State v. Burgos-Delgado

216 N.E.3d 69

STATE of Ohio, Plaintiff-Appellee,

v.Juan A. BURGOS-DELGADO, Defendant-Appellant.

No. 111992

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

Released and Journalized: June 1, 2023

Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Kevin R. Filiatraut, Assistant Prosecuting Attorney, for appellee.

P. Andrew Baker, for appellant.

JOURNAL ENTRY AND OPINION

MICHAEL JOHN RYAN, J.:

{¶ 1} Defendant-appellant, Juan A. Burgos-Delgado, appeals from his judgment of conviction, which was rendered after a jury trial on two joined indictments. After a thorough review of the facts and pertinent law, we affirm.

Procedural History

{¶ 2} The first incident giving rise to indictment occurred on January 7, 2018, and was charged in Cuyahoga C.P. No. CR-18-625204. In that case, Burgos-Delgado and a codefendant, Wilfredo Garcia-Rodriguez, were charged with the following crimes relative to the homicide of James Dowell: Count 1, aggravated murder in violation of R.C. 2903.01(B) ; Count 2, aggravated murder in violation of R.C. 2903.01(A) ; Count 3, aggravated burglary in violation of R.C. 2911.11(A)(1) ; Count 4, aggravated robbery in violation of R.C. 2911.01(A)(3) ; Count 5, kidnapping in violation of R.C. 2905.01(A)(2) ; Count 6, kidnapping in violation of R.C. 2905.01(A)(3) ; Count 7, aggravated robbery in violation of R.C. 2911.01(A)(1) ; and Count 8, kidnapping in violation of R.C. 2905.01(A)(2). Counts 1 through 8 all contained one- and three-year firearm specifications, notices of prior conviction, and repeat violent offender specifications. A final count, Count 9, related solely to codefendant Garcia-Rodriguez being charged with having weapons while under disability.¹

{¶ 3} The second incident occurred on January 18, 2018, just days after the homicide, and was charged in Cuyahoga C.P. No. CR-20-647651. The charges in that case resulted from a traffic stop of a vehicle Burgos-Delgado was driving and consisted of one count of tampering with evidence in violation of R.C. 2921.12(A)(1) and one count of drug possession in violation of R.C. 2925.11(A).

{¶ 4} The state filed a motion to join the indictments for one trial. Defense counsel agreed to the joinder and the cases were heard together in a single jury trial. The state presented 11 witnesses, and after it rested the defense made a Crim.R. 29 motion for judgment of acquittal, which the trial court denied. The defense did not present any witnesses on its behalf.

{¶ 5} After its deliberations, on the homicide charges, the jury found Burgos-Delgado guilty of Counts 1, 3, 4, 5, 6, 7, and 8, as well as the accompanying one- and three-year firearm specifications. The jury found him not guilty of Count 2. At sentencing, Counts 5 and 6 merged with Count 4 and the state elected to proceed on Count 4; and Counts 7 and 8 merged and the state elected to proceed on Count 7. The trial court sentenced Burgos-Delgado on Count 1, aggravated murder, to life without parole, plus three years on the firearm specification, to be served prior to and consecutive to the underlying charge, and ten years on the remaining counts after merger, to be served consecutively to each other. The trial court further ordered that the gun specification on Count 7 be served consecutive to the gun specification on Count 1.

{¶ 6} On the drug charges, the jury found Burgos-Delgado guilty of both counts (tampering with evidence and drug possession). The trial court sentenced him to 36 months on Count 1, tampering with evidence, and 12 months on Count 2, drug possession. The sentences were ordered to be served concurrently and concurrently to the sentence on the homicide charges.

Trial Testimony

Homicide of Dowell

{¶ 7} E.R., who was 14 years old at the time of the crime, testified that at the relevant time he lived with his mother and her boyfriend, codefendant Garcia-Rodriguez, who was known as "Jyto." The victim, Dowell, was a friend of E.R.’s family and E.R. would buy marijuana from him. E.R. testified that on at least two occasions prior to Dowell's murder, he and Garcia-Rodriguez had been together when purchasing marijuana from Dowell.

{¶ 8} E.R. testified that on the day of the murder he had been at his cousin's house and he left the house on foot to go home. On his way home, he noticed his mother's car parked outside a house. He was surprised to see her car at the house and knocked on the door of the house to find out why she was there. Garcia-Rodriguez answered the door. Burgos-Delgado, who E.R. had not previously known, was in the house. E.R. described Burgos-Delgado as shorter and "chubbier" than Garcia-Rodriguez and as having a limp when he walked.

