State v. Lavender

• Decision Date: 27 December 2019
• Docket Number: NO. C-180003,C-180003
• Citation: 2019 Ohio 5352,141 N.E.3d 1000
• Parties: STATE of Ohio, Plaintiff-Appellee, v. Andrew LAVENDER, Defendant-Appellant.
• Court: Ohio Court of Appeals

141 N.E.3d 1000

2019 Ohio 5352

STATE of Ohio, Plaintiff-Appellee,

v.Andrew LAVENDER, Defendant-Appellant.

NO. C-180003

Court of Appeals of Ohio, First District, Hamilton County.

Date of Judgment Entry on Appeal: December 27, 2019

OPINION.

Mock, Presiding Judge.

{¶1} In eight assignments of error, defendant-appellant Andrew Lavender claims that he was improperly convicted of aggravated murder and sentenced to life in prison without the possibility of parole. For the reasons set forth below, we disagree with those assertions and affirm the judgment of the trial court.

The Killing of Ceran Lipscomb

{¶2} During the evening of August 1, 2014, Ceran Lipscomb was shot and killed by an individual using a .22-caliber weapon. A man named Ramon Davis was using a portable restroom in the area when the shots were fired. He fled from the restroom and called 911. He told the operator that he had seen someone running from the body. He described the man as between 40 and 50 years old, five feet eight inches tall, and slender. He said that the man had on purple jogging pants, a black top, and a cap, and had a mustache or goatee. Another individual, 15-year-old Dennis Coulter was outside his apartment with his cousin when the incident occurred. He told police that he saw the shooter run away from the body and down an alley behind the apartment buildings. He said he saw the man two different times: once as he was running from the body, and again as he was running in the alley behind the apartments. Coulter told police that he had seen the man before in the neighborhood but did not know him or know his name.

{¶3} A few days after the shooting, Coulter worked with a sketch artist to generate an image of the shooter's face. Police had little more to go on until Domingo Johnson was arrested on a number of drug-related charges. He contacted the investigating detectives and informed them that he had information on the Lipscomb killing. He told police that shortly before the killing, he was in an apartment when he overheard a young man he knew as "Shooter" bragging about how he was taking a hit on "Little Charlie's Brother." The name "Little Charlie" was a name associated with Lipscomb's brother. He also said that Shooter had a small caliber revolver. Using social media, detectives were able to connect the name "Shooter" with defendant-appellant Andrew Lavender. Johnson identified Lavender as the person he overheard talking about the hit. The police requested a photo array from the Hamilton County Juvenile Court, since Lavender was 16 years old at the time, and presented the photo array to Coulter. Coulter was shown the images one at a time. As Coulter was going through each image, he initially said that another man pictured looked like the shooter. As he continued though the rest, however, he then reached Lavender's picture and positively identified him.

{¶4} Lavender was arrested and police gained access to his cellular phone data. Of significance, police retrieved thousands of text messages from his phone going back months before the shooting. The vast majority of these text messages were introduced at trial by the state, for the purpose of attempting to show Lavender's growing desperation with regard to money, which lead Lavender to agree to kill Lipscomb for hire. After conducting a hearing on the matter, the trial court admitted the vast majority of these text messages for the limited purpose of allowing the state to show Lavender's motivation for the killings in his growing desperation with regard to money during the months before Lipscomb's death.

{¶5} Because Lavender was 16 when he committed the offense, his case was first brought in Hamilton County Juvenile Court, in the case numbered 14-7191. The state filed a motion to have Lavender bound over to the adult common pleas docket. After determining probable cause, the juvenile court judge failed to conduct an amenability hearing, believing that the bindover to the adult court was mandatory. Lavender was then indicted in the case numbered B-1405471, and charged with one count of aggravated murder, in violation of R.C. 2903.01(B), and one count of aggravated murder, in violation of R.C. 2903.02(B). Both counts included firearm specifications. The case proceeded for some time, including the briefing, arguing, and a decision on a motion to suppress the results of the photo array. The case remained pending for three years before the problem with the bindover was discovered. The state then dismissed the case and refiled in the juvenile court. The juvenile court conducted new hearings, this time conducting an amenability hearing. At the conclusion of those hearings, the case was again transferred to the general division of the common pleas court. Lavender was again indicted for two counts of aggravated murder. The case proceeded to a two-week jury trial, after which Lavender was found guilty on both counts and all specifications. On the first count, Lavender was sentenced to life in prison without the possibility of parole, with an additional three years for the gun specification. The second count was merged with the first. In eight assignments of error, Lavender now appeals.

