State v. Peterson
| Decision Date | 19 March 2015 |
| Docket Number | No. 100899,No. 100897,100897,100899 |
| Citation | 2015 Ohio 1013 |
| Court | Ohio Court of Appeals |
| Parties | STATE OF OHIO PLAINTIFF-APPELLEE v. DAMON PETERSON DEFENDANT-APPELLANT |
ATTORNEY FOR APPELLANT
P.O. Box 16869
Rocky River, OH 44116
Timothy J. McGinty
Cuyahoga County Prosecutor
By: Andrew J. Santoli
Assistant County Prosecutor
9th Floor, Justice Center
1200 Ontario Street
Cleveland, OH 44113
{¶1} Defendant-appellant, Damon Peterson (a.k.a. "Dame"), appeals his convictions of aggravated murder, murder, felonious assault, aggravated robbery, kidnapping, theft, and having a weapon while under disability, with firearm specifications. He assigns ten assignments of error. Following a thorough review of the record and applicable law, we affirm Peterson's convictions.
{¶2} On January 30, 2013, Peterson was indicted in Cuyahoga C.P. No. CR-13-571165 in a multiple count indictment along with codefendants Demario J. Lane ("Lane" or "Rio"), Darrell Coleman, Steven Mongo, and Torrance Johnson ("TJ").
{¶3} Peterson was charged as follows: Count 7 — aggravated murder of Duane Jacobs in violation of R.C. 2903.01(A); Count 8 — aggravated murder of Duane Jacobs in violation of R.C. 2903.02(B); Count 9 — murder of Duane Jacobs in violation of R.C. 2903.02(A); Count 10 — murder of Duane Jacobs in violation of R.C. 2903.02(B); Count 11 — murder of Duane Jacobs as a proximate result of felonious assault in violation of R.C. 2903.02(B); Count 12 — attempted murder of Ayed Kanaan in violation of R.C. 2923.02/2903.02(A); Count 13 — aggravated robbery of the Ya-Ya Market in violation of R.C. 2911.01(A)(1); Count 14 — aggravated robbery of the Ya-Ya Market in violation of R.C. 2911.01(A)(3); Count 15 — kidnapping of Ayed Kanaan in violation of R.C. 2905.01(A)(2); Count 16 — felonious assault of Duane Jacobs in violation of R.C. 2903.11(A)(1); Count 17 — felonious assault of Ayed Kanaan in violation of R.C. 2903.11(A)(2); Count 25 (renumbered 18 for trial) — aggravated murder of Sean Stewart in violation of R.C. 2903.01(A); Count 26 (renumbered 19 for trial) — aggravated murder of Sean Stewart in violation of R.C. 2903.01(B); Count 27 (renumbered 20 for trial) — murder of Sean Stewart in violation of R.C. 2903.02(A); Count 28 (renumbered 21for trial) — murder of Sean Stewart in violation of R.C. 2903.02(B); Count 29 (renumbered 22 for trial) — murder of Sean Stewart as a proximate result of felonious assault in violation of R.C. 2903.02(B); Count 30 (renumbered 23 for trial) — aggravated robbery of Union Beverage in violation of R.C. 2911.01(A)(1); Count 31 (renumbered 24 for trial) — aggravated robbery of Union Beverage in violation of R.C. 2911.01(A)(3); Count 32 (renumbered 25 for trial) — felonious assault of Sean Stewart in violation of R.C. 2903.11(A)(2); and Count 33 (renumbered 26 for trial) — felonious assault of Sean Stewart in violation of R.C. 2903.11(A)(1). The charges included one- and three-year firearm specifications. This indictment pertains to the events at the Ya-Ya Market on September 25, 2012, and the Union Beverage on October 19, 2012.
{¶4} On March 5, 2013, Peterson was indicted in Cuyahoga C.P. No. CR-13-571726 in a multiple count indictment along with codefendants Coleman and Mongo. Peterson was charged as follows: Count 1 — aggravated robbery of Gas USA or Mohammed Widdi in violation of R.C. 2911.01(A)(1); Count 2 — aggravated robbery of Gas USA or Anisha Gibson in violation of R.C. 2911.01(A)(1); Count 3 — kidnapping of Mohammed Widdi in violation of R.C. 2905.01(A)(2); Count 4 — kidnapping of Anisha Gibson in violation of R.C. 2905.01(A)(2); Count 5 — theft of Gas USA or Mohammed Widdi in violation of R.C. 2913.02(A)(1); and Count 8 (renumbered Count 6 for trial) — having weapons while under disability in violation of R.C. 2923.13(A)(3). The charges included one- and three-year firearm specifications. The indictment arose from incidents that occurred at Gas USA on September 21, 2012.
{¶5} On December 4, 2013, the cases proceeded to a jury trial. On Case No. CR-13-571726, the jury found Peterson guilty of Counts 1 through 4 and the attendant one- and three-year firearm specifications, Count 5, and Count 8.
