[Cite as State v. Lewis, 2011-Ohio-6155.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                        No. 95964



                                       STATE OF OHIO

                                              PLAINTIFF-APPELLEE

                                              vs.


                                            NNE LEWIS
                                              DEFENDANT-APPELLANT




                                            JUDGMENT:
                                             AFFIRMED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                      Case No. CR-533055

        BEFORE: Sweeney, J., Stewart, P.J., and Rocco, J.

        RELEASED AND JOURNALIZED:                   December 1, 2011
                                           2
ATTORNEY FOR APPELLANT

John H. Lawson, Esq.
Brownhoist Building
4403 St. Clair Avenue
Cleveland, Ohio 44103

ATTORNEYS FOR APPELLEE

William D. Mason, Esq.
Cuyahoga County Prosecutor
By: Brent C. Kirvel, Esq.
        Erica Barnhill, Esq.
Assistant County Prosecutors
Ninth Floor, Justice Center
1200 Ontario Street
Cleveland, Ohio 44113




JAMES J. SWEENEY, J.:

      {¶ 1} Defendant-appellant Nne Lewis (“defendant”) appeals his conviction for

murder with firearm specifications. For the reasons that follow, we affirm.

      {¶ 2} On January 6, 2010, defendant’s cousin Erik Lewis was pronounced dead

from multiple gunshot wounds. His death was ruled a homicide.

      {¶ 3} Prior to Erik’s death, both he and defendant were residing with their aunt

and uncle, Cynthia Lewis Anderson and Isaac James Anderson at their Allandale Avenue

home in East Cleveland. Many witnesses described the relationship between defendant
                                            3
and Erik as being very close, like brothers. It was said that they never fought and were

raised together by defendant’s father and Erik’s mother, who were siblings that lived

across the street from one another. Nne’s father put him out of the house for “trust

issues” relating to Nne’s use of his father’s credit card to purchase an engagement ring.

Nne’s father intended for his son to return to his home and repent and was not happy that

his sister Cynthia had “housed” him. Cynthia testified to her understanding that Nne had

also attempted to remove his father’s guns from the house. Nne’s father denied that and

said Nne did not know the combination to the safe where his 9 mm guns were kept.

       {¶ 4} Nne’s father described him as a docile person who did not have the stomach

for violence. Several witnesses testified that Nne and his girlfriend TaShawna had a

tumultuous relationship where they physically attacked one another. At one point,

TaShawna’s brother Michael physically assaulted defendant in retaliation for abusing his

sister. This was witnessed by TaShawna, her mother, and several other people and was

confirmed by Michael. When the couple expressed their intent to remain together,

Michael distanced himself from the situation. Michael was at the hospital with his

daughter at the time of Erik’s murder and he passed a “stress test” administered by the

police. Video surveillance from the hospital reportedly confirmed his alibi.

       {¶ 5} TaShawna said that defendant repeatedly accused her of being unfaithful

with “everyone,” including his cousin Erik. Although she testified she had remained

faithful to defendant, she for some reason let, and at times intentionally lead, defendant to
                                            4
believe the opposite was true. Regardless, there was no mention of Erik in this regard

during defendant’s conversations with TaShawna on January 6, 2010. On that day, she

was leaving defendant with the impression that she had been with another man. Both that

man and TaShawna’s friend said she told them she was breaking up with Nne that night.

TaShawna said she did not break up with Nne but continued to converse with him by

phone into the early morning hours.

       {¶ 6} TaShawna said she had observed defendant with a gun on three occasions.

Her mother also testified that defendant brought a gun into her home once. Cynthia said

she would never allow a weapon in her home and was not aware of one being there,

however, she did not go through her nephew’s belongings.

       {¶ 7} Cynthia and Isaac both said Nne was the only other person home when they

went to bed on January 5-6, 2010. Isaac, who went upstairs around 1:00 a.m., indicated

that Erik was usually home from work earlier but had not yet returned by that time this

particular day. Cynthia corroborated this fact.

