State v. Reed

[Cite as State v. Reed, 2018-Ohio-4047.]

IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY

STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 27824
:
v. : Trial Court Case No. 2016-CR-1669/2
:
THURMAN Z. REED : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:

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OPINION

Rendered on the 5th day of October, 2018.

...........

MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Atty. Reg. No. 0069384, Assistant
Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division,
Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee

ANDREW C. SCHLUETER, Atty. Reg. No. 0086701, P.O. Box 96, Xenia, Ohio 45385
Attorney for Defendant-Appellant

.............

WELBAUM, P.J.
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{¶ 1} Defendant-appellant, Thurman Z. Reed, appeals from his convictions in the

Montgomery County Court of Common Pleas; the trial court found him guilty of felonious

assault, improper handling of a firearm in a motor vehicle, discharge of a firearm on or

near a prohibited premises, and two counts of having a weapon under disability. In

support of his appeal, Reed contends that his convictions for all the aforementioned

offenses was against the manifest weight of the evidence. Reed also contends that his

charges for having a weapon under disability should have been dismissed pursuant to

the Supreme Court of Ohio’s decision in State v. Hand, 149 Ohio St.3d 94, 2016-Ohio-

5504, 73 N.E.3d 448, because the predicate offenses on which those charges were based

were juvenile adjudications. For the reasons outlined below, the judgment of the trial

court will be affirmed.

Facts and Course of Proceedings

{¶ 2} On July 5, 2016, the Montgomery County Grand Jury returned an indictment

charging Reed with one count of felonious assault in violation of R.C. 2903.11(A)(2).

This charge included three firearm specifications for possessing a firearm, discharging a

firearm in a motor vehicle, and discharging a firearm at a peace officer. Reed was also

charged with one count of improperly handling a firearm in a motor vehicle in violation of

R.C. 2923.16(A), one count of discharging a firearm on or near a prohibited premises in

violation of R.C. 2923.162(A)(3), which also included a firearm specification, and two

counts of having a weapon under disability, in violation of R.C. 2923.13(A)(2) and R.C.

2923.13(A)(3) respectively. The charges arose from allegations that Reed fired multiple
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gunshots at a police cruiser during a high-speed chase.

{¶ 3} Following his indictment, Reed pled not guilty to the charges and waived his

right to a jury trial. Thereafter, on October 23, 2017, Reed’s case was tried to the bench.

At trial, the State called several witnesses, including Officers David Eck and Jeremy

Stewart of the Dayton Police Department. Officers Eck and Stewart testified that on the

night of May 29, 2016, they were dispatched to the Summit Square Apartment Complex

(“Summit Square”) in Dayton, Montgomery County, Ohio, on a disturbance call. Officer

Stewart testified that it was reported several individuals were yelling and arguing in the

parking lot of Summit Square and that a gun had been observed.

{¶ 4} Officer Eck was the first to arrive at Summit Square with Officer Stewart just

one car behind. Eck testified that as he pulled into Summit Square, he activated his

spotlight to illuminate the parking lot and immediately observed a black SUV pulling out

from a parking space. Eck testified that the SUV, which had at least three individuals

inside, almost struck the front of his cruiser as it crossed in front of him to leave the area.

After nearly being struck by the SUV, Eck testified that he told Officer Stewart over the

radio to follow the SUV and conduct a traffic stop. Per Eck’s request, Stewart turned

around and attempted to conduct a traffic stop of the SUV.

{¶ 5} Officer Stewart testified that, when the SUV exited Summit Square and

turned onto Hoover Avenue, he observed the SUV fail to signal and yield for oncoming

traffic before turning. After observing that traffic violation, Stewart activated his overhead

lights and sirens in an effort to conduct a traffic stop. While following the SUV on Hoover

Avenue, Stewart testified that he saw a “muzzle flash” pointed back at his cruiser and

heard three gunshots. Trans. Vol. I (Oct. 23, 2017), p. 135. Stewart also testified that
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he heard bullets passing by his window.

