State v. Johnson

2020 Ohio 2940

STATE OF OHIO, Plaintiff-Appellee, v. KYLE JOHNSON, Defendant-Appellant.

No. 108621

COURT OF APPEALS OF OHIO EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

May 14, 2020

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED

Criminal Appeal from the Cuyahoga County Court of Common Pleas

Case No. CR-18-635675-A

Appearances:

Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Brian D. Kraft, Assistant Prosecuting Attorney, for appellee.

Robert A. Dixon, for appellant.

MICHELLE J. SHEEHAN, J.:

{¶ 1} Plaintiff-appellant Kyle Johnson ("Johnson") appeals from his convictions for murder, felonious assault, improperly discharging a firearm, and having weapons while under disability. Because we find the trial court did not abuse its discretion when it denied Johnson's motion for a mistrial, the trial court properly denied Johnson's request for jury instructions on the lesser included offense of involuntary manslaughter, and the convictions are not against the manifest weight of the evidence, we affirm.

I. Procedural History

{¶ 2} On December 28, 2018, Johnson was charged in a multiple count indictment that stems from the shooting death of Emmanuel Hicks ("Hicks" or "the victim"). The indictment charged as follows: Count 1 — aggravated murder in violation of R.C. 2903.01(A); Count 2 — aggravated murder in violation of R.C. 2903.01(B); Count 3 — murder in violation of R.C. 2903.02(B); Count 4 — aggravated burglary in violation of R.C. 2911.11(A)(2); Count 5 — aggravated robbery in violation of R.C. 2911.01(A)(3); Count 6 — felonious assault in violation of R.C. 2903.11(A)(1); Count 7 — improperly discharging into habitation in violation of R.C. 2923.161(A)(1); Count 8 — discharge of firearm on or near prohibited premises in violation of R.C. 2923.162(A)(3); Count 9 — felonious assault in violation of R.C. 2903.11(A)(2); and Count 10 — having weapons while under disability in violation of R.C. 2923.13(A)(2).

{¶ 3} With the exception of Count 10, all of the charges included one-year, three-year, and 54-month firearm specifications. Counts 4-7 and Count 9 included a notice of prior conviction specification as well as a repeat violent offender specification.

{¶ 4} On April 1, 2019, the matter proceeded to a jury trial, with the exception of the having weapons while under disability count, notice of priorconviction specifications, repeat violent offender specifications, and 54-month firearm specifications, which were tried to the bench. Following the defense's Crim.R. 29 motion for acquittal, the trial court dismissed the aggravated robbery charge. The jury found Johnson guilty of murder, the lesser included offense under Count 1; murder in Count 3; both felonious assault charges; improperly discharging into habitation; and discharge of a firearm on or near prohibited premises. The jury also found Johnson guilty of the attendant one- and three-year firearm specifications. The jury found Johnson not guilty of aggravated murder in Count 2 and aggravated burglary in Count 4. Thereafter, the trial court found Johnson guilty of having weapons while under disability. The court also found Johnson guilty of the relevant notice of prior conviction specifications, repeat violent offender specifications, and 54-month firearm specifications.

{¶ 5} On April 30, 2019, the court held a sentencing hearing, during which the parties agreed that Count 1 (murder), Count 3 (murder) and renumbered Count 5 (felonious assault) merge and that renumbered Count 6 (improperly discharging into habitation), renumbered Count 7 (discharging firearm on or near prohibited premises), renumbered Count 8 (felonious assault), and renumbered Count 9 (having weapons while under disability) do not merge. The state then requested the court to sentence on Count 1 and each of the remaining counts.

{¶ 6} Thereafter, the court imposed the following sentence: Count 1 — 15 years to life in prison, plus the 54-month firearm specification (in which the one-and three-year firearm specifications are merged), to be served prior to andconsecutive to the underlying offense; Count 6 — six years in prison, plus the 54-month firearm specification (which was merged with the one- and three-year firearm specifications), to be served prior to and consecutive to the underlying offense; Count 7 — three years in prison, plus the 54-month firearm specification (which was merged with the one- and three-year firearm specifications), to be served prior to and consecutive to the underlying offense; Count 8 — eight years in prison, plus the 54-month firearm specification (which was merged with the one- and three-year firearm specifications), to be served prior to and consecutive to the underlying offense; and Count 9 — three years in prison. The court then ordered the firearm specifications in Counts 1 and 6 as well as the underlying offenses in Counts 1, 6, and 9 to run consecutive to each other, and the court ordered the sentences in Counts 7 and 8 to be run concurrent with all other counts. The total prison sentence is 33 years to life.