       {¶ 8} The autopsy report indicated that Erik had consumed alcohol shortly before

his death; approximately six drinks. Erik’s girlfriend had spoken with him but did not

know where he went after work. No one was able to identify where Erik had been before

returning to the Allandale home.       An officer on patrol saw him walking towards

Allandale just moments before his death but did not observe the murder.

       {¶ 9} Erik’s mother and defendant’s father testified that Erik was a great person.
                                              5
By all accounts he was a hard worker, spent some time in military training, supported his

daughter and had no known enemies. He and defendant were active in the community,

avid basketball players and musicians. Erik’s mother expressed her dissatisfaction with

the investigation and her belief that defendant had nothing to do with her son’s death.

       {¶ 10} Cynthia awoke to gunfire and observed flashes of light outside. At trial

she said it sounded like the shooter was coming up the stairs as the shots sounded closer.

She may have told police that it sounded like the shooter was coming in the house. She

called 9-1-1 and heard her daughter Zoe pick up the phone requesting an ambulance.

Cynthia ventured down the stairs and realized that the victim was Erik; not Nne as Isaac

had initially thought. She did not see Nne and was concerned for his safety. Cynthia

called Nne’s girlfriend TaShawna looking for Nne. Nne’s father went to the hospital and

later returned to Cynthia’s house. Cynthia testified that Nne’s father said, “Don’t be

surprised if Nne has something to do with this.” Nne’s father adamantly denied making

such a statement and insisted his son had not murdered his cousin. Nne’s father said he

based his opinion on Nne’s statement to police and the evidence but had not ever

discussed the matter with his son directly.

       {¶ 11} Cynthia and Isaac testified that Nne was last seen on the telephone and they

assumed he had been talking to TaShawna. According to TaShawna, she had been

speaking with Nne and had intentionally lead him to believe that she was having sex with

another man that night. This apparently upset Nne, who told TaShawna he could not
                                           6
wait until Erik got home so he could tell him what she had done. However, TaShawna

spoke with Nne subsequently when she returned to her house and things had calmed

down. Nne got off the phone with her and said he would call her back. She did not hear

from him again until later that morning and after Erik had died. TaShawna indicated that

when the subject of Erik’s death arose, defendant asked her “was he your first?” — which

she took to mean her first lover.

       {¶ 12} Isaac also heard the gunfire and thought perhaps some shots were fired

from the outside. He went downstairs to investigate and saw a body laying in front of the

doorway. The door was opened but the screendoor was shut. He initially thought it was

Nne. Isaac’s daughter Zoe arrived home from work and saw the body in the doorway.

       {¶ 13} Several officers and EMS responded to the scene within minutes. Officers

recovered six fired cartridge casings and three spent bullets from the scene; they were all

from the same 9 mm gun. One bullet was found in a neighboring home and another was

found days later in the basement of the Allandale residence.

       {¶ 14} One man testified that he saw defendant walking quickly down Allandale

immediately after the shots were fired. He described the gunfire as being distant, not

“personal,” otherwise he would have left the area. He could not recall specifics because

he was intoxicated, having been drinking for hours in a car with his friends. Another

man had been loitering outside a nearby Convenient store and had also seen defendant

that night. Both men identified defendant’s picture from a photo array. Both individuals
                                             7
had criminal records and testified that the state had intervened in their cases to aid in their

ability to remain on probation despite violations. 1 They recalled that defendant was

wearing dark clothing.

         {¶ 15} Later that morning, defendant appeared at the home of a woman who lived

on East 143rd Street asking to use the phone. He had spent the night in an abandoned

home. The woman believed defendant was calling his girlfriend to pick him up. When she

overheard defendant repeatedly asking if his girlfriend’s people had anything to do with

it, she suspected something was wrong.         The woman inquired further of what had

happened and defendant said someone had shot his cousin and was shooting at him.

Defendant then called his father to pick him up. The woman recalled that defendant was

wearing only a white sweatshirt, which she felt was inappropriate for the extremely cold

weather. She had offered him a coat.

