill was standing.

Hurt testified that she “almost immediately” heard shots being fired from behind the car

and ducked. Clark drove off, and Hurt looked back and saw that Gill’s arms were

extended out in front of him. Hurt realized that she had been shot and called 911. A

recording of the 911 call was played at trial; Hurt identified Gill as the shooter.

{¶9} Clark drove Hurt to the hospital. Hurt suffered a gunshot wound to her

abdomen and had to undergo three surgeries.

{¶10} Hurt testified that no one else was outside except Gill when they arrived at

East 139th Street and Beachwood Avenue. Hurt further testified that when Clark drove

past Gill, she thought there might be “problems” because Gill and Allen had “bickered”

in the past and sometimes their disagreements “got physical.” Hurt denied that she was

too impaired to know what was going on.

{¶11} Officer Robert Kowza responded to the hospital, where Hurt told him that

Gill had shot her. Kowza went to the crime scene where he found bullet casings and

secured the area. The officer also recovered a fragment of the bullet taken from Hurt’s

abdomen.

{¶12} Kowza further testified that Hurt told him that Gill had exited from a house

and shot into the crowd. Hurt testified that she did not tell that to Officer Kowza, or did

not remember telling that to him.

{¶13} Clark, who had driven Allen to East 139th Street and Beachwood Avenue,

testified that he had no knowledge of to whose home he was taking her. Further, at the time of the incident, he did not know Gill. Clark testified that after Allen got out of the

vehicle, he heard a “pop,” looked in his rearview mirror, and saw a person, whom he

could not identify as male or female, standing behind the car shooting at it.

{¶14} Detective Michael Gibbs responded to the scene the evening of the incident,

approximately three hours after the shooting. He found eight 9 mm shell casings from

four different manufacturers and two fragmented bullets. The detective did not find any

fingerprints on the bullet casings, and he testified that the heat from the firing of the gun

would have destroyed any DNA material. Gibbs could not tell if the bullets had been

fired from the same gun or at the same time.

{¶15} Detective Kevin Callahan was the investigating detective. He spoke with

Hurt five days after the shooting, at which time Hurt told him that Gill had shot her.

Hurt identified Gill from a photo. The detective was unable to make contact with Allen.

{¶16} Allen testified for the defense. She testified that she had known Gill for

approximately six years and that they have a child together. According to Allen, she was

dropped off at East 139th Street and Beachwood Avenue so that she could go to her

friend’s house. When they arrived at the destination, she got out of the car and headed

to her friend’s house, when someone came out of the house and started shooting at the

car. Allen testified that she could not see the man’s face when he was firing the shots

because it was covered. But during the incident, she dropped to the ground, the shooter

ran over to her, looked at her, and ran off. Although she still could not see the shooter’s

face, she knew from his body build that it was not Gill. Allen denied that she and Gill were dating at the time of the shooting, and she denied that she was being dropped off to

see Gill that evening.

{¶17} On this testimony, Gill was convicted of felonious assault and having

weapons while under disability. He now assigns two errors for our review: the first

challenging the weight of the evidence, and the second challenging the imposition of

consecutive sentences.

III. Law and Analysis

Manifest Weight of the Evidence

{¶18} A manifest weight challenge questions whether the state met its burden of

persuasion at trial. State v. Bowden, 8th Dist. Cuyahoga No. 92266, 2009-Ohio-3598, ¶

12. This 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.

State v. Thompkins, 78 Ohio St.3d 380, 388, 678 N.E.2d 541 (1997). 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.

{¶19} As to the review of witness credibility, this court has stated the

following:

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 of the testimony are primarily for the trier of fact. 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.”

(Citations omitted.) State v. Kurtz, 8th Dist. Cuyahoga No. 99103, 2013-Ohio- 2999, ¶

26, quoting State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, ¶ 24.

{¶20} Gill contends that the conviction was against the manifest weight of the

evidence because it was not proven beyond a reasonable doubt that he was the shooter.

We disagree.

{¶21} It is true that none of the witnesses testified that they actually saw a gun in

Gill’s hand. But circumstantial evidence alone may be used to support a conviction.

State v. Jenks, 61 Ohio St.3d 259, 272-273, 574 N.E.2d 492 (1991). Circumstantial

evidence is the “proof of certain facts from which the trier of fact may infer other

connected facts that usually and reasonably follow, according to the common experience

of mankind.” State v. Duganitz, 76 Ohio App.3d 363, 367, 601 N.E.2d 642 (8th

Dist.1991) citing Black’s Law Dictionary 221 (5th Ed.1979). “[T]he circumstances, to

have the effect of establishing an allegation of fact, must be such as to make the fact

alleged appear more probable than any other; the fact in issue must be the most natural

inference from the facts proved.” Duganitz at id. citing 44 Ohio Jurisprudence 3d,

Section 1023 (1983).

{¶22} Hurt testified that during the hours prior to Allen meeting up with Gill, Gill

had been texting and calling Allen. When they arrived at the destination where Allen

was to meet Gill, Hurt saw Gill standing in the middle of the street. Aware that Allen

and Gill were known to bicker, had had physical confrontations in the past, and concerned about potential tension between them that day, Hurt paid close attention to the two of

them when Allen got out of the car. She was certain that the man standing in the street

was Gill. Further, Hurt testified that no one else was outside at the time.

{¶23} According to Hurt, shots were fired “almost immediately” upon Allen

exiting the car. Hurt looked backed and saw that Gill’s arms were extended out in front

of him. After realizing that she had been shot and calling 911, Hurt, without hesitation,

identified Gill as the shooter. Hurt maintained throughout the investigation of the case

that Gill was the shooter.