{¶ 6} An evidence technician from the Dayton Police Department testified that he

collected four .9-millimeter shell casings on Hoover Avenue where the shots were alleged

to have been fired. The shell casings were admitted as evidence as well as photographs

of Officer Stewart’s cruiser showing bullet-hole damage. See State’s Exhibit No. 21.

{¶ 7} Immediately after the shots were fired, Stewart testified that he got on the

radio and reported that the driver of the SUV had fired shots at his cruiser. Stewart’s

written report of the incident also indicated that the driver was the shooter. Relying on

Stewart’s observations, Officer Eck, who did not see the shots for himself, also included

in his written report that the driver of the SUV leaned out of the driver’s window and fired

a pistol at Stewart’s cruiser.

{¶ 8} Although his radio call and report indicated that the driver of the SUV was the

shooter, Officer Stewart clarified at trial that he could not say for sure whether it was

actually the driver who fired the shots. Specifically, Stewart testified that he was unsure

if the shots came from the rear or front driver’s-side window of the SUV. However,

Stewart testified that he was otherwise certain the shots came from the driver’s side of

the SUV.

{¶ 9} Video footage taken from Officer Stewart’s cruiser camera was admitted into

evidence; the footage showed an individual leaning out the driver’s side of the SUV and

muzzle flashes coming from the driver’s side of the SUV. It is unclear from the video

whether the individual was leaning out the front or rear driver’s-side window.

{¶ 10} Officer Stewart testified that, after the shots were fired, he continued to

pursue the SUV, along with several other police crews that responded to his shots-fired
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call. Stewart testified that the pursuit lasted five to ten minutes at speeds exceeding 90

mph. At the end of the pursuit, Stewart testified that the SUV went over the curb on

Gramont Avenue and stopped in a grassy area. At that time, Stewart observed two

occupants flee from the passenger side of the SUV on foot. Due to the angle of Stewart’s

cruiser camera and the position of his cruiser, the view of the occupants fleeing from the

SUV in the video evidence was limited. The video evidence only showed one of the

occupants fleeing from the passenger side of the SUV. However, Stewart can be heard

in the video saying: “Baling in the alley. Bailing in the alley. Baling in the alley. Two

males. Two males.” State’s Exhibit No. 2.

{¶ 11} Officer Stewart testified that he attempted to pursue the two occupants on

foot, but lost sight of them as they jumped over some fences. However, Stewart testified

that he later assisted with the apprehension of one of the occupants, Devon Smith, who

was taken into custody several houses away from where the SUV had stopped. Stewart

testified that when he made contact with Smith, Smith was very sweaty, not wearing a

shirt or shoes, and out of breath as if he had been running.

{¶ 12} Officer Stewart testified that he later learned a third occupant, identified as

Maurice Myles, was discovered inside the SUV. Officer Devin Portis, also with the

Dayton Police Department, testified that he arrived on scene after the pursuit had ended

and that, when he arrived, another officer was commanding Myles to exit the SUV and

show his hands. Portis testified that Myles was in the rear passenger’s seat of the SUV.

After Myles exited the SUV, Portis testified that he transported Myles to the Dayton Police

Department to be interviewed. Once there, Portis testified that an empty gun holster fell

out of Myles’s pants as he and Myles were riding in the elevator. Portis also testified that
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Myles continually claimed he was not the shooter.

{¶ 13} Devon Smith, the occupant apprehended by Stewart, testified that Myles

was his friend and that on the day in question, Myles and Reed, the appellant herein,

stopped by his house in the SUV and drove him to Summit Square. Smith testified that

he sat in the back seat while Myles drove and that Reed sat in the front passenger seat.

Smith testified that he had never met Reed before that day, but learned that Reed had

just been released from jail and that Summit Square was Reed’s neighborhood. Smith

testified that he, Myles, and Reed were at Summit Square all day “chilling” with a bunch

of people outside. Trans. Vol. I (Oct. 23, 2017), p. 183.

