[Cite as State v. Liles, 2014-Ohio-259.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                                ALLEN COUNTY




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                                CASE NO. 1-13-04

        v.

DESMOND R. LILES,                                          OPINION

        DEFENDANT-APPELLANT.




                   Appeal from Allen County Common Pleas Court
                            Trial Court No. CR2012 0269

                                       Judgment Affirmed

                            Date of Decision: January 27, 2014




APPEARANCES:

        Sarah M. Schregardus for Appellant

        Jana E. Emerick for Appellee
Case No. 1-13-04


PRESTON, J.

      {¶1} Defendant-appellant, Desmond R. Liles, appeals the Allen County

Court of Common Pleas’ judgment entry of conviction. We affirm.

      {¶2} On September 13, 2012, the Allen County Grand Jury indicted Liles

on one count of felonious assault with a deadly weapon in violation of R.C.

2923.11(A)(2), a second-degree felony, with a related R.C. 2941.145(A) firearm

specification. (Doc. No. 3). On September 20, 2012, Liles filed a written not

guilty plea. (Doc. No. 9).

      {¶3} On October 11, 2012, an amended indictment was filed charging Liles

with Count One of felonious assault with a deadly weapon in violation of R.C.

2923.11(A)(2), a second-degree felony, with a related R.C. 2941.145(A) firearm

specification; Count Two of reckless discharge of a firearm in violation of R.C.

2923.162(A)(3), (C)(4), a first-degree felony; and, Count Three of having a

weapon while under disability in violation of R.C. 2923.13(A)(2), a third-degree

felony. (Doc. No. 18).

      {¶4} On October 22, 2012, Liles appeared before the trial court and entered

not guilty pleas to the amended indictment. (Doc. No. 21).

      {¶5} On January 22-23, 2013, a jury trial was held resulting in guilty

verdicts on all three counts. (Doc. Nos. 70-71).




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       {¶6} Immediately following the verdicts, the trial court held a sentencing

hearing. (Doc. No. 74). The trial court found that Counts One and Two were

allied offenses and merged under State v. Johnson, 128 Ohio St.3d 153, 2010-

Ohio-6314 and R.C. 2941.25, but Count Three was not an allied offense subject to

merger.    (Id.).   The State elected to proceed on Count One for sentencing

purposes. (Id.). The trial court sentenced Liles to eight years on Count One and

24 months on Count Three and further ordered that Liles serve the terms

consecutively for an aggregate sentence of ten years. (Id.).

       {¶7} On February 1, 2013, Liles filed a notice of appeal. (Doc. No. 81).

Liles raises two assignments of error, which we elect to address out of the order

presented in his brief.

                           Assignment of Error No. II

       The trial court violated Desmond Liles’ rights to due process
       and a fair trial when it entered a judgment of conviction for
       Felonious Assault and Having a Weapon While Under
       Disability, when the judgments were against the manifest weight
       of the evidence. Fifth and Fourteenth Amendments to the
       United States Constitution and Section 16, Article I of the Ohio
       Constitution.

       {¶8} In his second assignment of error, Liles argues that his convictions

were against the manifest weight of the evidence because the evidence consisted

entirely of biased witnesses who could not keep their stories straight. He further

argues that no physical evidence was presented demonstrative of his guilt.


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      {¶9} In determining whether a conviction is against the manifest weight of

the evidence, a reviewing court must examine 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 [trier of fact]

clearly lost its way and created such a manifest miscarriage of justice that the

conviction must be reversed and a new trial ordered.’” State v. Thompkins, 78

Ohio St.3d 380, 387 (1997), quoting State v. Martin, 20 Ohio App.3d 172, 175

(1st Dist.1983).   A reviewing court must, however, allow the trier of fact

appropriate discretion on matters relating to the weight of the evidence and the

credibility of the witnesses. State v. DeHass, 10 Ohio St.2d 230, 231 (1967).

      {¶10} The State presented testimony from seven witnesses during the trial.

The victim, Anthony S. Brown, testified that, on July 15, 2012, Byron Holten and

he went to Meat City to buy snacks to take to Stu’s house where they all planned

to hang out. (Jan. 22-23, 2013 Tr. at 36-38). Brown testified that Holten saw that

he had money on him when he was purchasing the snacks at Meat City. (Id. at

39). Brown testified that he left Stu’s house at some point during the day, but

Holten remained at the house. (Id.).

      {¶11} According to Brown, when he returned to Stu’s house, he sat in the

back room, smoked marijuana, and watched TV, when Holten received a phone

call on his cell phone. (Id. at 40). Brown testified that, after receiving the phone


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call, Holten left Stu’s house, and, about an hour and forty-five minutes later,

Brown heard the door to Stu’s house being kicked in. (Id.). Brown testified that

he looked down the hallway and saw three guys wearing black masks and gloves.

(Id.). The masked men came down the hallway with rifles raised in the air yelling

for him to get down on the ground, which Brown did. (Id.). Brown testified that

the men asked him where his money was, and he told them it was in a zipper

pocket of his pants. (Id. at 40-41). None of the men wanted to grab for the

money, according to Brown, so they removed his pants and ran out the door,

leaving him only in his “drawers.” (Id. at 41, 42).

