State v. Cunningham

• Decision Date: 30 September 2022
• Docket Number: L-21-1136
• Citation: 2022 Ohio 3497
• Parties: State of Ohio Appellee v. Tacarie Cunningham Appellant
• Court: Ohio Court of Appeals

2022-Ohio-3497

State of Ohio Appellee v. Tacarie Cunningham Appellant

No. L-21-1136

Court of Appeals of Ohio, Sixth District, Lucas

September 30, 2022

Trial Court No. CR0202001977

Julia R. Bates, Lucas County Prosecuting Attorney, and Evy M Jarrett, Assistant Prosecuting Attorney, for appellee.

Timothy Young, Ohio State Public Defender, and Timothy B Hackett, Assistant State Public Defender, for appellant.

DECISION AND JUDGMENT

MAYLE J.

{¶ 1} Appellant, Tacarie Cunningham, appeals the June 11, 2021 judgment of the Lucas County Court of Common Pleas sentencing him to 15 years to life in prison. For the following reasons, we affirm.

I. Background and Facts

{¶ 2} Cunningham's conviction in this case arose from the shooting death of C.C. on March 15, 2020. Cunningham, who was 15 years old at the time, was initially charged in the Lucas County Court of Common Pleas, Juvenile Division ("juvenile court"), with complaints alleging felony murder in violation of R.C. 2903.02(B), an unclassified felony if committed by an adult; felonious assault in violation of R.C. 2903.11(A)(2), a second-degree felony if committed by an adult; and tampering with evidence in violation of R.C. 2921.12(A)(1), a third-degree felony if committed by an adult. The felony murder and felonious assault complaints each included a specification under R.C. 2941.145 alleging that Cunningham had a firearm on or about his person while committing the offense and used it to facilitate the offense.

A. Juvenile court proceedings

1. Probable cause hearing

{¶ 3} On March 31, 2020, the state moved under R.C. 2152.10(B) and 2152.12(B) to have Cunningham's case transferred to the General Division of the Lucas County Court of Common Pleas ("trial court"). On May 6, 2020, the juvenile court held a hearing to determine if there was probable cause to believe that Cunningham had committed felony murder, felonious assault, and tampering with evidence. The state presented the testimony of two detectives from the Toledo Police Department ("TPD"), Jason Mussery and Robert Bascone.

{¶ 4} Mussery testified that he was on call the morning of March 15, 2020, when he received a report of a shooting homicide at an after-hours bar on West Sylvania in Toledo. When he arrived at the bar, Mussery individually interviewed the seven witnesses who were detained by TPD officers. Although he did not remember the name of each witness, Mussery said that "all of them gave the same story as far as there was a scuffle or something happening in the patio area in the back of the bar before they heard a shot."

{¶ 5} Mussery said that the bar had "two DVR systems" with video footage that officers downloaded pursuant to a search warrant. The state played the video during Mussery's testimony.^[1] Mussery said that the footage showed a group of people, including C.C. and Cunningham, by the door from the patio to the bar. The state also showed Mussery state's exhibit No. 1, which was a printout of a frame from the video with one person circled. Mussery identified Cunningham as the person circled in the photograph.

{¶ 6} Returning to the video, Mussery described "a scuffle at the door." He said, "You can't see what's happening. [Cunningham] goes towards the door, and it appears that there is a scuffle. I don't know if he was pushed away from the door, but as he backs away from it, he pulls a gun out of his sweatshirt and he fires." About a minute after firing the gun, Cunningham reenters the patio area, reaches down, and picks up something. Based on his training and experience, where Cunningham was standing when he fired the gun, where Cunningham picked up the object, and the fact that police did not find shell casings at the scene, Mussery concluded that Cunningham returned to the patio area to pick up shell casings.

{¶ 7} Mussery learned the shooter's identity from other officers before he watched the surveillance video. They identified him as Cunningham. After watching the video and learning that Cunningham was 15 years old, Mussery filed delinquency complaints against Cunningham alleging felony murder with a gun specification, felonious assault with a gun specification, and tampering with evidence. Mussery said that the tampering complaint related to Cunningham removing shell casings from the crime scene. He explained that shell casings are "very important because that's how you link a crime to a gun, and if you don't have shell casings, you can't do that."

