State v. Lake, 2010 Ohio 1113 (Ohio App. 3/18/2010)
| Decision Date | 18 March 2010 |
| Docket Number | No. 2009-CA-0011.,2009-CA-0011. |
| Citation | 2010 Ohio 1113 |
| Parties | State of Ohio, Plaintiff-Appellee, v. Damien Lake, Defendant-Appellant. |
| Court | Ohio Court of Appeals |
James J. Mayer, Jr., Prosecutoring Attorney, Kirsten L. Pscholka-Gartner, Assistant Prosecutor, 38 South Park Street, Mansfield, OH 44902, for Plaintiff-Appellee.
John C. O'Donnell, 13 Park Avenue West, Ste. 300, Mansfield, OH 44902, for Defendant-Appellant.
Before: Hon. Julie A. Edwards, P.J., Hon. W. Scott Gwin, J., Hon. Patricia A. Delaney, J.
{¶1} Defendant-appellant Damien Lake appeals from his conviction and sentence in the Richland County Court of Common Pleas on one count of felonious assault on a peace officer in violation of R.C. 2903.11 (B), a felony of the first degree, with a firearm specification. Plaintiff-appellee is the State of Ohio.
{¶2} On the afternoon of July 27, 2008, Jordan Bryant, Corey Fix, and David Webb went to the Forest Hills Mobile Home Park located off Ashland Road in Richland County, Ohio. Jordan Bryant's aunt lived in that trailer park, and he was going to pay her back some money that she had loaned him.
{¶3} When they pulled into the drive of the trailer park, they saw Ricky Davis and the Appellant, Damien Lake, who went by the street name "Larry." Jordan indicated that he had been in a fight with Ricky Davis about two weeks prior to that date, and he had heard from other people that Ricky was planning to shoot him.
{¶4} The boys parked the car near the entrance to the trailer park, and Jordan and Corey got out confronting Ricky. Jordan asked Rickey if he had said he was going to shoot him, which started an exchange of words. During this verbal confrontation, the Appellant put his hand under his shirt and removed something, which he hid behind his right leg. Fearing that something was about to happen, Jordan and Corey started to get back in the car. Jordan told the Appellant that they would settle the matter another time. At that point, the Appellant pointed a gun at Jordan and told him that he had "better get [his] boy in the car or he's going to blow [his] f'ing brains all over the back of the seat."
{¶5} As the Appellant stood in the drive pointing the gun at the three boys, Richland County Sheriff's Deputy Jeffrey Frazier drove by on Ashland Road. He was on his way to meet Sergeant Donald Zehner in the area of State Route 30 and Ashland Road to look for a suspect in an unrelated matter. When he saw the confrontation in the drive of the trailer park, he radioed that he was responding to a disturbance in the area of 710 Ashland Road. He did a U-turn and turned into the trailer park.
{¶6} When Deputy Frazier saw the Appellant pointing a gun, he immediately radioed that he had a subject with a gun and needed back up. He then exited his cruiser, pulled his gun, and ordered the Appellant to drop his weapon. The Appellant swung around and pointed his gun at Deputy Frazier.
{¶7} As this occurred, Jessica Crain was driving out of the trailer park on her way back to work. She observed this confrontation between Deputy Frazier and the Appellant, and heard a clicking noise that sounded like it came from a gun as the Appellant backed up behind her vehicle with the gun still pointed at the officer. The Appellant then said "shit," and turned and fled up the hill into the trailer park with Deputy Frazier in pursuit. As the Appellant fled through the trailer park, he turned and pointed the gun at Deputy Frazier a second time. Deputy Frazier indicated that he continued to train his weapon on the Appellant; however, he could not get a clear shot because his gun was bouncing up and down as he was running, and there were bystanders in the area.
{¶8} Deputy Frazier continued to pursue the Appellant to the Eastgate Apartment Complex located next to the trailer park. As they were running between the apartment buildings, they encountered Vendetta Camper, who had heard what she thought were gunshots and was attempting to locate her grandchildren. As the Appellant ran towards her, Deputy Frazier yelled at her to go inside because he had a gun. He then lost sight of the Appellant.
{¶9} Despite an exhaustive search of the area by many police agencies, the Appellant was not located on August 27, 2008. However, based upon witness statements, Officers were able to determine his identity. They prepared a photo line-up containing the Appellant's BMV picture, along with photos of five other individuals. This line up was shown to Jordan Bryant, Corey Fix, David Webb, and Vendetta Camper. All four witnesses identified the Appellant as the subject who was involved in the confrontation with Deputy Frazier.
