Not overruled or negatively treated on appealinfoCoverage
2018 Ohio 3590 (Ohio Ct. App. 2018)

No. 106445



ATTORNEY FOR APPELLANT James R. Willis 1144 Rockefeller Building 614 West Superior Avenue Cleveland, Ohio 44113 ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga County Prosecutor BY: Kevin R. Filiatraut Assistant County Prosecutor The Justice Center, 9th Floor 1200 Ontario Street Cleveland, Ohio 44113

JOURNAL ENTRY AND OPINION JUDGMENT: AFFIRMED Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-16-606391-A BEFORE: Jones, J., McCormack, P.J., and Celebrezze, J.


James R. Willis
1144 Rockefeller Building
614 West Superior Avenue
Cleveland, Ohio 44113


Michael C. O'Malley
Cuyahoga County Prosecutor BY: Kevin R. Filiatraut
Assistant County Prosecutor
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113 LARRY A. JONES, SR., J.:

{¶1} Defendant-appellant Demagio Callahan ("Callahan") appeals his conviction for having weapons while under disability. For the reasons that follow, we affirm.

{¶2} In 2016, Callahan was charged in an 18-count indictment as follows: Counts 1- 4 charged aggravated murder, murder, and felonious assault against Veron Black. Counts 5-11 charged attempted murder and felonious assault against Deandre Turner ("Turner"), Michael Dixon ("Dixon"), and Manautica Boyd ("Boyd"). Counts 12-15 alleged discharge of a firearm on or near prohibited premises and improperly discharging firearm at or into habitation. Counts 16 and 17 charged having weapons while under disability. Count 18 charged the crime of receiving stolen property of a motor vehicle. Counts 1-15 and 18 had one- and three-year firearm specifications, and Count 13 had an additional five-year firearm specification.

{¶3} The matter proceeded to a jury trial. Callahan elected to have his having weapons while under disability counts tried to the bench. Prior to electing to have Counts 16 and 17 tried to the bench, the trial court asked Callahan: "Do you understand you could be found not guilty by the jury on each and every count and the court would still reserve the right to determine your guilt or innocence on these two counts?" Callahan responded that he understood.

{¶4} The following pertinent evidence was presented at trial.

{¶5} Terry Parham testified that he lived on East 163rd Street in Cleveland at the time of the incident. Parham testified that on July 7, 2015, about 2 a.m., he heard two cars racing down the street and then heard gunshots. After hearing the gunshots, Parham looked out the window and saw someone running behind a house with a weapon in his hand. Parham saw this person put the weapon into the trunk of a black Buick LaSabre. Parham believed the weapon he saw was an AK-47 style assault rifle with a banana clip. Parham could not identify the person he saw with the weapon.

{¶6} Justin Hunter ("Hunter") testified that Veron Black was his brother-in-law. On July 7, 2015, Hunter met up with Black, Dijon Benson ("Benson"), and Dixon. Hunter drove the group to a gas station in his Ford Explorer. They saw Callahan, whom they knew, at the gas station; Callahan was driving a stolen Dodge Charger. According to Hunter, Dixon had stolen the Charger off a dealer's lot and given it to Callahan to drive. Dixon was concerned that Callahan was still driving the Dodge Charger and wanted the car back. Dixon called out to Callahan asking for the car back, and Callahan replied, "I should blow this b***" or "I'll blow this b***," which, according to Hunter, meant that Callahan would shoot them.

{¶7} Later that evening, Hunter and his friends, including Black, went to various house parties. Hunter's car overheated on the way to the second party so he pulled over on East 163rd Street. Dixon called Callahan to try again to get the Charger. Before Callahan arrived, Turner showed up in his minivan, with Boyd as his passenger. Hunter's group decided to abandon the overheated Explorer and ride with Turner. During this time, according to Hunter, he saw the Dodge Charger being driven down East 163rd Street, but the driver did not stop.

{¶8} A couple of minutes later, and as the group was getting in Turner's minivan, Hunter saw a male at the corner of the street, crouched down and holding a gun. Hunter's group was also armed; he testified that Dixon and Benson each had a gun and he (Hunter) shared a gun with Black.

{¶9} Hunter did not know who the male was at the corner, but the man was holding what appeared to be an AK-47 and the man started shooting. Hunter testified that he was not sure but thought Dixon and Benson shot back. Black and Turner sustained gunshot wounds, and Turner's minivan was also hit. After the shooting, Hunter heard the sound of the Charger driving away.

{¶10} Dixon testified that he was convicted of felony theft of the Dodge Charger he stole from a dealership on the Bedford Auto Mile. Dixon testified that he stole the Charger about a week before the shooting at Callahan's demand after Callahan kidnapped Dixon's daughter.