       {¶12} Brown testified that, as he was walking out the front door, he noticed

Stu and his girlfriend sitting in the house, and the masked men walked right by

them and never ordered them to lie on the ground. (Id. at 41). Brown testified that

the masked men stole $1,000—money he had received from the recent sale of his

tow truck, which he sold to pay taxes he owed on his home. (Id.). Brown testified

that he immediately suspected that “the same guys that [he] sees every day” might

have been involved in the robbery, and Brown testified that Holten might have

been involved since the masked men also walked right by him. (Id. at 42).

       {¶13} Brown testified that, after the robbery, he jumped on a bike and road

around the corner to get some clothes. (Id.). When he returned to the house,

Brown observed “a little dude like he was casing the scene” who he suspected


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might have been involved in the robbery. (Id. at 43). Brown testified that he also

suspected that Liles, the defendant, may have been in the group that robbed him.

(Id. at 43). Brown testified that, after he observed the individual at the house, he

“called it a day.” (Id.).

       {¶14} Brown testified that the next day he told his sister, Kierrea Brown,

that he had been robbed the day before. (Id. at 43-44). Brown testified that

Kierrea and he went to his brother’s house, where his brothers, Jordan Brown and

Martyce McLaurin, were located, and Kierra told them that Brown had been

robbed. (Id. at 44-45). Brown testified that Martyce then called their cousin,

DeAngelo Harper, and began questioning Harper about the incident because

Harper was known to frequent Stu’s house. (Id. at 45). Harper told Martyce to

“come over on [his] block,” so Brown and his brothers drove over to Orena Street,

and Harper walked down the street to Liles’ grandmother’s house and stated to

Brown’s brother’s “they got guns.” (Id. at 47). Brown testified that Harper went

to Liles’ grandmother’s house, and Liles and another guy exited the house and

took off in a Jeep. (Id. at 47-48). According to Brown, Harper then walked back

toward him and his brothers, and, by this time, Liles and the other man returned to

Liles’ grandmother’s house, so Brown suspected they may have retrieved a

weapon. (Id. at 49).




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       {¶15} Brown testified that he then walked down to Liles’ grandmother’s

house because he suspected that Harper may have stated something to Liles and

the other man that was not true. (Id.). Brown testified that he observed a black

glove lying on the porch of Liles’ grandmother’s house—which is located right

around the corner from where Brown was robbed—so Brown “instantly, like, put

two and two together.” (Id.). Brown testified that he grabbed the glove, but

someone snatched it out of his hand, stating “no, like it’s nothing like that,” at

which point Brown walked off the porch and started heading back to his vehicle.

(Id. at 49-50). Brown testified that, as he began walking back to his vehicle, he

observed Liles exit the house with his cousin, Montray, and another man, and

Liles “did the tuck and something like he got a weapon.” (Id. at 50). Brown

testified that he approached the group of people that were with him and Liles and

tried to “level things out” so a fight did not erupt. (Id. at 51).

       {¶16} Brown testified that Liles then sat on a “stoop” at the house and, now

armed, began saying nasty words, at which point Brown’s younger brother

punched Liles. (Id.). Brown testified that Liles’ cousin then tackled his younger

brother, so he began trying to pull Liles’ cousin off of his brother. (Id. at 51-52).

Meanwhile, someone grabbed Brown from behind, when Brown heard “pow” and

turned around to see Liles with a gun in his hand looking confused as if he wanted

to pass the gun off to someone else. (Id. at 53). Brown testified that, once he


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heard the “pow,” he felt his leg shift but it did not hurt and no one was behind him,

so he could not figure out what had happened. (Id.). Brown testified that, after he

heard the “pow” and saw Liles with a gun, he took off running through the alley

connecting Orena and Harrison Streets when his leg gave out on him, and he

collapsed at the end of the alley, near Harrison. (Id. at 54). Brown testified that

he was in the street when he was shot. (Id.).

       {¶17} Brown testified that he knew Liles before the shooting but was not

friends with him. (Id. at 55). Brown testified that he was hospitalized for about a

week for the gunshot wound, the main artery in his leg was severed, and he has “a

big, nasty scar.” (Id. at 56). Brown testified that the bullet hit him in the buttocks

and passed through his groin area when it exited his body, and he still has pain in

his hip from the wound. (Id. at 57-58). Brown testified that, prior to the fight

erupting, he observed Liles tuck a gun into his gym shorts. (Id. at 53). Brown

testified that he did not see anyone else with a weapon, except Liles, and Liles was

about four or five feet behind him when Liles shot him. (Id. at 59).

       {¶18} On cross-examination, Brown testified that he could not identify

Liles as one of the robbers. (Id. at 61). Brown testified that part of the stolen

money was from the sale of his tow truck and another part was from roofing. (Id.

at 62). Brown testified that he suspected that Harper was running his mouth

saying something false when Harper was up on Liles’ grandmother’s porch, which


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is why he decided to go talk to them himself. (Id. at 63). Brown testified that he

grabbed the black glove to ask Liles and his compatriots if they knew who may

have robbed him the other day. (Id.). Brown testified that Liles had a black

handgun. (Id. at 65). Brown recalled talking with Detective Miller about the

incident, but could not recall when that occurred or whether he provided a written

statement. (Id. at 66-68).

