State v. Shorter

[Cite as State v. Shorter, 2012-Ohio-2701.]
STATE OF OHIO, MAHONING COUNTY

IN THE COURT OF APPEALS

SEVENTH DISTRICT

STATE OF OHIO, )
)
PLAINTIFF-APPELLEE, )
)
V. ) CASE NO. 11 MA 42
)
DAROLD SHORTER, ) OPINION
)
DEFENDANT-APPELLANT. )

CHARACTER OF PROCEEDINGS: Criminal Appeal from Court of Common
Pleas of Mahoning County, Ohio
Case No. 10CR184

JUDGMENT: Affirmed

APPEARANCES:
For Plaintiff-Appellee Paul Gains
Prosecutor
Ralph M. Rivera
Assistant Prosecutor
21 W. Boardman St., 6th Floor
Youngstown, Ohio 44503-1426

For Defendant-Appellant Atty. J. Dean Carro
Appellate Review Office
University of Akron School of Law
Akron, Ohio 44325-2901

JUDGES:

Hon. Gene Donofrio
Hon. Cheryl L. Waite
Hon. Mary DeGenaro

Dated: June 12, 2012
[Cite as State v. Shorter, 2012-Ohio-2701.]
DONOFRIO, J.

{¶1} Defendant-appellant, Darold Shorter, appeals from a Mahoning County
Common Pleas Court judgment convicting him of murder, following a jury trial.
{¶2} On the morning of January 28, 2010, police discovered Lamont Brown’s
body inside his West Earl Street home in Youngstown. Brown had been stabbed to
death. A cell phone belonging to Lisa Shorter, appellant’s wife, was found at the
scene.
{¶3} Appellant, who was Brown’s friend and neighbor, was eventually
interviewed regarding the stabbing. He gave police several different versions of
where he was on the night in question and what he and Brown had done that night.
{¶4} Appellant first told police he had been “scrapping” (gathering scrap
metal to sell) all day, had come home around 11:45 p.m., and went to bed.
{¶5} Appellant next told police that on the night in question Brown drove him
to the Family Dollar and McDonald’s, but when he left Brown around midnight, Brown
was still alive.
{¶6} The police then confronted appellant with his hat that appeared to be
blood-stained. Appellant changed his story again and told police that after he and
Brown went to the Family Dollar and McDonald’s, he went to Brown’s house to set up
a drug deal with some “feens” (drug addicts). He stated that he fought in the street
with one feen and upon returning to Brown’s house, he found Brown sitting on a chair
bloody and gasping for air. This was how he explained the apparent blood stain on
his hat.
{¶7} Appellant then gave police one final version of what transpired on the
night in question. He stated that he and Brown had entered into a joint cocaine
purchase where each of them was to provide half of the money to purchase 28 grams
of cocaine, which they would then sell. Appellant used the $600 his wife had given
him to pay the rent to pay for his half of the drugs. But Brown had not paid the other
half. Appellant confronted Brown and told him he needed the money. He also told
Brown he wanted his wife’s cell phone back, which he had loaned to Brown.
Appellant stated that he and Brown began to argue and the argument turned into a
 -2-

“scuffle.” He stated that Brown grabbed a steak knife and, in response, he picked up
another knife that had been sitting on the table. Appellant stated that he stabbed
Brown once or twice and ran away. Brown actually suffered 35 stab wounds in
several different areas of his body.
{¶8} A Mahoning County Grand Jury indicted appellant on one count of
murder, a first-degree felony in violation of R.C. 2903.02(A)(D), and one count of
possession of cocaine, a fifth-degree felony in violation of R.C. 2925.11(A)(C)(4)(a).
On appellant’s motion, the trial court ordered separate trials on the two counts.
{¶9} The matter proceeded to a jury trial on the murder charge. The jury
found appellant guilty of murder. The state then dismissed the possession of cocaine
count. The trial court subsequently sentenced appellant to 15 years to life in prison.
{¶10} Appellant filed a timely notice of appeal on March 17, 2011.
{¶11} Appellant raises two assignments of error, the first of which states:

THE STATE FAILED TO PROVE BEYOND A REASONABLE
DOUBT THAT APPELLANT SHORTER PURPOSELY CAUSED THE
DEATH OF THE DECEDENT IN VIOLATION OF APPELLANT
SHORTER’S RIGHTS UNDER SECTION 16, ARTICLE I OF THE
OHIO CONSTITUTION AND THE DUE PROCESS CLAUSE OF THE
FOURTEENTH AMENDMENT.