         {¶ 16} Defendant’s father picked him up from that location but almost immediately

thereafter the police arrested defendant. Defendant looked scared and defendant’s father

said his actions made sense to him as defendant was in fear for his own life.

         {¶ 17} Defendant waived his Miranda rights and voluntarily spoke to police. He

also agreed to submit his DNA for testing. Defendant said he heard the door open and

then shots were fired. He heard the victim asking why did you do that? Defendant’s

hearing was affected from the gunshots and he ran out of the house over “the body.”


1
    Probation was only continued for one of the men and the other was sent to prison.
                                            8
Defendant told police he encountered his Aunt Cynthia at the steps. Defendant at one

point in his statement told police that he was shot from the front of the house and at

another time said shots were fired at him from behind the house. The detective testified

that he did not feel defendant was being forthcoming and therefore decided not to obtain a

written statement from him.

       {¶ 18} Many neighbors testified and said they did not hear any gunfire. One

resident, who had been awake, heard the shots but only saw a dark figure running down

the street. Another man had observed a car parked and running in front of Cynthia’s

residence, which he found unusual, however, this was at least an hour prior to the

shooting. The men who were drinking in the car outside did not see anyone besides

defendant.

       {¶ 19} The East Cleveland Police utilized the services of BCI to prepare a shooting

reconstruction. Agent Mark Kollar conducted an investigation and concluded that the

bullet trajectory determinations indicated that the shots were fired from inside of the

residence, with at least one bullet being fired from the first floor landing on the stairwell.

A second bullet hole could have been fired from either inside or outside of the residence

depending upon the angle of the front door at the time of impact. Kollar concluded that

the fact that the first responders found the door angle being open beyond 90 degrees with

the victim laying inside, made it more likely the shot was fired from inside. Although a

bullet was found in a neighboring residence, Kollar opined that it had exited through the
                                            9
storm door and ricocheted off the front driveway into the neighboring home. He noted

that this would account for the bullet’s insufficient energy to penetrate the wall it

ultimately struck as well as the deformity of the bullet.

       {¶ 20} The Cuyahoga County Coroner testified regarding the gunshot wounds to

the victim. He was unable to state with certainty how many times the victim was shot

because the wounds could overlap. The Coroner estimated there were eight or possibly

nine shots fired. There were some shots that went from the back to the front and others

that entered from the front and exited from the back. He explained that the position of the

body at time of impact was not known and would affect this determination. There was

conflicting evidence as to whether a bullet hole in the victim’s back was an entrance or

exit wound.

       {¶ 21} Gunshot primer residue was collected from the victim’s hands but not

tested. Likewise, the fingernail scrapings were collected but not tested. The experts

explained this testing was not done because the reports indicated that there was no close

contact between the victim and the shooter.

       {¶ 22} The trace evidence supervisor of the Coroner’s office testified that there

were eleven bullet holes in the victim’s jacket, which could be both entrance and exit

holes. He testified that testing revealed that several shots were fired from a distance of

four to five feet or more, while others indicated shots being fired between one and three

feet, still others were inconclusive for distance. The trace evidence supervisor said if
                                            10
someone fires a gun they will have gunshot primer residue (“GSR”) on their hands.

However, GSR is easily removed from the skin. While GSR can also be removed from

clothing, it is more difficult due to it getting embedded in the weave of the fabric.

       {¶ 23} Defendant was tested for GSR, however, the police did not test any other

occupants of the Allandale home for GSR who were also present at the scene of the

murder; which included Cynthia, Isaac, and Zoe.

       {¶ 24} Samples of defendant’s clothing were submitted for testing, including the

cuff and pocket portions of his sweatshirt. Two particles that are highly indicative of GSR

were found on defendant’s left cuff and pocket area. Records indicate that defendant is

right handed. No GSR particles were found on the samples taken from his pants. There

was insufficient DNA obtained from the bullets to run any testing on it.

       {¶ 25} Tests conducted on the spent casings indicated they were all from the same

type of bullet. Several witnesses testified that 9 mm guns expel casings but revolvers do

not.