{¶10} At some point during the foot pursuit, the Appellant threw down the gun. Ricky Davis' cousin, Gary Crain, saw Ricky and the Appellant running from the officer, and knew that the gun belonged to his cousin. He picked the gun up and hid it underneath his trailer in an attempt to keep his cousin from getting in trouble for carrying a loaded weapon. Mr. Crain initially lied to the police about knowing the parties involved or the whereabouts of the gun; however, later that evening, he admitted that he lied and led Sergeant Zehner to the opening under his trailer where he had hidden the weapon.
{¶11} An examination of the weapon revealed that it was a fully loaded .357 Taurus revolver. The round in the top chamber, which was lined up to fire, had a firing pin impression in the primer cap, indicating that it had been misfired.
{¶12} The Appellant was eventually located and arrested on August 7, 2008. The police received information that he was staying at the home of Barbara Neace, located at 410 Lawnsdale Avenue in Mansfield, Ohio. When the police arrived at the residence and made contact with Ms. Neace, she denied that the Appellant was there and gave police permission to search her residence. The search uncovered items that led police to believe that the Appellant was in the residence, or had been there recently. It also revealed a small amount of marijuana in plain view in an ashtray and ten bindles of heroin in the kitchen cupboard. A secondary search of the attic revealed the Appellant hiding under the insulation. Nearby, they observed a large bag of white powder that appeared to be cocaine. The Appellant initially refused to comply with orders to show his hands, and had to be tasered before he could be secured in handcuffs and removed from the attic The Appellant was taken into custody for the August 27, 2008 felonious assault against Deputy Frazier, and Barbara Neace was taken into custody for obstruction of justice and possession of drugs. When he was secured in the cruiser, the Appellant asked why Barbara Neace was being arrested. When he was told that drugs were found in the residence, he became upset and stated that the drugs in the house belonged to him. The drugs were weighed and tested at the Mansfield Police Crime Lab. The white powder contained in the bag found in the attic did not reveal the presence of any controlled substances; however, the tan substance in the bindles found in the kitchen cupboard tested positive for heroin in the amount of .98 grams.
{¶13} The Appellant was indicted by the Richland County Grand Jury for one count of felonious assault on a peace officer, a felony of the first degree, for attempting to fire a gun at Deputy Frazier during the July 27, 2008 confrontation. Count I included a mandatory three-year firearm specification. He was also indicted for one count of possession of drugs, a felony of the fifth degree, for the heroin found at Barbara Neace's house when he was arrested on August 7, 2008.
{¶14} The Appellant's trial commenced on January 8, 2009 and lasted three days. During the trial, the State presented testimony from eyewitnesses, Jordan Bryant, Corey Fix, David Webb, Jessica Crain, Gary Crain, and Vendetta Camper, and the victim, Deputy Jeffrey Frazier. The State also presented testimony from Sergeant Donald Zehner, Detective Robert Mack, Deputy Stan Montgomery, and Captain Eric Bosko regarding the investigation into the July 27, 2008 incident and the arrest of the Appellant. Finally, the State presented testimony from experts Jonathan Gardner of the Ohio Bureau of Identification and Investigation, and Anthony Tambasco and Dawn Fryback of the Mansfield Police Crime Lab regarding testing performed on the gun and the drugs.
{¶15} After the State rested, the defense called Barbara Neace, the Appellant's girlfriend Dannette Davis, and Ricky Davis, Jr., who each claimed that the Appellant was in Chicago at the time of the felonious assault, and that it was committed by some other man named "Larry." The Appellant did not take the stand on his own behalf. After the defense presented its case, the State re-called Detective Robert Mack as a rebuttal witness. Detective Mack testified regarding his conversation with Dannette Davis, where she referred to the Appellant as "Larry" and did not mention that he was in Chicago.
{¶16} After both sides rested, Assistant Prosecutor Bishop brought a problem with one of the jurors to the trial court's attention. He advised that throughout the trial, one female juror refused to make eye contact or observe the witnesses demeanor on the stand. She also made disparaging gestures and comments directed toward the presentation of the State's case. This was confirmed by court security officer Pennywitt. As a result of this information, the trial court determined that the juror in question appeared to be biased. She was made the alternate juror and was dismissed from deliberating the case.
{¶17} Following the dismissal of the alternate juror, the remaining twelve jurors deliberated and found the Appellant guilty on the felonious assault charge and the...
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