{¶ 7} Johnson now appeals his conviction, assigning three errors for our review:

I. The lower court erred and denied the appellant due process of law and a fair trial when it denied the defense motion for a mistrial based upon the failure of the state to provide timely discovery.

II. The lower court erred and denied the appellant his right to due process and a fair trial when it refused the defense request to charge the jury on the lesser offense of involuntary manslaughter pursuant to R.C. 2903.04(B).

III. The verdict and judgment below finding the appellant guilty of murder was against the manifest weight of the evidence.

II. Substantive Facts

{¶ 8} Police were dispatched to the residence of Emmanuel Hicks on Edmonton Avenue in Cleveland, Ohio, on the evening of November 5, 2017, for shots fired. Cleveland police sergeant John Lally testified that police simultaneously received another call for shots fired into a house on E. 125th Street, approximately four or five houses away from the home on Edmonton Avenue, "across the street, on the south side of the street."

{¶ 9} Darren Robinson, a Cleveland police detective with the crime scene unit, arrived at the scene of the homicide on Edmonton Avenue, conferring with officers on the scene, collecting evidence, and photographing evidence. Upon entering the front porch, Detective Robinson observed a camera surveillance system. Inside the home, he observed a turned-over table and chair and the victim, Hicks, lying face down on his living room floor, near a sofa. Hicks had died of apparent multiple gunshots.

{¶ 10} Detective Robinson also observed blood on the floor, wall, and table, and a cell phone on the table, a semiautomatic firearm in a cabinet, apparent "defects," or holes caused by a bullet, in a chair and the wall, sandwich bags, a Mason jar, and a spent .40 caliber casing near the victim. He further observed blood on the victim's hand, chest, and stomach area, suspected marijuana on and near the victim, and a 9 mm handgun in the victim's pocket. DetectiveRobinson took samples of the blood in the home using sterile swabs to collect potential DNA evidence.

{¶ 11} Cleveland police homicide detective David Shapiro was also dispatched to the shooting on Edmonton Avenue. He worked with Detective Robinson to collect evidence from the scene. Detective Shapiro testified that he and other detectives on the scene removed a camera surveillance system that consisted of a DVR recorder and four cameras, and he forwarded the surveillance system to the FBI for assistance extracting video from the system. While on the scene, Detective Shapiro also recovered a firearm in a dining room cabinet, a cell phone, and approximately $500 in cash on the victim. The detective then interviewed Hicks's upstairs neighbors, William Martin and Deanna McShan.

{¶ 12} Martin testified that Hicks made money selling marijuana, Hicks had previously been robbed, and he had a camera surveillance system. Martin further testified that on the evening of November 5, 2017, he was playing cards with Deanna McShan and others in his home when he heard a "big rumble" that sounded like "something may have fallen over downstairs." He then heard gunshots and felt vibrations, which caused him to believe the shots came from inside the house. After the shots ceased, he called Hicks. When Hicks did not answer, Martin went downstairs to check on Hicks and discovered Hicks lying partially on the sofa and partially on the floor. Martin also saw "a lot of marijuana * * * all over the floor." He checked for Hicks's pulse and found none.

{¶ 13} Deanna McShan testified that she was playing cards with Martin when she heard "a lot of commotion," including "tussling" and cussing. She then heard something fall, and she heard gunshots. She, too, phoned Hicks after the gunshots. When Hicks did not answer, she went downstairs and discovered Hicks lying on the floor, "leaning" on the sofa. She also observed broken furniture, "a lot of marijuana on the floor," and the victim's cell phone. McShan phoned 911.

{¶ 14} While on the scene at E. 125th Street on November 5, 2017, Sergeant Lally spoke with the residents of the home. He observed wooden splinters in the male resident's body and a "defect" in a kitchen cabinet. Sergeant Lally testified that although he did not observe an entrance defect outside of the home, he believed the shooting at Edmonton Avenue was related to the shooting at E. 125th Street.

{¶ 15} Brian Dixon ("Brian") lived on E. 125th Street with his mother, Denise Dixon ("Denise"). Brian testified that on the evening of November 5, 2017, he was preparing dinner in his kitchen when he heard an explosion and then felt "wood particles" from a cabinet hit his face. He then observed a bullet hole "from the back of the house through * * * the cabinet into the bathroom." Denise testified that on that evening, she was lying on the sofa in the living room when her son...