Admission of Evidence

{¶6} In his first assignment of error, Lavender claims that the trial court erred when it admitted certain evidence. In particular, he claims that the admission of a photograph from Facebook showing him posing with weapons was improper. He also claims that the admission of his text messages was improper. And he finally claims that it was improper for the court to allow an officer to testify about how contract killings are conducted.

The Photograph

{¶7} In the photograph Lavender challenges, he is seen pointing one gun at the camera while holding another gun at his side. Neither side has argued that the gun Lavender is pointing at the camera is related to the case. But the state argues that the gun in his other hand appears to be a small-caliber revolver. Lipscomb was killed by a .22-caliber weapon, and the state theorized that the weapon was a revolver because no casings were found at the crime scene A revolver would retain its bullet casings in its cylinder, while a semi-automatic pistol would eject the casing after firing each round. The state's expert could not confirm that the shots were fired from a revolver but did say that the physical evidence would be consistent with that. He said that it was "very common to find .22 caliber ammunition chambered in revolvers." When shown the photograph, he said that "based on what I can see it certainly appears to be most consistent in physical shape with a revolver simply because of the width versus the length, and it looks like basically a small-sized handgun." He further said that "it looks like a very small revolver and you will find a lot of .22 caliber handguns in a small sized frame handgun."

{¶8} Prior to the testimony from the expert about the weapon, the trial court conducted a hearing. Initially, there were three photographs proposed for admission by the state. The other photographs included different weapons. Citing State v. Thomas , 152 Ohio St.3d 15, 2017-Ohio-8011, 92 N.E.3d 821, Lavender argued that the photographs that showed Lavender with another weapon and another person holding a revolver with Lavender present were unduly prejudicial. After hearing the argument, the trial court allowed only the photograph of Lavender with the revolver in his hand concluding, "assuming a proper foundation is laid and relying on the prosecutor to establish the fact that Mr. Lattyak would testify that it was a revolver and that it was a .22, and if he's shown the photograph of 16(A), which includes the revolver in the hand of what purports to be the defendant, that that [sic] would be admissible." During the testimony, clarifying rulings were made. First, the trial court allowed the state to continue questioning about the photograph "if the foundation was laid or if it was at least established that the revolver could have been the type consistent with .22 bullet that was recovered [sic]." The trial court also ruled that when the witness seemed hesitant to identify the type of handgun in the photograph, the state could lay "additional foundation * * * such that if the expert would say that the revolver would be consistent with the type of gun used for the bullet recovered."

{¶9} The admission of evidence is within the sound discretion of the trial court. See State v. Obermiller , 147 Ohio St.3d 175, 2016-Ohio-1594, 63 N.E.3d 93, ¶ 61. We will not disturb a trial court's ruling on evidentiary issues on appeal absent an abuse of discretion and proof of material prejudice. State v. McKelton , 148 Ohio St.3d 261, 2016-Ohio-5735, 70 N.E.3d 508, ¶ 181 ; State v. Belton , 149 Ohio St.3d 165, 2016-Ohio-1581, 74 N.E.3d 319, ¶ 116.

{¶10} The term "abuse of discretion" connotes more than an error of law or judgment; it implies that the court's attitude is unreasonable, arbitrary or unconscionable. Body Power, Inc. v. Mansour , 1st Dist. Hamilton No. C-130479, 2014-Ohio-1264, 2014 WL 1338386, ¶ 28, citing Blakemore v. Blakemore , 5 Ohio St.3d 217, 218, 450 N.E.2d 1140 (1983). Most cases will fall within the "unreasonable" prong of discretionary decisions, as few judges issue decisions that are unconscionable or arbitrary. AAAA Ent., Inc. v. River Place Community Urban Redev. Corp. , 50 Ohio St.3d 157, 161, 553 N.E.2d 597 (1990). A decision is unreasonable if

there is no sound reasoning process that would support that decision. It is not enough that the reviewing court, were it deciding the issue de novo, would not have found that reasoning process to be persuasive, perhaps in view of countervailing reasoning processes that would support a contrary result.

Id. "An abuse of discretion implies that a decision is both without a reasonable basis and is clearly wrong." Aetna Better Health, Inc. v. Colbert , 10th Dist. Franklin No. 12AP-720, 2012-Ohio-6206, 2012 WL 6738513, ¶...