[Cite as State v. Williams, 2012-Ohio-1830.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                        No. 96813


                                       STATE OF OHIO

                                                 PLAINTIFF-APPELLEE

                                                  vs.


                                 DARRELL WILLIAMS
                                                 DEFENDANT-APPELLANT



                                               JUDGMENT:
                                                AFFIRMED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                      Case No. CR-538939

        BEFORE: Sweeney, J., Boyle, P.J., and S. Gallagher, J.

        RELEASED AND JOURNALIZED:                       April 26, 2012
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ATTORNEYS FOR APPELLANT

David L. Grant, Esq.
Russell S. Bensing, Esq.
1350 Standard Building
1370 Ontario Street
Cleveland, Ohio 44113

ATTORNEYS FOR APPELLEE

William D. Mason, Esq.
Cuyahoga County Prosecutor
By: John Hanley, Esq.
Assistant County Prosecutor
Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
                                            3




JAMES J. SWEENEY, J.:

       {¶1} Defendant-appellant Darrell Williams (“defendant”) appeals his convictions

for one count of murder and three counts of attempted murder and his prison sentence of

life with the possibility of parole after 32 years.   After reviewing the facts of the case

and pertinent law, we affirm.

       {¶2} On June 13, 2010, defendant was in the E. 93rd Street and Union Avenue

area of Cleveland attending “bike night,” which is a social gathering for members of

various motorcycle clubs.       Defendant is a member of the Street Hustlers motorcycle

club; there were also bikers there from other clubs such as the Sin City Deciples and the

Mystic Knights. Outside of a bar, an argument broke out between two bikers. This

argument eventually turned into a fight, which escalated to a melee involving several

people. During the incident, defendant fired a gun killing Robert Mosby (“Grimy”) and

injuring Alfred Harrison (“Ty”), Darnell Milton (“L.Y.F.E.”), and Kevin Bailey

(“Ruthless”).

       {¶3} On July 7, 2010, defendant was charged with one count of aggravated

murder and three counts of attempted murder.          On March 19, 2011, a jury found

defendant guilty of the lesser count of murder, as well as three counts of attempted

murder, all with firearm specifications.       On April 20, 2011, the court sentenced
                                           4

defendant to life in prison with parole eligibility after 15 years for the murder; four,

seven, and three years for the attempted murders; and three years for the firearm

specifications, to run consecutively for an aggregate prison term of life with the

possibility of parole after 32 years.

       {¶4} Defendant appeals and raises four assignments of error for our review.

The essence of defendant’s arguments is that he acted in self-defense when he fired his

gun, because Grimy was coming at him with a baseball bat.            It is undisputed that

defendant fired twice at Grimy, killing him when one of the bullets hit his heart. It is

also undisputed that defendant fired his gun several more times. Baily took a bullet in

the arm. Milton and Harrison sustained multiple gunshot wounds to the right and left leg,

respectively.

                                            I.

       The trial court erred, in derogation of Defendant’s right to Due Process of
       Law as provided by the 14th Amendment to the United States Constitution,
       in excluding evidence of Robert Mosby’s prior felony convictions, after the
       State had placed his character in issue.

       {¶5} We review the admissibility of evidence under an abuse of discretion

standard.   State v. Sage, 31 Ohio St.3d 173, 510 N.E.2d 343 (1987).            Generally,

evidence about a person’s character is inadmissible with limited exceptions governed in

part by Evid.R. 404 and 405. Pursuant to Evid.R. 404(A)(2),

       Evidence of a pertinent trait of character of the victim of the crime offered
       by the accused, or by the prosecution to rebut the same, or evidence of a
       character trait of peacefulness of the victim offered by the prosecution in a
                                            5

       homicide case to rebut evidence that the victim was the first aggressor is
       admissible * * *.

       {¶6} Character evidence may consist of        “reputation or opinion” testimony in all

applicable cases, and it may consist of “specific instances of conduct” only in cases “in

which character or a trait of character of a person is an essential element of a charge,

claim, or defense * * *.”   Evid.R. 405(A) and (B).