       {¶19} Kierra Brown testified that, on July 16, 2012, her four brothers,

Anthony, Martyce, Trayvon, and Jordan, and she received a phone call to meet

“some dudes over on Orena,” so they went over there to Liles’ grandmother’s

house. (Id. at 69-70). Kierra testified that, when they exited their vehicle, she saw

Liles, Montray, and some “other dudes,” and that she observed three guys leave in

a truck. (Id. at 71-72). Kierra testified that when her brothers arrived at the house,

a fight broke out, so they all ran up to the fight, and Brown was trying to break up

the fight. (Id. at 73). Kierra testified that the fight started in the sidewalk area but

spilled into the street. (Id.). Kierra testified that everyone was fighting and Brown

was trying to break up the fight when she observed Liles pull a gun out from his

jogging pants, so she and her oldest brother started yelling “He got a gun; he got a

gun,” but no one could hear them due to the commotion. (Id.). Kierra testified

that Liles pulled the gun up to Brown’s head, so her brother and her started

screaming, “No, no,” which caught Liles’ attention, so he stepped back and shot


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Brown “downward.” (Id. at 74). According to Kierra, Liles froze up, almost in

shock, and then took off running through the alley, so she grabbed her youngest

brother and took off running, too. (Id.). Kierra testified that she later saw Brown

laying in the alley, so she ran to him and discovered that he had been shot. (Id.).

Kierra testified that she was about ten to fifteen feet away from the fight when she

observed Liles shoot Brown, and she did not see anyone else with a weapon. (Id.

at 74-75). Kierra described the weapon as “[a] big gun. It looked like a forty * *

* a hand gun.” (Id. at 75).

       {¶20} On cross-examination, Kierra testified that Liles was wearing

jogging pants with basketball shorts “or something” underneath, and maybe a t-

shirt. (Id. at 76). Kierra testified that Liles’ handgun was gray and “maybe” eight

inches long.    (Id. at 78).    Kierra testified that, in exchange for her truthful

testimony, one of the detectives agreed to drop her warrants, and, without that

promise, she probably would not be testifying. (Id. at 80). On redirect, Kierra

testified that her mom told her that a detective promised to drop warrants on

Kierra if she testified, but no detective told Kierra that directly. (Id. at 81).

       {¶21} Lima Police Patrolman Gregory Todd Jennings testified that he was

dispatched to the five hundred block of Orena Street, a public roadway on the east

side of Lima, Allen County, Ohio, around 5:30 p.m. on July 16, 2012 in reference

to a shooting. (Id. at 82-83). Jennings testified that law enforcement did not find


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anything on Orena Street, but officers later found the victim, identified as Anthony

Brown, near Harrison, the next street over from Orena. (Id. at 84-85). Jennings

testified that one person was holding Brown’s left thigh area, and there was a

significant amount of blood on the ground on Brown’s left side. (Id. at 85).

Jennings identified State’s exhibit two as an accurate copy of the video from his

police cruiser the night of July 16, 2012, which video was played for the jury. (Id.

at 85-86).

       {¶22} Lima Police ID Officer Michael Carman testified that, on July 16,

2012, he reported to the five hundred block of Orena Street, Lima, Allen County,

Ohio to process the scene of a shooting. (Id. at 89-90). Carman testified that the

scene was secured by police tape when he arrived, and he began identifying,

collecting, and marking evidence.      (Id. at 90-91).   Carman testified that he

identified a fresh blood trail that led from the five hundred block of Orena Street

into the six hundred block of Harrison Street through the east/west alley. (Id. at

92). Carman identified State’s exhibits two through thirty-two as photographs he

took of the crime scene. (Id.). Of particular importance, Carman identified State’s

exhibit four as a photograph of a spent shell casing he found on Orena Street. (Id.

at 93). Carman identified State’s exhibit 33 as the spent shell casing he found on

Orena Street—a .45 caliber (ACP). (Id. at 95). Carman identified State’s exhibit

nine as a photograph of evidence tents two, three, four, and five, marking the fresh


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blood trail that started at tent two and proceeded chronologically thereafter into the

alleyway. (Id. at 96-97). Carman identified State’s exhibits 10 through 13 as

close-up photographs of blood droplets associated with evidence tents two through

five. (Id. at 97-99). Carman identified evidence tent 17 in State’s exhibit 29 as

the location of victim, where fresh blood was found as well. (Id. at 104). He

further identified State’s exhibit 30 as a photograph of the scene where the victim

was found, depicting the victim’s bloody clothing and a cell phone. (Id. at 105).

He identified State’s exhibits 31 and 32 as close-up photographs he took of the

victim’s bloody clothing. (Id.). Carman testified that he did not locate a projectile

or a weapon at the scene. (Id. at 107).

       {¶23} Charlene Marie Dority, Brown and Kierra Brown’s grandmother,

testified that she received a phone call on July 16, 2012 indicating that Brown had

been shot. (Id. at 108). Dority testified that the phone number that called her

belonged to Liles’ father’s car washing business, and she has caller ID on her

cellphone. (Id. at 110, 112, 117-118). Dority testified that she accompanied

Brown to the hospital, and Brown lost five pints of blood and had to be

resuscitated on the operating table. (Id. at 108-109). Dority testified that, around

the second or third day that Brown was in the hospital (July 18th), she received a

phone call from Liles.      (Id. at 110-111).    Dority testified about the phone

conversation as follows:


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      Q:   So you received a phone call on or about July 18th. How did

      you know that that was [Liles]?