{¶ 9} Garcia-Rodriguez told E.R. that they were about to rob Dowell. Garcia-Rodriguez and Burgos-Delgado had two guns — both automatics, one was bigger and a "regular" color and the other was smaller and light blue. E.R. left with the duo in his mother's car, with Burgos-Delgado driving. Burgos-Delgado drove them to Dowell's house and parked in an alley behind the house. Burgos-Delgado told E.R. that if he did not do as Burgos-Delgado instructed him, Burgos-Delgado would kill his mother, aunt, and niece. E.R. testified that he was instructed to go into Dowell's house and leave the door unlocked so that Burgos-Delgado and Garcia-Rodriguez could gain access to the home.

{¶ 10} Following Burgos-Delgado's instruction, E.R. went to Dowell's side door and knocked on it. Dowell answered the door, let E.R. in, and E.R. left the door unlocked. There was a female in the house with Dowell. E.R. asked Dowell for marijuana.

{¶ 11} Shortly after entering Dowell's house, Burgos-Delgado and Garcia-Rodriguez entered the house through the door E.R. left unlocked. They were both wearing masks on their faces — one had a dark one and the other had a blue one. They also both had gloves on and both had guns, which they pointed at Dowell and the female as they told them to get on the ground.

{¶ 12} Dowell resisted and fought with Garcia-Rodriguez. E.R. testified that he heard Dowell ask Jyto (Garcia-Rodriguez's nickname) why he was doing this. According to E.R., Burgos-Delgado had the light blue gun and used it to hit Dowell on the head. As Dowell and Garcia-Rodriguez continued to fight, Garcia-Rodriguez's gun fell to the ground and Burgos-Delgado retrieved it. Burgos-Delgado, who was within "arm's reach" of Dowell, shot Dowell first in the chest and then in the head.

{¶ 13} Burgos-Delgado threw a bag to E.R. and told him to take everything off of a nearby table. E.R. grabbed a bag of marijuana off the table and he, Burgos-Delgado, and Garcia-Rodriguez fled Dowell's house and went to Burgos-Delgado's house.

{¶ 14} A few days after the shooting, a detective came to E.R.’s school and talked to him. E.R. initially lied to the detective about his knowledge of and involvement in the shooting. Eventually, after Garcia-Rodriguez had been identified as a suspect, E.R. told the truth. E.R. testified that he lied because he was scared by Burgos-Delgado's threat to kill his family.

{¶ 15} The female who E.R. testified was in Dowell's house was identified as Savannah Alley. She acknowledged that Dowell was a drug dealer and she was often with him when he made his sales.

She testified that she was at Dowell's house on the day of the shooting, and someone called him asking for $5 worth of marijuana. Later, "a kid" (E.R.) came to purchase the marijuana. While Alley and Dowell were in the kitchen with E.R., two men ran in. One had a black gun and the other had a blue gun. The bigger of the two men had her on the ground with his gun to her head, while the other man fought with Dowell. Dowell said to the man who he was fighting with, "Jyto, I know it's you, why would you do this to me?"

{¶ 16} Alley further testified that one of the men pistol-whipped Dowell and put duct tape on his face. She then heard gunshots and was able to run away and hide in another part of the house. After a few minutes she heard a car pull off. Alley discovered that the intruders took her cell phone so she alerted the police through Dowell's house alarm system.

{¶ 17} Law enforcement, who responded to the scene, recovered the following evidence: (1) a spent bullet under Dowell's body, (2) a spent casing on the kitchen floor, (3) a spent casing on top of the washing machine in the laundry room, which was adjacent to the kitchen, (4) a roll of gray duct tape with a crumpled piece of it with suspected blood still attached to the roll, (5) suspected blood outside in the snow leading from Dowell's house towards the alley, (6) a black winter cap, and (7) a piece of blue duct tape.

{¶ 18} Alley was able to identify both E.R. and Garcia-Rodriguez to the police. Garcia-Rodriguez was apprehended first. After Garcia-Rodriguez's interview with the police, an arrest warrant was issued for Burgos-Delgado. Further, a search warrant for Burgos-Delgado's home was issued and during the execution of the search, blue duct tape, a light blue semiautomatic handgun, and ammunition were recovered from Burgos-Delgado's home.

{¶ 19} Trace evidence testing was conducted on the blue duct tape recovered from the crime scene and the blue duct tape found in Burgos-Delgado's home. The initial testing tended to show that the blue duct tape found outside of Dowell's home was not directly torn from the roll found at Burgos-Delgado's home, or if it was, there was a piece missing between. However, further testing revealed that the two blue duct tapes had a "level III association." The trace evidence witness testified that there were no microscopic differences between the backing, the adhesive, and the fibers on the strip of duct tape found at the scene and the roll found in Burgos-Delgado's home, which meant that although the ends of the strip and roll did not match up, the strip could have come from the roll.

{¶ 20} A witness testified about the ballistic testing that was performed. According to the witness, the two spent casings from the crime...