State v. Gilcrease

[Cite as State v. Gilcrease, 

.]

                                COURT OF APPEALS OF OHIO

                              EIGHTH APPELLATE DISTRICT
                                 COUNTY OF CUYAHOGA

STATE OF OHIO,                                       :

                 Plaintiff-Appellee,                 :
                                                              No. 108148
                 v.                                  :

RODERICK GILCREASE,                                 :

                 Defendant-Appellant.                :


                                JOURNAL ENTRY AND OPINION

                 JUDGMENT: AFFIRMED IN PART, VACATED IN PART,
                 AND REMANDED
                 RELEASED AND JOURNALIZED: February 13, 2020


          Criminal Appeal from the Cuyahoga County Court of Common Pleas
                              Case No. CR-17-620782-A


                                               Appearances:

                 Michael C. O’Malley, Cuyahoga County Prosecuting
                 Attorney, and Brian D. Kraft, Assistant Prosecuting
                 Attorney, for appellee.

                 The Law Offices of Eric L. Foster, and Eric L. Foster, for
                 appellant.


MICHELLE J. SHEEHAN, J.:

                      Defendant-appellant Roderick Gilcrease appeals from the trial

court’s judgment of conviction and sentence entered by the Cuyahoga County Court
of Common Pleas following a bench trial in which he was found guilty of two counts

of improperly discharging into habitation, three counts of discharge of a firearm on

or near prohibited premises, one count of tampering with evidence, and two counts

of carrying a concealed weapon. After a thorough review of the record, we find the

trial court did not err in denying Gilcrease’s motion for a mistrial, Counts 1 through

4 were supported by sufficient evidence, Gilcrease’s convictions for Counts 1 through

4 and Count 19 were not against the manifest weight of the evidence, and the trial

court’s imposition of a consecutive sentence was supported by the record. We

therefore affirm Gilcrease’s convictions and the trial court’s imposition of

consecutive sentences. Because we find, however, that the trial court failed to

sentence Gilcrease in open court on Count 13, carrying a concealed weapon, we

vacate the sentence imposed on this count alone and remand for the limited purpose

of resentencing on Count 13.

                                I. Procedural History

               On October 10, 2017, Gilcrease was charged in a 20-count

indictment, arising from four separate incidents on three different dates. The

charges pertaining to an incident on May 14, 2017, involve two “house shootings”

and include: Count 1 — improperly discharging into habitation in violation of R.C.

2923.161(A)(1) (victim, Orvis Alexander); Count 2 — discharge of firearm on or near

prohibited premises in violation of R.C. 2923.162(A)(3); Count 3 — improperly

discharging into habitation in violation of R.C. 2923.161(A)(1) (victim, Sondi

Robinson); and Count 4 — discharge of firearm on or near prohibited premises in
violation of R.C. 2923.162(A)(3). Counts 1, 2, and 4 include one- and three-year

firearm specifications.

                  The charges pertaining to an incident on or about June 2, 2017,

involve a shooting at a gas station and include: Counts 5 through 10 — felonious

assault in violation of R.C. 2903.11(A)(2) (different victims for each count); Count

11 — discharge of firearm on or near prohibited premises in violation of

R.C. 2923.162(A)(3); Count 12 — tampering with evidence in violation of

R.C. 2921.12(A)(1); and Count 13 — carrying a concealed weapon in violation of

R.C. 2923.12(A)(2). Counts 5 through 10 include one- and three-year firearm

specifications.

                  The charges pertaining to an incident on June 26, 2017, occurring on

a public roadway, include:        Count 14 — aggravated murder in violation of

R.C. 2903.01(A) (victim, Dominique Robinson); Count 15 — murder in violation of

R.C. 2903.02(B) (victim, Dominique Robinson); Count 16 — felonious assault in

violation of R.C. 2903.11(A)(1) (victim, Dominique Robinson); Count 17 — felonious

assault in violation of R.C. 2903.11(A)(2) (victim, Dominique Robinson); Count 18

— felonious assault in violation of R.C. 2903.11(A)(2) (victim, Raheem Overby);

Count 19 — discharge of a firearm on or near prohibited premises in violation of R.C.

2923.162(A)(3); and Count 20 — carrying a concealed weapon in violation of R.C.

2923.12(A)(2). Counts 14 through 19 include one-, three-, and five-year firearm

specifications.
                Having waived his right to a jury trial, this matter proceeded to a

bench trial on October 22, 2018. At the close of the state’s evidence, the court

granted Gilcrease’s Crim.R. 29 motion for dismissal regarding Counts 5 through 11

and Count 14, and the state moved the court to dismiss the five-year firearm

specification in Count 19. The court then found Gilcrease guilty on Counts 1 through

4, 12, 13, 19, and 20. The court found Gilcrease not guilty on Counts 15 through 18.

                On January 15, 2019, the court imposed the following prison

sentence: Count 1 — 8 years on the underlying offense and 3 years on the firearm

specification; Count 2 — 3 years on the underlying offense and 3 years on the firearm

specification; Count 3 — 7 years; Count 4 — 3 years on the underlying offense and 3

years on the firearm specification; Count 12 — 15 months; Count 13 — 15 months;

Count 19 — 10 years on the underlying offense and 3 years on the firearm

specification; and Count 20 — 15 months.            The court merged the firearm

specifications in Counts 1 and 2 and ordered them to be served concurrently. The

court also ordered the firearm specifications in Counts 4 and 19 to be served

consecutively to each other and consecutive to the firearm specifications in Counts 1

and 2, for a total prison term of 9 years on the specifications.1 The court then

ordered the sentences on the underlying offenses in Counts 2 and 4 to be served

consecutively and the sentences on the underlying offenses in Counts 1, 3, 12, 13, 19,



      1 This sentence reflects what was stated in the trial court’s sentencing entry.
Because we find error with respect to the sentence imposed on Count 13, we will address
this sentence in the final assignment of error in which we address the trial court’s
sentence.
and 20, to be served concurrently to each other but consecutive to the sentences in

Counts 2 and 4, for a total prison term of 16 years on the underlying offenses.

Gilcrease’s aggregate prison term is 25 years.

