State v. Walker

2021-Ohio-2037

STATE OF OHIO, Plaintiff-Appellee, v. DETTRICK WALKER, Defendant-Appellant.

No. 109328

Court of Appeals of Ohio, Eighth District, Cuyahoga

June 17, 2021

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-18-633490-B

JUDGMENT AFFIRMED

Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, Blaise D. Thomas and Tasha Forchione, Assistant Prosecuting Attorneys, for appellee.

Joseph V. Pagano, for appellant

JOURNAL ENTRY AND OPINION

SEAN C. GALLAGHER, JUDGE

{¶ 1} Dettrick Walker appeals his conviction for felonious assault, along with an attendant three-year gun specification, stemming from his mortally shooting Victor Maar, Jr., with an illegally possessed handgun during an altercation in Maar's home. The trial court sentenced Walker to an eight-year term of imprisonment to be served following the three-year term of imprisonment on a firearm specification. For the following reasons, we affirm.

{¶ 2} Walker, 18 years old at the time of the shooting was in a relationship with Courtney Sprachmann, who was then 41 years old and who is also a codefendant. That relationship began three years earlier. Sprachmann moved into a property owned by Maar, having no other home available. Maar's extended family also lived at the property. Maar renovated homes for a living and hired Sprachmann sporadically. Maar prohibited Walker from being on any of his properties because Maar believed Walker had assaulted Sprachmann in the past based on visible injuries Sprachmann had sustained.

{¶ 3} On the day of the killing, Walker visited Sprachmann. Sprachmann and Walker were upstairs while the rest of the family was on the first floor watching football. Maar joined the family. Maar, aware of Walker's presence, eventually went upstairs to confront the couple and to tell Walker to leave the premises. Maar verbally confronted Walker, and the two began pushing each other, although the extent of the altercation is unclear because the rest of the family only heard the scuffle. Walker testified that he was punched several times in the face. Unsuccessful with getting Walker to leave, Maar returned to the living room.

{¶ 4} While Maar was at the foot of the stairs entering the living room, he was heard telling everyone that Walker "had to go" or words to that effect. Walker approached Maar from behind and, according to the witnesses, began shooting immediately while descending the stairs with a backpack slung on his shoulder. Maar's blood was spattered on the wall going up the stairs. Walker continued to shoot as Maar was on the ground. In all, five shots were fired, all of which hit Maar. After Maar was shot, Maar's father grabbed for and tackled Walker into the fireplace. Walker freed himself from the scuffle and fled the scene.

{¶ 5} The medical examiner in part corroborated the eyewitness testimony that Maar's back was to Walker at some point during the shooting. The fatal gunshot was inflicted from behind, entering Maar's back and exiting his chest, piercing the aorta, the largest blood vessel in the body. Maar's death would have been within minutes, but Maar would have collapsed within seconds. Also, according to the medical examiner, there were no offensive wounds on Maar's hands or fists, indicating that Maar did not appear to punch anybody, although there is no dispute that Walker had marks on his face and body and lost some blood during the altercation. The extent of Walker's injuries was limited to a cut on his lip and some scratches or other cut marks on his arm and back. Walker did not seek medical attention, and four days after the altercation there were no visible signs of injury to Walker's face.

{¶ 6} Walker presented a different version of events. Although Walker never testified to being aware of Maar's prior instances of aggressive conduct, the trial court permitted the defense to delve into that area through the state's witnesses offering evidence of the victim's past conduct, over the state's objection. Compare State v. Barnes, 94 Ohio St.3d 21, 21, 759 N.E.2d 1240 (2002) (a defendant cannot introduce evidence of specific instances of a victim's conduct to prove self-defense). According to Walker's trial testimony, Maar accosted him in the second-story bedroom and hurled racially charged invectives while beating Walker with punches and kicks. The ensuing "nonstop assault" carried the two from room to room upstairs and caused them to careen into objects in the bedroom (the wall, the couch, and the dressers, which had a glass item among other objects sitting on them) and then to "tumble" down the stairs into the first-floor living room area where Maar's father held Walker to facilitate Maar's attack. As the state points out, crime-scene photos revealed no evidence of a prolonged physical altercation having occurred -the rooms were not in any disarray, and none of the objects on the dressers were dislodged.

