IN TIJE SUPREME COURT OF OHIO

STATE OF OH7O,

Plaintiff-Appellee,

VS.

Defendant-Appellant.

CASE NO.^

ORIGINAL

GOn Appeal from theC.UUkCzA10County Couxt of Appeals, C.KqAppellate District.

^ rC.A. Case No. ^(}J __

MEMORANDUM IN SUPPORT OF JURISDICTIONOF APPELLANT ^cb2,R^^c) U^^'tt ^l

Kaba:6RIMAER^NAME AND (^

c.G't'--ilP_.('.i'1 '̂e^-...1-( :3•

INSTI7UTION

SO 1`1c^lADDRESS

em. , ie^^^CITY. STATE & ZIP

PHONE

DEFENDANT-APPELLANT, PRO SE

aijRnp ^ y {^- Jt [ i`.Jl_ tst^ [f ^i( °f^PROSCl7T)R NAME

0.rcADDRESS`

^L.'.ICti1'^C 1C1TY. STATE & Z1PPtG_\ ^S4>1 `fi5y'^ _

PAONE '1-

COUNSEL FOR APPELLEE, STATE OF OHIO

aa^.ETi!'t 01,

I

;3UV)PiE

TABLE OF CONTENTS

PAGE NOS.

EXPLANATION OF WHY THIS CASE IS A CASE OF PUBLIC OR GREAT GENERAL

INTEREST AND INVOLVES A SUBSTANTIAL CONSTITUTIONAL:.._. .^..QUESTIOhC ................. ......... ............................

STATEMENT OF THE CASE.....

^,^STA'I'E.NIENT OF TIIE FACTS ........................... ............... ........... ................. ............ ...... .............

FIRST PROPOSITION OP LAW .. ..... . . . . . .... ...... ........ . ................... . .. ..... ......... -,$°-c^ ^^^^Y1

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EXPLANATION OF WHY THIS CASE IS A CASE OF PLBLIC ORGREAT GENERAL INTEREST AND LNVOLVES A SUBSTANTIAL

CONSTITUTIONAL QUESTION

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STATEMENT OF THE CASE

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STATEMF,NT OF TT3E FACTS

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CONCLUSION

This case raises a substantial constitutional question, involves a felony and is one of

public or 2reat general interest. Review should be granted in this case.

Vc:Acie-e-NAME AND NUt^^ER

'orloc),`TL,1jINSTrfUTION

^N) 4c,61 M-atn ^aKADDRESS

,i;Vjao ^'E totfl^ _cITY. S'rATE R ZIP

DEFENDANT-APPELLANT, PRO SE

CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing Memorandnm in Support of Jurisdiction of

Appellant ^^^' -_^^ vL1,i/1 31 has been served by U.S. mail postage pre-paid to

A. Z(:i, F}(_A Prosecuting Attorney O^Y3 046kei a

t'}f'^t4.^ ,this_1^^ dayof^(^tqC.,^1 20 iO .

^ C.

NAtvffl ANF) NiRvfRftR 1-4

DEFENDANT-APPELLANT, PRO SE

(ti9)

svak-e- 0^ _ C)1lia ,

Ptainvi^ ^^ece-^^^e

4,6.t^(-Aae^Oo i.,^^^^oeVe naeto ^- - A eeOain^

^^^ of eal 1,5 of eljioEIGHTH APPELLATE DISTRICT

COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINIONNoe 93057

STATE OF OHIO

PLAINTIFF-A.PPELLEE

VS.

ROBERTO WYNN

D E FE NDANT-APP E LI.A NT

JUDGMENT:AFFIRMED

^

Criminal Appeal from theCuyahoga County Court of Common Pleas

Case No. CR-510316

BEFORE: Blackmon, J., Gallagher, A.J., and Boyle, J.

