State v. Porter
| Decision Date | 17 March 2016 |
| Docket Number | No. 102257.,102257. |
| Citation | 61 N.E.3d 589 |
| Parties | STATE of Ohio, Plaintiff–Appellee v. Brian E. PORTER, Defendant–Appellant. |
| Court | Ohio Court of Appeals |
Robert L. Tobik, Cuyahoga County Public Defender By: Jeffrey Gamso, Sarah E. Gatti, Assistant Cuyahoga County Public Defenders, Cleveland, OH, for Appellant.
Timothy J. McGinty, Cuyahoga County Prosecutor By: Ryan J. Bokoch, Assistant Prosecuting Attorney, Cleveland, OH, for Appellee.
Before: E.T. GALLAGHER, P.J., STEWART, J., and BLACKMON, J.
EILEEN T. GALLAGHER
, P.J.
{¶ 1} Defendant-appellant, Brian Porter (“Porter”), appeals from his convictions following a jury trial. He raises seven assignments of error for review:
, 4, and 10 of the Ohio Constitution.
3. The trial court erred when it did not instruct the jury that they could draw an inference that James Mechling's testimony would not have supported the state's case from the facts that he was not the alleged victim of a felonious assault count and was not called as a witness on behalf of the state.
4. The trial court committed error when it did not grant Porter's request for a mistrial when the prosecutor, over objection, was permitted to shift the burden to the defendant by suggesting to the jury that he had the obligation to present evidence that he was factually innocent and the state's obligation to provide proof beyond a reasonable doubt of every element of the offenses charged.
5. The trial court committed error when it refused to charge the jury on the mens rea of recklessness in regard to Count 4, discharge of a firearm on or near a prohibited premises.
6. Porter was denied the effective assistance of counsel when his attorney (1) did not object to the erroneous and prejudicial jury instruction of self-defense that required Porter to prove that his fear was caused by the actions of persons he was charged with assaulting when the evidence shows that the fear was caused by their companion, James Mechling, who was with them at all relevant times and who Porter was defending himself against; (2) did not object to the failure to instruct the jury that they were to consider the evidence of self-defense in determining whether the state had met its burden of proof; and (3) did not object to the failure to instruct the jury that they could draw an adverse inference from the state's not calling James Mechling as a witness.
7. Even if the errors complained of are not, by themselves, sufficiently prejudicial to warrant reversal, their cumulative effect is.
{¶ 2} After careful review of the record and relevant case law, we affirm Porter's convictions.
{¶ 3} Porter was named in a four-count indictment charging him with three counts of felonious assault in violation of R.C. 2903.11(A)(2)
, and one count of discharge of a firearm on or near prohibited premises in violation of R.C. 2923.162(A)(3). The indictment specified that Porter's felonious assault charges corresponded to the alleged victims, Ase Rollins (“Ase”) (Count 1), Richard Mechling (“Richard”) (Count 2), and Madeline Santiago (“Madeline”) (Count 3). In addition, each count contained forfeiture and one- and three-year firearm specifications.
{¶ 4} The matter proceeded to a jury trial where the following relevant evidence was presented.
{¶ 5} In June 2015, Ase, Madeline, Richard, and James Mechling (“James”) went to Andy's Hot Spot, a bar located in Cleveland, Ohio. Ase testified that he and his friends went to the bar to shoot pool and sing karaoke. At some point in the evening, Madeline sang a karaoke song in Spanish. When she was finished, she was approached by an individual, later referred to as “Chino,” who stated that she “f* * *ed up [by being] with a white guy.” Ase, who was dating Madeline, testified that he disregarded Chino's comments to Madeline, but that he and Chino got into an argument several hours later over a game of pool.
{¶ 6} During last call, Ase learned that James had gotten into an argument with the bartender over James's refusal to throw away a full beer. However, Ase clarified that he did not witness the argument himself. Subsequently, Ase, Madeline, James, and Richard left the bar and got into Ase's vehicle, which was parked in the bar's rear parking lot. Ase testified that Chino and Porter were standing outside when he left the bar. Once seated inside his vehicle, Ase noticed that Chino was walking towards his vehicle. Ase testified that when he got out of his vehicle to confront him, Chino stated that “he just wanted to be friends” and shook Ase's hand. Ase testified that he told Chino to “get away from [him],” and he got back into his vehicle.
