State v. Wilson

• Decision Date: 09 April 2009
• Docket Number: No. 91091.,91091.
• Citation: 182 Ohio App.3d 171,2009 Ohio 1681,912 N.E.2d 133
• Parties: The STATE OF OHIO, Appellee, v. WILSON, Appellant.
• Court: Ohio Court of Appeals

912 N.E.2d 133

182 Ohio App.3d 171

2009-Ohio-1681

The STATE OF OHIO, Appellee, v. WILSON, Appellant.

No. 91091.

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

Decided April 9, 2009.

William D. Mason, Cuyahoga County Prosecuting Attorney, and Steven A. Dever, Andrew J. Nichol, and Lisa Keiz Williamson, Assistant Prosecuting Attorneys, for appellee.

Timothy R. Sterkel, for appellant.

LARRY A. JONES, Judge.

{¶ 1} Defendant-appellant, Eric Wilson, appeals his conviction. Finding some merit to the appeal, we affirm in part and reverse in part.

{¶ 2} In 2007, Wilson was charged with murder, attempted murder, two counts of felonious assault, two counts of aggravated robbery, kidnapping, rape, and two counts of attempted rape. Each count was accompanied by a one- and three-year firearm specification, and the kidnapping count additionally contained a sexual-motivation specification. Wilson was also charged with having a weapon while under a disability. Before trial, the state dismissed the two counts of aggravated robbery. The matter then proceeded to a jury trial.

{¶ 3} The following evidence was adduced at trial.

{¶ 4} On September 1, 2006, Wilson, a drug trafficker, was in his car driving around the area of East 59th Street and Francis Avenue selling drugs. He stopped his car to meet with some buyers when James Yhonquea ("Yhonquea") walked up, pulled out his gun, and put it against Wilson's head. Yhonquea took Wilson's drugs, money, and cell phone and started to run down East 59th Street. Wilson jumped out of his car and started to run after Yhonquea. Wilson began shooting at Yhonquea and fired off eight rounds, hitting a parked car and a house. Yhonquea returned fire, hitting Wilson's car.

{¶ 5} Asteve ("Cookie") Thomas, a 12-year old girl who lived in the neighborhood was walking home from the corner store with her friends when one of the bullets shot from Yhonquea's gun struck her in the chest. She managed to walk to a neighbor's house, collapsed, and died approximately 30 minutes later. Police recovered multiple bullets and casings from the scene.

{¶ 6} Wilson eventually caught up with Yhonquea and shot him in the back. Wilson then recovered his drugs, money, and cell phone. Wilson proceeded back up East 59th Street and, as an onlooker testified, appeared calm: "He was calm. Just calm. He was like ice." The onlooker also testified that Wilson told him, "I got my s* * * back." When Wilson reached his car, he told his passenger, April Macon, "[I]f the dude would never took my phone, I wouldn't have chased him down."

{¶ 7} Wilson fled the scene with Macon, who testified that she told Wilson as they were leaving that a little girl had been shot. Wilson drove Macon to a friend's house and turned on the news. Macon testified that shortly after Wilson found out that the little girl had died, he forced Macon to perform oral sex on him and also attempted to perform anal sex on her. Wilson then fled Cleveland.

{¶ 8} Ten days later, police in Montana tried to effectuate a traffic stop on Wilson; he led police on a high-speed chase that ended when he ran a red light and crashed into two cars. He jumped out of the vehicle, ran, and threw his gun to the ground. Police were able to apprehend him and discovered that the recovered gun was the same one Wilson had used in the shootout.

{¶ 9} Yhonquea recovered from the gunshot wound and was charged separately from Wilson. State v. Yhonquea, Cuyahoga CP. No. CR-502058.

{¶ 10} The jury convicted Wilson of the lesser included offense of involuntary manslaughter with gun specifications, two counts of felonious assault with gun specifications, and having a weapon while under a disability. He was acquitted of all other charges.

{¶ 11} The court sentenced Wilson to a total of 35 years in prison.

{¶ 12} Wilson now appeals, raising seven assignments of error, some of which will be combined for review.

R.C. 2945.34

{¶ 13} In the first assignment of error, Wilson argues that the trial court erred when it failed to properly admonish the jury in accordance with R.C. 2945.34.

{¶ 14} R.C. 2945.34 states:

{¶ 15} "If the jurors are permitted to separate during a trial, they shall be admonished by the court not to converse with, nor permit themselves to be addressed by any person, nor to listen to any conversation on the subject of the trial, nor form or express any opinion thereon, until the case is finally submitted to them."

