State v. Phillips, 2008 Ohio 4367 (Ohio App. 8/28/2008)
| Decision Date | 28 August 2008 |
| Docket Number | No. 90124.,90124. |
| Citation | 2008 Ohio 4367 |
| Parties | State of Ohio, Plaintiff-Appellee, v. Kenny Phillips, Defendant-Appellant. |
| Court | Ohio Court of Appeals |
Drew Smith, Esq., 2000 Standard Building, 1370 Ontario Street, Cleveland, Ohio 44113, Paul Mancino, Jr., Esq., 75 Public Square, Suite 1016, Cleveland, Ohio 44113-2098, Attorneys for Appellant.
William D. Mason, Esq., Cuyahoga County Prosecutor, By: Kristen L. Sobieski, Esq., Asst. County Prosecutor, The Justice Center, 8th Floor, 1200 Ontario Street, Cleveland, Ohio 44113, Attorneys for Appellee.
Before: Dyke, J., McMonagle, P.J., and Blackmon, J.
JOURNAL ENTRY AND OPINION
{¶ 1} Defendant-appellant, Kenny Phillips, appeals his convictions and sentences. For the reasons set forth below, we affirm in part, reverse in part and remand.
{¶ 2} On June 12, 2006, the Cuyahoga County Grand Jury indicted appellant on the following counts: counts 1 through 4 alleged attempted murder, in violation of R.C. 2923.02/2903.02 with respect to the victims Kenneth Tolbert, Christopher Lovelady, Kevin Tolbert, and Leonard Brown; counts 5 through 10 alleged felonious assault in violation of R.C. 2903.11 with respect to those same victims; counts 11 and 12 alleged attempted felonious assault in violation of R.C. 2923.02/2903.11 with
respect to those same four victims; counts 13 and 14 alleged attempted aggravated murder in violation of R.C. 2923.02/2903.01 with respect to Officer Daniel Lentz; count 15 alleged attempted murder in violation of R.C. 2923.02/2903.02 with respect to Officer Lentz; count 16 alleged felonious assault in violation of R.C. 2903.11 with respect to Officer Lentz; count 17 alleged attempted felonious assault in violation of R.C. 2923.02/2903.11 with respect to Officer Lentz; count 18 and 19 alleged inducing panic in violation of R.C. 2917.31; and count 21 alleged resisting arrest in violation of R.C. 2921.33. One-, three- and five-year firearm specifications were included with counts 1 through 12. Counts 13 through 17 included one-, three- and seven-year firearm specifications. Appellant pled not guilty to all charges in the indictment.
{¶ 3} The trial of this matter began on May 29, 2007. At trial, the state presented the following evidence.
{¶ 4} During the morning hours of May 29, 2006, Officers Michael Keane and Daniel Lentz received a dispatch for assistance at the East 55th Street and Woodland area due to overcrowding. As the officers were en route, they witnessed an off-white, late model Chevrolet with a black hood and a large number "84" printed on the side of the car heading towards the police vehicle on East 55th Street. Before approaching the police vehicle, the Chevy made an abrupt u-turn in the middle of heavy traffic. The officers noticed the erratic driving and began pursuit of the vehicle. The vehicle continued down East 55th Street and erratically weaved in and out of traffic. The
Chevy then made an abrupt right turn onto Woodland Avenue.
{¶ 5} When the vehicle turned, the officers lost sight of the vehicle for a short time, and heard a gunshot. Upon making the same turn, the officers witnessed the Chevy go left-of-center on Woodland Avenue and pull to the left side of a small Lincoln Mark VIII. The officers then witnessed gunshots being fired from the Chevy into the Lincoln. After the shots were fired, the Chevy quickly sped from the scene. Officer Lentz did not notice any other vehicles near the scene other than a gold vehicle that was driving in front of the Lincoln in the curb lane when the shots were fired.
{¶ 6} Officer Keane, driving, activated the police vehicle's sirens and followed the vehicle. Officer Lentz then witnessed the occupants of the Chevy make many furtive movements. Initially, the Chevy slowed down slightly and pulled to the side, but before stopping, quickly sped off. Keane continued to chase the Chevy down Woodland. Before the vehicle came to a complete stop on East 65th Street, the occupants exited the Chevy.
{¶ 7} Keane chased after and apprehended the driver, co-defendant, Michael Sutton, while Officer Lentz pursued the passengers of the vehicle.
{¶ 8} Lentz testified that he saw two men in white shirts, carrying handguns, exit the passenger side of the Chevy. He then saw a third man exit the passenger side wearing dark clothing but not carrying a gun. The men in the white shirts ran off
into a field nearby and the man in the dark clothing ran in a different direction.