{¶ 14} Smith testified that both Myles and Reed were carrying firearms. At trial,

Smith described Reed’s gun as having an “extended clip” and Myles’s gun as being a

“little rocket pocket * * * [l]ittle, little gun.” Id. at 187. Smith testified that, before he

arrived at Summit Square, Reed and Myles were there earlier in the day and almost got

into a fight with an unknown individual. Smith testified that the unknown individual’s

girlfriend became upset later that evening and that someone called the police claiming to

have seen a gun.

{¶ 15} After learning the police had been called, Smith testified that he, Myles,

Reed, and a fourth individual he did not know got inside the SUV, which was parked in

Summit Square’s parking lot. Smith testified that he was located in the front passenger’s

seat, Myles was in the driver’s seat, Reed was in the rear driver’s-side seat behind Myles,

and the fourth individual was in the rear passenger’s seat behind Smith. As they saw

the police cruisers approaching, Smith testified that Myles pulled out of the parking space

to leave Summit Square. Smith then testified that he saw a police cruiser turn around
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and activate its lights. Shortly after seeing the police cruiser, Smith testified that “[Reed]

just rolled down the window and got to shooting.” Id. at 188.

{¶ 16} Although Smith testified that he did not actually see Reed shooting the gun,

Smith did testify that he turned around right after the shots were fired and saw that Reed

had a gun in his hand with the window down. According to Smith, Myles became upset

when Reed fired the shots, and said: “Bro, why you do that, * * * that’s dumb, bro. You

got to take that charge.” Id. Smith claimed that Myles’s window was up when the shots

were fired and that Myles did not have a gun in his hand. Smith, however, testified that

Myles eventually rolled down his window during the chase to throw away his gun.

{¶ 17} Continuing, Smith testified that when the SUV stopped at Gramont Avenue,

he got out of the SUV and fled from the front passenger seat. Smith testified that he took

off his shirt while fleeing and that his sandals also fell off. Smith admitted that he initially

lied to police when he was apprehended, as he told police he was out jogging and knew

nothing about the shooting. Although Smith eventually admitted that he was a

passenger inside the SUV and that Reed was the shooter, Smith’s prior account of the

incident omitted the presence of the fourth individual in the SUV. Smith testified that he

did not speak about the fourth individual earlier because the individual did not do anything

during the shooting incident.

{¶ 18} Smith also admitted to providing an inaccurate account of the incident

during a later interview with detectives and the prosecutor. During that interview, Smith

told the authorities that he had been sitting behind Myles in the SUV and that Reed

reached across him and fired several shots out the window. Smith claimed he was high

on marijuana during that interview, and that he did not even know where he was when he
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made that inaccurate statement. According to Smith, the true account of what happened

was what he testified to at trial, specifically, that Reed was located in the rear driver’s-

side seat behind Myles and that Reed fired shots out of the rear driver’s-side window.

{¶ 19} The investigating detective, Thomas Cope, confirmed that Smith initially lied

to authorities about what happened, but testified that Smith eventually admitted to being

in the SUV with Myles and Reed, and to Reed’s firing shots at Stewart’s police cruiser.

Cope also testified that both Smith and Myles identified Reed as the shooter in a photo

spread. In addition, Cope testified that Myles’s and Smith’s accounts of what happened

were almost identical, and that Myles and Smith were separated at all times and had no

chance to coordinate in their stories.

{¶ 20} Cope further testified that he picked up Reed in Dakota County, Minnesota,

and subsequently interviewed him. According to Cope, Reed indicated that he owned a

gold cell phone that was discovered by police under a car mat located beneath the driver’s

seat of the SUV. Cope testified that Reed told him he had given the cell phone to Myles

to use on the day of the shooting. Cope thereafter testified that Myles admitted to being

the driver of the SUV and had since pled guilty to failure to comply with the order or signal

of a police officer.

{¶ 21} Another officer with the Dayton Police Department, Officer Melissa Boyes,

testified that she searched the SUV and discovered a magazine for a handgun in the

center console of the SUV. An evidence technician testified that the magazine contained

nine live .45-caliber bullets. The technician further testified that only one bullet was

missing from the magazine.

