[Cite as State v. Davis,
2015-Ohio-4481.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellee, :
No. 15AP-518
v. : (C.P.C. No. 11CR-2313)
Levander R. Davis, : (REGULAR CALENDAR)
Defendant-Appellant. :
D E C I S I O N
Rendered on October 29, 2015
Ron O'Brien, Prosecuting Attorney, and Barbara A.
Farnbacher, for appellee.
Levander R. Davis, pro se.
APPEAL from the Franklin County Court of Common Pleas
TYACK, J.
{¶ 1} Levander R. Davis is appealing from the denial of his petition for post-conviction relief. He assigns five errors for our consideration:
[1.] THE TRIAL COURT ERRED, AND DUE PROCESS WAS
DENIED, WHEN THE COURT FAILED TO HOLD AN
EVIDENTIARY HEARING ON THE APPELLANT'S POST-CONVICTION PETITION.
[2.] THE TRIAL COURT ERRED, AND DUE PROCESS WAS
DENIED, WHEN THE COURT FAILED TO PROVIDE
RELIEF PURSUANT TO THE MANY CONSTITUTIONAL
VIOLATIONS RELATED TO PRETRIAL IDENTIFICATION.
[3.] THE TRIAL COURT ERRED, AND DUE PROCESS WAS
DENIED, WHEN THE COURT FAILED TO PROVIDE
RELIEF RELATED TO THE .40 CALIBER HANDGUN.
No. 15AP-518 2
[4.] THE TRIAL COURT ERRED, AND DUE PROCESS WAS
DENIED, WHEN THE COURT FAILED TO PROVIDE
RELIEF RELATED TO THE SEARCH WARRANT FOR
BUCCAL SWABS, WHICH WAS INVALID BECAUE IT WAS
NOT SIGNED BY A JUDGE OR MAGISTRATE.
[5.] THE TRIAL COURT ERRED, AND DUE PROCESS WAS
DENIED, WHEN THE COURT FAILED TO PROVIDE
RELIEF RELATED TO POLICE OFFICER'S MISHANDLING
OF THE BUCCAL SWABS TAKEN FROM THE APPELLANT
FOR THE PURPOSES OF DNA TESTING.
{¶ 2} Davis appealed his conviction previously, and a panel of this court affirmed
the action of the trial court. State v. Davis, 10th Dist. No. 12AP-156, 2013-Ohio-2770. In
our earlier decision, we wrote:
On May 2, 2011, defendant was indicted on one count each of
murder, attempted murder, felonious assault, having a weapon
while under disability, and illegal possession of a firearm in a
liquor permit premises. Each charge also carried a firearm
specification. Upon application of the assistant prosecuting
attorney, and for good cause shown, the trial court ordered that
a nolle prosequi be entered as to the illegal possession of a
firearm in a liquor permit premises charge. Following trial,
defendant was found guilty of the remaining charges in the
indictment. The events giving rise to the indictment occurred
during the early morning hours of March 8, 2012.
On March 8, 2012, defendant was a patron at Mike's Bar in
Columbus, Ohio. The area where Mike's Bar is located is a highcrime area known to have gang related activity. That night, there
were several patrons inside the bar near defendant, including
Brandon Houston, DeAndre Fagain, and Dimetri Evans, all of
whom testified at defendant's trial.
Houston testified that he was at the bar with his friends,
Tumarcus Steele, Donatello Taliaferro, Fagain, and a man
named Al, whose last name Houston did not know. According to
Houston, there were approximately 40 patrons inside Mike's
Bar that evening. Houston testified that he observed defendant
at the bar with two other men, neither of whom Houston knew:
Tracy Ferguson, Jr., and a man with tattoos on his face who was
later identified as Evans. Shortly after Houston arrived, he saw
defendant lift his shirt and expose a gun. At the same time,
Houston observed Ferguson "throwing up gang signs in the
No. 15AP-518 3
mirror." (Tr. 101.) At that time, Evans approached Ferguson and
tried to get him to stop. Instead, Ferguson became more hostile
and began arguing with Evans and defendant. At that time,
Houston observed defendant reach for his hip and extend his
arm. Houston heard the first gun shot at which time he turned
and ran into the bathroom. According to Houston, he heard
three gun shots, followed by silence and then additional gunfire
and screaming. Houston stayed in the bathroom until the bar
was quiet. Houston did not see defendant actually fire the gun
and did not see anyone get shot. As he left the bar, Houston
stumbled on a magazine clip from a gun which he pointed out to
police.
Fagain testified that he observed three people in the bar having
an argument, and described one of those men as trying to calm
down one of the other two men. Fagain observed defendant first
hit Ferguson and then pull out a gun and shoot Ferguson. Fagain
testified further that, after defendant shot Ferguson, defendant
"just started shooting up the club." (Tr. 260.) Fagain testified
that defendant was the only one shooting at the time. When the
shooting began, Fagain turned to run and was shot several
times.
Evans was at the bar that night with defendant and Ferguson.
Evans' testimony corroborated Houston's testimony that
Ferguson was throwing up gang signs. Evans testified that he
knew defendant had several different guns, he knew defendant
frequently carried a gun, and sometimes carried more than one
gun. Evans testified that he saw defendant with a gun on the
night in question, and saw defendant shoot Ferguson.
