State v. King

2013 Ohio 574

• Court: Ohio Court of Appeals
• Decided: February 21, 2013
• Docket: 98234
• Status: Published

Opinion

[Cite as State v. King, 2013-Ohio-574.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 98234

STATE OF OHIO

PLAINTIFF-APPELLEE

vs.

DOMETRIC S. KING DEFENDANT-APPELLANT

JUDGMENT: AFFIRMED

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-558799

BEFORE: Stewart, A.J., Rocco, J., and E.A. Gallagher, J.

RELEASED AND JOURNALIZED: February 21, 2013 ATTORNEY FOR APPELLANT

Robert H. Williams Hildebrand, Williams & Farrell 21430 Lorain Road Fairview Park, OH 44126

ATTORNEYS FOR APPELLEE

Timothy J. McGinty Cuyahoga County Prosecutor

BY: Patrick J. Lavelle, Jr. Assistant County Prosecutor The Justice Center 1200 Ontario Street, 8th Floor Cleveland, OH 44113 MELODY J. STEWART, A.J.:

{¶1} The court found defendant-appellant Dometric King guilty of possession of

drugs, trafficking in drugs, and one count of participating in a criminal gang. In this

appeal, King challenges the sufficiency and weight of the evidence only as it relates to the

participation in a criminal gang count. He argues that the state failed to prove that he

was a member of the Star Boyz gang because its evidence showed nothing more than that

he associated with known gang members.

I

A

{¶2} R.C. 2923.42(A), which defines the offense of participating in a criminal

gang, states:

(A) No person who actively participates in a criminal gang, with knowledge that the criminal gang engages in or has engaged in a pattern of criminal gang activity, shall purposely promote, further, or assist any criminal conduct, as defined in division (C) of section 2923.41 of the Revised Code, or shall purposely commit or engage in any act that constitutes criminal conduct, as defined in division (C) of section 2923.41 of the Revised Code.

{¶3} As applicable here, a “criminal gang” is defined by R.C. 2923.41(A) as “an

ongoing formal or informal organization, association, or group of three or more persons”

that has a common name or identifying signs, symbols, or colors; and the persons in that

group have either individually or collectively been engaged in a pattern of criminal

activity.

{¶4} A “pattern of criminal activity” is defined by R.C. 2923.41(B) as follows: (B)(1) “Pattern of criminal gang activity” means, subject to division (B)(2) of this section, that persons in the criminal gang have committed, attempted to commit, conspired to commit, been complicitors in the commission of, or solicited, coerced, or intimidated another to commit, attempt to commit, conspire to commit, or be in complicity in the commission of two or more of any of the following offenses:

(a) A felony or an act committed by a juvenile that would be a felony if committed by an adult;

(b) An offense of violence or an act committed by a juvenile that would be an offense of violence if committed by an adult;

(c) A violation of section 2907.04, 2909.06, 2911.211 [2911.21.1], 2917.04, 2919.23, or 2919.24 of the Revised Code, section 2921.04 or 2923.16 of the Revised Code, section 2925.03 of the Revised Code if the offense is trafficking in marihuana, or section 2927.12 of the Revised Code.

(2) There is a “pattern of criminal gang activity” if all of the following apply with respect to the offenses that are listed in division (B)(1)(a), (b), or (c) of this section and that persons in the criminal gang committed, attempted to commit, conspired to commit, were in complicity in committing, or solicited, coerced, or intimidated another to commit, attempt to commit, conspire to commit, or be in complicity in committing:

(a) At least one of the two or more offenses is a felony.

(b) At least one of those two or more offenses occurs on or after January 1, 1999.

(c) The last of those two or more offenses occurs within five years after at least one of those offenses.

(d) The two or more offenses are committed on separate occasions or by two or more persons.