                Gilcrease now appeals, raising four assignments of error:

      (1) the trial court erred by denying Defendant’s motion for a mistrial;
      (2) the trial court erred by rendering guilty verdicts on Counts One,
      Two, Three, and Four, as they are not sustained by sufficient evidence;
      (3) the trial court erred by rendering guilty verdicts on Counts One,
      Two, Three, Four, and Nineteen, as they are against the manifest
      weight of the evidence; and
      (4) the trial court erred by imposing consecutive sentences where they
      are not supported by the record.

                                II. Evidence at Trial

                                  Sondi Robinson

                Sondi Robinson testified that in May 2017 she lived on Maud

Avenue in Cleveland, Ohio, with her son, Dominique Robinson (“Dominique”).

Ms. Robinson testified that on the evening of May 14, 2017, someone shot at her

house. She explained that she was getting a drink from her refrigerator when she

heard glass popping and then she heard gunshots. She stated that she heard

gunshots “across the front of my porch … coming through the window, through a

dresser into the living room, [and] through the front door into the kitchen.”

Ms. Robinson observed damage caused by bullets to several parts of her home,

including the front porch, window, living room dresser, and front door to her

kitchen. Her son was not at home at the time of the shooting but she phoned him

and told him what happened. Ms. Robinson phoned the police.
               Ms. Robinson also testified regarding how she learned that her son

Dominique had been killed one month after the shooting into her home, in June

2017. She received a phone call from her son’s friend on the evening of June 26,

2017, advising her that she should get to the hospital. Ms. Robinson ultimately

learned that her son had died.

                                  Officer McGreer

                Cleveland police officer Eric McGreer was on patrol with his partner

when he received a call from dispatch concerning shots fired into a residence on

Maud Avenue. Officer McGreer observed empty bullet casings in the front of the

house and inside the house, as well as two bullet fragments inside the home. He

ultimately collected a total of 12 casings, including six .40 caliber casings and six

9 mm casings, from the front yard of the house, the sidewalk, and the street. The

casings did not appear to be weathered or damaged. The officer then submitted the

casings as evidence.

                                  Orvis Alexander

                Orvis Alexander testified that in May 2017 she lived on Simon

Avenue in Cleveland, Ohio. She lived near Maud Avenue, where Ms. Robinson lived.

Ms. Alexander testified that she knew Ms. Robinson from the neighborhood.

                Ms. Alexander testified that on the evening of May 14, 2017, she

returned home very late and discovered that her house had been “shot up.” She

observed several bullet holes throughout the house, including the front porch

banister, a window, and the side of the house. Some of the damage was observed
from within the home, including bullet holes in the living room wall. Ms. Alexander

also phoned the police.

                                   Officer Gaviria

                Cleveland police officer Anglly Gaviria responded to the scene of

shots fired into a habitation on Simon Avenue on May 14, 2017. She observed

several bullet holes “going from the front of the house … all the way to the rear

where the kitchen was [located].” Upon investigation, the officer recovered 31 bullet

casings located on the street in front of the house, which included fourteen .40

caliber casings and seventeen 9 mm casings, and submitted them as evidence.

                                   Latasha Minter

                Latasha Minter knew Dominique and his mother from the

neighborhood. She testified that she used to stay a couple of houses away from his

house on Maud Avenue. Minter also knew Gilcrease “through [her] sister.” She

testified that she had “more than a friendship” with Gilcrease approximately ten

years ago.

                Minter testified concerning the incident that occurred at the Sunoco

gas station on June 2, 2017, into the following day. She testified that she was driving

her sister’s car that night and Gilcrease was with her.         Avantay Martin, the

defendant’s cousin, drove separately. They all drove to the Sunoco so that Martin

could purchase something from the convenience store. Both Martin and Minter

parked their vehicles at the pumps. Martin asked Minter if she wanted anything

from inside, Minter gave him some money for gum and pop, and Martin went inside
the store. Shortly thereafter, Martin returned to Minter’s car and handed Minter the

items he purchased for her. Minter testified that when she bent down to set her pop

and gum in the cup holder, she heard several gunshots and glass breaking, and she

knew they were “getting shot.” She stated that she did not know from which

direction the shots were coming because she had her head down. Minter testified

that she did not see anyone, including Gilcrease, fire a weapon, but after the

gunshots ceased, she saw that Gilcrease was bleeding. The police and EMS arrived,

and Gilcrease was transported to the hospital.

               Minter also testified concerning the events that transpired on

June 26, 2017. Earlier in the evening, Minter, Minter’s sister, Natanya Thompson,

Gilcrease, and Gilcrease’s cousins, Martin and Jameel, were hanging out at Martin’s

house, talking, smoking, and drinking. In the course of the evening, the group left

Martin’s house numerous times, at least once to purchase marijuana from a friend

and once to purchase snacks for Martin’s son.

               After Martin purchased snacks for his son, Thompson drove Martin

and his son back to their house and dropped them off for the night. Minter,

Thompson, and Gilcrease then left Martin’s house for the last time that evening.

Minter stated that Thompson was going to drive Gilcrease and Minter home.

Gilcrease was seated in the backseat of Thompson’s car, behind the driver, and

Minter was seated in the middle seat next to Gilcrease.

               Minter testified that they were driving eastbound on St. Clair,

toward Martin Luther King Boulevard (“MLK”), when they noticed another vehicle
following closely behind them. They eventually proceeded to drive down MLK.

When they stopped, the other car pulled up next to Thompson. Minter recognized

the two people in the car as her brother’s friends — Dominique, the front seat

passenger, and Dominique’s friend, Raheem Overby (“Raheem”), the driver. Once

Minter recognized the two people in the car, she “sat back and kept playing on [her]

phone” while her sister spoke with the people in the other car. Minter testified that

“the next thing I remember [is] hearing gunshots” coming from her left where

Gilcrease was seated. She remembered “three or four” shots. She stated that just

before the shooting, Gilcrease had asked her to hold his drink. Minter stated that

although she had seen Gilcrease with a gun earlier in the day, she did not see him

with a gun at that moment in the car. After the shooting, the two cars pulled off in

different directions. Minter later learned that Dominique had been killed.