{¶12} Appellant argues that the state failed to prove the element of
“purposely” beyond a reasonable doubt. He contends that his taped police
confession and the testimony of Dr. Joseph Ohr demonstrated circumstances
inconsistent with his having a purposeful intent to cause Brown’s death. Appellant
points out that none of the state’s witnesses were present during the altercation
between Brown and him. The only evidence of what happened at Brown’s house
was relayed by appellant’s taped confession, which was played for the jury.
Appellant asserts that his confession revealed that he did not go to Brown’s house
with the intent to kill him. Instead, he went there to work out how the two would pay
 -3-

off their debt from the drug deal. He states that his confession further revealed that
he and Brown got into an argument and Brown pulled a steak knife on him, which
caused him to reach for the knife that had been sitting on the coffee table. Appellant
further argues that Dr. Ohr’s testimony evidenced a frenzied stabbing consistent with
a sudden passion or fit of rage, not a purposeful plan.
{¶13} Sufficiency of the evidence is the legal standard applied to determine
whether the case may go to the jury or whether the evidence is legally sufficient as a
matter of law to support the verdict. State v. Smith, 80 Ohio St.3d 89, 113, 684
N.E.2d 668 (1997). In essence, sufficiency is a test of adequacy. State v.
Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). Whether the evidence
is legally sufficient to sustain a verdict is a question of law. Id. In reviewing the
record for sufficiency, 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. Smith, 80 Ohio
St.3d at 113.
{¶14} The jury convicted appellant of murder in violation of R.C. 2903.02(A),
which provides that “[n]o person shall purposely cause the death of another.”
{¶15} Pursuant to R.C. 2901.22(A):

A person acts purposely when it is his specific intention to cause a
certain result, or, when the gist of the offense is a prohibition against
conduct of a certain nature, regardless of what the offender intends to
accomplish thereby, it is his specific intention to engage in conduct of
that nature.

{¶16} One may deduce the intent to kill from the surrounding circumstances,
including the means or weapon used, its tendency to destroy life if designed for that
purpose, the manner in which the wounds are inflicted, and any other facts and
circumstances in evidence. State v. Simpson, 10th Dist. No. 01AP-757, 2002-Ohio-
3717, ¶93, citing State v. Robinson, 161 Ohio St. 213, 218-219, 118 N.E.2d 517
 -4-

(1954). A jury may infer a defendant’s purpose to cause death when the defendant
inflicts a wound with a deadly weapon in a manner that appears to be calculated to
destroy life or inflict great bodily harm. State v. Stallings, 89 Ohio St.3d 208, 291,
731 N.E.2d 159, 2000-Ohio-164.
{¶17} Thus, we must determine whether the state produced sufficient
evidence to prove that appellant acted purposely in killing Brown.
{¶18} The evidence as to this point was as follows.
{¶19} Appellant’s videotaped police interview/confession was played for the
jury. Appellant referred to Brown as his “buddy.” (Interview Tr. 4). He described
how Brown fed him after he lost his job, how Brown let his wife and son bathe at
Brown’s house after their water was turned off, and how Brown drove him places he
needed to go. (Interview Tr. 4-6).
{¶20} Appellant first told police that on the day in question, he was scrapping
with a man called “EB.” (Interview Tr. 6). He returned home between 11:45 p.m. and
midnight and went to sleep until 5:30 the next morning. (Interview Tr. 7-8).
{¶21} Appellant next told police that he was in Brown’s house on the night in
question. (Interview Tr. 15). He stated that Brown took him to the Family Dollar and
to McDonald’s and dropped him off at home between 8:00 and 9:00 p.m. (Interview
Tr. 15). He stated that he then stayed at home the rest of the night. (Interview Tr. 17-
18).
{¶22} The police then told appellant they had recovered his hat and it
appeared to have a blood stain on it and they had information he had gone home,
changed clothes, put the clothes in a plastic bag, and stayed at another house that
night. (Interview Tr. 22).
{¶23} Appellant subsequently told police his third story. He stated that Brown
took him to the Family Dollar and McDonald’s. (Interview Tr. 32). Then later that
evening, he went to Brown’s house to sell cocaine with him. (Interview Tr. 34). The
two made a drug sale to some “feens”, but it turned out that the drugs were
counterfeit. (Interview Tr. 34). The “feens” returned to Brown’s house and appellant
 -5-