{¶24} Likewise, although Clark did not know Gill and, thus, could not identify

him, he did testify that when Allen exited the car, he heard a “pop,” looked in the

rearview mirror, and saw that the person standing behind the car was shooting at them.

That person, according to Hurt’s testimony as just detailed, was Gill.

{¶25} The direct and circumstantial evidence in this case proved beyond a

reasonable doubt that Gill was the shooter. The inconsistencies in the testimony do not

cast doubt on the conviction. For example, Officer Kowza’s testimony that Hurt told

him that Gill came out of house and fired shots into the crowd still implicated Gill as the

shooter.

{¶26} And the testimony as to exactly how the group came to be at the crime scene

(that is, whether Clark picked Hurt and Allen up from Hurt’s grandmother’s house to go

to Clark’s house, or if the two got there some other way), does not change that, at some

point later that evening, Clark drove Hurt and Allen to East 139th Street and Beachwood Avenue, where Gill shot at the car the trio was in, and struck Hurt.

{¶27} As to Allen’s testimony for the defense, the jury did not find it credible.

We do not find that result untenable and defer to its determination.

{¶28} In light of the above, Gill’s felonious assault and having weapons while

under disability convictions were not against the manifest weight of the evidence. The

first assignment of error is, therefore, overruled.

Consecutive Sentences

{¶29} R.C. 2953.08(G)(2), governing appellate review of felony sentencing,

provides as follows:

The appellate court may increase, reduce, or otherwise modify a sentence that is appealed under this section or may vacate the sentence and remand the matter to the sentencing court for resentencing. The appellate court’s standard for review is not whether the sentencing court abused its discretion. The appellate court may take any action authorized by this division if it clearly and convincingly finds either of the following:

(a) That the record does not support the sentencing court’s findings under division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of section 2929.14, or division (I) of section 2929.20 of the Revised Code, whichever, if any, is relevant;

(b) That the sentence is otherwise contrary to law.

{¶30} Thus, under R.C. 2953.08(G)(2), the following two grounds permit an

appellate court to reverse a trial court’s imposition of consecutive sentences upon an

offender: (1) the sentence is “otherwise contrary to law”; or (2) the appellate court, upon

its review, clearly and convincingly finds that “the record does not support the sentencing

court’s findings.” See also State v. Venes, 8th Dist. Cuyahoga No. 98682, 2013-Ohio-1891, ¶ 11.

{¶31} Under R.C. 2929.14(C)(4), when imposing consecutive sentences, the trial

court must first find that the sentence is “necessary to protect the public from future crime

or to punish the offender.” The trial court must also find that consecutive sentences are

“not disproportionate to the seriousness of the offender’s conduct and to the danger the

offender poses to the public.” Id. Further, the trial court must find that one of the

following factors applies:

(a) The offender committed one or more of the multiple offenses while the offender was awaiting trial or sentencing, was under a sanction * * *, or was under postrelease control for a prior offense.

(b) At least two of the multiple offenses were committed as part of one or more courses of conduct, and the harm caused by two or more of the multiple offenses so committed was so great or unusual that no single prison term * * * adequately reflects the seriousness of the offender’s conduct.

(c) The offender’s history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender. Id.

{¶32} At sentencing, the trial court stated that it was its “job to protect the public

and then to hand down a sentence which is fair.” The court noted that it did not

believe that the bullet was intended for Ms. Hurt, but in this unfortunate circumstance, it did hit her and she went through a very traumatic situation which still arises today where she’s still having issues with her physical ailments as well as her mental ailments.

{¶33} The court further noted that Gill had a criminal history “not only dating back

to juvenile, but back to 2001. The majority of it * * * is drugs and cocaine and selling drugs and buying drugs * * *.”

{¶34} The court found that a prison sentence was consistent with the purposes and

principles of sentencing, and in imposing the consecutive sentence, stated the following:

On Count 3, having weapons while under disability, I find that to be a situation where because of your prior criminal history and the fact that there’s a gun involved in this case and being advised in the past and even serving terms of incarceration that you are someone who has a disability for carrying a gun, I’m going to sentence you on that felony of the third degree to 1 year of incarceration * * * and I believe a fair sentence would be a consecutive sentence to the underlying charge that I handed down on Count 1 of the indictment for a total term of 7 years * * *.

{¶35} On this record, we do not find that the trial court satisfactorily made the

required findings for the imposition of consecutive sentences. Although the court

offered “reasons” for the sentence, they were not specifically tied to the required findings

for consecutive sentences. See State v. Schmick, 8th Dist. Cuyahoga No. 99262,

2013-Ohio-4488. In Schmick, this court recently held that “substantial compliance” with

the statutory requirements for the imposition of consecutive sentences is not sufficient.

Otherwise, general statements made by trial courts can too easily be read as consecutive sentence findings. We do not believe that the legislature intended such a result; rather, it has specifically delineated the findings that need to be made when sentencing to consecutive terms.

Id. at ¶ 13.

{¶36} In light of the above, the second assignment of error is sustained.

{¶37} Judgment of conviction affirmed; judgment of sentence reversed; case

remanded for resentencing.

It is ordered that appellant and appellee split 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 common

pleas court to carry this judgment into execution. The defendant’s conviction having

been affirmed, any bail pending appeal is terminated.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.

LARRY A. JONES, SR., JUDGE

FRANK D. CELEBREZZE, JR., P.J., and EILEEN T. GALLAGHER, J., CONCUR