{¶5} Finally, “criminal conduct” is defined as

the commission of, an attempt to commit, a conspiracy to commit, complicity in the commission of, or solicitation, coercion, or intimidation of another to commit, attempt to commit, conspire to commit, or be in complicity in the commission of an offense listed in division (B)(1)(a), (b), or (c) of this section * * *. R.C. 2923.41(C).

B

{¶6} The state offered the testimony of two law enforcement officers who testified

generally as to the gang culture in Cleveland and more specifically to establish that King

actively participated in the Star Boyz gang. Viewing the evidence most favorably to the

state, see State v. Yarbrough, 95 Ohio St.3d 227, 2002-Ohio-2126, 767 N.E.2d 216, ¶ 78,

that evidence showed that Cleveland gangs tended to form along small,

neighborhood-oriented groups as opposed to the larger, more hierarchical national gangs.

The Star Boyz derived their name from Star Avenue, a street within their territory,

although they sometimes referred to themselves as “STH,” an abbreviation for “Star

Town Hustlers”; “D-Block,” a reference to Decker Avenue, a street within their territory;

and “RDS,” an abbreviation for Redell, Decker, and Star Avenues, all streets within the

gang’s territory.

{¶7} An agent with the Federal Bureau of Alcohol, Tobacco, and Firearms

testified that over a period of years, he built a profile of more than 40 individuals who

were associated by police reports and criminal activity with the Star Boyz. He monitored

social networking sites to keep abreast of their activities and gathered information on

those affiliated with the gang through photographs and postings on those sites. The

agent noted that gang graffiti in the territory often documented the gang’s presence as a

warning to those who would enter their territory. He identified photographs

documenting different graffiti that identified the territory as belonging to the Star Boyz. The Star Boyz did not have a common “color,” but a member of the gang showed the

agent the four different signs the gang used. The agent was able to download from social

networking sites many photographs showing known gang members giving various Star

Boyz signs. There were also photographs showing graffiti paying tribute to deceased

gang members on numerous buildings within the gang’s territory. Other photographs

showed gang members with tattoos featuring the name of the gang or tributes to deceased

members. Finally, the state offered photographs of known gang members posing in a

group photograph, displaying stars as a homage to the gang and its name. This evidence

was sufficient to establish the existence of the Star Boyz gang.

{¶8} As evidence of a pattern of criminal activity, the agent testified that in six

years of following the Star Boyz, he knew that they had been involved in “numerous

firearms-related incidents, such as aggravated robbery, car jacking, [and] felonious

assault shootings.” The agent testified that the gang was “opportunistic” in that members

acted either alone or in concert when they saw a vulnerable target holding cash or some

other possession that they desired. The Star Boyz occupy a relatively small territory

(about four square blocks), they know the people living in that territory, and use

intimidation and threats of violence to create a veil of secrecy and ensure that their

criminal activities remain unreported by those non-gang members living within their

territory.

{¶9} The evidence showed that in general, gangs claim the sole right to traffick

drugs within their territory. They enforce that claim by violence and when non-gang

members are caught drug dealing within a gang’s territory, the gang will exact a punishment as means of enforcing territorial boundaries.

{¶10} The agent identified a number of journal entries from various criminal cases

involving known members of the Star Boyz. There were other criminal incidents

involving gang members in which the state had been unable to obtain convictions on

charges, but the agent said that was a result of gang members intimidating victims and

witnesses into recanting or refusing to testify. The agent also identified a number of

photographs, again taken from social networking sites, showing known gang members

posing with firearms. The agent said that it was “not uncommon for a gang member to

show himself in a photograph holding a gun or putting photographs on social media to

intimidate other gangs to not mess with them or with the gang.”

{¶11} This testimony dovetailed with that of a Cleveland narcotics officer who

testified that the Star Boyz and the rival 7-All gang were involved in “a very volatile and

violent gang war.” The officer said that in 2002, the war resulted in the murder of a

7-All member and that bystanders identified a Star Boyz member as the shooter. The

officer detailed another shooting of a 7-All member in which the shooter was again

identified as a member of the Star Boyz.