       {¶7} In State v. Barnes, 94 Ohio St.3d 21, 23, 2002-Ohio-68, 759 N.E.2d 1240,

the Ohio Supreme Court determined that, concerning an allegation of self-defense,

“specific instances of a victim’s prior conduct are not admissible to prove that a victim

was the initial aggressor, regardless of defendant’s knowledge.”        This is because the

victim’s character is not an essential element of a self-defense argument.

       {¶8} In the instant case, the state presented the testimony of 20 witnesses during

its case-in-chief. One of the witnesses testified that he was a member of Sin City

Deciples and he knew Grimy. Asked by the prosecutor, “based on your relationship

with [Grimy], how would you describe him as a person,” this witness answered, “He was

a good person.”

       {¶9} On cross-examination of this witness, the following colloquy took place:

       Q.     Now, you indicated that your friend, Grimy, was a good guy?

       A.     Yes.

       Q.     Isn’t that right?   He’s a good guy?

       A.     Yes.
                                           6

      Q.      Right?    Would it surprise you to know that he has seven –

                       PROSECUTOR:        Objection * * *

      Q.      — convictions * * *?”

      {¶10}     Outside the presence of the jury, defense counsel argued that the State

opened the door to Grimy’s character, which afforded the defense the “right to go through

his convictions to rebut [the] statement that he’s a good guy.”    In response, the court

ruled as follows: “* * * I’m going to limit cross-examination on this issue as to whether

or not the witness would change his opinion of [Grimy] being a good person if [the

witness] knew that [Grimy] had prior felony convictions.”

      {¶11}     Upon further cross-examination, defense counsel asked, “Now, I believe

you were asked a question relative to what kind of person Grimy * * * was, and I believe

you said he was a good person * * *. And would that opinion change if you knew he

had felony convictions in any way?”    The witness answered, “No.”

      {¶12}      Upon review, we find that the admissible evidence about Grimy’s

character was limited to reputation or opinion testimony.   See State v. Collins, 97 Ohio

App.3d 438, 450, 646 N.E.2d 1142 (8th Dist.1994) (finding no error when “the defense

opened the door to this subject of inquiry by its witness stating an opinion during direct

examination by defense counsel that defendant was not a ‘troublemaker’ [and] the

prosecution subsequently questioned the witness to determine whether the witness was
                                                    7

       aware of the defendant’s prior arrests and whether knowledge of these prior arrests would

       change the witness’s opinion concerning defendant’s character”).

               {¶13} The court acted within its discretion in limiting the evidence regarding

       Grimy’s prior felony convictions and defendant’s first assignment of error is overruled.

               {¶14}   In defendant’s second assignment of error, he argues as follows:

                                                    II.

               The trial court erred, in derogation of Defendant’s right to Due Process of
               Law as provided by the 14th Amendment to the United States Constitution,
               in excluding corroborating testimony of Defendant’s observation of prior
               instances of the decedent’s violent conduct.

               {¶15}   In    State v. Spinks, 79 Ohio App.3d 720, 607 N.E.2d 1130 (8th

       Dist.1992), this court held the following:

       A defendant, when arguing self-defense, may testify about specific instances of the
       victim’s prior conduct which were known to the defendant in order to establish the
       defendant’s state of mind. * * * [T]he trial court afforded appellant great leeway in
       testifying to matters of past violent incidents between appellant and the decedent. In
       fact, appellant testified to the decedent’s violent past with his ex-wife. This was entirely
       permissible. * * * However, corroborating evidence of the victim’s character, offered to
       substantiate her testimony, * * * a police report of a domestic violence incident, and a
       divorce complaint and affidavit filed by decedent’s ex-wife was properly excluded. Id.
       at 730 (internal citations omitted; emphasis added).