{¶11} On the day of the shooting, Dixon, with Black, Hunter, and Benson, saw Callahan at the gas station driving the stolen Charger. Dixon testified that they pulled up in front of Callahan, cutting him off, and Callahan said out the car window, "Don't do no s*** like that ever again. That's how n*** get shot."

{¶12} Later that evening, Dixon's group was on Sorrento Avenue and East 163rd Street when Turner pulled up in his minivan to rescue them from the overheated Explorer. Dixon saw the Charger being driven around the area at that time. Dixon then heard gunshots coming from one end of the street and looked over and saw Callahan holding an AK-47 and shooting toward them. According to Dixon, Callahan was accompanied by another man who held a gun in each hand and was also shooting.

{¶13} After Dixon was arrested for stealing the Charger, he was placed in the same "pod" as Callahan in jail. Dixon testified that Callahan "forced" him to sign a statement saying he did not see Callahan shoot Black or Turner. Dixon testified that he signed the statement because Callahan threatened to "pop" the lock on his cell and beat him to death if he did not comply.

{¶14} Black died as a result of his injuries. The medical examiner, Joseph Felo, M.D., testified that Black died from having been shot in the right thigh and left groin. Cleveland police homicide Detective Thomas Armelli ("Detective Armelli") investigated the shooting. Detective Armelli testified that there was evidence of a shooting that occurred in the area of East 163rd Street and Sorrento Avenue. He testified about the photographs of the crime scene and the evidence that was collected, which included eight spent shell casings that originated from one type of gun and a single shell casing that was shot from another type of gun. The shell casings were forwarded to the ballistics lab.

{¶15} Forensic scientist James Kooser tested the shell casings and found that the single shell casing came from the 9mm handgun that the police had recovered from Hunter's Explorer. The eight other casings were all fired from the same unknown semiautomatic rifle, either an AK47 or SKS rifle. Kooser testified that the bullet recovered from Black during his autopsy and another bullet found by the police at the scene of the shooting came from a similar caliber gun that fired the eight spent shell casings, but he could not say that the bullet removed from Black came from any of those spent shell casings in particular.

{¶16} Detective Robert Ford ("Detective Ford") interviewed Callahan. The interview was recorded and played for the jury at trial. During the interview, Callahan admitted to driving the Charger at the time in question and admitted he knew Dixon, but denied being the shooter. Detective Ford testified that the Charger was later recovered in another part of the city but the murder weapon was never recovered.

{¶17} The jury convicted Callahan of receiving stolen property but acquitted him of the attendant firearm specifications and also acquitted him of all other counts. After the jury returned its verdict, the trial court convicted Callahan of both counts of having a weapon while under disability, stating: "And the court, pursuant to all of the evidence that I've heard in this case, reaches a completely different conclusion than this jury. I find the defendant guilty of Count 16 and guilty of Count 17." The trial court determined that the two counts of having weapons while under disability merged for the purposes of sentencing and sentenced Callahan to 36 months in prison on Count 16, consecutive to 18 months in prison on Count 18 (receiving stolen property), for a total sentence of 4.5 years in prison.

{¶18} Callahan filed a notice of appeal and raises the following assignments of error, which we combine for review:

I. Given the issue preclusion doctrine that distills from Ashe v. Swenson, 534 U.S. 536 (1995), as augmented by Yeager v. United States, 557 U.S. 110 (2009) the court erred when, despite the acquittals (rendered by the jury) it sentenced the appellant for illegal possession of a firearm in

violation of [R.C.] 2923.13.
II. Given the jury's finding that the accused was not guilty of being the sole shooter, as the state sought to prove, it follows the court's guilty verdicts are inconsistent with the acquittals and is constitutionally flawed, thus, the court erred in rendering these verdicts.
III. Given the court was barred from the "issue preclusion doctrine," from finding guilt despite the various acquittals, it follows there was no basis here for any findings of guilt by the court.

In his three assignments of error, Callahan claims that the trial court erred as a matter of law by convicting him of having weapons while under disability based on the same evidence that the jury used to acquit him of all crimes involving the use of a firearm. Callahan contends that his conviction for having weapons while under disability was barred by the doctrine of issue preclusion, also known as collateral estoppel, and was legally inconsistent with the jury's verdict. Specifically, Callahan argues that because the jury acquitted him of all weapons-related charges, it follows that he was not the shooter and not complicit in the murder; therefore, there was no evidence "upon which the judge could have found him to have been in illegal possession of the firearm used by the shooter on the basis of identical evidence relied on by the jury in finding him not guilty of being the shooter."

{¶20} Callahan relies on Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970), and Yeager v. United States, 557 U.S. 110, 129 S.Ct. 2360, 174 L.Ed.2d 78 (2009), to support his argument.