       {¶ 26} Cynthia testified that it was her personal opinion that defendant had

committed the crime. Under cross-examination she admitted that this was not based on

any evidence but was told to her by the Lord during prayer. Conversely, the victim’s

mother, also defendant’s aunt, echoed defendant’s father’s opinion that defendant had not

committed the murder and explained that this opinion was derived from the evidence and

their understanding of his relationship with his cousin. She, however, also had not spoken
                                              11
with defendant directly about the incident.

       {¶ 27} The murder weapon was never recovered and defendant’s father testified

that he had possession of both of his 9 mm guns at the time in question.

       {¶ 28} The jury found defendant guilty and the trial court imposed an eighteen year

to life prison sentence. Defendant appeals.

       {¶ 29} “Assignment of Error I: The guilty verdict and conviction found by the jury

against Appellant was based upon insufficient evidence.”

       {¶ 30} “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 prosecution, any rational trier of fact

could have found the essential elements of the crime proven beyond a reasonable doubt.”

State v. Jenks (1991), 61 Ohio St.3d 259, 574 N.E.2d 492, paragraph two of the syllabus.

       {¶ 31} As the record reflects, the case against defendant is almost entirely based on

circumstantial evidence. Nonetheless, “[p]roof of guilt may be made by circumstantial

evidence as well as by real evidence and direct or testimonial evidence, or any

combination of these three classes of evidence. All three classes have equal probative

value, and circumstantial evidence has no less value than the others.” (Citations and

quotations omitted.) State v. Nicely (1988), 39 Ohio St.3d 147, 151, 529 N.E.2d 1236.
                                          12
      {¶ 32} Defendant argues that the evidence was insufficient to prove that he

purposely caused his cousin’s death and focuses on the following areas: gunshot primer

residue, negative DNA tests, the shooting reconstruction, defendant’s flight and period of

absence, his access to guns, his suggested jealousy, and his relationship with TaShawna.

      {¶ 33} In terms of a sufficiency analysis, the focus remains on whether the state

has presented any evidence, that if believed, would support a conviction of murder

pursuant to R.C. 2903.02(A) that defendant “purposely cause[d] the death of [Erik

Lewis].”

      {¶ 34} Distilling the evidence to the basics, the record presents evidence that

defendant was home with Cynthia and Isaac when Erik entered the home. Shots were

fired. Cynthia and Isaac came downstairs and found Erik lying in the doorway with

multiple gunshot wounds. Zoe arrived almost immediately after the shooting and also

observed Erik’s body.

      {¶ 35} Nne, who was home when Isaac went to bed at 1:00 a.m. and placed

himself there when shots were being fired, was no longer there when Cynthia and Isaac

discovered the body. Eyewitnesses saw him walking down the street right after shots

were fired. Although defendant made a statement that he ran away in fear for his life,

while being shot at, he was seen walking quickly down the street after shots had already

been fired. Defendant was inconsistent in his statement to police as to the location of the

shooter. He heard his cousin come inside and said the gunshots affected his hearing.
                                          13
Yet, he was able to leave the home going over Erik’s body and said he was shot at from

outside. This is contrary to Cynthia and Isaac’s testimony that indicated the shooter

sounded further inside the house with each successive shot.

       {¶ 36} The shooting reconstruction concluded that the shots were likely fired from

inside the home and most of the neighbors did not hear the gunfire at all. The

eyewitnesses described defendant as wearing dark clothes when he was seen leaving the

scene yet he had on a white sweatshirt when he was arrested ten hours later. He did have

some particles indicative of GSR on some parts of his clothes that were tested despite that

he had been absent for approximately ten hours. The defense was able to suggest the

possibility of more than one shooter based on the number of gunshot wounds found in the

victim’s body and the fact that some weapons do not expel bullets. However, the evidence

collected from the scene was all consistent with having been fired from the same weapon.

