State v. D.H.

• Decision Date: 28 December 2006
• Docket Number: No. 06AP-250.,06AP-250.
• Citation: 2006 Ohio 6953,865 N.E.2d 90,169 Ohio App.3d 798
• Court: Ohio Court of Appeals
• Parties: The STATE of Ohio, Appellee, v. D.H., Appellant.

865 N.E.2d 90

169 Ohio App.3d 798

2006-Ohio-6953

The STATE of Ohio, Appellee, v. D.H., Appellant.

No. 06AP-250.

Court of Appeals of Ohio, Tenth District, Franklin County.

Decided December 28, 2006.

Ron O'Brien, Franklin County Prosecuting Attorney, and Katherine J. Press, for appellee.

Yeura R. Venters, Public Defender, and John W. Keeling, for appellant.

FRENCH, Judge.

{¶ 1} Defendant-appellant, D.H., a juvenile, appeals from the judgment of the Franklin County Court of Common Pleas, Division of Domestic Relations, Juvenile Branch, wherein the juvenile court, pursuant to a jury trial, adjudicated appellant a delinquent by reason of having been found guilty of two counts of reckless homicide, a third-degree felony, with firearm specifications, in violation of R.C. 2903.041 and 2941.145, respectively.

{¶ 2} The Franklin County Grand Jury indicted appellant on (1) one count of murder with a firearm specification, in violation of R.C. 2903.02(A) and 2941.145, respectively; (2) one count of felony murder with a firearm specification, in violation of R.C. 2903.02(B) and 2941.145, respectively; (3) two counts of attempted murder with firearm specifications, in violation of R.C. 2923.02 (as it relates to R.C. 2903.02) and 2941.145, respectively; and (4) two counts of felonious assault with firearm specifications, in violation of R.C. 2903.11 and 2941.145, respectively. The charges stemmed from a December 27, 2004 incident. In particular, the murder and felony murder counts pertained to the death of Kiera Harris ("Kiera"). Likewise, the attempted murder and felonious-assault counts pertained to injuries sustained to Preston Smith and Brandon Russell. Additionally, each count specified that appellant, being 15 years old at the time of the offenses, used a firearm and therefore was subject to a serious-youthful-offender sentence. A serious youthful offender is subject to a sentence prescribed under both juvenile and adult sentencing guidelines. See R.C. 2152.11 and 2152.13.

{¶ 3} Appellant's case was originally scheduled in the criminal division of the Franklin County Court of Common Pleas, which transferred the case to the juvenile division upon motion of plaintiff-appellee, the state of Ohio. The court recognized that pursuant to R.C. 2152.13, serious-youthful-offender cases are tried in juvenile court. Thereafter, appellant invoked his jury-trial rights provided under R.C. 2152.13(C)(1), which applies to a juvenile being tried as a serious youthful offender.

{¶ 4} At trial, Smith testified to the following on appellee's behalf. On December 27, 2004, Christopher Harris ("Harris") called Smith on Smith's cell phone. After the phone conversation, Smith and his friends drove to Harris's house to engage in a fistfight with Harris and his friends. Neither Smith nor his friends brought a firearm. Harris came out of his house when Smith and his friends arrived. Harris was with a group of friends, including appellant. The fistfight began, and during the fight, appellant "went up on the porch," pointed a firearm, and shot Smith in the leg.

{¶ 5} On cross-examination, Smith verified that at the time of the December 27, 2004 incident, Harris was a high school freshman, Smith was a high school senior, and Smith's friends "were all either [Smith's] age or older." Smith also testified on cross-examination that before the fight, Kiera asked Smith and his friends whether they had any firearms.

{¶ 6} Sean Black testified to the following on appellee's behalf. Black was part of Smith's group that fought with Harris on December 27, 2004. During the incident, Kiera "ran up and said that nobody is going to jump her brother," Harris. Ultimately, Black heard gunshots coming from a porch.

{¶ 7} Russell was also part of Smith's group and testified that during the December 27, 2004 fight, he heard gunshots "coming from [a] house." Russell also testified that after hearing the gunshots, he noticed bullet holes in his clothes.

{¶ 8} Erick Golden was also part of Smith's group and testified to the following on appellee's behalf. During the December 27, 2004 incident, Kiera "said don't bring no guns." Golden responded: "[W]e don't have no guns." Ultimately, appellant started shooting from a porch.

{¶ 9} Keisha Harris ("Keisha") is the sister of Harris and Kiera. Keisha testified to the following on appellee's behalf. During the December 27, 2004 incident, Keisha was on her front porch with appellant when she heard gunshots. Thereafter, she noticed that Kiera had been injured. Later that night, appellant told Keisha that he had shot one of the fight participants in the leg and told her not to tell anyone that he had shot the firearm.