{¶ 22} During trial, the parties made several stipulations, including that Reed’s right
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index finger print was recovered from the exterior of the front passenger window of the

SUV. The parties also stipulated that Reed had two prior juvenile adjudications in

Montgomery County, one for possessing drugs and carrying a concealed weapon, and

the other for burglary. In lieu of testimony, the parties also stipulated to the results of

DNA tests performed on the shell casings, magazine, and other items found in the SUV.

The DNA testing indicated that insufficient results were obtained from the shell casings

and that no determinations could be made with regard to whether Reed’s DNA was on

the magazine. However, the report indicated that Smith was excluded as a possible

contributor of DNA on the magazine.

{¶ 23} After the State rested its case, Reed moved for acquittal pursuant to Crim.R.

29, which the trial court denied. Reed then rested his case. After taking the matter

under advisement, the trial court found Reed guilty as charged. Thereafter, at

sentencing, the trial court merged several of the counts and specifications and ordered

Reed to serve an aggregate term of eighteen years in prison.

{¶ 24} Reed now appeals from his convictions, raising two assignments of error

for our review.

First Assignment of Error

{¶ 25} Reed’s First Assignment of Error is as follows:

APPELLANT’S CONVICTIONS OF FELONIOUS ASSAULT, IMPROPER

HANDLING FIREARMS IN A MOTOR VEHICLE, DISCHARGE OF

FIREARM ON OR NEAR PROHIBITED PREMISES, AND HAVING

WEAPONS UNDER DISABILITY ARE AGAINST THE MANIFEST
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WEIGHT OF THE EVIDENCE.

{¶ 26} Under his First Assignment of Error, Reed contends his convictions for

felonious assault, improper handling of a firearm in a motor vehicle, discharge of a firearm

on or near a prohibited premises, and having a weapon under disability were against the

manifest weight of the evidence. In support of this argument, Reed claims the weight of

the evidence demonstrated that he was not the individual who fired shots from the SUV.

We disagree.

{¶ 27} “A weight of the evidence argument challenges the believability of the

evidence and asks which of the competing inferences suggested by the evidence is more

believable or persuasive.” (Citation omitted.) State v. Wilson, 2d Dist. Montgomery No.

22581, 2009-Ohio-525, ¶ 12. When evaluating whether a conviction is against the

manifest weight of the evidence, the appellate court must review the entire record, weigh

the evidence and all reasonable inferences, consider witness credibility, and determine

whether, in resolving conflicts in the evidence, the trier of fact “ ‘clearly lost its way and

created such a manifest miscarriage of justice that the conviction must be reversed and

a new trial ordered.’ ” State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541

(1997), quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).

“The fact that the evidence is subject to different interpretations does not render the

conviction against the manifest weight of the evidence.” State v. Adams, 2d Dist. Greene

Nos. 2013 CA 61, 2013 CA 62, 2014-Ohio-3432, ¶ 24, citing Wilson at ¶ 14.

{¶ 28} Because the trier of fact sees and hears the witnesses at trial, we must defer

to the factfinder’s decisions whether, and to what extent, to credit the testimony of

particular witnesses. State v. Lawson, 2d Dist. Montgomery No. 16288, 1997 WL
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476684, *4 (Aug. 22, 1997). However, we may determine which of several competing

inferences suggested by the evidence should be preferred. Id. A judgment of

conviction should be reversed as being against the manifest weight of the evidence only

in exceptional circumstances. Martin at 175.

{¶ 29} According to Reed, the weight of the evidence established that the driver of

the SUV was the shooter. In support of this argument, Reed points to the statements

Officer Stewart made in his report and during his radio call that indicated the driver of the

SUV fired multiple shots at his police cruiser. Reed further points to Officer Eck’s report,

which also indicated that the driver leaned out of the window and fired multiple shots at

Stewart’s police cruiser. According to Reed, because Myles admitted to being the driver

of the SUV by virtue of pleading guilty to the charge of failure to comply, Reed could not

have been the driver, and thus could not have been the shooter. Reed also claims the

evidence indicated Myles was the shooter since an empty gun holster was found on his

person and a live magazine was found in the center console of the SUV within Myles’s

reach.