                                Natanya Thompson

                Natanya Thompson, Minter’s sister, had known the victim,

Dominique, from the neighborhood since 2006 and was friends with him at the time

of his death. Thompson testified that the victim’s mother, Sondi Robinson, is related

to one of her brothers. Thompson has known Gilcrease from the neighborhood since

2007.

                Thompson testified concerning the events of June 26, 2017. She

stated that she, Minter, Gilcrease, and Avantay were talking and drinking at

Avantay’s house for a couple of hours. After driving to the gas station and back with

Avantay, Thompson dropped Avantay off at his home and then proceeded to go
home. Thompson stated that Gilcrease was sitting behind her in the vehicle and her

sister, Minter, was seated next to Gilcrease.

                Thompson testified that she was driving eastbound on St. Clair, and

when she turned right onto MLK, she noticed a car traveling closely behind her. She

proceeded to take a right onto Wade Park Avenue when the car that was behind her

pulled up next to her. She saw through her window, which was rolled down, that

Dominique and Raheem were in the other car.               She knew Raheem from the

neighborhood, and they were friends. Thompson stated that she was initially

nervous when she noticed a car following her, but when she saw Dominique and

Raheem in the car, she was “okay.” She testified that when she looked at the other

car, Dominique was “cheesy smiling” and said, “hey.” She said, “hey,” and then

began to “pull off” when she heard gunshots. Thompson stated that she did not

know how many shots were fired, but there was more than one shot. Nor did she

know from which direction the shots were coming because she ducked down in her

seat. At some point, her sister told her to drive away.

                When she lifted her head back up, the other vehicle was gone.

Thompson stated that she was concerned someone had been shot. Later in the

evening, after the shooting, she phoned Dominique to see what happened and he

did not answer his phone. She later learned that Dominique died as a result of the

shooting that night. She eventually spoke with the police about the incident and told

Dominique’s mother what had transpired that evening and who was in the car with

her.
                Thompson further testified that the gunshots were so loud her ears

were ringing. When the police officers interviewed her, she indicated that some of

the gunshots came from behind her. She recalled being “in shock” when Gilcrease

apologized to her. Finally, Thompson testified that she discovered one bullet hole

in her car from that night, and she concealed it with a sticker.

                                   Raheem Overby

                Raheem Overby testified that he was driving Dominique to the

hospital on the evening of June 26, 2017, so that Dominique could visit his sick child.

He testified that he pulled up to a red light at MLK and Wade Park when he heard

gunshots: “I heard the first one, pow. The window bust and so I duck and take off.

And after that I heard three more. Like I heard the trunk get hit. I heard about three

more shots, like pow pow pow, pow and we was fleeing.” Raheem testified that the

gunshots came from their right side.

                As Raheem was driving away, Dominique grabbed his hand. At this

point, Raheem guessed that Dominique had been shot. Raheem denied that he had

been following another vehicle. Raheem further testified that although Dominique

had a gun that evening because he “always” carries a gun, Raheem was “pretty sure”

Dominique did not fire his weapon that evening. Raheem drove Dominique to the

hospital.

                                    Officer Morris

                Cleveland police officer Samuel Morris was working the night shift

on June 26, 2017, when he was dispatched to the Cleveland Clinic for a male who
had been shot. Officer Morris testified that when he arrived on the scene, he

observed a vehicle with gunshots to the passenger side of the vehicle as well as the

trunk. He learned that a firearm was recovered from the vehicle prior to his arrival,

and he secured the firearm in his patrol car. The officer observed that the firearm

was jammed.

                Officer Morris learned that Raheem, who was on the scene when the

officer arrived, was the driver of the vehicle containing the bullet holes. The officer

interviewed Raheem and then transported him to the police station for questioning.

                                    Detective Reese

                Cleveland police detective Aaron Reese responded to the gas station

shooting on June 3, 2017. The detective learned that a male had been shot and had

been transported to the hospital by the time the detective arrived on the scene. The

male was identified as Gilcrease.

                Detective Reese observed the vehicle containing bullet holes on the

scene and found the vehicle had “several rounds [that] were shot into.” Additionally,

the inside of the vehicle had significant damage from bullets. The detective observed

several spent shell casings in the vehicle’s interior, which caused him to believe that

someone was shooting from inside the vehicle.

                Detective Reese obtained video surveillance from the gas station.

The detective testified as to what the video depicted:

      I saw that Gilcrease was a passenger in a vehicle that was shot into
      and he ultimately was shot. And I watched him get out of the vehicle
      and shoot all over the place, many different directions. I watched him
      go into the gas station where he was bleeding significantly. He made
      a phone call. And then I watched as one of his friends arrived on [the]
      scene. Gilcrease went outside and handed his gun off to his friend, I
      assume the person he called, before he approached the police.

                Detective Reese testified that he also discovered multiple .40 caliber

shell casings on the scene, near the entrance and the exit of the gas station, in

addition to the casings discovered in the car’s interior. He interviewed witnesses on

the scene and ordered the vehicle towed. Finally, Detective Reese submitted the

video and the shell casings into evidence. Ultimately, the evidence submitted from

this scene included five .40 caliber casings recovered from the ground and nine .40

caliber casings recovered from the vehicle’s interior.

                                 Detective Clemens

                Cleveland police detective Todd Clemens was working in the crime

scene unit when he responded to the city’s impound facility on June 3, 2017.

Detective Clemens processed the vehicle that was involved in the shooting at the gas

station that evening.

                He testified concerning the vehicle’s damage caused by bullets,

including defects in the windshield, the driver’s side rear window, and the rear

window. The detective recovered nine .40 caliber shell casings from the car’s

interior, which he submitted as evidence. He testified that eight of the nine casings

were found in the passenger side of the vehicle. Finally, Detective Clemens testified

that based upon the location of the casings, he believed that the weapon was fired

from inside the vehicle.
                                 Detective Peoples

               Cleveland police detective Mark Peoples was working in the crime

scene unit when he responded to a felonious assault shooting at the Sunoco gas

station on June 3, 2017. Detective Peoples photographed the scene and collected

evidence. He recovered several spent .40 caliber shell casings.