The defense also elicited testimony of a possible robbery. But, Cynthia testified she held

the victim’s money, which would account for the fact that he was found with only change

in his pocket. Also, nothing had been taken from the Allandale residence. No weapon was

recovered but testimony placed defendant in possession of guns on at least three

occasions and indicated he may have attempted to recently remove guns from his father’s

home. There was sufficient evidence to sustain a murder conviction and this assignment

of error is overruled.
                                             14
       {¶ 37} “Assignment of Error II: the guilty verdict and conviction were against the

manifest weight of the evidence.”

       {¶ 38} To warrant reversal of a verdict under a manifest weight of the evidence

claim, this 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 evidence, the jury clearly lost its way and created such a manifest miscarriage

of justice that the judgment must be reversed and a new trial ordered.             State v.

Thompkins, 78 Ohio St.3d 380, 386, 1997-Ohio-52, 678 N.E.2d 541.

       {¶ 39} Having thoroughly reviewed the record, we cannot conclude that the jury

clearly lost its way in convicting defendant.

       {¶ 40} Defendant admits he was in the home when the shooting occurred. He takes

exception with the conclusions of the shooting reconstructionist that all shots were likely

fired from inside of the residence and points to Cynthia’s testimony that she saw

“flashing” outside her window. While this may cast some doubt as to the location of the

shooter, it does not render the jury’s verdict against the manifest weight of the evidence

or lead to the conclusion that the jury clearly lost its way.

       {¶ 41} We agree that the jury could have reached a contrary verdict based on the

evidence, depending upon the weight they applied to it. Nonetheless, there is evidence in

the record that does support his conviction; among it the detective’s testimony that

defendant’s version of events was inconsistent and was also contradicted by other
                                          15
evidence in the record. Defendant did have some GSR on him. While it was a small

amount, the testimony indicated additional GSR evidence could have been lost or

removed during the period of defendant’s absence. Further, the jurors received a flight

instruction; that permitted the jury to consider defendant’s flight as evidence of his

consciousness of guilt. Defendant believes the evidence of his possession of guns,

physical altercations with TaShawna, and his jealousy of his cousin were “remote” and

should weigh against his conviction. Defendant highlights the lack of direct evidence

linking him to the crime. As set forth above, the law does not require the state to present

direct evidence in order to sustain a conviction and provides that circumstantial evidence

is to be accorded the same weight. Considering the record as a whole, defendant’s

conviction was not against the manifest weight of the evidence and this assignment of

error is overruled.

       {¶ 42} “Assignment of Error III: Appellant’s trial counsel committed ineffective

assistance of counsel.”

       {¶ 43} To substantiate a claim of ineffective assistance of counsel, a defendant

must demonstrate that (1) the performance of defense counsel was seriously flawed and

deficient, and (2) the result of defendant’s trial or legal proceeding would have been

different had defense counsel provided proper representation. Strickland v. Washington

(1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674; State v. Brooks (1986), 25 Ohio

St.3d 144, 495 N.E.2d 407. In State v. Bradley, the Ohio Supreme Court truncated this
                                              16
standard, holding that reviewing courts need not examine counsel’s performance if the

defendant fails to prove the second prong of prejudicial effect. State v. Bradley (1989),

42 Ohio St.3d 136, 538 N.E.2d 373. “The object of an ineffectiveness claim is not to

grade counsel’s performance.” Id. at 143, 538 N.E.2d 373.

         {¶ 44} Defendant asserts his counsel was ineffective for failing to request a jury

instruction with regard to the lesser included offense of voluntary manslaughter. The

Supreme Court of Ohio, in State v. Griffie (1996), 74 Ohio St.3d 332, 658 N.E.2d 764,

held that the decision to request a jury instruction with regard to a lesser-included offense

is a matter of trial strategy and does not constitute ineffective assistance of trial counsel.

See, also, State v. Clayton (1980), 62 Ohio St.2d 45, 402 N.E.2d 1189, certiorari denied

(1980), 449 U.S. 879, 101 S.Ct. 227, 66 L.Ed.2d 102. It must also be noted that a

defendant is not entitled to an instruction on a lesser-included offense if participation in

the charged wrongdoing is denied. State v. Reider (Aug. 3, 2000), Cuyahoga App. No.