got into a “scuffle” with one of them in the street. (Interview Tr. 35). He then went
into Brown’s house and found him “bloody.” (Interview Tr. 38). After further prodding
by the police, appellant elaborated by stating that he found Brown “grasping” and he
moved him to the couch. (Interview Tr. 51-52).
{¶24} The police then spent some time trying to convince appellant that his
stories did not add up and it would be better for him if he told the truth.
{¶25} Appellant finally told the police his fourth story. He once again stated
that Brown took him to the Family Dollar and McDonald’s. (Interview Tr.82). He then
went back to Brown’s house where he emphasized to Brown that he needed the
money the two owed on their drug purchase because he was about to be evicted
from his house. (Interview Tr. 82). He then asked Brown to return his wife’s cell
phone so that he could sell it and use the money to pay his rent. (Interview Tr. 87).
The two then got into a verbal argument and appellant expressed to Brown that he
had used his rent money to fund their joint drug venture and that he needed Brown’s
share of the money to take care of his family. (Interview Tr. 88-90). The argument
turned into a “scuffle.” (Interview Tr. 91). Brown then pulled out a steak knife so
appellant grabbed another knife that was sitting on the nearby table. (Interview Tr.
91-92). He stabbed Brown “once or twice” and then he ran. (Interview Tr. 93). He
stated that both knives should still be in Brown’s house. (Interview Tr. 93-94).
{¶26} Throughout the interview, before appellant gave his final story to the
police, appellant repeatedly stated that the last time he saw Brown, Brown was alive
(Interview Tr. 15, 16, 26) and that he did not kill Brown (Interview Tr. 37, 42, 45, 57).
{¶27} Detective-Sergeant Pat Kelly investigated the murder scene. Detective
Kelly testified that there was no sign of a struggle at Brown’s house. (Tr. 414-415).
He noted that the items on the coffee table were undisturbed. (Tr. 415). He also
stated that the police searched the house and did not locate a knife, let alone two
knives. (Tr. 374, 410).
{¶28} Dr. Joseph Ohr, a forensic pathologist for the Mahoning County
Coroner’s Officer, performed the autopsy on Brown’s body. Dr. Ohr testified that the
 -6-

best count he could get of Brown’s stab wounds was 35. (Tr. 457). Stab wounds
were located on Brown’s cheek, under his chin, his neck, both sides of his chest, his
stomach, his shoulder, and his back. (Tr. 462-473). Dr. Ohr testified that the fatal
wound was one of several wounds along the right side of Brown’s neck, which cut his
carotid artery. (Tr. 464). He further stated that he did not find any defensive wounds
on Brown’s body. (Tr. 475). And the doctor did not find any injuries consistent with a
physical fight such as black eyes, fat lips, broken teeth, scraped knees, bruised
elbows, or punches in the stomach. (Tr. 481-482). Dr. Ohr also testified that several
of the stab wounds on Brown’s back all came in at the same angle, which indicated to
him that Brown’s body was not moving when those wounds were inflicted. (Tr. 473).
Dr. Ohr additionally described some of the wounds as “chaotic,” meaning that the
way the wounds entered the skin indicated that Brown was moving about as they
were inflicted, and other wounds as “parallel,” meaning that the wounds were in an
orderly fashion. (Tr. 493-494).
{¶29} “The number and location of a victim's stab wounds, and the manner in
which they were inflicted, may support an inference of a specific intent to kill.” State
v. Du, 2d Dist. No. 2010-CA-27, 2011-Ohio-6306, ¶15, citing State v. Hayden, 10th
Dist. No. 95APA05–559 (Sept. 16, 1997).
{¶30} In this case, Brown suffered 35 stab wounds. Some of the stab wounds
were to his neck and chest, areas where one would aim if attempting to cause the
death of another. And appellant simply left Brown to die instead of seeking medical
help after he stabbed Brown, who appellant claimed was his “buddy.” Even if
appellant did not go to Brown’s house with the intent to kill him, he could have formed
that intent upon speaking with Brown. It is hard to imagine that a person would stab
another person 35 times without intending to kill them.
{¶31} Other courts have found that the fact of multiple stabbing and other
circumstances similar to those in this case led to the conclusion that the killings were
purposeful. For instance, in State v. Yoder, 10th Dist. No. 10AP-653, 2011-Ohio-
3308, the court found that the extent of the victim’s stab wound allowed the jury to
 -7-