RELEASED: February 18, 2010

JOURNALIZED:

-x-

ATT(3RNEY FOR APPELLANT

Thomas A. Rein526 Superior Avenue #940Cleveland, Ohio 44114

ATTORNEYS F®R APPELLEE

William D. MasonCuyahoga County Prosecititor

Iz^erry A. Sowul AttorneyAssistant Prosecut,ing'The Justice Center, 9t'' la'loor

1200 Ontario StreetCleveland, Ohio 44113

, u^6(A)

p 2^PP.P, 22i^)F1^Gc^^F- 0

N,$. This entry is an aniiouncement of the court's decision. See App.R. 22(B) and

_.-App-K22. 'Phis decision will be journalizedLE(.k); Lor nl ss ^ n oticmefom econsidegreionand order of the court pursuant to App.^^ 22(C) --R. 2E(A), or a motion for consideration en bs wth

ith

is filed ^itlvn ten daywith supporting brief' per App• P 26.1(B)(2),supporting brief per Loc.App. period for review by the Supremeamuouncement of the court's decision. The time p

Court of Ohio shall hegin to run upon the j^e^l also tS)Ct Prac Ru2t2(A)(1)

announcement

of decision by the clerk per App.R. 22(C).

-1-

PA'1'I1,ICIA ANN BLACKMON, P.J.:

Appellant Roberto Wynn appeals his conviction and sentence, and assigns

the following errors for our review:

"I. The trial court erred in denying appellant'g motion foracquittal as to the charges when the State failed to presentsufficient evidence against appellant."

"H Appellant's convictions are against the manifest weig'ht of theevidence."

"IH. The trial court erred by ordering convictions and consecutivesentences for separate counts of inurder and attempted murderand f'elonious assault because the offenses are allied offensespursi.bant to H.C. 2941.25 and they are part of the saflne transactionunder R.C. 2929.14."

Having r eviewed the record and pertinent law, we affirm Wynn's

conviction and sentence. The apposite facts follow.

On April 25, 2008, five friends, Christopher Basie, Michael Harris, Willie

Jackson, Brian Gardner, and DiMarco Spencer, were cruising around an eastside

Cleveland neighborhood in Willie Jacksoii's grey customized Ford van. Upon

arriving in the vicinity of 9500 block of Parmalee Avenue, the van came under

a barrage of gunfire. Christopher Basie was shot in the head and died at the

scene.

On May 12, 2008, the Cuyahoga Countv Grand Jury indicted Wynn on one

count of aggravated murder with mass murder and three-year firearm

specifications attached for the death of Basie. The grand jury also indicted

-z-

Wynn on four counts of attempted mtuder of Harris, Jackson, Gardner, and

Spencer. These counts also had three-year firearm specifications attached.

In addition, the grand jury indicted Wynn on four counts of felonious

assault of Harris, Jackson, Gardner, and Spencer with three-year firearm

specifications attached. Wynn pleaded not guilty at his arraignment and the

matter proceeded to a jury trial, which commenced on February 9, 2009.

Jury Trial

The State presented the testimony of twenty witnesses.' Thirteen-year-old

Clifshell Stevenson testified that Wynn is a close friend of her cousin, Decarlin

Duncan, and is also familiar with him from seeing him around the neighborhood.

Stevenson testified that on the day of the shooting she was on the front porch

of herhome playing with two friends, while her two younger cousins were

playing with chalk on the sidewalk in front of the house.

Stevenson testified that several big boys caine from the backyard of an

adj acent house. Moments later, she observed a. burgundy van pull up almost in

front of her house. Wynn exited the vehicle, proceeded to stand behind a tree on

the opposite side of the street, and took a gun out of bis pocket. As a grey van

drove by, Wynn began shooting into the van. Stevenson testified that initially

'The relevant testimony of some witnesses will be explored in the legal analysis

of the opinion.

_g_

Wynn was having problems getting the gun to fire. Wynn fired three shots into

the grey van and then fled in the burgundy van.

Stevenson testified that when the shooting began, she jumped off the

porch, grabbed her younger cousins, dragged them to the porch, and instructed

them to keep their heads down. Stevenson testified that at the time of the

shooting Wynn, was wearing jeans, a white tee shirt, and a Yankees baseball

hat. Stevenson stated that later that evening she saw Wynn walking down the

street wearing different clothes.

Stevenson's nine-year-old cousin, Tanesha Townsend, testified that she

was standing in the grass in front of her grandmother's house when the shooting

began: Townsend testified that she observed Wynn standing by a tree in front

of the house directly across from her grandmother's house. Townsend testified

that Wynn took a black gun out of his pocket and began shooting. Townsend

stated that after the shooting began, Stevenson grabbed her and her cousin,

Cameron, and dragged them to the porch.