76649.

         {¶ 45} During the course of trial and even on appeal, defendant’s trial strategy

involved a complete denial of any criminal activity, that resulted in the death of the

victim. Defendant’s trial strategy prevented any request for a jury instruction with regard

to the offense of voluntary manslaughter. State v. Reider, supra. Accordingly, trial

counsel was not ineffective in this regard.
                                            17
       {¶ 46} Secondly, defendant asserts that his attorney was ineffective because he

elicited testimony from his aunt that she based her opinion of his guilt on the fact that the

“Lord told” her that defendant did it. This did not amount to ineffective assistance of

counsel. Cynthia’s direct testimony and that of other family members clearly implied her

belief that defendant was guilty of the murder. The defense simply elicited testimony

that she had not based this opinion on any evidence. The defense further supplied

testimony from the victim’s own mother, also defendant’s aunt, that she did not believe

defendant had committed the murder.          This was supported by defendant’s father’s

opinion that he did not commit the crime. Counsel’s scope of cross-examination was

within the realm of trial strategy and did not constitute ineffective assistance of counsel.

       {¶ 47} This assignment of error is overruled.

       {¶ 48} “Assignment of Error IV: The trial court erred in permitting hearsay

testimony to be admitted.”

       {¶ 49} During direct examination of Cynthia Lewis the following exchange took

place over defendant’s objection:

       {¶ 50} “Q: Did your brother ever make a comment to you that you felt was

concerning to you?

       {¶ 51} “A. Yes.

       {¶ 52} “Q. What was that comment?

       {¶ 53} “[Defense counsel]: Objection
                                             18
          {¶ 54} “THE COURT: Overruled.

          {¶ 55} “A. The comment was, ‘Don’t be surprised if Nne has something to do with

this.’”

          {¶ 56} Defendant submits that this testimony amounted to hearsay and its

admission resulted in prejudicial error requiring reversal. The state responds that any error

in its admission was harmless in that the defense called defendant’s father to the stand

who denied making the statement.

          {¶ 57} Hearsay is any statement, other than one made by a declarant at trial, which

is offered in evidence to prove the truth of the matter asserted. Evid.R. 801(C). Generally,

a statement is not hearsay if it is admitted to prove that the declarant made it, rather than

to prove its contents. State v. Williams (1988), 38 Ohio St.3d 346, 348, 528 N.E.2d 910,

914. It is unclear whether the state offered the testimony to prove that defendant’s father

simply made the statement or whether they were offering it to prove its truth, that his

father believed defendant may have been involved in his cousin’s murder. Because the

State has not maintained it had offered the testimony for some reason other than to prove

the truth of the matter asserted therein nor has the State addressed the hearsay aspect of

the testimony at all, we will presume the testimony qualified as hearsay and should not

have been admitted. Nonetheless, defendant was able to confront the declarant, his father,

about the alleged statement during his case-in-chief. Defendant’s father adamantly denied

making such a statement. The Ohio Supreme Court directs, “the Constitution entitles a
                                            19
criminal defendant to a fair trial, not a perfect one * * * [and] ha[s] repeatedly reaffirmed

the principle that an otherwise valid conviction should not be set aside if the reviewing

court may confidently say, on the whole record, that the constitutional error was harmless

beyond a reasonable doubt.” Williams, supra at 349, other citations omitted. Any error in

admitting this isolated testimony by defendant’s aunt, which was unequivocally refuted by

defendant’s father’s testimony, was harmless beyond a reasonable doubt when

considering the whole record. This assignment of error is overruled.

       Judgment affirmed.

       It is ordered that appellee recover of appellant its costs herein taxed.

       The Court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this Court directing the Common

Pleas Court to carry this judgment into execution. The defendant’s conviction having

been affirmed, any bail pending appeal is terminated. Case remanded to the trial court

for execution of sentence.



       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.




JAMES J. SWEENEY, JUDGE
                               20
MELODY J. STEWART, P.J., and
KENNETH A. ROCCO, J., CONCUR