{¶12} As for King’s participation with the Star Boyz, the agent testified that King

lived on Redell Avenue within the Star Boyz territory and had been involved with Star

Boyz members since at least 2002. The police officer testified that King had been on a

police watch list as a member of the Star Boyz. He said that when he had been a line

officer, he patrolled the Star Boyz territory every day for at least two years and “quite

regular[ly]” saw King with other gang members. When asked to define what he meant by “quite regularly,” the officer said, “[i]f I worked six days, maybe five.” The agent

referenced two photographs taken from the cell phone of a known Star Boyz member that

showed King posing with other gang members who were displaying stars. In one of the

pictures, King is saluting. King’s presence in the group photograph was consistent with

evidence that King trafficked in drugs inside the Star Boyz territory. The officer testified

that the gang strictly controlled who could traffick drugs in their territory — if a person

could sell drugs inside Star Boyz territory without being harassed, it meant that the person

did so with the gang’s approval. This was a tacit acknowledgment that the person selling

drugs was in the gang.

{¶13} The evidence going to whether King had knowledge that the Star Boyz

engaged in a pattern of criminal gang activity was shown by testimony concerning an

ongoing war between the Star Boyz and their rivals, the 7-Alls, whose territory abuts that

of the Star Boyz. In 2006, King was accompanying another male when they saw a car

driven by a member of the 7-Alls. King pulled out a handgun and fired into the car. He

later pleaded guilty to attempted felonious assault as a result of the shooting. The officer

described another incident involving the gang war between the Star Boyz and 7-Alls in

which a car carrying Star Boyz shot into a car occupied by 7-Alls. The police arrested

various members of both gangs after the shooting and the officer identified King as being

in the Star Boyz car.

C

{¶14} King argues that the state’s witnesses did not offer direct evidence that he

was an active member of the Star Boyz gang. He notes that there was no evidence of his membership from other admitted gang members or that he bore a gang tattoo as did other

members. He thus maintains that the state tried to establish his membership through guilt

by association on the basis of his appearing in group photographs featuring other known

gang members.

{¶15} If the state’s evidence consisted of nothing more than two photographs

showing King in the company of other gang members, King’s argument might have merit.

“[N]ominal or passive association” with a gang is not enough to prove active gang

membership, State v. Hairston, 9th Dist. Nos. 23663 and 23680, 2008-Ohio-891, ¶ 18,

and King’s mere presence in photographs of gang members — his association with them

— without more, would not be enough to establish that he participated in gang activity.

{¶16} The lack of direct evidence that King belonged to the Star Boyz was

expected because the evidence showed that most gang members deny their membership to

the police for fear of drawing attention, much less admitting that the gang exists at all.

The circumstantial evidence, however, showed the existence of Star Boyz graffiti and

photographs of members making the distinctive Star Boyz sign. Members of the 7-All

gang confirmed the existence of the Star Boyz and their open gang war left no doubt that

the gang existed.

{¶17} With the existence of the gang established, the state offered compelling

circumstantial evidence to show that King’s constant presence with gang members proved

that his relation to them was more than a mere “association.”

{¶18} Circumstantial evidence is defined as “‘[t]estimony not based on actual

personal knowledge or observation of the facts in controversy, but of other facts from which deductions are drawn, showing indirectly the facts sought to be proved. * * *”’

State v. Nicely, 39 Ohio St.3d 147, 150, 529 N.E.2d 1236 (1988), quoting Black’s Law

Dictionary 221 (5th Ed.1979). That is, circumstantial evidence is a set of facts from

which another fact may be inferred, as opposed to direct evidence, which goes directly to

the fact to be established.

{¶19} King grew up and lived in Star Boyz territory and the law enforcement

officers testified that they constantly saw King in the presence of other gang members.