DiMarco Spencer testified that three days prior to the shooting, he was

sitting on his front porch when Wynn and two other males robbed him at

gunpoint. Spencer testified that Wynii and his companions took his money, cell

phone, keys, and van.

Spencer testified that on the day of the shooting he was riding aroundwith

Basie, Harris, Jackson, and Gardner, when he observed two groups of men that

-4-

were about to fight. Spencer testified that he noticed Wynn in the crowd and

pointed him out to his friends as one of the individuals who had robbed him

earlier that week. Spencer stated that they did not approach Wynn because

they thought lie might be armed.

Spencer testified that he and his companions drove to a friend's house,

where they visited for a few minutes, and then left. Spencer testified that

moments after leaving the friend's house, he heard gunshots, and when he

looked out the window, he saw Wynn standing by a tree shooting at the left side

of the van. DiMarco testified that a bullet hit Basie in the head and Basie

immediately sluxnped over. DiMarco unsuccessfully tried to revive Basie, who

died at the scene.

Tyrone Payne testified that on the evening of April 25, 2008, he was at the

corner of East 102°" Street and Parmalee Avenue, when he observed Wynn in

the middle of the block shouting "clear it out." Wynn shouted "clear it out" to get

the little children off the street. Payne testified that moments later Wynn began,

shooting at a van as it drove down the block. Payne stated that when the van

reached where he was standing, he saw that the side window behind the driver's

seat and one of the tires had been shot out.

Sergeant Nathan Willson of the Cleveland Police Department's forensic

unit testified that he examined three spent shell casings that were discovered

at the scene of the shooting. Sgt. Willson testified that his examination led him

-5-

to conclude that the casings were fired from a semi-automatic handgun and that

they were fired from the same gun. Sgt. Willson also examined the bullet that

was taken out of the victim's body, and concluded that it was at one point in a

casing similar to the three found at the scene.

On February 25, 2009, the jury found Wynn guilty of murder, the lesser

ineluded offense of aggravated murder, with the three-year firearm specification

attached. The jury also found Wynn guilty of two of the four counts of attempted

murder with three-year firearm specifications attached. In addition, the jury

found Wynn guilty of all four counts of felonious assault with thxee-year firearm

specifications attached to each count.

On February 27, 2009, the trial court sentenced Wynn to an aggregate

prison term of 30 years to life. Wynn now appeals.

Motion for Acquittal

In the first assigned error, Wynn argues the trial court sliould have

granted his motion for acquittal because the State failed to present sufficient

evidence to sustain his conviction. We disagree.

Crim.R. 29(A), which governs motions for acquittal, states:

s"I'he court on niotion of a defendant or on its own motion,after the evidence on either side is closed, shall order theentry of a judgment of acquittal of one or more offensescharged in the indictment, information, or complaint, if theevidence is insufficient to stistain a conviction of suchoffense or offenses."

-6-

'I'he sufficiency of the evidence standard of review is set forth in State u.

Brid,gema.n:2

"Pursuant to Criminal Rule 29(A), a court shall not order an

entry of judgment of acquittal if the evidenceis such that

reasonable minds can reach different conclusions as to

whether each material element of a crinie has been proved

beyond a reasonable doubt."3

Bridgema.n must be interpreted in light of the sufficiency test outlined in

State v. Jenks,' in which the Ohio Suprenie Court held:

"An appellate court's function when reviewing the

sufficiency of the evidence to support a criminal convictionis to exainine the evidence submitted at trial to determine

whether such evidence, if believed, would convince the

average mind of the defendant's guilt beyond a reasonable

doubt. 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

®f the crime proven beyond a reasonable doubt.(

-7-

In this case, four witnesses testified that they observed Wynn shooting

into the grey van as it drove by on Parmalee Avenue. Two of the witnesses,

Stevenson and Townsend, were very familiar with Wynn by virtue of his

friendship with their cousin, and by seeing him around the neighborhood. Both

Stevenson and Townsend were standing on the opposite side of the street from

where the shooting occurred.