      A:   Because he said who he was and apologized.

      Q:   Okay. So, what else did he say?

      A:   He said he didn’t mean to shoot him, he apologized, and he had

      been in trouble before for almost the same situation.

      Q:   Okay.     He apologized.       Did he describe anything that

      happened?

      A:   He said he apologized for shooting him. I said, “But, you shot

      him anyway?” He said, “Yes.”

      Q:   And did he say anything else to you?

      A:   Yes. He was talking to me about he ain’t been too long out of

      prison for the same situation, or, for similar to the same situation.

      Q:   Okay.    Did he describe anything about -- I mean, he said

      obviously there was a shooting. But, did he say anything specific

      about that shooting?

      A:   Well, I said, “You know he didn’t have no gun. They can’t

      find no gun.” He said, “Yea, I know he didn’t have a gun.”

(Id. at 111). Dority testified that Liles called her again on July 20th about the

shooting to apologize again and wanted to talk to her, Brown’s mother, and Brown


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to make amends. (Id. at 112-113). Dority testified that Liles mentioned “[m]oney

ain’t no option” when he called to make amends, because “they was going to pay

him.” (Id. at 113). Dority testified that Liles called a third time around July 21st

or 22nd offering to talk to them about the money. (Id. at 114).

       {¶24} On cross-examination, Dority testified that the person’s voice during

the second and third phone calls was the same voice as the person who called the

first time. (Id. at 118). However, Dority testified that she was not sure if the voice

was Liles’ voice, but the person stated he was “Desmond” when she talked to him.

(Id. at 118-119). On redirect, Dority testified that the caller identified himself as

Desmond Liles during each of the three phone conversations. (Id. at 119).

       {¶25} Lima Police Patrolman Aaron Montgomery testified that he arrested

Liles on July 28, 2012, and while transporting Liles to the police department, Liles

indicated that he had a prior felonious assault as a juvenile. (Id. at 120-122).

       {¶26} Lima Police Detective Kent Miller testified that Kierra Brown does

not have any warrants through the Lima Police Department, and he never

promised to withdraw any of her warrants in exchange for her testimony at trial.

(Id. at 122-125). Miller testified that the morning of the trial when Kierra was not

present to testify, Kierra’s mother expressed that Kierra thought she was going to

be arrested, so he had a detective look into the issue. (Id. at 125). Miller testified

that the detective discovered that Kierra had some outstanding traffic tickets but


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that a plea deal was being worked out for those through the public defenders’

office, and Kierra could dispose of that case at her leisure. (Id.). Miller testified

that no warrants were being dismissed in exchange for Kierra’s testimony. (Id.).

         {¶27} Miller testified, as the lead detective on this case, he reported to

Orena Street in Lima, Allen County, Ohio in response to a shooting, and Orena

Street is a public roadway, not a private drive. (Id. at 125-127). Miller testified

that neither the beer bottle found at the scene and depicted in State’s exhibit 22 nor

the shoe print found at the scene and depicted in State’s exhibit 27 turned out to be

relevant in the investigation of the shooting. (Id. at 128). Miller testified that law

enforcement was unable to locate a bullet or a gun during their investigation. (Id.

at 128). He further testified that he talked to several potential eye witnesses

though none were cooperative. (Id.). He testified that, on July 17, 2012, Detective

Stechschulte and he visited the victim at Lima Memorial Hospital’s ICU, but they

left after the victim’s heart rate and blood pressure elevated when they brought up

the shooting. (Id. at 129). Miller testified that he gave his business card to

Brown’s grandmother, Dority, and asked her to call him when Brown was able to

talk. (Id. at 130). Miller testified that Dority called him around July 19th and

after that conversation, law enforcement began to suspect Liles was the shooter.

(Id.).




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       {¶28} Miller testified that he determined that the phone number from which

Dority received several phone calls relative to the shooting belonged to Liles’

father. (Id. at 131). Miller explained that he saw Desmond Liles’ father, Demond

Liles, at the Lima Municipal Court in September (2012), so he called the phone

number Dority provided him, and Miller observed Demond answer a cell phone in

his possession and then hang up after Miller hung up. (Id. at 137). Miller later

determined that Demond used the phone number for his business, and the phone

number is posted on the sign for his business. (Id. at 138-139).

       {¶29} Miller testified that, on July 25th and 26th, respectively, he

interviewed Brown and Kierra Brown, and their statements were consistent with

the evidence he had gathered leading to Liles as the shooter. (Id. at 132-133).

Miller testified that, around July 31st, he contacted a female, Johnnie Mae Qualls,

who lives approximately five houses north of the scene of the shooting, as a

possible eye witness.     (Id. at 134).     Miller testified that Qualls’ statements

demonstrated that she observed the shooting, and her statements were consistent

with those offered by Brown and Kierra Brown. (Id. at 136). Miller testified that,

after speaking with Qualls, he was more certain that Liles was the shooter;

however, Qualls subsequently made it clear that she did not want to cooperate in

the investigation.    (Id. at 136-137).          Miller testified that, based on his

investigation, he is certain that Liles is the person who shot Brown. (Id. at 140).