{¶ 30} In making his argument, Reed discounts Officer Stewart’s trial testimony.

As noted above, Stewart testified that he was uncertain whether it was the driver who

fired the shots at him. Rather, Stewart testified he was only certain the shots came from

the driver’s side of the SUV and that the shots could have come from either the front or

rear driver’s-side window. At trial, Stewart clarified that the statement in his report and

in his radio call about the driver shooting at him may not have been accurate. Stewart,

however, explained that the radio call was made during the chaos of the situation and

that he was doing his best to describe what was happening at the moment. Therefore,
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pursuant to Stewart’s testimony, the driver of the SUV was not necessarily the shooter.

{¶ 31} Moreover, contrary to Reed’s claim otherwise, the fact that Myles was found

carrying an empty gun holster, and the fact that a live magazine was within Myles’s reach

in the center console of the SUV, did not necessarily indicate that Myles was the shooter.

Smith, who was with Myles and Reed on the day in question, testified that both Myles and

Reed were carrying firearms. Furthermore, the evidence indicated that four .9-millimeter

bullets were fired at Officer Stewart’s cruiser, and the magazine found in the center

console near Myles contained nine .45-caliber bullets, with only one bullet missing from

the magazine. Thus, the location of the magazine did not necessarily indicate that Myles

was the shooter, given that a .45-caliber firearm was not used during the shooting.

{¶ 32} Most importantly, Smith specifically testified that he was present in the SUV

and that Reed was the individual who fired shots at Stewart’s cruiser. Although Reed

argues that Smith was not a credible witness because Smith testified to smoking

marijuana and to not being forthright with the authorities during the investigation, it was

for the trial court as trier of fact to determine whether Smith’s trial testimony was credible.

It is not the position of this court to question the trier of fact’s credibility determinations.

{¶ 33} The record indicates that Smith was subject to extensive cross-examination

about the inconsistencies and contradictions between his trial testimony and his previous

statements to police. The trial court, therefore, had the opportunity to see and hear

Smith and to weigh his credibility in the light of the totality of the evidence. Simply

because the trial court chose to believe Smith’s testimony did not mean that Reed’s

convictions were against the manifest weight of the evidence.

{¶ 34} That said, having reviewed the record, we find the trial court could have
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reasonably credited all the evidence presented by the State, including Smith’s eyewitness

testimony, and evaluated said evidence and all reasonable inferences to conclude that

Reed was the shooter and thus guilty of felonious assault, improper handling of a firearm

in a motor vehicle, discharge of a firearm on or near a prohibited premises, and having a

weapon under disability. Therefore, based on the facts and circumstances of this case,

we do not find that the evidence weighed heavily against Reed’s convictions or that the

trial court clearly lost its way and created a manifest miscarriage of justice.

{¶ 35} Reed’s First Assignment of Error is overruled.

Second Assignment of Error

{¶ 36} Reed’s Second Assignment of Error is as follows:

THE TRIAL COURT ERRED IN OVERRULING APPELLANT’S MOTION

TO DISMISS COUNTS 4 AND 5 OF THE INDICTMENT.

{¶ 37} Under his Second Assignment of Error, Reed contends the trial court erred

in failing to dismiss the two counts of having a weapon under disability. According to

Reed, those charges should have been dismissed pursuant to the Supreme Court of

Ohio’s decision in State v. Hand, 149 Ohio St.3d 94, 2016-Ohio-5504, 73 N.E.3d 448,

because the predicate offenses on which those charges were based were juvenile

adjudications. Reed claims that under Hand, the statutory provisions governing the

weapons under disability offenses, R.C. 2923.13(A)(2) and (A)(3), unconstitutionally

permit a juvenile adjudication to serve as an element of the offense. We disagree.

