State v. Humberto

963 N.E.2d 162, 196 Ohio App. 3d 230
CourtOhio Court of Appeals
DecidedJune 23, 2011
DocketNo. 10AP-527
StatusPublished
Cited by29 cases

This text of 963 N.E.2d 162 (State v. Humberto) is published on Counsel Stack Legal Research, covering Ohio Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Humberto, 963 N.E.2d 162, 196 Ohio App. 3d 230 (Ohio Ct. App. 2011).

Opinion

Per Curiam.

{¶ 1} Defendant-appellant, Javier G. Humberto, appeals from a judgment of the Franklin County Court of Common Pleas finding him guilty, pursuant to jury verdict, of two counts of murder in violation of R.C. 2903.02, one count of attempted murder in violation of R.C. 2923.02 as it relates to R.C. 2903.02, and one count of felonious assault in violation of R.C. 2903.11, all with firearm specifications pursuant to R.C. 2941.145. Because (1) legally sufficient evidence and the manifest weight of the evidence support defendant’s convictions, (2) the trial court did not commit plain error in allowing gang-related testimony into evidence, and (3) the trial court did not err in allowing pretrial identifications of defendant into evidence, we affirm.

I. Facts and Procedural History

{¶ 2} The state indicted defendant on December 29, 2008, on (1) two counts of murder, one for purposely causing the death of Ramon Ramos, and the other for causing the death of Ramon Ramos as a proximate result of committing or attempting to commit felonious assault, (2) one count of attempting to purposely cause the death of Angel Devilbiss, and (3) one count of felonious assault for knowingly causing serious physical harm or attempting to cause physical harm by [236]*236means of a deadly weapon to Angel Devilbiss. The charges arose from a shooting incident that occurred on November 15, 2008, at a bar called “El Gato Negro,” located in Columbus, Ohio.

{¶ 3} According to the state’s evidence, Ramon Ramos, his brother Wilmer Ramos, Wilmer’s wife Angel Devilbiss, and the Ramoses’ cousin, Wilson Guillen, went to El Gato Negro around 10:30 p.m. to pick up Guillen’s brother, who was having problems with some members of a gang known as MS-13. When the group arrived at the bar, they noticed a man they did not know who was staring at them in such a way as to make them uncomfortable. An individual, whose street name was “Momia” and who was known to the Ramos group from the soccer fields, where he had attempted to initiate fights with them, began to joust verbally with Ramon shortly after the Ramos group arrived. Momia suggested that the men take the fight outside, and as Ramon turned to walk outside, another individual from Momia’s group hit Ramon over the head with a pool stick. In retaliation, Wilmer picked up one of the pool balls and threw it at Momia and his group. The bouncer from the bar, Edward Pyfrom, intervened and forced everyone outside.

{¶ 4} With Momia behind them, the Ramos group began walking to their cars to leave. When an unidentified man tried to intervene, Momia and his group assaulted the man. At that point, another man came from a car, walked towards the Ramos group, and with arms outstretched shot a gun at them. After firing several shots, the shooter and Momia got into the same car and fled the scene. The man with the gun shot Angel Devilbiss’s ring finger, thumb, tailbone, and stomach, as well as Ramon’s head, upper abdomen, and hip; Ramon died from the multiple gunshot wounds he sustained. Wilmer and Wilson both testified that the man who had fired the shots was the same individual who was staring at the Ramos group when they first entered the bar.

{¶ 5} Shortly after the shooting, police arrived to collect information from the scene. Pyfrom described the suspect to the police as a five-foot-six-inch Hispanic male weighing between 160 and 185 pounds. Wilson gave one of the officers a baseball hat that he said fell off an individual who was involved with the shooting, and police recovered seven spent shell casings from the scene of the incident. On the day after the shooting, a confidential informant working for police turned in to Detective Sandford of the Columbus Division of Police a firearm that she believed was connected to a homicide. Ballistics testing revealed that the firearm was the same firearm used at the shooting. DNA testing on the baseball hat indicated that defendant had not worn the hat. Through several interviews, detectives identified an individual using the street name “Colima” as the primary suspect in the case; they subsequently discovered that defendant was Colima.

[237]*237{¶ 6} Defendant presented no evidence in his defense, and the jury returned verdicts finding him guilty of all counts charged in the indictment. The court imposed on defendant a prison term of 15 years to life on the two counts of murder, noting that they merged for purposes of sentencing. The court further imposed a prison term of four years on the attempted-murder and felonious-assault convictions, again merging them. The court ordered the sentences to be served consecutively and further imposed six years’ imprisonment on the two separate firearm specifications, for a total sentence of 25 years to life.

II. Assignments of Error

{¶ 7} Defendant appeals, assigning the following errors:

First Assignment of Error

The trial court erred and deprived appellant of due process of law as guaranteed by the Fourteenth Amendment to the United States Constitution and Article One Section Ten of the Ohio Constitution by finding him guilty of murder, attempted murder, and felonious assault as those verdicts were not supported by sufficient evidence and were also against the manifest weight of the evidence.

Second Assignment of Error

The trial court erred in permitting the state to introduce improper and prejudicial testimony regarding gang culture, thereby violating appellant’s rights as guaranteed by the Fifth, Sixth, and Fourteenth Amendments to the U.S. Constitution and Article I, Sections 2, 10 and 16 of the Ohio Constitution. Third Assignment of Error

The trial court erred in holding to reveal [sic] the identity and promises made to any confidential informant and motion to suppress identification testimony and to reveal (1) any identification procedures where photographs of defendant were shown to any witnesses, and (2) procedures for how showups and lineups were conducted of the defendant, and (3) to identify any procedures where witnesses were asked to describe any suspects to the offense.

III. First Assignment of Error — Sufficiency and Manifest Weight

{¶ 8} Defendant’s first assignment of error challenges the sufficiency and manifest weight of the evidence. Defendant contends that the evidence connecting him to the murder “was imprecise, circumstantial, and mainly supported by the unreliable testimony of Edward Pyfrom.” Defendant does not dispute that someone fired several shots outside El Gato Negro, seriously injuring Angel Devilbiss and killing Ramon. The issue is the identity of the perpetrator of the offenses.

[238]*238{¶ 9} Whether evidence is legally sufficient to sustain a verdict is a question of law. State v. Thompkins (1997), 78 Ohio St.3d 380, 386, 678 N.E.2d 541. Sufficiency is a test of adequacy. Id. The evidence is construed in the light most favorable to the prosecution to determine whether a rational trier of fact could have found the essential elements of the offense proven beyond a reasonable doubt. State v. Jenks (1991), 61 Ohio St.3d 259, 574 N.E.2d 492, paragraph two of the syllabus; State v. Conley (Dec. 16, 1993), 10th Dist. No. 93AP-387, 1993 WL 524917. When reviewing the sufficiency of the evidence, the court does not weigh the credibility of the witnesses. State v. Yarbrough, 95 Ohio St.3d 227, 2002-Ohio-2126, 767 N.E.2d 216, ¶ 79.

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Cite This Page — Counsel Stack

Bluebook (online)
963 N.E.2d 162, 196 Ohio App. 3d 230, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-humberto-ohioctapp-2011.