{¶6} On Case No. CR-13-571165, the jury found Peterson guilty of Counts 8, 10, 11, 13, 15, 17, 26 (new Count 19), 28 (new Count 21), 29 (new Count 22), 30 (new Count 23), 31 (new Count 24), 32 (new Count 25), and 33 (new Count 26), along with the attendant one- and three-year firearm specifications. The jury found Peterson not guilty of Counts 7, 9, 12, 14, 16, 25 (new Count 18), and 27 (new Count 20).
{¶7} The court sentenced Peterson in both cases on December 19, 2013. In Case No. CR-13-571726, the court made allied offenses determinations and sentenced on the counts elected by the state. It found that Counts 1, 3, and 5 were allied offenses and merged for purposes of sentencing. It then imposed a prison sentence of ten years consecutive to three years on the firearm specification. The court also found that Counts 2 and 4 were allied offenses and merged for sentencing. The court then imposed a prison sentence of ten years consecutive to three years on the firearm specification. The court sentenced Peterson to 36 months on Count 8 (new 6). The court ordered the terms in Counts 1, 3, and 5, to be served concurrently to the terms in Counts 2 and 4, but consecutively to the prison term in Count 8 (new 6). The aggregate prison sentence for Case No. CR-13-571726 was 16 years.
{¶8} In Case No. CR-13-571165, the court made the following allied offenses determination: Counts 8, 10, and 11 merged, and the state elected to sentence on Count 8; Counts 13 and 15 merged, and the state elected to sentence on Count 13; Count 17 stood alone; Counts 26, 28, 29, 32, and 33 merged, and the state elected to sentence on Count 26 (new Count 19); and Counts 30 and 31 merged, and the state elected to sentence on Count 30 (new Count 23).
{¶9} The court imposed the following prison sentence in Case No. CR-13-571165: Count 8 — life with the possibility of parole after 30 years, plus three years on the firearm specification;Count 13 — ten years plus a consecutive three years on the firearm specification; Count 17 — seven years plus a consecutive three years on the firearm specification; Count 26 (new Count 19) — life imprisonment without the possibility of parole plus a consecutive three years on the firearm specification; and Count 30 (new Count 23) — ten years plus a consecutive three years on the firearm specification.
{¶10} The court ordered all counts to be served concurrently, with the exception of the firearm specifications and Counts 8 and 26 (new 19). The court also ordered that the sentence in Case No. CR-13-571165 shall be served consecutively to the sentence in Case No. CR-13-571726. The aggregate prison sentence was therefore 15 years (firearm specifications), plus 30 years (Count 8), plus life imprisonment (Count 26/19), plus 16 years (Case No. CR-571726). Finally, the court imposed a fine of $20,000 on Count 26 (new Count 19).
{¶11} Peterson now appeals his convictions and sentence.
{¶12} Mohammed Widdi, a manager of the Gas USA on St. Clair Avenue, testified that he was working at the gas station with a clerk, Anisha Gibson, at approximately 7:00 p.m. on September 21, 2012. At that time, a male approached the counter of the store with a can of beer and asked for a lottery ticket. The male handed Widdi a $20 bill, and as Widdi was making change, the male pointed a gun at his face and said, "Give me the money or I'll kill you." Widdi testified that the male then jumped on the counter and "grabbed the money out of the lottery and walked across the counter." He stated that the male then went to the second register, while walking on the counter, where Gibson opened the register for him. Gibson testified that the male pointed the gun at her, and he removed the money from Gibson's register.
{¶13} Widdi testified that there was another male standing in the store in front of Gibson. This individual left with the male with the gun. Widdi testified that the male with the gun was walking "nonchalant, nice and slow" and when he reached the door, both individuals ran. One individual ran to the left of the store, towards East 124th Street, and the other individual ran right, towards East 123rd Street. Widdi believed the two individuals were together. At the time of the robbery, only four of the eight installed video surveillance cameras were working. Widdi made a copy of the surveillance video for the police.
{¶14} Detective John Riedthaler processed the crime scene. He removed two latent fingerprints from the beer can left on the counter and submitted the prints to the city of Cleveland's fingerprint examiners. The examiners matched the fingerprints to Darrell Coleman.
{¶15} Codefendant Darrell Coleman, a.k.a. "Bama," testified against Peterson as a condition of his plea agreement with the state regarding the incidents with which he was involved. Coleman stated that he was not told what to say and that he was instructed to testify "truthfully." He testified that he, codefendant Steven Mongo, and Peterson have committed robberies together and they were involved with the robbery of the Gas USA. Coleman stated that the three of them were just riding around and "just picked that specific spot" to rob in a "spur of the moment."
{¶16} According to Coleman, Peterson parked his gold SUV (sport utility vehicle) on a side street. The plan was for Peterson to be the getaway driver and Coleman and Mongo would "scope the place out" in order to see how many people were working, "what's going on, see whose [sic] in there." On the evening...
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