We agree that King’s mere presence in his own neighborhood, standing alone, did not

prove his membership in the gang, but the logical inferences from the state’s evidence

could lead a rational trier of fact to conclude that his constant presence went beyond mere

association. The state’s evidence showed that King had been documented as being

present during two separate incidents involving shootings between the Star Boyz and their

rivals, the 7-Alls. King’s participation in these shootings went beyond being a mere

bystander. He actively fired a gun into a car driven by 7-All members. This act was no

one-off — the police documented a second shooting incident involving a car carrying

King and other Star Boyz members firing at a car driven by 7-All members. Even if

King was a mere bystander during one shooting, it was highly unlikely that he was

innocently involved in two separate shootings. A rational trier of fact could find that

King’s act of riding in a car with Star Boyz members and actually shooting at a rival gang

member’s car was an affirmative act that announced his affiliation with the Star Boyz.

{¶20} That affiliation was further demonstrated by photographs showing King

posing with known Star Boyz members. This was more than a photograph showing a random group of people — it was a group photograph of known Star Boyz members,

some of whom were shown holding cut-out stars. The presence of the stars served to

confirm the gang affiliation of those in the photograph. In addition, the photograph

shows King saluting, an act that a rational trier of fact could conclude was a show of

allegience to the gang itself.

{¶21} Finally, King’s drug trafficking within Star Boyz territory was itself a

telltale sign of membership. Testimony showed that gangs enforced their exclusive

claim to drug dealing inside their territory. If an interloper appeared, the gang would

actively remove that person, usually by means of violence. So if King was openly selling

drugs in Star Boyz territory without retaliation, it must have been because he was a Star

Boyz member.

{¶22} It is true that unlike some other members of the gang, King did not have any

tattoos displaying his gang affiliation or honoring deceased gang members. However,

King offered no evidence to show that tattoos were the sine qua non of Star Boyz

membership. Regardless of whether he had a gang tattoo, his constant presence in the

company of other gang members, and in particular his involvement in skirmishes with

rival gangs, could cause a rational trier of fact to conclude that King’s involvement with

the Star Boyz went beyond passive association and amounted to active membership in the

gang. To find otherwise would be to ignore the obvious circumstantial evidence.

II

{¶23} King next argues that his conviction is against the manifest weight of the

evidence, relying on the same arguments about his membership in the gang that he made when claiming that there was insufficient evidence to support his conviction. To the

extent that these arguments overlap, we summarily reject them.

{¶24} The only new argument King raises in this assignment of error is that it is

possible for a gang member to commit a crime that has nothing to do with that gang

member’s participation in a gang. He argues that the drug transaction he committed was

a solo endeavor (made in the company of a non-gang member) and that there was no

proof that the transaction was for the “benefit” of the gang.

{¶25} The manifest weight of the evidence standard of review requires us to

review the entire record, weigh the evidence and all reasonable inferences, consider the

credibility of 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

conviction must be reversed and a new trial ordered. State v. Otten, 33 Ohio App.3d

339, 340, 515 N.E.2d 1009 (9th Dist.1986).

{¶26} The evidence showing that drug trafficking by non-gang members within a

gang’s territory would not be tolerated was credible enough that the court did not lose its

way by concluding that King was a member of Star Boyz. As previously discussed, the

court heard competent, credible evidence establishing the existence of the Star Boyz

gang, the gang’s participation in criminal activity including drug trafficking, and the

manner in which the gang enforced its claimed exclusive right for its members to traffick

drugs within its territory. Given this evidence, the court did not lose its way by

concluding that King’s ability to traffic drugs in Star Boyz territory was credible evidence

of his membership in the gang. {¶27} Judgment affirmed.

It is ordered that appellee recover of appellant its 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 Cuyahoga

County Court of Common Pleas 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.

MELODY J. STEWART, ADMINISTRATIVE JUDGE

KENNETH A. ROCCO, J., and EILEEN A. GALLAGHER, J., CONCUR