       {¶16}     This court has also held that corroborating testimony of this type is properly excluded

as cumulative.     Cleveland v. Hill, 63 Ohio App.3d 194, 198, 578 N.E.2d 509 (1989), stands for the

proposition that because “defendant was allowed to relate other specific acts of aggression committed

by the vicitm * * *,” the admission of corroborating hospital records “would not have tended to prove

anything more than that testified to by defendant and the victim.”
                                                  8

      {¶17}     Other Ohio courts have adopted this reasoning. In State v. Weston, 4th Dist. No.

97CA31, 1999 WL 552732 (July 16, 1999), the court stated the following:

      [T]he holding in Cleveland v. Hill (1989), 63 Ohio App.3d 194, 198, 578 N.E.2d 509,
      where the introduction of such corroborative, or extrinsic, evidence of “prior bad acts”
      was excluded as cumulative * * * is precisely correct since evidence of the victim’s
      specific “prior bad acts” has already been admitted into evidence by the uncontroverted
      testimony of the appellant.

See, also, State v. Eng, 2nd Dist. No. 14015, 1994 WL 543277, (Sept. 30, 1994) (holding that

“[e]vidence however which merely corroborates a defendant’s testimony as to the victim’s violent

character may properly be excluded”).

              {¶18}   In the instant case, defendant testified that he had seen Grimy cut a man

      in the face with a knife.   The court excluded testimony from the alleged victim of that

      incident, who would have corroborated defendant’s testimony. We find that, under the

      authority of Spinks and Hill, the court acted within its discretion, and defendant’s second

      assignment of error is overruled.

              {¶19}   Defendant’s third assignment of error states the following:

              {¶20}   III.   “The Defendant’s convictions of murder and attempted murder are

      against the manifest weight of the evidence.”

              {¶21}   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
                                             9

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

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

       {¶22}     To prove self-defense, the following must be shown: 1) the defendant

“was not at fault in creating the situation”; 2) the defendant had a “bona fide belief that he

was in imminent danger of death or great bodily harm and that his only means of escape

from such danger was in the use of such force”; and 3) the defendant “must not have

violated any duty to retreat or avoid the danger.” State v. Melchior, 56 Ohio St.2d 15,

20-21, 381 N.E.2d 195 (1978) (internal citations omitted).

       {¶23}      Defendant argues that the eyewitness testimony against him “was rife

with inconsistencies and contradictions,” and that it was not credible because of the

witnesses’ criminal records.     Our review of the trial testimony shows that several

members of motorcycle clubs testified for the prosecution as eyewitnesses to the incident

at bike night. At least four of them had been convicted of felonies, and two of them

testified while wearing prison garb.

       {¶24}      The testimony was consistent that the street fight on June 13, 2010

started as an argument between Roy Levy (“Choir Boy”), who was a member of the Sin

City Deciples at the time, and     Lamaur Dennis (“Nephew”), who is a member of the

Mystic Knights. The disagreement was personal, and in general, there was no bad blood

between the two clubs.    There is no evidence in the record that defendant was involved

in starting the fight.
                                          10

      {¶25}     Additionally, the testimony was consistent that the incident took place

alongside a double fence — one wooden and one chain-linked.       Defendant testified that

he was backed up against this fence and nothing in the record contradicts this.

Assuming for the sake of argument that defendant has met the first and third elements of

self-defense, we focus our analysis on the second element, whether defendant believed

“he was in imminent danger of death or great bodily harm and that his only means of

escape from such danger was in the use of such force.”

      {¶26}     Douglas Watson (“Fresh”) testified that he is a member of the Sin City

Deciples, which is the motorcycle club that Grimy belonged to.    Fresh did not see a bat

or anything else in Grimy’s hand during the street fight. L.Y.F.E. testified that he is a

member of the Sin City Deciples, and he did not see a weapon or anything else in Grimy’s

hands that night.   Roy Levy (“Choir Boy”) testified that he is a former member of the

Sin City Deciples, and he did not see Grimy or anyone else with a bat that night, although

the police found a blue and black aluminum bat in his trunk.

      {¶27}     George William Hannett (“Geo”) testified that he is a member of the Sin

City Deciples, and he saw Grimy with a small, wooden bat, approximately 6” to 8” in

length, in his hand during the fight. According to Geo, this object was kept on Grimy’s

keychain.