{¶ 8} At the time of the probable cause hearing, an autopsy had been conducted on C.C., but the report was not yet ready. However, speaking as the lead investigator in the case, Mussery said that C.C.'s cause of death was "[d]eath by gunfire."

{¶ 9} On cross-examination, Mussery clarified that, although C.C. was outside on the patio before the shooting, he was found on a set of steps inside the bar-not in the patio area. Mussery claimed that there was no video from that area of the interior of the bar.

{¶ 10} Mussery also said that police had not found the gun that they believed was used in the shooting. However, while reviewing the video, Mussery saw "several guns" in the patio area of the bar that night, including a gun that defense counsel characterized as an "assault rifle" that police later found in a backpack. Mussery did not know the caliber of the gun in the backpack or the caliber of the gun used to kill C.C. He did not see Cunningham with a backpack at any point.

{¶ 11} Before the shooting, a man who was on the patio had a gun in his hand that he put down. When he did so, another man came over and picked it up. The second man then walked into the bar with the gun. Mussery did not know the caliber of this gun or if it matched the caliber of the gun that killed C.C.

{¶ 12} While closely reviewing the video footage, Mussery acknowledged that Cunningham had his left hand out of his pocket and did not have a gun shortly before the shooting. Cunningham was also one of the people who was pushed back from the door leading into the bar just before the shooting. Mussery agreed that it was possible that Cunningham dropped something from his pockets when he was pushed and that he returned to the patio after the shooting to pick up his personal property-not something with evidentiary value. However, although he could not see on the video exactly what Cunningham picked up, Mussery said that he "think[s] it's highly unlikely" that the item was Cunningham's personal property. Mussery also acknowledged that, after the shooting happened, several people walked back and forth through the patio area and people who were not there at the time of the shooting walked into the bar through the patio area. He did not see any of these people "bend down to the floor[,]" so he did not think that any of them could have picked up a shell casing as they walked through.

{¶ 13} Mussery could not tell from the video how many shots were fired, but based on the accounts that he gathered from the witnesses-whom Mussery described as "about 50 percent cooperative"-he believed that there were two shots. He also believed that Cunningham was the person who fired the shots based on what he saw in the video, despite knowing that another handgun was in the bar less than three minutes before C.C. was shot. As Mussery clarified on redirect, this was because Cunningham was the only person who was visible in any portion of the surveillance video pointing a gun at someone or firing a gun. But he conceded that there was no video of the interior of the bar, so he had no way of knowing if someone inside the bar pointed a gun at C.C.

{¶ 14} The state's other witness at the probable cause hearing was Bascone, a detective with the TPD's gang unit. Following C.C.'s shooting, someone from TPD's detective bureau sent the picture in state's exhibit No. 1 to the gang unit to see if they could identify the person circled in the picture. Bascone was able to identify the person as Cunningham "[r]ight away" and did not have any doubts about his identification.

{¶ 15} After hearing the testimony, the juvenile court said that the standard for probable cause required it to find that there was credible evidence supporting every element of each offense and "whether its [sic] more likely than not that these offenses were committed and that they were committed by Tacarie." In finding probable cause, the court explained

What I see is Tacarie shooting in the direction of where the victim was. I know that [C.C] died. Everybody stipulated that there was a murder, that he was shot to death. There were no shell casings, and yet there should have at least been a shell casing either where the victim was found if someone inside the club killed him, or where Tacarie was and there's none either way. But we saw Tacarie bend down to pick something up. I think that it's more likely than not that not only was this murder-not only this murder happened but that Tacarie Cunningham did it. Now, again, that's not proof beyond a reasonable doubt. All I need to make a finding is that it's more likely than not that that's what happened, and I do make that finding.

{¶ 16} Because Cunningham's transfer to the trial court was discretionary under R.C. 2152.12, the trial court ordered the required evaluations and amenability hearing before determining whether to transfer jurisdiction of Cunningham's case.

2. Amenability hearing

{¶ 17} On August 4, 2020, the juvenile court held a hearing to determine if Cunningham was amenable to care or rehabilitation in the juvenile system, and if the safety of the community required that Cunningham be subject to adult sanctions, as required by R.C. 2152.12(B). At the hearing the state presented the testimony of Dr. Thomas Sherman, a psychiatrist, and...