{¶ 38} In Hand, the Supreme Court ruled that it is an unconstitutional violation of

due process to use a juvenile adjudication as the equivalent of an adult conviction to
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enhance a penalty for a later crime, because, unlike an adult conviction, a juvenile

adjudication does not involve the right to a trial by jury. Hand at ¶ 37-38. In so holding,

the Supreme Court struck down R.C. 2901.08(A), a statute which specifically provided

that a prior “adjudication as a delinquent child or as a juvenile traffic offender is a

conviction for a violation of the law or ordinance for purposes of determining the offense

with which the person should be charged and, if the person is convicted of or pleads guilty

to an offense, the sentence to be imposed[.]” Id. at paragraph one of the syllabus and

¶ 9. The Supreme Court held “that R.C. 2901.08(A) violates the Due Process Clauses

of Article I, Section 16 of the Ohio Constitution and the Fourteenth Amendment to the

United States Constitution because it is fundamentally unfair to treat a juvenile

adjudication as a previous conviction that enhances either the degree of or the sentence

for a subsequent offense committed as an adult.” Id. at ¶ 37. Accordingly, the Supreme

Court of Ohio made it clear in Hand that “a juvenile adjudication is not a conviction of a

crime and should not be treated as one.” Id. at ¶ 38.

{¶ 39} Reed concedes that in State v. McComb, 2017-Ohio-4010, 91 N.E.3d 255

(2d Dist.), this court held that Hand does not apply to R.C. 2923.13(A)(2) and that the use

of a juvenile adjudication to support a charge of having a weapon under disability does

not violate a defendant’s constitutional right to due process. Nevertheless, Reed

requests we reconsider this issue, given that the Supreme Court of Ohio has accepted

the issue for review in State v. Carnes, 150 Ohio St.3d 1429, 2017-Ohio-7567, 81 N.E.2d

1271.

{¶ 40} Although not released when Reed filed his appellate brief, the Supreme

Court’s decision in Carnes has since been issued and it aligns with our holding in
 -15-

McComb. See State v. Carnes, 2018-Ohio-3256, ___ N.E.3d ___, ¶ 1, 21. Specifically,

the Supreme Court held in Carnes that “a prior juvenile adjudication may be an element

of the weapons-under-disability offense set forth in R.C. 2923.13(A)(2) without violating

due process under the Ohio or United States Constitutions.” Id. at ¶ 21. In so holding,

the Supreme Court explained: “Contrary to 2901.08(A)—the statute struck down in

Hand—R.C. 2923.13(A)(2) does not deem the juvenile adjudication to be an adult

conviction; the juvenile adjudication is itself an element of the offense.” Id. at ¶ 19. The

Supreme Court further explained that: “R.C. 2923.13(A)(2) does not use juvenile

adjudications for sentence enhancement purposes. Regardless of the predicate

conduct, a violation of the statute is a third-degree felony. R.C. 2923.13(B).” Id. at ¶ 10.

Therefore, like our decision in McComb, the Supreme Court of Ohio declined to extend

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

{¶ 41} As noted above, Reed was convicted of two weapons under disability

offenses, one under R.C. 2923.13(A)(2) and the other under R.C. 2923.13(A)(3).

Although R.C. 2923.13(A)(3) is not explicitly discussed in Carnes, the same analysis

applies to that charge. Like section (A)(2), section (A)(3) does not deem the juvenile

adjudication to be an adult conviction, but instead makes a juvenile adjudication an

element of the offense. The only difference between these two sections is that R.C.

2923.13(A)(2) involves juvenile adjudications that would be considered a felony offense

of violence if committed by an adult, while R.C. 2923.13(A)(3) involves juvenile

adjudications that would be considered a felony drug offense.

{¶ 42} Based on the Supreme Court’s holding in Carnes and our prior holding in

McComb, we do not find that the trial court erred in failing to dismiss Reed’s two weapons
 -16-

under disability charges. Therefore, we once again hold that the use of a juvenile

adjudication to support a charge of having a weapon under disability does not violate a

defendant’s constitutional right to due process.

{¶ 43} Reed’s Second Assignment of Error is overruled.

Conclusion

{¶ 44} Having overruled both of Reed’s assignments of error, the judgment of the

trial court is affirmed.

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DONOVAN, J. and TUCKER, J., concur.

Copies mailed to:

Mathias H. Heck, Jr.
Andrew T. French
Andrew C. Schlueter
Hon. Steven K. Dankof