infer that the defendant had a purpose to kill. The court pointed out that the victim
was stabbed 18 times, and three of his stab wounds were independently fatal. Id. at
¶31. It further found that it was reasonable for the jury to infer that the defendant had
a purpose to kill the victim because he stabbed the victim in the neck. Id. Finally, the
court noted that the defendant showed no concern for the victim's well-being after the
stabbings. Id. And in State v. Hendrickson, 4th Dist. No. 08 CA 12, 2009-Ohio-4416,
¶44, the court observed that the defendant’s “act of killing Blankenship by stabbing
her 14 times demonstrates a purposeful killing, not an impulsive one.” Moreover, in
State v. Carter, 89 Ohio St.3d 593, 602, 734 N.E.2d 345 (2000), the Ohio Supreme
Court found that the trial court properly denied the defendant’s request for a voluntary
manslaughter instruction because “the evidence, including that the victim was
stabbed eighteen times, fully supported a purposeful killing.”
{¶32} Viewing the evidence in the light most favorable to the state, as we are
required to do here, there was sufficient evidence from which the jury could conclude
that appellant acted purposely when he stabbed Brown 35 times.
{¶33} Accordingly, appellant’s first assignment of error is without merit.
{¶34} Appellant’s second assignment of error states:

THE VERDICT WAS AGAINST THE MANIFEST WEIGHT OF
THE EVIDENCE UNDER THE OHIO CONSTITUTION SINCE THE
EVIDENCE OF VOLUNTARY MANSLAUGHTER WAS
UNCONTRADICTED, THEREBY WARRANTING APPELLANT’S [sic.]
SHORTER’S CONVICTION FOR MURDER TO BE REVERSED
PURSUANT TO THIS COURT’S AUTHORITY UNDER SECTION
3(B)(3), ARTICLE IV, OF THE OHIO CONSTITUTION.

{¶35} Here appellant argues that the statements he made to the police were
not contradicted by the state and did not support the crime of murder. Instead, he
asserts that the evidence demonstrated that he acted under a sudden fit of rage,
which would only support a conviction for voluntary manslaughter. He points out that
 -8-

the evidence demonstrated that he went to Brown’s house on the night in question to
try to collect the $600 Brown owed him for the cocaine they had purchased together.
When Brown refused to pay, appellant demanded that Brown return the cell phone
he had borrowed. Brown refused to return the phone and the two men began to
argue. The argument turned into a “scuffle” and appellant noticed that Brown had a
steak knife. Appellant then reached for another knife that was sitting on a nearby
table and fatally stabbed Brown.
{¶36} Appellant argues that it was not until Brown produced a steak knife that
he was provoked to use deadly force. Up until that point, the “scuffle” had not
involved deadly weapons. Thus, he argues that the evidence demonstrated that he
was guilty of voluntary manslaughter, not murder.
{¶37} In determining whether a verdict is against the manifest weight of the
evidence, an appellate court must review the entire record, weigh the evidence and
all reasonable inferences and determine 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. Thompkins, 78
Ohio St.3d at 387. “Weight of the evidence concerns ‘the inclination of the greater
amount of credible evidence, offered in a trial, to support one side of the issue rather
than the other.’” Id. (Emphasis sic.) In making its determination, a reviewing court is
not required to view the evidence in a light most favorable to the prosecution but may
consider and weigh all of the evidence produced at trial. Id. at 390.
{¶38} Yet granting a new trial is only appropriate in extraordinary cases where
the evidence weighs heavily against the conviction. State v. Martin, 20 Ohio App.3d
172, 175, 485 N.E.2d 717 (1983). This is because determinations of witness
credibility, conflicting testimony, and evidence weight are primarily for the trier of the
facts who sits in the best position to judge the weight of the evidence and the
witnesses' credibility by observing their gestures, voice inflections, and demeanor.
State v. Rouse, 7th Dist. No. 04-BE-53, 2005-Ohio-6328, ¶49, citing State v. Hill, 75
Ohio St.3d 195, 205, 661 N.E.2d 1068 (1996); State v. DeHass, 10 Ohio St.2d 230,
 -9-