Columbus Police Officer Jim Thiel was the first officer to arrive
at the scene. Officer Thiel saw four to five shell casings lying in
the entrance to the bar. Columbus Police Officer Timothy
Mounts testified that eleven 9mm spent shell casings were
recovered from the north end of the bar and that, in that same
area, thirty-three 40 caliber spent shell casings were also
recovered. It was determined that the 9mm shell casings had
been fired from a 9mm gun which was later recovered from
defendant. Columbus Police Officer Kevin Jackson testified and
identified photographs he took at the scene. Columbus Police
Detective Jacqueline Mitchell identified evidence which she
collected and logged, including a black ammunition magazine
clip found near the entrance to the bar.
No. 15AP-518 4
Columbus Police Sergeant Jeff Matthias testified concerning the
circumstances surrounding defendant's arrest. At the time of his
arrest, defendant admitted that he had a gun in his waistband.
Sergeant Matthias identified the gun recovered from defendant
as a loaded 9mm Smith & Wesson. A ballistics expert
determined that the 9mm casings found at the scene were fired
from defendant's handgun. The 40 caliber handgun was never
recovered.
The magazine clip Houston saw in the doorway was recovered
and was determined to be a 40 caliber handgun magazine clip.
DNA obtained from the magazine clip was compared to a sample
of defendant's DNA and it was determined that defendant was a
major contributor to the DNA on the magazine clip. During
cross-examination, the forensic scientist who processed the
DNA sample explained that a major contributor "relates to the
quantity of that DNA being left on that item." (Tr. 597.) The
analyst also testified that DNA can be transferred from one
object to another.
Defendant's counsel called Columbus Police Detective Robert
Wachalec to testify. Detective Wachalec was the blind
administrator for a photo array presented to Fagain. In his
report regarding the photo array, Detective Wachalec indicated
that Fagain identified Evans as the shooter. Detective Wachalec
testified at trial that his summary of the identification was not
accurate, because Fagain had actually identified defendant as
the shooter.
Following a sentencing hearing on January 18, 2012, defendant
was sentenced to serve 15 years to life for the murder conviction,
ten years for the attempted murder conviction, eight years for
the felonious assault conviction, three years for having a weapon
while under disability conviction, and three years for each
firearm specification. The trial court ordered that defendant
serve the attempted murder, felonious assault, and having a
weapon while under disability sentences concurrently to each
other, but consecutive to the murder sentence and consecutive
to the firearm specifications. The court merged two of the
sentences for the firearm specifications. The court further
ordered that defendant serve the sentence herein consecutive to
a ten years prison sentence from common pleas case No. 11CR-
2202, for a total prison term of 44 years to life.
Id. at ¶ 2-11.
No. 15AP-518 5
{¶ 3} In June 2013, Davis filed a petition for post-conviction relief with minimal
evidence attached to the petition. The trial court judge assigned to the case found
insufficient evidence to warrant a full evidentiary hearing. We review that finding under
an abuse-of-discretion standard. "The term 'abuse of discretion' connotes more than an
error of law or judgment; it implies that the court's attitude is unreasonable, arbitrary or
unconscionable." Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).
{¶ 4} We cannot find that the judge abused his discretion in refusing to conduct an
evidentiary hearing. The first assignment of error is overruled.
{¶ 5} The trial court judge filed a written decision on April 23, 2015 denying the
petition for post-conviction relief. The trial court wrote:
In the petition to vacate the judgment, Defendant argues that
he was denied effective assistance of counsel and that his DNA
was improperly seized. The Defendant failed to attach any
evidence to support either claim. In fact, the Defendant's claim
regarding the warrant for the DNA was improper is incorrect.
Defendant makes the claim that the warrant was never signed
when in fact it was. In addition, each of the Defendant's claims
in his post conviction petition could have been or were
addressed on direct appeal and are, therefore, barred by the
doctrine of res judicata. State v. Mack, 10th Dist. No. 13AP-
884, 2014-Ohio-1648.
{¶ 6} The trial court judge's findings that the doctrine of res judicata barred relief
are correct. Everything alleged by Davis was either litigated during the trial or could have
been litigated at the trial.
{¶ 7} Further, Davis's DNA was in possession of the State of Ohio as a result of his
past criminal activity. The swabs seized from him additionally were seized legally after a
search warrant was issued to obtain them. The fact that the return warrant was not signed
does not mean the warrant itself was not signed. The fourth and fifth assignments of error
are overruled.
{¶ 8} Davis was well-known to at least one of the witnesses who testified at the trial.
Identification of him as being present at Mike's Bar was not in serious question. The second
assignment of error is overruled.
{¶ 9} The issue regarding the .40-caliber handgun was fully developed during the
trial. The jury had the issue before it and still entered guilty findings. This issue was even
No. 15AP-518 6
more clearly subject to the doctrine of res judicata. The third assignment of error is
overruled.
{¶ 10} All five of Davis's assignments of error having been overruled, the judgment
of the Franklin County Court of Common Pleas is affirmed.
Judgment affirmed.
KLATT and DORRIAN, JJ., concur.
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