      {¶28}     Raymel Ryan (“Ray-Ray”), who, along with defendant, is a member of

the Street Hustlers motorcycle club, also testified for the prosecution.   He saw Grimy
                                            11

coming across the street with a black baseball bat in his hand.   Ray-Ray heard defendant

say, “Grimy, don’t hit nobody with the bat.” However, Grimy raised the bat to swing

and kept approaching. Grimy was close enough to hit defendant when defendant fired

his gun.

       {¶29}   Three motorcycle club members who witnessed the incident testified for

defendant. John Jones (“Stroke”) testified that he is a member of the Mystic Knights

motorcycle club, and he saw Grimy with an aluminum baseball bat during the fight.

Grimy was swinging the bat towards a group of people when somebody yelled, “Put the

bat down.” Grimy swung the bat again, and Stroke heard gunshots. Stroke saw Grimy

go down with the bat in his hand after being hit by a bullet. Stroke did not see defendant

in the vicinity where Grimy was swinging.

       {¶30}   Robert Dunn (“Big Daddy”) testified that he is a member of the Mystic

Knights, and he saw Grimy cross the steeet with a metal bat in his hand. Grimy raised it

up in the air, and then Big Daddy heard gunshots. When Grimy raised the bat, defendant

was not near him.

       {¶31}   Lamaur Dennis (“Nephew”) testified that he is a member of the Mystic

Knights, and he saw Grimy run across the street with an aluminum bat. Nephew heard

gunshots, then saw Grimy fall to the ground with the bat in his hand. Nephew did not

see Grimy raise or swing the bat, and he did not see where defendant was during the fight.
                                              12

       {¶32}     Defendant testified that he was in the middle of the street fight when he

saw Grimy standing approximately ten feet in front of him holding an aluminum bat up in

the air.    Defendant said, “Grimy, put the bat down,” three times.   However, Grimy kept

approaching. Defendant testified as follows:

           * * * [Grimy] made another step or two towards me with the bat up, and it started

coming down.       And I reached for my pistol.

       Q:       What did you do with your pistol?

       A:       I pointed it in his direction. I fired.

       Q:       Okay. Why did you fire at him?

       A:       I was in fear of my life.

       Q:       Why were you in fear of your life?

       A:       Because he was gonna’ hit me with a bat. * * * Because about a year
                before that I saw Grimy get to fighting right in the same place, right
                on the sidewalk of Fresh. And he pulled out a knife and cut a guy
                across the left side of his face.

       ***

       Q:       Okay.    So you had seen him engage in violence with a knife before?

       A:       Yes.

       Q:       Okay. And how far was the bat from you when you shot him?

       A:       Approximately six feet.

       Q:       And how, in what manner was he carrying the bat?

       A:       At the time he was swinging on me?
                                            13

       Q:      Yes.

       A:      He was coming down with it.

       Q:      Okay. And how many times did you shoot him?

       A:      Twice.

       ***

       Q:      As he charged you with the bat, why didn’t you run?

       A:      There was no where to go. My back was against — I was right by
               the fence and the north corner of [a building]. If I stuck my right
               hand out, I‘d have been by the fence. If I stuck my left hand out,
               I’d have been by the wall, right on the edge. There was people to
               the right of it, people to the left of it, and he was standing right in
               front of me, coming at me with the bat.

       Q:      Did you feel you had any alternative but to shoot him?

       A:      No. That’s all I could do to keep him from killing me.

       {¶33}    To summarize the evidence in the instant case, three Sin City Deciples did

not see anything in Grimy’s hands during the fight. One Sin City Deciple saw Grimy

with a miniature bat.     Grimy was a member of the Sin City Deciple motorcycle club.

       {¶34}        One member of the Street Hustlers saw Grimy swinging a bat close

enough to hit defendant when defendant shot Grimy. Defendant is a member of the

Street Hustlers motorcycle club.