{¶ 10} Harris testified to the following on appellee's behalf. On December 27, 2004, Eric Green called Harris on his cell phone and stated that Smith wanted to meet Harris to fight. Meanwhile, Harris asked appellant to come over to his house, and he obtained his father's firearm. Harris then gave appellant the firearm when appellant arrived. Thereafter, Smith and his friends arrived, and Smith told Harris to "come and fight." Harris did not want to fight, because an unidentified person with Smith had a firearm. Nonetheless, Harris told Smith "to come by [his] house in the middle of the street if he wanted to fight." Smith and his friends walked up to Harris, and Russell hit Harris. After a fight ensued, Harris heard gunshots. At the time, Harris saw appellant pointing the firearm "at the air." After the gunshots were fired, Harris ran back to his house. At the house, appellant gave the firearm to Harris's father. Later, Harris found Kiera injured outside the house. Also, on the night of the incident, Harris noticed that appellant's brother, Jordan, had a firearm and someone threw it under an automobile.

{¶ 11} Deputy Coroner Collie Trant testified that Kiera died from a gunshot that pierced her lungs, aorta, and "the tissues that surround the heart." Dr. Trant also verified that only one bullet caused Kiera's wounds.

{¶ 12} Darius Edwards testified that he spoke with appellant the night of the shooting. According to Edwards, appellant admitted that he shot "one of those other guys."

{¶ 13} Darius Schultz testified to the following on appellee's behalf. On December 27, 2004, Schultz was at Harris's house, and Harris called Smith on speaker phone. Harris stated: "I'm going to give you a chance to apologize and we can drop everything." Smith responded: "[N]o you got me fd up" and hung up the phone. Thereafter, Smith called back and stated that he wanted to fight with Harris. Thus, Harris obtained his father's firearm and called appellant. Appellant then came to Harris's house. Ultimately, Smith and his friends arrived, and Schultz went outside with Harris and the other persons with Harris, including appellant. While outside, appellant had the firearm that Harris previously obtained. Smith and his friends tried to jump Harris, and appellant stated: "[H]old up." Schultz then heard gunshots and, ultimately, ran to Harris's porch, where he found appellant with the firearm. While appellant and Schultz were on the porch, Smith and his friends ran toward the porch, and appellant shot the firearm. Schultz admitted that he initially told law-enforcement officers that appellant had not shot the firearm.

{¶ 14} Gary Wilgus from the Ohio Bureau of Criminal Investigation and Identification ("BCI") testified that when he searched Harris's house after the incident, he found the firearm used during the incident. Wilgus testified that the firearm had a slight vinegar smell. Next, Wilgus testified that his office tested the firearm for fingerprints, but his office found no identifiable latent fingerprints on the gun. Wilgus also testified that the crime scene was snowy and that it is "difficult to preserve the integrity of a snowy crime scene.

{¶ 15} Eric Green testified to the following on appellee's behalf. Green was socializing with Harris and his friends on December 27, 2004, at Green's house. Ultimately, Green drove Harris and his friends to Harris's house. Next, Green went to Golden's house. While Green was at Golden's house, some persons made "a couple phone calls." Thereafter, the persons at Golden's house went to Harris's neighborhood. While at Harris's neighborhood, Green heard gunshots and surmised that the shooting came from one firearm.

{¶ 16} Franklin County Sheriff Detective Drew McEvoy testified that he and other detectives interviewed appellant after the December 27, 2004 incident. The detectives recorded the interview. Appellee played the recording at trial, and the interview included the following statements:

[Appellant]: * * * I came outside, saw everybody all fighting and stuff, went back inside and got the gun—

Detective Scott: Where'd you get the gun from?

[Appellant]: * * * [U]nder [Harris's] mattress, but he * * * got it from out of his dad's car. * * *

* * *

[Appellant]: And I went back and got the gun. I came back outside. I saw everybody, I saw [Harris] getting jumped. I fired three shots. That's all I can remember. Everything was going so fast. * * * [M]aybe I did empty the clip more than I thought I was. Stuff was going by so fast. Maybe—I couldn't remember. I don't know.

Detective Scott: So you had a friend that was getting beat up.

[Appellant]: Yes, getting jumped.

Detective Scott: And you felt that the way to protect your friend was—

[Appellant]: Was to try [to] scare them away.

* * *

[Appellant]: * * * Then I shot and then they all ran. And then I * * * heard a shot and I hurried up and ran inside.

During the interview, appellant also stated that he "fired toward the ground." Lastly, Detective McEvoy testified that law-enforcement personnel did not test appellant for gunshot residue, because "[a]t the time that we developed him as a suspect we were probably seven hours from the shooting."

{¶ 17} Daniel Davison from BCI testified to the following on appellee's...