227 N.E.2d 212 (1967), paragraph one of the syllabus. Thus, “[w]hen there exist two
fairly reasonable views of the evidence or two conflicting versions of events, neither
of which is unbelievable, it is not our province to choose which one we believe.”
State v. Dyke, 7th Dist. No. 99-CA-149, 2002-Ohio-1152.
{¶39} In addition to the evidence set out above, the following testimony must
also be considered.
{¶40} Quatoyia Williams is the mother of Brown’s child. She testified that
Brown spoke of appellant as someone who had moved into the neighborhood and
whom Brown was “helping out.” (Tr. 295).
{¶41} Officer Samuel Mosca responded to the 911 call and, along with his
partner, was the first emergency responder to the scene. He found Brown’s body
face down in the living room covered in blood. (Tr. 307).
{¶42} Janeraro Brown, Brown’s brother, testified that he was on the phone
with Brown sometime between 12:45 and 1:00 a.m. when Janeraro heard the
doorbell ring at Brown’s house, interrupting their conversation. (Tr. 326-327). Brown
said over the phone, “oh, here’s this MF’er.” (Tr. 327). Janeraro testified that he
knew/assumed it was appellant who was at Brown’s door because appellant was
constantly “bugging” Brown to help him with food, water, and transportation. (Tr.
327-328).
{¶43} Lisa Shorter is appellant’s wife. She testified that on the night in
question appellant came home at approximately 2:30 a.m. with blood on his coat.
(Tr. 340). She also testified that appellant and Brown were friends. (Tr. 349).
{¶44} Appellant argues that the evidence only proved that he was guilty of
voluntary manslaughter because he was “provoked” into a “sudden fit of rage” by
Brown’s refusal to pay for a portion of the drugs or to return the borrowed cell phone.
The voluntary manslaughter statute provides: “No person, while under the influence
of sudden passion or in a sudden fit of rage, either of which is brought on by serious
provocation occasioned by the victim that is reasonably sufficient to incite the person
into using deadly force, shall knowingly cause the death of another.” R.C.
 - 10 -

2903.03(A). Appellant’s argument, as it was above, is basically that he did not act
purposely in killing Brown.
{¶45} In order for provocation to be reasonably sufficient, it must arouse an
ordinary person’s passions beyond his control. State v. Bickerstaff, 7th Dist. No. 09-
JE-33, 2011-Ohio-1345, ¶17, citing State v. Shane, 63 Ohio St.3d 630, 635, 590
N.E.2d 272 (1992). Additionally, on a subjective level, the emotional and mental
state of the defendant and the surrounding circumstances must also be considered.
Id., citing State v. Deem, 40 Ohio St.3d 205, 211, 533 N.E.2d 294 (1988).
{¶46} There are several problems with appellant’s argument, however. The
biggest problem is appellant’s lack of credibility. He contends that the jury should
have believed his fourth story to the police. But appellant demonstrated through his
multiple stories and denials that he could not be trusted to tell the truth. In order to
find that appellant was guilty of voluntary manslaughter, instead of murder, the jury
would have to have believed appellant’s fourth statement to the police that Brown
provoked him into a sudden fit of rage by pulling a knife on him. Given appellant’s
demonstrated propensity to lie, it was within the jury’s province to disbelieve
appellant when he stated that Brown produced a knife.
{¶47} Another problem is that even appellant’s fourth story is contradicted by
the physical evidence. Appellant told police that he stabbed Brown once or twice.
But Dr. Ohr found 35 stab wounds on Brown’s body. Additionally, appellant claimed
that he and Brown got into a physical “scuffle.” However, Detective Kelly testified
that there was no sign of a struggle at Brown’s house and Dr. Ohr testified that there
were no signs on Brown’s body that he had been involved in a physical fight. And
appellant stated that police would find two knives in Brown’s house, the one that he
used and one that Brown pulled on him. But the police did not find any knives in
Brown’s house. This casts further doubt on whether Brown even had a knife.
{¶48} Finally, appellant focuses his argument on his contention that he acted
in a sudden fit of rage in stabbing Brown. But in order to find appellant guilty of
voluntary manslaughter, in addition to finding that he acted in a sudden fit of rage, the
 - 11 -

jury also had to find that the fit of rage was brought on by serious provocation by
Brown that was reasonably sufficient to incite appellant into using deadly force. It was
within the jury’s province to find that there was not sufficient provocation to support a
finding of voluntary manslaughter.
{¶49} Considering all of the evidence and appellant’s lack of credibility, the
jury did not lose its way in finding appellant guilty of murder. As such, their verdict
was not against the manifest weight of the evidence.
{¶50} Accordingly, appellant’s second assignment of error is without merit.
{¶51} For the reasons stated above, the trial court’s judgment is hereby
affirmed.

Waite, P.J., concurs.

DeGenaro, J., concurs.