               Detective Peoples also responded to the scene of a homicide at Wade

Park and Ansel Road on June 26, 2017. The officers first responding to the scene

had already secured the scene from pedestrian and vehicle traffic when he arrived.

Detective Peoples proceeded to photograph the scene and collect evidence.

                The detective testified concerning spent shell casings that were

discovered in the street. He testified that there were two distinct groups of casings

recovered. The first group contained a cluster of nine .40 caliber casings, which the

detective marked as numbers 1 through 9. This cluster of casings was discovered at

the intersection of Wade Park and Ansel Road. The second cluster of casings

consisted of five .40 caliber casings, numbered 10 through 14. This cluster was

discovered “across the street from the original group of nine.” He also stated this

cluster was on “the other side of the street.” The casings were submitted as evidence.

                Detective Peoples also photographed the vehicle that was left at the

Cleveland Clinic and processed the evidence from the vehicle. He testified that the

rear passenger side tire was flat, the passenger side rear window had been “smashed

out,” there were suspected bullet defects to the passenger side of the vehicle, and

there was suspected blood found in the front passenger seat. Detective Peoples also
testified that he recovered a spent 9 mm casing inside the vehicle. Additionally, the

detective stated that another officer had recovered a firearm from inside the vehicle

and that firearm was given to the detective to photograph. Detective Peoples

testified that this firearm contained 15 live rounds that had not been fired, one of

which was located inside the chamber.

                                  Detective Shapiro

                Cleveland police homicide detective David Shapiro also responded

to the scene of the homicide at Wade Park and Ansel Road on June 26, 2017, where

the crime scene unit had already begun processing the scene. Detective Shapiro

testified that he observed two separate groups of shell casings, all of which were the

same caliber.

                The detective further testified that his investigation continued to the

Cleveland Clinic where he observed the vehicle that had been at the shooting on

Wade Park and Ansel Road. He testified that the vehicle had heavy rear end damage,

“obvious defects in the passenger side,” evidence of blood, and broken windows.

                                    James Kooser

                James Kooser, a firearms and toolmarks examiner with the

Cuyahoga County Regional Forensic Science Laboratory, testified as a ballistics

expert. Kooser testified that he analyzed all the evidence submitted to him on this

case, which included the spent casings recovered from the incidents at the two

residences, the gas station, and the intersection of Wade Park and Ansel Road. He

further testified that all of the .40 caliber casings he received for examination in this
case were fired by the same unknown Smith & Wesson .40 caliber pistol, including

the casings recovered near the homes on Simon Avenue and Maud Avenue on

May 14; from the ground and from the vehicle’s interior at the Sunoco gas station on

June 3; and from two different locations in the street at the Wade Park/Ansel Road

intersection on June 26. Kooser explained that the firearm is “unknown” because

no firearm was recovered from the scenes or submitted for comparison.

                                 Roderick Gilcrease

                Gilcrease testified on his own behalf. He admitted that he possessed

a .40 caliber firearm on June 3 and June 26 but denied having this firearm on

May 14 and denied firing his gun on May 14. Gilcrease also admitted to giving his

firearm to a friend at the gas station following the shooting. Gilcrease testified that

this friend later returned the same firearm.

                              III. Motion for a Mistrial

                In his first assignment of error, Gilcrease contends that the trial

court erred when it denied his motion for a mistrial. In support, he argues that

Detective Reese violated his due process rights when the detective testified on

redirect that Gilcrease asserted his Fifth Amendment right to remain silent.

According to Gilcrease, the state elicited this testimony to imply that Gilcrease’s

assertion of his Fifth Amendment right to remain silent was evidence that Gilcrease

was guilty of the offense charged, and therefore, the court abused its discretion in

denying his motion for a mistrial.
                Trial courts enjoy broad discretion in ruling on motions for mistrial.

State v. Iacona, 

, 

 (2001). Absent an abuse of

discretion, a reviewing court will not reverse a trial court’s decision regarding a

motion for a mistrial.      State v. Benson, 8th Dist. Cuyahoga No. 87655,

. An 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, 

, 

(1983).

                A mistrial should not be ordered in a criminal case “merely because

some error or irregularity has occurred, unless the substantial rights of the accused

or the prosecution are adversely affected.” State v. Wilson, 8th Dist. Cuyahoga

No. 92148, 

, ¶ 13, citing State v. Reynolds, 

,

 (2d Dist.1988). Thus, a trial court should declare a mistrial “only

when the ends of justice so require and a fair trial is no longer possible.” State v.

Franklin, 

, 

 (1991), citing Illinois v. Somerville,

, 

, 

 (1973). The essential inquiry

on a motion for mistrial therefore is whether the substantial rights of the accused or

the prosecution are adversely or materially affected. Wilson, citing State v. Goerndt,

8th Dist. Cuyahoga No. 88892, 

.

                Here, Detective Reese testified on direct examination regarding his

investigation into the gas station shooting on June 3. He stated that he watched the

surveillance video of the incident, which showed Gilcrease being shot while he was
a passenger in a vehicle. According to the detective, the video also showed Gilcrease

exit the vehicle, “shoot all over the place, many different locations,” enter the gas

station where he placed a phone call, and then exit the gas station and hand off his

gun to a friend before he approached the police. Detective Reese further testified

that by the time he had arrived on the scene, Gilcrease had been transported to the

hospital for treatment of his gunshot wound. He later questioned Gilcrease in the

hospital concerning the incident.      The detective stated that Gilcrease was an

uncooperative victim and therefore the detective was not able to obtain any

information from Gilcrease to aid in the detective’s investigation.