{¶ 9} Lentz pursued the men with the handguns into the field. He explained that it was dark with bushes and brush all about. As he attempted to illuminate his flashlight, he heard three gunshots discharge nearby. He quickly fled the scene fearing for his safety. Officer Keane confirmed that he too heard the gunshots off in the distance.
{¶ 10} As Officer Lentz was running, he saw one of the men, later identified as the co-defendant Deante Creel, fleeing. Lentz chased after Creel and witnessed him discard an object into the brush. Eventually, Lentz caught Creel and arrested him. After the chase, Officer Lentz extensively searched, but was unable to find, the object in the field.
{¶ 11} As Lentz was taking Creel to the police car in handcuffs, he witnessed appellant, Kenny Phillips, attempting to return to the Chevrolet. Lentz then saw Officer Keane chase after appellant but suddenly fall to the ground. Lentz, concerned his partner may have been shot, raced after his partner, but Keane waved him on. Accordingly, Lentz proceeded to chase after appellant and eventually apprehended him.
{¶ 12} In the meantime, the third passenger of the vehicle that was wearing dark clothing, later identified as Akeem Tidmore, ran across Woodland Avenue into the King Kennedy project and was arrested by Officers Jones and Lundy.
{¶ 13} As a result of the shooting, Kenneth Tolbert, the driver of the Lincoln Mark VIII, suffered a gunshot wound to his head, which permanently caused paralysis to one side of his face. Christopher Lovelady was seated in the backseat behind Kenneth and also suffered from a gunshot wound to the head that resulted in permanent blindness to one eye. Kevin Tolbert, seated in the front passenger seat, and Leonard Brown, seated in the back passenger seat, were not injured.
{¶ 14} A gunshot residue test was performed on each of the four co-defendant's hands, as well as the Chevy. The results of the test indicated that gunshot residue was found on appellant's hands and the passenger door window area of the Chevy. The hands of Creel, Sutton and Tidmore all tested negative for gunshot residue.
{¶ 15} Detective Carl Hartman testified that the bullet holes found in the victim's vehicle were consistent with the fact that the shots originated from the left of the Lincoln and not from the front right side of the vehicle.
{¶ 16} At the conclusion of the state's evidence, the defense moved for acquittal pursuant to Crim.R. 29(A). The trial court denied the request and the defense presented the following individuals for examination: Larry M. Dehus, Marsean Watters, Deante Creel, Kenny Phillips, and Michael Sutton.
{¶ 17} Larry M. Dehus, a forensic scientist, testified that gunshot residue is easily transferrable and that a person who did not fire a weapon could be contaminated with gunshot residue. Dehus further opined that he was unable to
testify to a degree of certainty that the gunshot residue discovered on the Chevy was placed there that early morning or days or months before.
{¶ 18} Marsean Watters, a friend of the defendants, testified that she witnessed the shooting. She explained that she saw a light-skinned arm exit a gold vehicle and fire gunshots at a black Lincoln, which was parked in the Rally's parking lot. After the shooting, the gold vehicle sped away.
{¶ 19} Deante Creel, appellant, and Michael Sutton collectively testified that a gold car pulled up beside the black Lincoln, an arm exited the window of the gold car, and gunshots were fired into the Lincoln. Thereafter, the black Lincoln stopped and the gold car sped off. The vehicle the co-defendants were in, the Chevy, pulled to the side to allow the police to chase after the gold vehicle. The police, however, pulled up behind the Chevy and did not chase after the gold car. Frightened, Michael Sutton quickly fled from the police. Eventually, he stopped the vehicle on East 65th Street. He testified that he surrendered immediately, while the other co-defendants fled from the police. Both Creel and appellant denied having a weapon when exiting the vehicle. The defense then rested and the case proceeded to the jury.
{¶ 20} On June 7, 2007, the jury found appellant guilty of the attempted murder charges in counts 1 through 4, felonious assault charges in counts 5 through 10, the attempted felonious assault charges in counts 11 and 12, the felonious assault and attempted felonious assault of a police officer charges in counts 16 and 17 and all
firearm specifications. Appellant was also found guilty of inducing panic as charged in counts in 18 and 19. The jury returned a not guilty verdict against appellant as to counts 13 and 14, attempted aggravated murder, count 15, attempted murder, and count 21, resisting arrest.
{¶ 21} On June 28, 2007, the trial court sentenced appellant to a total of 92 years imprisonment. The court ordered the one-year firearm specifications contained in each of counts 1 through 17 to merge. The court further ordered the three- and five-year firearm specifications to run prior to and consecutive to each other and consecutive to 10 years on the underlying charges of attempted murder in each of counts 1 through 4. Additionally, the court ordered the three- and five-year firearm specifications in each of counts 5...
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