{¶21} In Ashe, the United States Supreme Court held that the rule of collateral estoppel is embodied by the Fifth Amendment guarantee against double jeopardy.

Collateral estoppel is the doctrine that recognizes that a determination of facts litigated between two parties in a proceeding is binding on those parties in all future proceedings. Collateral estoppel "means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit.["]

State v
. Lovejoy, 79 Ohio St.3d 440, 443, 683 N.E.2d 1112 (1997), quoting Ashe at 443.

{¶22} In Ashe, a group of men robbed six poker players, and the defendant was charged with robbing one of the players. He was acquitted of that robbery but then tried, in a second trial, for robbing another one of the players. He was found guilty in the second trial. The United States Supreme Court reversed his conviction finding that the state was constitutionally foreclosed from relitigating that issue in another trial. Id. at paragraph two of the syllabus.

{¶23} In Yeager, the United States Supreme Court held that an inconsistency between a jury's verdict of acquittal on some counts and its failure to return a verdict on other counts does not affect the preclusive force of the acquittals under the Double Jeopardy Clause of the Fifth Amendment. ___Id. at 112. In Yeager, the defendant was acquitted of fraud and securities fraud charges and a mistrial was declared on insider trading and money laundering charges. He was then recharged with some of the mistried counts. The district court found that a conflict between the acquittals and the hung counts barred the application of issue preclusion. The United States Supreme Court disagreed, holding that the hung counts should not have been considered in the issue-preclusion analysis. Id.

{¶24} Based on these two cases, Callahan contends, the court's guilty verdict in this case cannot survive scrutiny. We disagree.

{¶25} In Ashe, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469, the United States Supreme Court was dealing with the application of the Double Jeopardy Clause to successive prosecutions or future proceedings. In Yeager, 557 U.S. 110, 129 S.Ct. 2360, 174 L.Ed.2d 78, the court was concerned with the preclusive force of acquittals when the jury returns a verdict of acquittal of some counts and mistrial of other counts. This case, however, does not involve successive prosecutions. In this case, the trial court found Callahan guilty of the weapons charge during the same trial that the jury acquitted him of all weapons-related charges and specifications.

{¶26} In State v. Eason, 2016-Ohio-5516, 69 N.E.3d 1202, ¶ 67 (8th Dist.), this court found that "under Ohio law, the inconsistency between the jury's and the trial court's verdicts does not require acquittal on the charge of having weapons while under disability." "Each count of a multi-count indictment is deemed distinct and independent of all other counts, and thus inconsistent verdicts on different counts do not justify overturning a verdict of guilt." Id. at ¶ 68.

{¶27} This court noted that the Ohio Supreme Court has held that the counts of an indictment '"are not interdependent and an inconsistency in a verdict does not arise out of inconsistent responses to different counts, but only arises out of inconsistent responses to the same count."' (Emphasis deleted.) Id., quoting Lovejoy, 79 Ohio St.3d 440, 683 N.E.2d 1112, at paragraph one of the syllabus. "'[D]ouble jeopardy and collateral estoppel do not apply where the inconsistency in the responses arise out of inconsistent responses to different counts, not out of inconsistent responses to the same count."' Eason at id., quoting Lovejoy, at paragraph two of the syllabus.

{¶28} In Eason, the appellant was charged with drug trafficking, drug possession, possessing criminal tools, carrying concealed weapons, having weapons while under disability, and improperly handling firearms in a motor vehicle. The having weapons while under disability charge was tried to the court; a jury considered the other counts. The jury acquitted the appellant of all counts, and the trial court found appellant guilty of having weapons while under disability. In affirming his conviction, this court reasoned that

[c]onsistency between verdicts on several counts of a criminal indictment is unnecessary, and where the defendant is convicted on one or some counts and acquitted on others the conviction will generally be upheld, irrespective of its rational incompatibility with the acquittal.

at id., citing State v. Woodson, 24 Ohio App.3d 143, 493 N.E.2d 1018 (10th Dist.1985).

{¶29} In this case, the court explained to Callahan that he could receive different verdicts from two finders of fact, the court and the jury. The trial court, as finder of fact on two counts of having weapons while under disability, found that Callahan possessed the firearm and used it. The jury, as the finder of fact on all other counts, found that Callahan possessed the stolen Dodge Charger, but was not convinced beyond a reasonable doubt that Callahan was the shooter who killed Black and injured Turner.

{¶30} In light of the above, we find that the inconsistency between the jury's and the trial court's verdicts does not require reversal of Callahan's convictions for having weapons while under disability.

{¶31} The assignments of error are overruled.

{¶32} Judgment affirmed.

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. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. /s/_________