State v. Donlow, 20 MA 0049

2021-Ohio-3019

STATE OF OHIO, Plaintiff-Appellee, v. BRIAN DONLOW, JR., Defendant-Appellant.

No. 20 MA 0049

Court of Appeals of Ohio, Seventh District, Mahoning

August 30, 2021

Criminal Appeal from the Court of Common Pleas of Mahoning County, Ohio Case No. 19 CR 377A.

Atty Paul J. Gains, Mahoning County Prosecutor, Atty. Ralph M Rivera, Assistant Chief, Criminal Division, Mahoning County Prosecutor's Office, for Plaintiff-Appellee and

Atty Edward Czopur, DeGenova & Yarwood, Ltd., for Defendanrt-Appellant.

BEFORE: Carol Ann Robb, Gene Donofrio, Cheryl L. Waite, Judges.

OPINION AND JUDGMENT ENTRY

ROBB, J.

{¶1} Defendant-Appellant Brian Donlow Jr. appeals after being convicted by a jury in the Mahoning County Common Pleas Court of murder with a firearm specification and having a weapon while under disability. He raises issues with sufficiency of the evidence, weight of the evidence, the admissibility of a detective's testimony identifying him from a surveillance video recorded at the scene of the shooting, the admissibility of alleged hearsay where two detectives each testified about a different tip providing the names of the suspects, and cumulative error regarding the two tips. For the following reasons, Appellant's convictions are affirmed.

STATEMENT OF THE CASE

{¶2} On June 18, 2018, just after midnight, Brandon Wylie was shot multiple times on the grounds of the Plazaview Apartments in Youngstown. His body rested face up in the grass under a surveillance camera mounted on a pole. Two females told the first-responding officer they were at their car when they saw two males with handguns, heard the shots, and then saw the two males run toward the entrance of the apartment complex at McGuffey Road. (Tr. 492).

{¶3} The police reviewed video from multiple cameras at the apartment complex. The victim arrived at the street entrance to the apartment complex on foot at 11:52 p.m. on the video which was approximately ten minutes behind real time. (Tr 730). He walked north on Plazaview Court. At the same time, a small gathering could be seen outside of Building L. At 11:54, the victim turned into the parking lot of Building L. At the same time, two males from the gathering approached the victim's location in the parking lot. After viewing video collected from multiple cameras, a detective identified Stephone Hopkins as the one wearing a white shirt and dark shorts with a large logo covering much of the left leg and identified Appellant as the one wearing a darker shirt (blue or gray). A female remained near a car in front of the building, and a different male in a white shirt can be seen with her.

{¶4} Within a minute, the victim walked back the way he came with Hopkins as Appellant trailed behind them. As they turned the corner from the parking lot and walked south onto Plazaview Court, they passed close by the camera facing the office at 11:55 (from the time marks of 18 to 36 seconds).

{¶5} After they reached the playground area, the video from the pole camera above the victim's body (and east of the road) shows the person identified as Hopkins enter the scene shooting at 11:55 (at the 48 second mark). He was facing the location of the camera and walking south up the street while firing multiple times with his left hand toward the side of the road where the victim's body was found. (Tr. 736). The victim was out of the camera viewing area (to the north of and under the camera's range).

{¶6} As Hopkins stopped firing, the person identified as Appellant ran into the frame toward Hopkins from the north. He had a black object in his hand. Appellant approached the area where the victim's body was found. Hopkins walked toward Appellant, and they then began walking south down the sidewalk together. After an approaching car passed, they ran toward the complex exit, turned east at McGuffey Road at 11:56, and ran along the front of the complex. (Tr. 738).

{¶7} Immediately after the first shot was captured on one camera, a different camera showed the female in front of Building L flee into the apartment while two individuals in white T-shirts in front of Building L ran the opposite direction from the location of the shooting and cut north between Building L and another building. A different camera with a back view of Building L showed these two individuals continuing to run in the opposite direction as the individuals identified as Appellant and Hopkins. (Tr. 739-740). At 11:58, these two individuals walked south past the office toward the playground. A detective identified them as Lorice Moore and Chasmar Ford. Moore approached the victim's location under camera and turned away with both hands on his head as if in distress. They walked up Plazaview Court and were picked up by a vehicle at midnight before they reached McGuffey Road.