       {¶35}        Three members of the Mystic Knights saw Grimy with a bat in his hand

during the fight.     However, none of them saw defendant near Grimy.
                                             14

       {¶36}     Defendant testified that he feared for his life and he had nowhere to run.

Defendant also testified about what he knew of Grimy’s violent character.

       {¶37}     Our review of this testimony shows that the jury did not lose its way in

finding that the defendant did not act in self-defense when he fired his gun. Defendant

and one member of his motorcycle club testified that Grimy was swinging a bat at

defendant. However, seven other witnesses’ testimony contradicted this. In resolving

this evidentiary conflict, it is reasonable for the trier of fact to find that defendant did not

believe his life was in danger when he fatally shot Grimy and injured three other people.

       {¶38}    We find that the weight of the evidence supports defendant’s convictions

for murder and attempted murder, and his third assignment of error is overruled.

       {¶39}       In defendant’s fourth and final assignment of error, he argues that:

                                              IV.

       The trial court abused its discretion in sentencing Defendant to consecutive
       terms of imprisonment totaling 34 [sic] years.


               {¶40}     he Ohio Supreme Court set forth the standard for reviewing felony

sentencing in State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124.           See

also State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470; State v. Hodge,

128 Ohio St.3d 1, 2010-Ohio-6320, 941 N.E.2d 768.             Kalish, in a plurality decision,

holds that appellate courts must apply a two-step approach when analyzing alleged error

in a trial court’s sentencing.
                                            15

       First, they must examine the sentencing court’s compliance with all
       applicable rules and statutes in imposing the sentence to determine whether
       the sentence is clearly and convincingly contrary to law. If this first prong is
       satisfied, the trial court’s decision shall be reviewed under an
       abuse-of-discretion standard. Id. at ¶4, 845 N.E.2d 470.

       {¶41}     In addition to determining the length of a prison sentence for each

conviction, courts have the discretion to determine whether prison sentences are to be

served consecutively or concurrently. See State v. Bates, 118 Ohio St.3d 174,

2008-Ohio-1983, 887 N.E.2d 328.

       {¶42}     In the instant case, the court imposed a mandatory sentence of life in

prison with the possibility of parole after 15 years for defendant’s murder conviction.

Defendant does not argue that this was improper.          Rather, defendant challenges “the

sentences imposed on the attempted murder charges, and the decision to run them

consecutively.” Although defendant alleges that this was both contrary to law and an

abuse of discretion, his argument concerns only whether the court abused its discretion.

       {¶43}     Attempted murder is a first degree felony punishable by a prison sentence

of between three and ten years.     R.C. 2903.02(A), 2923.02, and 2929.14(A)(1).          The

court sentenced defendant to seven years, four years, and


three years in prison for the three counts of attempted murder.         These sentences are

within the statutory range and are not contrary to law.

       {¶44}     Furthermore, in running these sentences consecutively, the court found

that “[e]ach count represents a separate victim * * * and the defendant            * * * shot
                                            16

numerous times at the different individuals.” The court also found that the shooting was

a

       horrendous, senseless act * * * all because of one argument, * * * an
       argument between two men who you didn’t even seem to really know, who
       didn’t really know you * * *. And to me, it just seems so senseless that
       just in a matter of seconds so much has * * * been lost and is lost forever.

       {¶45}   The court stated that of the attempted murder offenses, one victim “was

seriously injured, having his leg shattered, and another one * * * was shot twice. * * * To

me, it seems that the three other people who were shot were pretty much at the wrong

place at the wrong time.”    Additionally, the court stated that it considered “the purposes

and principles of felony sentencing, Revised Code 2929.11 and the seriousness and

recidivism factors in 2929.12.”

       {¶46} Upon review, we find nothing in the record to suggest that defendant’s

sentence is unreasonable, arbitrary, or unconscionable.         The court acted within its

discretion when it ordered defendant to serve his sentences consecutively, and his fourth

assignment of error is overruled.

       {¶47}   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
                                         17

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

MARY J. BOYLE, P.J., and
SEAN C. GALLAGHER, J., CONCUR