                On redirect examination, the prosecutor asked Detective Reese if he

would view the surveillance video, speak with witnesses, and ascertain the location

of the casings in order to determine the intention of a shooter, to which the detective

replied in the affirmative. The prosecutor then asked Detective Reese if he learned

anything on June 5 that would have affected his analysis of the shooting, to which

the detective replied, “Yes.” Thereafter, the following discourse, which forms the

basis of the defense’s motion, occurred:

      Prosecutor: What was that?
      Witness: The video.
      Prosecutor: The video. Did you ever — how about anything, any of
      Roderick Gilcrease’s own words, did anything that he say come into
      your analysis, as well?
      Witness: Yes.
      Prosecutor: What was that?
      Witness: When he plead the Fifth when I asked him if he had —
      Prosecutor: Strike that.
      Court: I’m not going to strike it. Sorry. I’m not going to strike it.
      Prosecutor: I’ll ask a more precise question.
                 At this point, the prosecutor asked the detective, referring to the

detective’s supplemental report, whether the detective listened to “one of

[Gilcrease’s] call[s] on June 5th.” Detective Reese replied, “I misunderstood you …

* I listened to his jail calls, several jail calls … and I listened to [Gilcrease] explain

what he was going to do when he got out of jail … that he was going to get the guys

who did this to him … that he was going to ‘f*** one of them N’s up when [he]

get[s] out.’”

                 Following this testimony, the defense moved for a mistrial, arguing

that the prosecutor purposefully elicited improper testimony from the detective. In

response, the prosecutor stated that he was not attempting to elicit improper

testimony from the detective; rather, he was attempting to elicit the detective’s

testimony concerning his review of a jail call between Gilcrease and another

individual on June 5. The prosecutor explained that the conversation between

Detective Reese and Gilcrease occurred either in the evening of June 2 or the early

morning hours of June 3, and the question he posed to the detective specifically

referenced information the detective gleaned on June 5, which was the date

Detective Reese reviewed the jail call.

                 After hearing from both the defense and the prosecution, the court

denied the motion for a mistrial. In so doing, the court stated that it is never pleased

to hear “that somebody pleading the Fifth is going to change their analysis in the
case” and acknowledged that this type of statement “may ha[ve] an effect” on

laypeople, but “it doesn’t have an effect on me.” The court explained:

      I understand what your client’s constitutional rights are. And I
      understand that nobody can use that against him. … Let me be
      honest here. I don’t really care about [the detective’s] analysis of the
      case. … Nor do you want me to care about the analysis of case,
      correct? I’m the fact-finder.
      We’re not dealing with a jury. We’re not dealing with 12 laypeople.
      This officer is entitled to whatever opinion he wants about the
      investigation. And in the end it’s my decision what the facts are, not
      his. And I can independently operate.
      And I’m fully aware and very protective of everybody’s constitutional
      rights, regardless of where they sit in this room. So I don’t think it
      [rises] to a mistrial ….
                The Fifth Amendment to the Constitution of the United States

provides that no person “shall be compelled in any criminal case to be a witness

against himself.” This amendment is made applicable to the states through the Due

Process Clause of the Fourteenth Amendment. Malloy v. Hogan, 

, 

, 

 (1964).

                Evidence introduced by the state regarding the defendant’s exercise

of his right to remain silent violates the Due Process Clause of both the state and

federal constitutions.   State v. McMiller, 8th Dist. Cuyahoga No. 103962,

, ¶ 43, citing State v. Leach, 

, 

,

, ¶ 18. “This rule enforces one of the underlying policies of the Fifth

Amendment, which is to avoid having the jury assume that a defendant’s silence

equates with guilt.” McMiller, citing Leach at ¶ 30, citing Murphy v. Waterfront

Comm. of N.Y. Harbor, 

, 

, 

 (1964).
               In a bench trial, the court is presumed to know and follow the law

unless the record affirmatively demonstrates to the contrary. State v. Kilbane, 8th

Dist. Cuyahoga No. 106753, 

; State v. Willis, 8th Dist. Cuyahoga

No. 90956, 

 (“[I]n a bench trial, the court is presumed to have

considered only the relevant, material, and competent evidence.”). The United

States Supreme Court has stated that

      [i]n bench trials, judges routinely hear inadmissible evidence that
      they are presumed to ignore when making decisions. It is equally
      routine for them to instruct juries that no adverse inference may be
      drawn from a defendant’s failure to testify; surely we must presume
      that they follow their own instructions when they are acting as
      factfinders.

Harris v. Rivera, 

, 

, 

 (1981); State v.

Shropshire, 8th Dist. Cuyahoga No. 103808, 

.

               Here, the detective’s improper reference to Gilcrease’s assertion of

his Fifth Amendment right is arguably concerning. Because the matter was tried to

the court, however, we can presume that the detective’s statement did not infect the

court’s decision-making. And the court’s explanation in denying the motion for

mistrial supports this presumption.       There is nothing in the record that

demonstrates the court declined to ignore the improper statement.

               Furthermore, Gilcrease has not demonstrated that the detective’s

statement deprived him of a fair trial. Indeed, the record demonstrates that the

court granted Gilcrease’s Crim.R. 29 motion for dismissal of the felonious assault

charges in Counts 5 through 10, which stem from the gas station shooting about
which the detective testified, and the aggravated murder charge in Count 14, which

stems from the shooting on June 26. The court also found Gilcrease not guilty on

Counts 15 through 18, which stem from the June 26 shooting.

                We therefore find that the trial court did not abuse its discretion in

denying Gilcrease’s motion for mistrial because “the ends of justice” did not “so

require.” Franklin, 

, 

, citing Somerville, 

, 

, 

. Gilcrease’s first assignment of error is

overruled.

                           IV. Sufficiency of the Evidence

                In his second assignment of error, Gilcrease contends that the state

failed to provide sufficient evidence to support his conviction of improperly

discharging into a habitation (Counts 1 and 3) and discharging a firearm on or near

prohibited premises (Counts 2 and 4) on May 14, 2017. Gilcrease argues that the

evidence was insufficient to show that he was the person who committed the crimes,

and even if the evidence established his identity as the shooter, the state presented

no evidence of Gilcrease’s mental state at the time of the shooting (as it pertains to

Counts 1 and 3).

                When assessing a challenge of sufficiency of the evidence, a

reviewing court examines the evidence admitted at trial and determines whether

such evidence, if believed, would convince the average mind of the defendant’s guilt

beyond a reasonable doubt. State v. Jenks, 

, 

(1991), paragraph two of the syllabus. “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.” 

 A reviewing court is not to assess “whether the state’s

evidence is to be believed, but whether, if believed, the evidence against a defendant

would support a conviction.” State v. Thompkins, 

, 

 (1997).