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       {¶30} On cross-examination, Miller testified that Brown initially was

uncooperative and evasive at the hospital. (Id. at 141-142). Miller testified that,

during the hospital visit, Brown maintained that he was “in the wrong place at the

wrong time and that like he caught a stray round.” (Id. at 143). Brown did not ID

the shooter during this hospital visit, even though Miller asked Brown for a name.

(Id.). Miller testified that Demond Liles operates a car detailing business, and one

of the phone numbers listed on the business sign was the same number used to call

Dority. (Id. at 144-145). Miller testified that he was the only Lima Police officer

who spoke with Kierra, and he never promised to work out any of Kierra’s

pending charges in exchange for her testimony at trial. (Id. at 148). When asked

about whether Kierra’s statements at the crime scene as reflected in Officer Rode’s

report were inconsistent with her testimony at trial, Miller testified that he

believed that Rode made an error in his report. (Id. at 149-150). Miller testified

that he formed this belief after reviewing Rode’s audio tape from Rode’s police

cruiser. (Id. at 150). Miller testified that he did not have anything of value taken

from Liles’ person during the arrest for purposes of the investigation—law

enforcement did not have any DNA or fingerprints to compare. (Id. at 151).

Miller testified that no gun powder residue was found on Liles’ hands; however,

he did not find that out of the ordinary since Liles was arrested a few weeks after

the shooting. (Id. at 151-152).


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       {¶31} On redirect, Miller testified that he determined that Brown was not

physically or emotionally able to discuss the shooting in the hospital, and any

statements Brown made during that initial contact were of “no value.” (Id. at

153). Miller testified that he was confident that Liles called Dority because the

phone calls occurred within a day or so of the shooting, the caller identified

himself as Liles, the phone number belonged to Liles’ father, and the caller

apologized for the shooting and pleaded for them not to send him back to prison

since he just was released, which Miller confirmed. (Id. at 154). Miller testified

that he would not be surprised if Kierra’s statements made at the scene of the

crime were inconsistent with her testimony, because Kierra was “very emotionally

upset” having just witnessed her brother get shot. (Id. at 155-156). He testified

that law enforcement would not have found gun powder residue even if they

swabbed Liles because gun powder residue does not last 12 days—the number of

days after the shooting when Liles was arrested. (Id. at 158).

       {¶32} The State then moved to admit exhibits 1 through 35, which were

admitted without objection, and rested. (Id. at 161-164). The defense made a

Crim.R. 29(A) motion, which was denied. (Id. at 164-165).

       {¶33} The next day the defense presented the testimony of two witnesses.

Johnnie Mae Qualls testified that she lives on Orena Street, and, on July 16, 2012,

she witnessed a bunch of boys stop in the middle of the street and begin arguing.


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(Id. at 169-170). Qualls testified that the boys were not right in front of her house

and “quite aways [sic] from [her] house,” but she was able to see what was going

on, but was unable to identify any individual person from where she was located.

(Id. at 170). Qualls testified that she could not really tell if the boys were arguing

or discussing basketball, but she later heard a shot and “[t]hen one of them ran

across the empty lot there and fell, and he got up and continued to, well, they say

to Harrison Street. I didn’t move out of my chair.” (Id. at 171). Qualls did not

recognize the individual who was running away. (Id.). She testified that she heard

a bang, which she assumed was a gun shot, but she could not testify who fired the

shot. (Id. at 172).

       {¶34} On cross-examination, Qualls testified that Liles’ grandmother lives

about a block and a half from where she lives. (Id. at 173). Qualls testified that,

when the shooting occurred, she was sitting in a chair in her front yard. (Id. at

174). Qualls denied telling Detective Miller, on the day of the incident, that she

saw a man who was taller than the rest of the other boys pull out a large handgun

and shoot. (Id.). When asked if she told Detective Miller that she witnessed the

taller man try to hand the gun to someone who would not take it, Qualls testified,

“[m]aybe I did” and then, “okay.” (Id. at 175-176). Qualls also denied telling

Detective Miller that, after the crowd dispersed, she realized that Liles was the




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shooter. (Id. at 176). She also denied that she told Detective Miller that her

grandson, DeAngelo Harper, told her that Brown was robbed. (Id.).

        {¶35} Qualls testified that Harper was living with her at the time of the

shooting, and Harper was taking a shower in her home when the shooting

occurred. (Id. at 177). Qualls also denied telling Detective Miller that Harper was

trying to mediate the situation between Brown and Liles, and Brown simply

wanted his money returned. (Id.). Qualls admitted that Detective Miller called her

a week or two prior to trial, and she refused to testify against Liles, because she

lives in a bad neighborhood and is 77 years old and cannot run and hide. (Id. at

178-179). She admitted that she told Detective Miller that she could not testify

“cause he was going to get [her] burned out,” though she testified that she really

did not want to testify due to her poor physical health. (Id. at 180). On redirect,

Qualls testified that no one from Liles’ family threatened her to not testify at trial,

and she does not fear his family because “[t]hey’re like my family.” (Id. at 181-

182).

        {¶36} Patrolman Aaron Rode testified that he spoke with Kierra Brown at

the scene of the shooting, and Kierra did not identify the shooter at that time. (Id.

at 186). On cross-examination, Rode testified that the scene was very chaotic and,

when he arrived, Kierra was talking to her parents on her cell phone, indicating

that her brother had just been shot. (Id. at 187-188). Rode testified that it was


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difficult to get even basic information from Kierra on the scene because she was

several feet from her brother who was lying on the ground bleeding and in severe

pain. (Id.). Rode testified that, in his experience, people are “almost never”

forthcoming about what happened when they are still at the scene of the crime.