A third witness, Spencer, testified that as the van came under gunfire, he

looked through the window and observed Wynn standing beside a tree and

shooting into the van. Spencer testified that he recognized Wynn as the

individual who had robbed him at gunpoint three days earlier. Spencer also

testified that he had seen Wynn earlier that evening among the two groups of

men that were about to fight, and had pointed him out to the other occupants of

the vehicle.

A fourth witness, Payne, who was familiar with Wynn from seeing him

around the r.^e^ighborhood, testified that he observed Wynn "clearing out" the

street in anticipation of the shooting. Payne then observed Wynn shooting into

the grey van as it drove down Parmalee Avenue.

Finally, the physical evidence collected at the scene and the coroner's

determination that Basie died as a result of a gunshot wound to his head,

corroborates the eyewitnesses'testimonies that Wynnfired multiple shots as the

van drove down Parmalee Avenue.

-8-

Based on the testimony of the four eyewitnesses, as well as the physical

evidence collected, we conclude there was sufficient evidence to sustain Wynn's

convictions for murder, attempted murder, and felonious assault. Viewing the

evidence in the light most favorable to the State, any rational trier of fact could

have found that the State proved all of the essential elements of the instant

charges beyond a reasonable doubt. Thus, the trial court properly denied

Wynn's motion for acquittal.. Accordingly, we overrule the first assigned error.

Manifest Weight

In the second assigned error, Wynn argues his convictions were against

the cnanifest weight of the evidence. We disagree.

In State v. Wilson,5 the Ohio Supreme Court recently addressed the

standard of review for a criminal manifest weight challenge, as follows:

"The criminal manifest-weight-of-the-evidence standard was

explained in State v. Thomphins, 78 Ohio St.3d 380, 1997-

Ohio-52, 678 N.E.2d 541. In Thomphins, the court

distinguished between sufficiency of the evidence andmanifest weight of the evidence, finding that these conceptsdiffer both qualitatively and quantitatively. Id. at 386, 678

N.E.2d 541.'fhe court held that sufficiency of the evidence isa test of adequacy as to whether the evidence is legallysufficient to support a verdict as a matter of law, but weightof the evidence addresses the evidence's effect of inducingbelief. Id. at 386-387, 678 N.E.2d 541. In other words, areviewing court asks whose evidence is more persuasive -the state's or the defendant's? We went on to hold thatalthough there may be sufficient evidence to support a

5113 Ohio St.3d 382, 865 N.E.2d 1264, 2007-Ohio-2202.

-9-

judgment, it could nevertheless be against the manifestweight of the evidence. Id. at 387, 678 N.E.2d 541, `When acourt of appeals reverses a judgment of a trial court on thebasis that the verdict is against the weight of the evidence,the appellate court sits as a`thirteenth juror' and disagreeswith the factfinder's resolution ofthe conflictiiig testimony.'Id. at 387, 678 N.E.2d 541, citing Tibbs v. Florida (1982), 457U.S. 31, 42, 102 S.Ct. 2211, 72 L.Ed.2d 652."

As discussed in our resolution of the first assigned error, Wynn's

convictions were based on substantial and sufficient evidence. Four pivotal

witnesses observed Wynn shooting at the van multiple times. Two of the four

witnesses were very familiar with Wynn, the third had seen him around the

neighborhood, and the fourth had recently been robbed at gunpoint by Wynn.

Nonetheless, Wynn maintains that the witnesses were not credi.ble and

their testimonies were inconsistent. However, a defendant is not entitled to a

reversal on manifest weight grounds merely because inconsistent evidence was

presented at trial.H The determination of weight and credibility of the evidence

is for the trier of fact.' The ratiotiale is that the trier of fact is in the best

position to take into account inconsistencies, along with the witnesses' m.anner

and demeanor, and determine whether the witnesses' testimonies are credible.$

6State u. Raver, lO"' Dist. No. 02AP-604, 2003-Ohio-958.

'State u. Chandler, 10t" Dist. No. 05AP-415, 2006-Ohio-2070, citing State u.âeL-Iass (1967), 10 Ohio St.2d 230, 227 N.E.2d 212.

$State e^. bYillianas, 10t'' Dist. No. 02AP-35, 2002-Ohio-4503.