                The elements of an offense may be proven by direct evidence,

circumstantial evidence, or both. See State v. Durr, 

, 

 (1991). Direct evidence exists when “a witness testifies about a matter within

the witness’s personal knowledge such that the trier of fact is not required to draw

an inference from the evidence to the proposition that it is offered to establish.”

State v. Cassano, 8th Dist. Cuyahoga No. 97228, 

.

Circumstantial evidence, on the other hand, is evidence that requires “the drawing

of inferences that are reasonably permitted by the evidence.” 

 See also State v.

Hartman, 8th Dist. Cuyahoga No. 90284, 

 (“[c]ircumstantial

evidence is the proof of facts by direct evidence from which the trier of fact may infer

or derive by reasoning other facts in accordance with the common experience of

mankind”). Circumstantial and direct evidence are of equal evidentiary value. State

v. Santiago, 8th Dist. Cuyahoga No. 95333, 

, ¶ 12.          And in some

cases, circumstantial evidence may be “‘more certain, satisfying and persuasive than

direct evidence.’” State v. Lott, 

, 

 (1990),
quoting Michalic v. Cleveland Tankers, Inc., 

, 

, 

 (1960).

                R.C. 2923.161(A)(1) provides that “[n]o person, without privilege to

do so, shall knowingly … [d]ischarge a firearm into an occupied structure that is

a permanent or temporary habitation of any individual.” R.C. 2923.162(A)(3)

provides that “[n]o person shall … [d]ischarge a firearm upon or over a public

road or highway.”

                R.C. 2901.22(B) provides that a person acts “knowingly, regardless

of his purpose, when he is aware that his conduct will probably cause a certain result

or will probably be of a certain nature. A person has knowledge of circumstances

when he is aware that such circumstances probably exist.” This court has repeatedly

held that “‘shooting a gun in a place where there is risk of injury to one or more

persons supports the inference that the offender acted knowingly.’”          State v.

Robinson, 8th Dist. Cuyahoga No. 99290, 

, quoting State v.

Hunt, 8th Dist. Cuyahoga No. 93080, 

, ¶ 19, citing State v. Brooks,

, 

 (1989); see also State v. Ivory, 8th Dist.

Cuyahoga No. 83170, 

; State v. Jordan, 8th Dist. Cuyahoga No.

73364, 

 (Nov. 25, 1998).

                Here, the evidence shows that Gilcrease was in possession of a .40

caliber firearm on June 26, 2017, at the intersection of Wade Park and Ansel Road,

and he discharged 14 rounds from this firearm that ultimately resulted in the death

of Dominique Robinson. Additionally, officers recovered numerous .40 caliber
casings outside of Ms. Robinson’s home on Maud Avenue, where Dominique also

lived, and Ms. Alexander’s nearby home on Simon Avenue. Officers also recovered

multiple .40 caliber casings from the gas station shooting on June 3, 2017. Several

of these casings were located in the vehicle in which Gilcrease was a passenger. The

video surveillance of the gas station shooting shows Gilcrease firing a .4o caliber

firearm and then handing the weapon to another individual before approaching

police officers on the scene. The ballistics expert testified that all of the .40 caliber

casings that were recovered from the shooting at the homes on Maud Avenue and

Simon Avenue, the shooting at the gas station, and the homicide of Dominique

Robinson at Wade Park and Ansel Road were fired from the same Smith & Wesson

.40 caliber pistol. Moreover, the evidence shows that the victim of the Wade Park

and Ansel Road shooting lived at the house on Maud Avenue, and a reasonable trier

of fact could conclude this commonality of victims connected Gilcrease to the

crimes.

                Construing this evidence in a light most favorable to the state, we

find the state presented sufficient evidence from which a reasonable factfinder could

infer that Gilcrease was the shooter on May 14, 2017, and he knowingly discharged

a .40 caliber firearm into two residences (Counts 1 and 3), one of which was the

home in which Dominique lived, and discharged the firearm on or near prohibited

premises (Counts 2 and 4).

                Gilcrease’s second assignment of error is overruled.
                          V. Manifest Weight of the Evidence

                 Gilcrease contends in his third assignment of error that his

convictions were against the manifest weight of the evidence. A manifest weight

challenge questions whether the state has met its burden of persuasion. Thompkins,

, 

. This challenge raises a factual issue:

       “The court, reviewing the entire record, weighs the evidence and all
       reasonable inferences, considers the credibility of witnesses and
       determines whether in resolving conflicts in the evidence, the jury
       clearly lost its way and created such a manifest miscarriage of justice
       that the conviction must be reversed and a new trial ordered. The
       discretionary power to grant a new trial should be exercised only in
       the exceptional case in which the evidence weighs heavily against the
       conviction.”

, quoting State v. Martin, 

, 

 (1st

Dist.1983). The use of the word “manifest” in the standard of review “means that

we can only reverse the trier of fact if its decision is very plainly or obviously contrary

to the evidence.” State v. Hernandez, 8th Dist. Cuyahoga No. 106577, 2018-Ohio-

5031, ¶ 20.

                                   Counts 1 through 4

                 Gilcrease contends in his third assignment of error that his

convictions pertaining to the shootings on Maud Avenue and Simon Avenue were

against the manifest weight of the evidence. Advancing the same argument he

presented in his previous assignment of error, Gilcrease contends that the state

presented no evidence that he was the shooter (in Counts 1 through 4) and no
evidence of his state of mind during the commission of the offenses of May 14, 2017

(in Counts 1 and 3).

                We find nothing in the record from which to conclude that the trial

court lost its way in weighing the evidence presented and created a manifest

miscarriage of justice. The shootings at Ms. Robinson’s home on Maud Avenue,

where Dominique resided, and Ms. Alexander’s home on Simon Avenue occurred

on May 14. Officers recovered numerous .40 caliber casings near both homes — in

the front yard, on the sidewalk, and in the street in front of the houses. Weeks later,

on June 2, video surveillance at the Sunoco gas station captured Gilcrease

discharging a .40 caliber firearm. The police recovered several .40 caliber casings

from the gas station, including nine .40 caliber casings from the vehicle in which

Gilcrease was a passenger during the gas station shooting. Another three weeks

later, on June 26, Gilcrease discharged a .40 caliber pistol at the intersection of

Wade Park and Ansel Road, purportedly in self-defense, killing Dominique. The

police recovered fourteen .40 caliber casings from the scene at the intersection. The

ballistics expert testified that the .40 caliber casings recovered from Maud Avenue,

Simon Avenue, the gas station, and the intersection of Wade Park and Ansel Road

were all fired from the same .40 caliber firearm.