{¶ 7} As Madeline drove Ase's vehicle out of the bar's parking lot, Ase heard gunshots. Following the “second or third shot,” Ase turned around and observed Porter firing a gun at his vehicle. The bullets struck the side of the vehicle and shattered the rear driver's side window, but no one was injured. Ase testified that he had no prior interactions with Porter, and that no one in his vehicle threatened Porter or had a gun in their possession that evening.
{¶ 8} Ase testified that he immediately called 911 and waited for the police to arrive. James and Richard left the car and returned to Andy's Hot Spot. During that time, James went to the rear parking lot and broke Porter's car window with a brick. When James and Richard returned to Ase's vehicle, which was parked down the street, the police asked them to leave the scene due to their level of intoxication.
{¶ 9} During Ase's direct examination, the prosecutor played a portion of the surveillance video taken from the bar's rear parking lot. The video begins at 1:37:10 a.m.1 and depicts Porter and Chino standing next to Porter's vehicle. At approximately 1:37:38 a.m. video time, Porter is seen opening the passenger's side door of his vehicle to obtain his firearm. At 1:37:47 a.m. video time, Ase's vehicle enters the video screen and slowly drives past Porter and Chino. At approximately 1:37:50 a.m. video time, Porter is seen firing his weapon at Ase's vehicle as it pulls out of the parking lot. Thereafter, the surveillance video captures Porter and Chino “high-fiving” each other before Porter returns his firearm to his vehicle and reenters the bar.
{¶ 10} Richard testified that he went to Andy's Hot Spot with his brother James and his friends Ase and Madeline. He testified that they played pool and sang karaoke. Although he did not witness the altercation, he learned from his friends that there was an issue with Chino after Madeline sang a karaoke song. Richard also testified that he witnessed James get into an argument with the bartender during last call. Richard explained that James was upset that the bartender was making him pour out his beer when other patrons in the bar were still drinking. With respect to the shooting, Richard testified that he was sitting in the rear passenger's side seat when he heard gunshots and saw the car window break. Richard testified that he did not hear any yelling or talking from anyone inside the vehicle and that James did not have a gun in his possession that evening.
{¶ 11} After the shooting, Richard returned to the bar and began knocking on the front door. Richard admitted that he returned to the bar because he was upset and wanted to know why someone shot at their vehicle.
{¶ 12} Madeline testified that she went to Andy's Hot Spot with her boyfriend Ase and his friends, James and Richard, to sing karaoke. She confirmed that Chino made an inappropriate comment to her after she sang karaoke, and that he got into an argument with Ase later that evening over a game of pool.
{¶ 13} Later that evening, Madeline witnessed Chino shaking Ase's hand in the parking lot. However, she did not know the context of their conversation. As she drove Ase's vehicle out of the parking lot, Madeline “heard big pops and felt the glass shatter on [her] arm.” Madeline testified that she looked back as she drove away and saw Porter and Chino. Madeline testified that she did not see Porter interact with anyone in her group that evening. Further, Madeline testified that James did not have a weapon in his possession and that she did not hear anyone threaten Chino or yell from inside the vehicle as they left the bar.
{¶ 14} Officer James Zak (“Officer Zak”), of the Cleveland Police Department, responded to Andy's Hot Spot with his partner, Officer Katherine Reddy (“Officer Reddy”). Officer Zak testified that he was flagged down by the victims, who stated that they were shot at by someone at Andy's Hot Spot. Officer Zak testified that he was provided with a description of the shooter and went to the bar for further investigation. Subsequently, Officer Zak retrieved a firearm from inside Porter's vehicle and discovered two spent shell casings on the ground near Porter's vehicle. Officer Zak testified that Porter was found inside the bar, where he was detained and later transported to police headquarters. Officer Reddy testified that Porter appeared intoxicated based on the smell of alcohol and his slurred speech.
{¶ 15} At the close of the state's case, Porter moved for acquittal pursuant to Crim.R. 29
. The trial court denied the motion, and the defense proceeded...
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