(Id. at 188).

       {¶37} Thereafter, the defense rested, and the State did not present any

witnesses on rebuttal. (Id. at 189). The matter was submitted to the jury who

returned with guilty verdicts on all three counts. (Id. at 230-231).

       {¶38} Liles—in a total of one paragraph—argues that his felonious assault

and having a weapon under disability convictions were against the manifest

weight of the evidence, because “the State’s evidence consisted solely of the

testimony of biased witnesses who could not keep their story straight,” no weapon

was recovered, and no physical evidence demonstrated he was the shooter.

(Appellant’s Brief at 13). Upon review of the record, we cannot find that the jury

clearly lost its way by convicting Liles, creating a manifest injustice.

       {¶39} The criminal offense of felonious assault is codified in R.C. 2903.11,

which provides, in pertinent part: “[n]o person shall knowingly * * * [c]ause * * *

physical harm to another * * * by means of a deadly weapon or dangerous

ordnance.” R.C. 2903.11(A)(2). The criminal offense of having a weapon under

disability is codified in R.C. 2923.13, which provides, in pertinent part:


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        [n]o person shall knowingly acquire, have, carry, or use any firearm

        or dangerous ordnance, if * * * the person * * * has been adjudicated

        a delinquent child for the commission of an offense that, if

        committed by an adult, would have been a felony offense of

        violence.

R.C. 2923.13(A)(2).

        {¶40} Turning first to Liles’ weapon-under-disability conviction, the parties

stipulated that Liles had been previously adjudicated a delinquent child for the

commission of attempted felonious assault—a felony offense of violence if

committed by an adult—and further agreed to the admission of a judgment entry

reflecting that prior adjudication. (Jan. 22-23, 2013 Tr. at 3-7); (State’s Ex. 35).

The testimony at trial also demonstrated beyond a reasonable doubt that Liles, at a

minimum, had or carried a firearm on July 16, 2012. Brown testified that, prior to

the shooting, Draper told him that Liles’ group had guns, and Brown saw Liles

tuck a weapon in his pants. (Jan. 22-23, 2013 Tr. at 47, 50). Brown and Kierra

testified that Liles was the only person with a gun in his hands after the shot was

fired. (Id. at 53, 73-74). Qualls initially told Detective Miller that Liles had a

handgun. (Id. at 175-176). Qualls also told Detective Miller that she did not want

to testify against Liles because she was afraid she would get “burned out.” (Id. at

180).


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       {¶41} The fact that Brown was initially uncooperative was explained by the

fact that Brown was not physically or mentally able to answer questions while

hospitalized in the ICU. Given the fact that he was already shot and Qualls’

testimony concerning her fear of testifying against Liles, the jury may have also

reasonably concluded that Brown initially failed to cooperate because identifying

Liles as the shooter may have resulted in retaliation against his family or himself.

This is also true of Kierra, who failed to identify Liles as the shooter at the scene

but identified Liles as the shooter in court. The jury could have also concluded

that Kierra’s failure to identify Liles at the scene was due to her troubled

emotional state having just witnessed the shooting of her brother and watching

him bleeding while lying on the ground waiting for paramedics. The fact that

Qualls declined to testify against Liles is understandable and could, to the jury,

have rendered her initial statements to Detective Miller more credible than her

subsequent testimony.

       {¶42} Liles’ felonious assault conviction was also not against the manifest

weight of the evidence. As stated above, there was ample evidence demonstrating

that Liles had a handgun, which is a firearm and deadly weapon.                 R.C.

2923.11(A), (B)(1). In addition to the testimony, a .45 caliber ACP shell casing

was found at the scene, which is consistent with Kierra’s testimony that Liles had

a “big” handgun that “looked like a forty,” i.e. a semi-automatic style weapon.


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(Jan. 22-23, 2013 Tr. at 75, 78, 95); (State’s Ex. 33). Brown and Kierra testified

that Liles was the shooter.      (Jan. 22-23, 2013 Tr. at 53, 73-74).         Brown’s

grandmother testified that someone called her on three separate occasions from a

phone number, associated with a business owned by Liles’ father, identifying

himself as “Liles” to ask for forgiveness for shooting Brown and offering bribe

money. (Id. at 110-114, 117-118). This caller also stated that he had just been

released from prison for a very similar incident—a fact that was true about Liles.

(Id. at 111, 120-122); (State’s Ex. 35). The fact that Liles is the shooter also aligns

with the evidence concerning the robbery, including the black glove located on the

front porch of Liles’ grandmother’s house and Qualls’ earlier statements to

Detective Miller that Brown went to see Liles about returning his stolen money.

(Jan. 22-23, 2013 Tr. at 49, 63, 136, 177). Finally, Qualls initially told Detective

Miller that Liles had a handgun, and she saw the tall man try to hand the gun to

someone else who would not take it. (Id. at 174-176). In summary, Liles’

felonious assault conviction was not against the manifest weight of the evidence.