{¶ 16} Wilson argues that there were numerous instances during breaks in trial when the trial court failed to admonish the jury. Defense counsel made no objection during trial; thus, he has waived all but plain error. Pursuant to Crim.R. 52(B), this court may, in the absence of objection, notice plain errors or defects that affect a defendant's substantial rights. But to rise to the level of plain error, the alleged error must have substantially affected the outcome of the trial. State v. Slagle (1992), 65 Ohio St.3d 597, 604-605, 605 N.E.2d 916.

{¶ 17} In this case, we find that the trial court adequately admonished the jury on many occasions throughout trial. Moreover, Wilson has not argued how he was prejudiced by any omission. Therefore, we do not find that the trial court committed plain error by failing to admonish the jury every time the court recessed the jury.

{¶ 18} The first assignment of error is overruled.

Sufficiency and Manifest Weight of the Evidence

{¶ 19} In the second assignment of error, Wilson argues that the trial court erred when it denied his motion for acquittal for murder. In the third assignment of error, Wilson argues that his conviction for involuntary manslaughter was against the manifest weight of the evidence.

{¶ 20} An appellate court's function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt. The relevant inquiry is whether, after viewing the evidence in a light most favorable to the state, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. State v. Thompkins (1997), 78 Ohio St.3d 380, 386, 678 N.E.2d 541. Wilson argues that there was insufficient evidence that he committed murder because Yhonquea caused Thomas's death. Wilson, however, was not convicted of murder. Therefore, the issue of whether there was sufficient evidence to find him guilty of murder is moot.

{¶ 21} Next, Wilson argues that his conviction for involuntary manslaughter was against the manifest weight of the evidence. While the test for sufficiency requires a determination of whether the state has met its burden of production at trial, a manifest-weight challenge questions whether the state has met its burden of persuasion. Thompkins at 390, 678 N.E.2d 541. When a defendant asserts that his conviction is against the manifest weight of the evidence, an appellate court must review the entire record, weigh the evidence and all reasonable inferences, consider the credibility of witnesses, and determine whether, in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. Id. at 387, 678 N.E.2d 541.

{¶ 22} Wilson was convicted of involuntary manslaughter, in violation of R.C. 2903.04(A), which states that "[n]o person shall cause the death of another * * * as a proximate result of the offender's committing or attempting to commit a felony." The indictment listed the underlying felonies as drug trafficking and having a weapon while under a disability.

{¶ 23} Wilson's sole argument is that he should have not been convicted of involuntary manslaughter because he was not the cause of Thomas's death. He argues that Yhonquea was the sole cause of Thomas's death because the forensic evidence proved that it was a bullet from Yhonquea's gun that struck and killed Thomas.

{¶ 24} In State v. Robinson (1994), 98 Ohio App.3d 560, 574, 649 N.E.2d 18, quoting State v. Chambers (1977), 53 Ohio App.2d 266, 272-273, 7 O.O.3d 326, 373 N.E.2d 393, we stated:

{¶ 25} "`Having found that the Ohio legislature intended to adopt the proximate cause theory of criminal liability, as to R.C. 2903.04, we hold that when a person, acting individually or in concert with another, sets in motion a sequence of events, the foreseeable consequences of which were known or should have been known to him at the time, he is criminally liable for the direct, proximate and reasonably inevitable consequences of death resulting from his original criminal act.' See, also, State v. Younger (May 31, 1990), Cuyahoga App. No. 57080 ."

{¶ 26} A defendant cannot be held responsible for consequences that no reasonable person could expect to follow from his conduct, but he will be held responsible for consequences that are direct, normal, and reasonably inevitable when viewed in the light of ordinary experience. State v. Losey (1985), 23 Ohio App.3d 93, 95, 23 OBR 158, 491 N.E.2d 379. It is not necessary that the defendant "be in a position to foresee the precise consequence of his conduct; only that the consequence be foreseeable in the sense that what actually transpired was natural and logical in that it was within the scope of the risk created by his conduct." Id. at 96, 23 OBR 158, 491 N.E.2d 379.

{¶ 27} Only a reasonably unforeseeable intervening cause will absolve one of criminal liability in this context. State v. Lovelace (1999), 137 Ohio App.3d 206, 215, 738 N.E.2d 418. "[W]hen the result varied from the harmed intended or hazarded, it must be determined that the result achieved was not so extraordinary or surprising that it would be simply unfair to hold the defendant criminally responsible for something so unforeseeable." Id. at 216, 738 N.E.2d 418, citing LaFave & Scott, Criminal...