{¶8} The police found fourteen shell casings in two distinct areas on the roadway of Plazaview Court. (Tr. 607); (St.Ex. 36). In the northern location, they found eight 9mm shell casings, which testing showed were all fired from the same firearm. (Tr. 676). This location was near where the victim's .32 caliber revolver and cigarettes were found in the roadway (north of the victim's final resting place). In the southern location, more parallel to the victim's body, they found six .45 caliber shell casings, which testing showed were fired from the same firearm. (Tr. 677).

{¶9} The victim suffered nine gunshot wounds with the following entry points and paths: (1) right clavicle, upper lung; (2) center chest, through the heart and fatal within seconds; (3) lower right abdomen, from right to left; (4) abdomen, left to right and up, lodging in fat by the colon; (5) skin of abdomen pierced by fragment without penetrating into abdomen; (6) lower left abdomen, lethal wound hitting the largest vessel in the body near the bowel; (7) back of thigh, lodging in the body after an upward path from right to left; (8) right knee at a downward path, passing behind the kneecap; and (9) left inner lower leg, passing straight through with no angle. (Tr. 530-545). There was bruising at the exit wound of the shot through the heart, which can occur when a victim's body is pressed against a hard object, such as the ground. (Tr. 532-533). The two slugs, recovered from the abdomen and thigh, were more likely 9mm (than .45 caliber) bullets. (Tr. 680).

{¶10} The police recovered the victim's .32 caliber revolver which contained three live .32 caliber rounds, which were in position to be fired next, and no empty casings in the other three spots in the chamber, indicating the victim fired no shots (as a revolver does not eject its casings). (Tr. 623, 654, 869). Also, testing showed none of the recovered casings or slugs were fired by the revolver. (Tr. 679).

{¶11} The victim's wallet and phone were found in his pocket, and he had blister packs of Tramadol (an opioid) in his sock. (Tr. 620, 626-627). The victim's phone showed he communicated with Lorice Moore a few times that evening. There were phone calls, and then, at 11:27 p.m., the victim texted, "Tell dude I had to go somewhere." (Tr. 707, 784, 801).

{¶12} On May 16, 2019, Appellant was indicted for aggravated murder (prior calculation and design), an alternative count of murder (purposely causing the death), a firearm specification, and having a weapon while under disability. Co-defendant Stephon Hopkins was similarly charged. The case was jointly tried to a jury.

{¶13} The victim's father testified the victim helped him move an appliance from a relative's house on June 18, 2018 and they did not get home until nearly 11:00 p.m. The Plazaview apartment complex was a quarter of a mile from their house. The victim's father did not know the defendants. (Tr. 416-422).

{¶14} Witness A testified she was spending time outside of the apartment of her female friend on June 18, 2018. Another female friend, Witness B, was there as well. Witness A named the four males who arrived later: Lorice Moore, Chasmar Ford, Stephon Hopkins, and Appellant Brian Donlow. (Tr. 452). Witness A said she took orders from each person for drinks and snacks and drove to a convenience store, bringing Witness B with her. (Tr. 454). She identified Appellant and Hopkins at trial and said they were at the gathering when she left just minutes before the shooting. (Tr. 457). The victim had not arrived when she left. (Tr. 456).

{¶15} Approximately ten minutes later, while driving back from the store, Witness A picked up Moore and Ford on McGuffey Road in front of the apartment complex and dropped them off a few blocks away near the housing development of Victory Estates. (Tr. 455-456, 462-463). She called the police the next day to report who was at the gathering in front of Building L, but she did not specifically provide the names Hopkins and Donlow. (Tr. 821-822). She was a friend of Moore and Ford and knew Hopkins as Chip. (Tr. 460, 474). She did not know Appellant's name until she heard it on the news. (Tr. 466).

{¶16} Witness B confirmed the gathering outside of the friend's apartment at Building L of Plazaview Apartments where four males were present: Moore, Ford, Hopkins, and one other male. She had attended school with Moore and Ford and was pregnant with Moore's child at the time. (Tr. 439-440, 862). Hopkins was wearing a white T-shirt and had "a little afro." (Tr. 432). She said she did not see the fourth person's face but said he arrived with the other males who knew him. (Tr. 426-427).

{¶17} Witness B said while she was at the store with Witness A, the female friend they were visiting called and said not to come back to the apartment complex. (Tr. 428). Witness B confirmed they collected Moore and Ford at the corner of McGuffey Road and Plazaview Court and dropped them off at the...