       {¶43} We are not persuaded that the lack of physical evidence is damning

to the State’s case for either conviction. To begin with, the lack of any gun

powder residue on Liles’ person is not unexpected, because Liles was arrested

twelve days after the shooting. (Id. at 158); (Doc. No. 2). Furthermore, Detective

Miller testified that he did not test Liles for gun powder residue because with the


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passage of 12 days the risk of a false positive is greater, depending on the person’s

exposure to things like brake dust and different metals. (Jan. 22-23, 2013 Tr. at

158). The fact that no gun was recovered is also not dispositive, in light of the

testimony that Liles was trying to get rid of the gun immediately after shooting

Brown. The fact that no gun was recovered is also consistent with Brown’s

testimony that he thought the group with Liles left Liles’ grandmother’s house to

get a weapon, so it is possible the gun did not belong to Liles in the first place.

       {¶44} Because the jury did not clearly lose its way by convicting Liles of

felonious assault and having a weapon while under disability, we overrule his

second assignment of error.

                             Assignment of Error No. I

       Desmond Liles was deprived of his constitutional rights under
       the Fifth, Sixth, and Fourteenth Amendments to the United
       States Constitution, and Sections 10 and 16, Article I of the Ohio
       Constitution when trial counsel failed to object to improper
       testimony.

       {¶45} In his first assignment of error, Liles argues that trial counsel was

ineffective for failing to object to testimony concerning his prior imprisonment for

a similar situation. He also argues that trial counsel was ineffective for failing to

object to Detective Miller’s improper testimony regarding Brown and Kierra’s

inconsistent statements immediately following the shooting and Dority’s

supposedly truthful statements concerning the phone calls.


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       {¶46} A defendant asserting a claim of ineffective assistance of counsel

must establish: (1) the counsel’s performance was deficient or unreasonable under

the circumstances; and (2) the deficient performance prejudiced the defendant.

State v. Kole, 92 Ohio St.3d 303, 306 (2001), citing Strickland v. Washington, 466

U.S. 668, 687, 104 S.Ct. 2052 (1984).

       {¶47} In order to show counsel’s conduct was deficient or unreasonable,

the defendant must overcome the presumption that counsel provided competent

representation and must show that counsel’s actions were not trial strategies

prompted by reasonable professional judgment. Strickland, 466 U.S. at 689.

Counsel is entitled to a strong presumption that all decisions fall within the wide

range of reasonable professional assistance. State v. Sallie, 81 Ohio St.3d 673,

675 (1998). Tactical or strategic trial decisions, even if unsuccessful, do not

generally constitute ineffective assistance. State v. Frazier, 61 Ohio St.3d 247,

255 (1991).    Rather, the errors complained of must amount to a substantial

violation of counsel’s essential duties to his client. See State v. Bradley, 42 Ohio

St. 3d 136, 141-142 (1989), citing State v. Lytle, 48 Ohio St.2d 391, 396 (1976).

       {¶48} Prejudice results when “there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been

different.” Bradley, 42 Ohio St.3d at 142, citing Strickland, 466 U.S. at 691. “A




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Case No. 1-13-04


reasonable probability is a probability sufficient to undermine confidence in the

outcome.” Bradley, 42 Ohio St.3d at 142; Strickland, 466 U.S. at 694.

       {¶49} The “failure to object to error, alone, is not enough to sustain a claim

of ineffective assistance of counsel.” State v. Johnson, 112 Ohio St.3d 210, 2006-

Ohio-6404, ¶ 139, citing State v. Holloway, 38 Ohio St.3d 239, 244 (1988). As

explained by the Ohio Supreme Court:

       [E]xperienced trial counsel learn that objections to each potentially

       objectionable event could actually act to their party’s detriment. * *

       * In light of this, any single failure to object usually cannot be said

       to have been error unless the evidence sought is so prejudicial * * *

       that failure to object essentially defaults the case to the state.

       Otherwise, defense counsel must so consistently fail to use

       objections, despite numerous and clear reasons for doing so, that

       counsel’s failure cannot reasonably have been said to have been part

       of a trial strategy or tactical choice.

Johnson at ¶ 140, quoting Lundgren v. Mitchell, 440 F.3d 754, 774 (6th Cir.2006);

State v. Campbell, 69 Ohio St.3d 38, 52-53 (1994).

       {¶50} Dority testified that a man who identified himself as Liles called her

to apologize for shooting her grandson, Brown, and stated “he ain’t been too long

got out of prison for the same situation, or, for similar to the same situation.” (Jan.


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22-23, 2013 Tr. at 111). Subsequently, Detective Miller testified that he verified

that Liles was just released from prison as Dority testified the caller stated. (Id. at

154). Liles argues that trial counsel was ineffective for failing to object to this

testimony because it was inadmissible other-act evidence under Evid.R. 404(B).

       {¶51} This argument lacks merit. While Evid.R. 404(B) prohibits other-act

evidence “to prove the character of a person in order to show action in conformity

therewith,” it permits this type of evidence to prove identity. Because the identity

of the shooter was the ultimate question at trial, the phone call Dority received was

a key piece of evidence answering that question. The identity of the caller was

also an issue at trial, which is why the State offered testimony concerning Liles’

previous incarceration to confirm that Liles was, in fact, the caller who apologized

for the shooting.    Therefore, the evidence of Liles’ prior incarceration was

admissible to prove identity, and trial counsel was not ineffective for failing to

object to it.