{¶ 7} After being tossed into the fireplace in the living room by Maar and his father, Walker pulled a loaded firearm from his backpack, which had been loosely hung on his right shoulder during the entire episode with the handgun contained in an open pocket on the outside of the backpack. According to Walker, the backpack was at his feet when Maar entered the bedroom, but Walker was able to pick up the bag and sling it around one shoulder right before Maar threw the first punch.

{¶ 8} Walker then claims that after retrieving the firearm from the backpack, he released the trigger safety and fired five shots as Maar charged toward him, but that he stopped shooting once Maar fell to the floor - contradicting the state's evidence that Walker continued to fire the weapon while Maar was lying on the ground and the fatal shot went through Maar's back. Although Walker claims to have shot all five rounds from the fireplace area, the investigation revealed a bullet defect in the wall above the fireplace, which would have been behind Walker if he fired his weapon from the fireplace area as he testified. Walker concedes he did not provide Maar any opportunity to cease the assault. Walker then fled the scene, tossing the firearm into an undisclosed dumpster near Maar's property.

{¶ 9} At trial, Walker testified that he was given the handgun by a friend, avoiding the implications of R.C. 2923.211(B) ("No person under twenty-one years of age shall purchase or attempt to purchase a handgun."). However, Walker did not, and could not under R.C. 2923.125(D)(1)(b), due to his age, possess a concealed handgun license such that he would have been permitted to conceal the loaded handgun in his backpack. Walker claimed to have illegally carried the weapon for safety, testifying to living in a high-crime neighborhood with his mother. Walker's mother disagreed with that characterization of their West 140th Street neighborhood, pitting Walker's credibility against that of his mother.

{¶ 10} The jury acquitted Walker of both murder counts, but found him guilty of felonious assault along with an attendant three-year firearm specification. The trial court imposed the maximum sentence of eight years in prison, to be served following the three-year term imposed on the firearm specification. This appeal timely followed in which Walker advances five assignments of error.

I. Self-Defense

{¶ 11} In the first, third, and fourth assignments of error, Walker claims his conviction is either based on insufficient evidence or is against the weight of the evidence. All three of those claimed errors, however, rely on accepting Walker's testimony over that of the state's witnesses and will be treated accordingly. In reviewing a sufficiency challenge, "'[t]he relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt." (Emphasis added.) State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus, following Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Because Walker's argument focuses on his credibility as contrasted against the state's evidence, his claims are more appropriately considered under the weight-of-the evidence standard.

{¶ 12} A claim that a verdict is against the weight of the evidence involves a separate and distinct test that is much broader than the test for sufficiency. State v Drummond, 111 Ohio St.3d 14, 2006-Ohio-5084, 854 N.E.2d 1038, ¶ 193. In contrast to sufficiency of the evidence, "[w]eight of the evidence concerns the inclination of the greater amount of credible evidence." State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997). While "sufficiency of the evidence is a test of adequacy as to whether the evidence is legally sufficient to support a verdict as a matter of law, * * * weight of the evidence addresses the evidence's effect of inducing belief." State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, ¶ 25, citing Thompkins at 386-387. "In other words, a reviewing court asks whose evidence is more persuasive - the state's or the defendant's?" Id. The reviewing court must consider all the evidence in the record, the reasonable inferences, and the credibility of the witnesses to 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.'" Thompkins at 387, quoting State v. Martin, 20 Ohio App.3d 172, 485 N.E.2d 717 (1st Dist.1983). "'The discretionary power to grant a new trial should be exercised only in the exceptional case in which the evidence weighs heavily against the conviction.'" Thompkins at 387, q...