                Although the state presented no eyewitness testimony concerning

the shooting on Maud Avenue and Simon Avenue, we do not find that the lack of

this testimony in this case necessitates a determination that this is the exceptional

case in which the evidence weighs heavily against the conviction.
                                       Count 19

                Gilcrease also argues that his conviction of the June 26, 2017,

shooting at Wade Park and Ansel Road, in Count 19, was against the weight of the

evidence where the court accepted Gilcrease’s self-defense claim in the shooting of

Dominique but did not find he acted in self-defense in discharging his firearm on or

near the prohibited premises.

                In Count 19, Gilcrease was convicted of discharging a firearm on or

over a public roadway in violation of R.C. 2923.162(A)(3). The trial court found self-

defense applicable to this charge yet determined that Gilcrease exceeded the force

necessary to defend himself, stating that “there were a number of casings found

away from the actual site of the two cars in this homicide” and Gilcrease

“continu[ed] to shoot … in a place farther than where he needed ….”

                Gilcrease contends that the trial court properly permitted a claim of

self-defense but argues that the evidence does not support the court’s conclusion

that he exceeded the force necessary to defend himself.

                This court has held that R.C. 2923.162(A)(3) is a strict liability

offense.   State v. James, 

, 

, ¶ 33 (8th Dist.)

(“R.C. 2923.162(A)(3) is a statute intended to benefit the public good and thus

imposes strict liability”). The law in this district is not settled, however, concerning

whether self-defense is a defense to the strict liability crime of shooting on or over a
public roadway.2 Here, the trial court presumed that the defense is indeed available

to such an offense, yet it determined that under the facts of this case, self-defense is

not available. Because we find the evidence supports the factfinder’s conclusion that

Gilcrease used more force than reasonably necessary in defending himself, we

decline to address the general application of self-defense to the offense of shooting

on or over a public roadway.




       2  In State v. Porter, 

, 

 (8th Dist.), this court affirmed
the defendant’s convictions for felonious assault and discharge of a firearm over a public
roadway, finding the trial court’s “arguably incomplete” self-defense instruction did not
amount to plain error. The trial court in Porter declined to rule on whether the crime of
shooting over a public roadway was a strict liability offense and it instructed the jury on
self-defense regarding the felonious assault charges yet refused to instruct the jury on
self-defense concerning the defendant’s charge of shooting over a public roadway. Id. at
¶ 87. On appeal, without addressing the applicability of self-defense to the charge of
shooting over a public roadway, this court found that R.C. 2923.162(A)(3) is a strict
liability offense and therefore the defendant “was not entitled to a default jury instruction
… on recklessness.” Id. at ¶ 62. The dissent, however, would find that the trial court
erred in failing to instruct the jury on self-defense on the crime of shooting over a public
roadway, stating that

       because self-defense has been recognized as a defense to the strict liability
       crime of having a weapon while under disability, it would also be a defense
       to the crime of shooting over a roadway. Both crimes are meant to protect
       the public from harm, yet courts understand — at least in the case of the
       weapon while under disability charge — that a person has the right to defend
       himself without incurring criminal charges for the conduct, when self-defense necessitates the would-be criminal conduct. See [State v. Patton,
       

, 

 (1st Dist.1995)]. This is precisely
       what the Ninth District meant in [State v.] Henley, 

,
       

 (9th Dist.2000), when it stated that it would be an inane
       legal paradox to hold that a person cannot act in self-defense, for fear of
       being charged with a crime, when the person’s actions are so “intertwined
       with the attack necessitating self-defense.”

Id. at ¶ 93.
                 In Ohio, self-defense is an affirmative defense and the defendant

bears the burden of establishing by a preponderance of the evidence that he is

entitled to the defense.3 R.C. 2901.05(A); State v. Williford, 

,

 (1990); Kilbane, 8th Dist. Cuyahoga No. 106753, 

. To establish self-defense through the use of deadly force, a defendant

must demonstrate that (1) he was not at fault in creating the situation giving rise to

the affray, (2) he had a bona fide belief that he was in imminent danger of death or

great bodily harm and his only means of escape from such danger was the use of

such force, and (3) he must not have violated any duty to retreat or avoid the danger.

State v. Robbins, 

, 

 (1979), paragraph two of the

syllabus. If the defendant fails to prove any one of these elements, he has failed to

prove he acted in self-defense. State v. Jackson, 

, 

 (1986).

                 Regarding the amount of force that is permitted, the defendant “is

privileged to use that force that is necessary to repel the attack.” 

.

Where, however, the amount of force used “is so disproportionate that it shows an

‘unreasonable purpose to injure,’ the defense of self-defense is unavailable.” State

v. Macklin, 8th Dist. Cuyahoga No. 94482, 

, ¶ 27, quoting State v.

Speakman, 4th Dist. Pickaway No. 00CA035, 

, 13; State v.



      3 We note that the General Assembly amended R.C. 2901.05, effective March 28,
2019, where the statute now places the burden of proof of self-defense on the state. State
v. Bouie, 8th Dist. Cuyahoga No. 108095, 

. This amendment,
however, was not in effect at the time of Gilcrease’s trial.
Hendrickson, 4th Dist. Athens No. 08CA12, 

, ¶ 33, quoting State v.

Nichols, 4th Dist. Scioto No. 01CA2775, 

, 3 (“Self-defense … is

inappropriate if the force used is ‘so grossly disproportionate as to show revenge or

as [a] criminal purpose.’”).