       {¶52} Next, Liles argues that trial counsel was ineffective for failing to

object to Detective Miller’s testimony on redirect that Brown’s statement while he

was recovering in the ICU—that he was hit by a stray bullet—was inaccurate and

of “no value.” (Jan. 22-23, 2013 Tr. at 153-154). We disagree. To begin with,

defense counsel opened the door to this testimony through cross-examination

when he asked Detective Miller whether Brown’s testimony was consistent with


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the statements Brown made in the hospital. (Id. at 141-143). Also, Detective

Miller’s testimony on redirect must be viewed in light of his direct testimony that

Brown “had just been removed from a breathing machine and appeared to be quite

out of it still” when Miller tried to talk with Brown in the hospital. (Id. at 129).

Therefore, Detective Miller’s testimony was not about Brown’s credibility as

much as it was about Brown’s physical and mental inability to provide accurate

information. Since Miller’s testimony was not about Brown’s credibility, trial

counsel was not ineffective for failing to object to this testimony.

       {¶53} Liles also argues that trial counsel was ineffective for failing to

object to Detective Miller’s testimony concerning Dority’s credibility. On redirect

examination, Miller testified that he was confident that Liles called Dority as she

testified in light of: (1) the temporal proximity of the calls to the shooting; (2) the

content of the conversation, including that the caller stated he had recently been

released from prison—a fact Miller confirmed about Liles; (3) the caller

identifying himself as “Liles”; and, (4) the phone number from which the phone

calls were made being owned by Liles’ father’s business. (Jan. 22-23, 2013 Tr. at

154). Contrary to Liles’ characterization, we are not persuaded that this testimony

was offered to bolster Dority’s credibility; rather, it was offered to show why

Detective Miller, himself, was confident the caller—and thereby the shooter—was

Liles. This testimony was not based on Detective Miller’s personal opinion or


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belief but on evidence he gathered. This testimony was not objectionable, and,

regardless, defense counsel opened the door to this testimony through cross-

examination. (Id. at 145) (Q: So, if [Dority] tells you it’s [Liles], well, do you

believe her * * * that [Liles] called and said these things?”).

         {¶54} Finally, Liles contends that trial counsel should have objected to

Detective Miller’s testimony that “I find statements typically given somewhat after

the fact are more accurate” offered to explain Kierra’s “inconsistent” statements.

(Id. at 157). The alleged “inconsistency” between Kierra’s statement at the scene

and her subsequent testimony is that Kierra did not provide the shooter’s identity

at the scene, but identified Liles as the shooter at trial. (Id. at 73-76, 186).1 On

cross-examination, Detective Miller testified that he was aware of the

“inconsistent” versions of the events that Kierra had provided, but Miller testified

that, based upon his review of the cruiser audio, he believed the reporting officer

made an error in his report. (Id. at 149-150). On redirect, Detective Miller

explained that Kierra made the statements that appeared in the police report

“within a couple minutes of realizing her brother was shot” when Kierra was

standing by her brother as he was bleeding out in the street. (Id. at 155). Miller

testified that Kierra was “very emotionally upset” when she made the statements;

thereafter, Miller testified that, in his experience, generally statements made

1
 Rode indicated in his report that Kierra stated, at the scene, she was “unsure who fired the shot.” (State’s
Discovery Response, Doc. No. 17). However, this specific statement was not revealed to the jury through
Rode’s testimony; rather, the testimony only revealed that Kierra did not identify the shooter at the scene.

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Case No. 1-13-04


“somewhat after” a traumatic event are generally more reliable than those made

during the traumatic event. (Id. at 156-157).

       {¶55} Upon review, we are not convinced that Detective Miller’s testimony

concerned Kierra’s credibility, but rather, the accuracy of the police report and

Kierra’s initial statement—or lack thereof—in light of her state of mind when she

made the initial statement. The reporting officer, Rode, explained that Kierra was

talking with her parents on her cell phone and standing feet from her brother who

was still bleeding when Rode was asking her for the shooter’s identity. (Id. at

187-188). Rode testified that Kierra was “emotional,” and it took him a long time

to get even basic information from her because of her mental state. (Id. at 188).

From Kierra’s testimony, the jury could have even concluded that she was so

emotionally upset that she did not even recall talking to Rode at the scene. (Id. at

78-79). Detective Miller’s testimony on redirect must be viewed in light of all the

previous testimony on this issue—it was offered to explain why Kierra might not

have identified Liles at the scene but later identified him at trial.

       {¶56} Finally, even assuming that any of the aforementioned testimony was

inadmissible, we are not persuaded that Liles suffered prejudice. The trial court

instructed the jury that it alone was the final arbiter of credibility. (Id. at 215-216).

The evidence presented at trial established beyond a reasonable doubt that Liles

shot Brown. It is clear from the testimony presented that many of the witnesses,


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including the victim, were initially uncooperative, most likely due to fear of

retaliation. Besides the witness testimony, there was evidence that Liles admitted

to the shooting himself on three separate occasions. In summary, our confidence

in the outcome is not undermined by any possible errors related to trial counsel’s

failure to object to the aforementioned testimony.

       {¶57} Liles’ first assignment of error is, therefore, overruled.

       {¶58} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued, we affirm the judgment of the trial court.

                                                                 Judgment Affirmed

ROGERS, J., concurs in Judgment Only.

SHAW, J., concurs.

/jlr




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