-10-

Further, the trier of fact is free to believe or disbelieve all or any of the

testimony.s Consequently, although an appellate court must act as a "thirteenth

juror" when considering whether the manifest weight of the evidence requires

reversal, it must give great deference to the fact finder's determination of the

witnesses' credibil.ity.10 Therefore, Wynn's convictions are not against the

manifest weight of the evidence. Accordingly, we overrule the second assigned

error.

Allied Offenses

In the third assigned error, Wynn argues the trial court erred when it

ordered convictions and a consecutive sentence for separate counts of murder,

attempted murder, and felonious assault, because they are allied offenses and

part ofthe same transaction. We disagree.

In the instant case, tlre grand jury indicted Wynn for the aggravated

murder of Basie, and the jury found him guilty of the lesser included offense of

murder, along with the three-year firearm specification. The trial court then

sentenced Wynn to an indefinite term of 15 years to life plus three years for the

firearm specification.

'State u. Sheppar•d (Oct. 12, 2001), h` Dist. No. C-000553.

'OSta.te v. C'ouin.gton, 10°1i Dist. No. 02AP-245, 2002-Ohio-7037, at 122;State v.

Hairston, 10" Dist. No. OlAP-1393, 2002-Ohio-4491, at fi17.

_11_

The grand jury also indicted Wynn for the attempted niurder of Spencer,

Gardner, Jackson, and Harris. In addition, the grand jury indicted Wynn for

the felonious assault of the foregoing individuals. The jury found Wynn guilty

of'the atteinpted murder of Spencer and Gardner, but not of Jackson and Harris.

Further, the jury found Wynn guilty of felonious assault of all four individuals.

The trial court merged the attempted murder and felonious assault

convictions relating to Spencer and Gardner, and sentenced Wynn to ten years

plus three years for the firearm specifications. The trial court ordered the

sentences served concurrently, but consecutively to the sentence for the murder

conviction.

As it relates to the convictions involving the felonious assault of Jackson

and Harris, the trial court sentenced Wynn to two years plus three years for the

firearm specifications. The trial court ordered the sentences served

concurrently, but consecutively to the murder and attempted murder

convietaons. The trial court then merged the firearm specifications relating to

Spencer, Gardner, Jackson, and Harris with the firearm specification attached

to the murder conviction.

R.C. Section 2941.25(A) provides as follows:

"(A) Where the same conduct by defendant can be construedto constitute two or more allied offenses of similar import,the indictment or information may contain counts for allsuch offenses, but the defendant may be convicted of onlyone."

-].2-

The Ohio Supreme Court has held that felonious assault is an allied

offense to attempted murder.ll We have also held that where there are multiple

victims, the defendant could be sentenced for each separate victim.12

Here, a review of the sentences the trial court imposed reveals that the

trial court properly merged the attempted murder and felonious assault

convictions relating to Spencer and Gardner.13 Since the jury found Wynn not

guilty of the attempted murder of Jackson and Harris, there was nothing to

merge, thus the trial court correctlv sentenced Wynn for the felonious assault

convictions relating to these individuals.

We conclude the sentences the trial court imposed comported with R.C.

2921.25(A) and is not contrary to our prior holdings and the pronouncement of

the Ohio Supreme Court regarding allied offenses. Accordingly, we overrule the

third assigned error.

Judgment affirmed.

It is ordered that appellee recover of appellant its costs herein taxed.

"State v. Williams, - Ohio St.3d _, 2010-Ohio-147,_ N.E.2d _ See, also,

State v. Sutton, Cuyahoga App. No. 90172, 2008-Ohio-3677.

"State v. Jordan, Cuyahoga App. No. 91869, 2009-Ohio-3078, citingState U.

G'regory (1993), 90 Ohio App_3d 124, 628 N.E.2d 86.

"We note the sentence the trial court imposed conforms with the Ohio Supreme

Court's recent, decision in State v. Wh.itfield,__ Ohio St.3d __, 2010-Ohio-2. - N.E.2d

Consequently, a reniand for a new sentencing hearing at which the state must elect

which allied offense it will pursue against the defendant is unnecessary.

-13-

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate be sent to said 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.

PATRICIA ANN BLACKMON, JUDGE

SEAN C. GALLAGHER, A.J., andMARY J. BOYLE, J., CONCUR

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