                Here, the evidence shows that two separate clusters of spent casings

were recovered from the intersection of Wade Park and Ansel Road. The first cluster

of nine casings was located at the intersection. Detective Peoples testified that the

second cluster of five casings was discovered “across the street” from the original

group of nine casings. The evidence also shows that the two vehicles involved in the

shooting — one containing Dominique and one containing Gilcrease — sped off in

different directions, and the vehicle in which Dominique was a passenger contained

a bullet hole in its trunk.

                 In light of the foregoing, we cannot find the trial court lost its way

and created such a manifest miscarriage of justice in concluding that Gilcrease

exceeded the force necessary to repel the initial attack.        The factfinder could

reasonably believe that the defendant was initially justified in shooting Dominique

but his actions were no longer justified where he continued shooting at a vehicle that

was purportedly fleeing the scene and was therefore no longer a threat. Thus, self-

defense would not be available to Gilcrease for discharging a firearm over a public

roadway on June 26, 2017. This is not the exceptional case in which the evidence

weighs heavily against Gilcrease’s conviction in Count 19.

                 Gilcrease’s third assignment of error is overruled in its entirety.
                             VI. Consecutive Sentences

                In his final assignment of error, Gilcrease contends that the court’s

imposition of consecutive sentences was not supported by the record.

                We review felony sentences under the standard of review set forth

in R.C. 2953.08(G)(2). State v. Cedeno-Guerrero, 8th Dist. Cuyahoga No. 108097,

; State v. Marcum, 

, 

, 

, ¶ 9. Under R.C. 2953.08(G)(2), an appellate court may increase,

reduce, or otherwise modify a sentence, or vacate a sentence and remand for

resentencing if it “clearly and convincingly finds” that the record does not support

the sentencing court’s findings under R.C. 2929.13(B) or (D), 2929.14(B)(2)(e) or

(C)(4), or 2929.20(I), or the sentence is otherwise contrary to law.

                A consecutive sentence may therefore be challenged two ways:

      First, the defendant can argue that consecutive sentences are contrary
      to law because the court failed to make the necessary findings
      required by R.C. 2929.14(C)(4). … Second, the defendant can argue
      that the record does not support the findings made under R.C.
      2929.14(C)(4).

State v. Johnson, 8th Dist. Cuyahoga No. 102449, 

.

               Before imposing consecutive sentences, a trial court must make the

findings mandated by R.C. 2929.14(C)(4). State v. Bonnell, 

,

, 

. And the failure to make the findings renders

the imposition of consecutive sentences contrary to law. State v. Gohagan, 8th Dist.

Cuyahoga No. 107948, 

, ¶ 29. In making the consecutive sentence

findings, a trial court is not required to state its reasons for imposing consecutive
sentences, nor is it required to give a verbatim recitation of the language of

R.C. 2929.14(C). 

. Rather, “as long as the reviewing court can

discern that the trial court engaged in the correct analysis and can determine that

the record contains evidence to support the findings, consecutive sentences should

be upheld.” Id. at ¶ 29.

               R.C. 2929.14(C)(4) provides that the trial court must find that

consecutive sentences are necessary to protect the public from future crime or to

punish the offender, that such sentences would not be disproportionate to the

seriousness of the conduct and to the danger the offender poses to the public, and

that one of the following applies:

      (a) The offender committed one or more of the multiple offenses while
      the offender was awaiting trial or sentencing, was under a sanction
      imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the
      Revised Code, or was under postrelease control for a prior offense.

      (b) At least two of the multiple offenses were committed as part of one
      or more courses of conduct, and the harm caused by two or more of
      the multiple offenses so committed was so great or unusual that no
      single prison term for any of the offenses committed as part of any of
      the courses of conduct adequately reflects the seriousness of the
      offender’s conduct.

      (c) The offender’s history of criminal conduct demonstrates that
      consecutive sentences are necessary to protect the public from future
      crime by the offender.

               Here, Gilcrease concedes that the trial court made the statutorily

mandated findings. He argues, however, that the record does not support the

findings, claiming that the trial court’s only analysis concerning consecutive

sentences is the recitation of the statutory language.
               When examining whether the record supports the trial court’s

consecutive sentence findings, support for the court’s findings is not confined to the

trial court’s comments at sentencing but rather may appear anywhere in the record.

State v. Johnson, 

, 

 (8th Dist.); State v.

Gatewood, 8th Dist. Cuyahoga No. 101271, 

, ¶ 13, citing State v.

Venes, 

, 

, ¶ 20-22 (8th Dist.).

               In this case, the record demonstrates that Gilcrease was convicted of

multiple offenses arising from four separate incidents on three different dates in

which Gilcrease fired shots into two homes and over a public roadway. Although the

trial court acknowledged that Gilcrease shot Dominique in self-defense, the court

noted that Gilcrease’s conduct demonstrated a disregard for life and instilled fear in

the public. And the court recognized that the community, particularly the children,

would not be safe from drive-by shootings or street shootings while walking to

school if this type of behavior continued without regard for consequences. The court

also heard from the victims and how the shootings impacted their lives. Finally, the

court noted that Gilcrease was presently “serving time” on another matter.

               In light of the above, we cannot “clearly and convincingly” find that

the record does not support consecutive-sentence findings.          Gilcrease’s final

assignment of error concerning consecutive sentences is overruled.

               We find error, however, with respect to the sentence in Count 13,

carrying a concealed weapon. Although the trial court’s sentencing entry states that

the court imposed a sentence of 15 months on this count, there is no evidence in the
sentencing transcript that the trial court imposed a sentence on this count in open

court. Because the journal entry must reflect what actually occurred at sentencing,

we remand the case for the limited purpose of the trial court imposing sentence on

Count 13. State v. Stafford, 8th Dist. Cuyahoga No. 104276, 

, ¶ 16,

citing State v. Jones, 8th Dist. Cuyahoga No. 94408, 

, ¶ 15 (“A

variance between the sentence pronounced in open court and the sentence imposed

by a court’s judgment entry requires a remand for sentencing.”).

               Judgment affirmed in part, vacated in part, and remanded.

      It is ordered that appellee recover of appellant 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.

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

27 of the Rules of Appellate Procedure.




MICHELLE J. SHEEHAN, JUDGE

SEAN C. GALLAGHER, P.J., and
FRANK D. CELEBREZZE, JR., J., CONCUR