STATE OF OHIO v. DEVAUGHNTE RICE

Cleveland, Ohio - Criminal defense attorney represented Devaughnte Rice with a weapons while under disability charge.

In January 2019, Rice and his codefendants, David Wagner ("Wagner”)

and Richard Pinson, Jr. ("Pinson”), were named in a 12-count indictment, charging

them with aggravated murder in violation of R.C. 2903.01(B), (Count 1); attempted

murder in violation of R.C. 2923.02 and R.C. 2903.02(A) (Count 2); felonious

assault in violation of R.C. 2903.11(A)(2) (Count 3); felonious assault in violation of

R.C. 2903.11(A)(1) (Count 4); murder in violation of R.C. 2903.02(B) (Count 5);

aggravated robbery in violation of R.C. 2911.01(A)(1) (Count 6); robbery in violation

of R.C. 2911.02(A)(1) (Count 7); kidnapping in violation of R.C. 2905.01(A)(2)

(Count 8); grand theft in violation of R.C. 2913.02(A)(1) (Count 9); and having

weapons while under disability in violation of R.C. 2923.13(A)(2) (Counts 10, 11, 12).

Counts 1-9 carried a repeat violent offender specification and one-year, three-year,

and 54-month firearm specifications. Count 10, which pertained to Rice

individually, carried three-year and 54-month firearm specifications.

In March 2020, Rice waived his right to a jury trial on the having

weapons while under disability offense charged in Count 10 of the indictment, as well as all repeat violent offender specifications and 54-month firearm

specifications. The matter proceeded to a jury trial on the remaining offenses and

the following facts were adduced.

On September 5, 2018, Ronnal White ("White”) shot and killed

Deandre Wilson ("Wilson”) in self-defense. Detective Kevin Fischbach (Det.

Fischbach) of the Cleveland Police Department was assigned to investigate the

shooting death of Wilson. Relevant to this appeal, the incident was captured by

surveillance cameras located in the apartment complex. The video was played for

the jury while Det. Fischbach identified persons of interest and described events as

they occurred.

The video shows that at approximately 10:00 p.m., two vehicles pulled

into the apartment complex's parking lot and parked next to one another. Wagner,

Wilson, and Rice exited the first vehicle, a 2015 Ford Fusion. Pinson and an

unidentified male exited the second vehicle. The men stood near the parked vehicles

and conversed with each other and unidentified individuals who passed through the

parking lot.

White arrived at the apartment complex at approximately 10:19 p.m.

and parked his company van near an area where Wagner and Wilson were standing.

White testified that when he exited his van, Wagner and Wilson began conversing

with him about a variety of topics, including his employment with a television and

internet company. During this conversation, Wilson made a hand gesture towards

Rice at approximately 10:24 p.m. Rice, who was standing several feet away near the Ford Fusion, walked over to Wilson and retrieved something from Wilson's hand,

presumably car keys. Rice then walked back to the Ford Fusion and got into the

driver's seat of the vehicle. Several seconds after entering the vehicle, Rice began to

flash the vehicle's headlights, repeatedly, while Wagner and Wilson surrounded

White. At approximately 10:25 p.m., Wagner grabbed White from behind and began

pushing him towards the center of the parking lot. As this was occurring, Pinson

reached into the driver's side window of the Ford Fusion, where Rice was sitting,

and turned on the vehicle's headlights. The headlights illuminated the assault as it

occurred in the middle of the parking lot.

Ultimately, the struggle between White, Wagner, and Wilson caused

the three men to fall into a grassy area that was located just in front of where White's

van was parked. Consistent with White's testimony at trial, the video shows White

being held down as Wagner and an unidentified male removed items from his

person. The video also depicts Pinson and the unidentified male enter White's van.

While the physical assault of White was occurring, Rice pulled the Ford Fusion

forward and stopped the vehicle in a position facing the parking lot's exit.

White testified that at some point during the incident, a Kahr Arms .40

Smith and Wesson caliber pistol fell out of his front pants pocket. White stated that

Wagner immediately picked up the gun and began striking him with the weapon.

White, however, was in possession of a second firearm, a Metro Arms .45 ACP

Bobcut Model 1911 caliber pistol, which he used to shoot and kill Wilson in selfdefense at approximately 10:28:06 p.m. After Wilson was shot, he ran towards the apartment complex for

safety. At the same time, Wagner, Pinson, and the unidentified male fled to the

vehicle Pinson had arrived in earlier that evening. The video footage showed

Wagner return gunfire towards White as he ran towards Pinson's vehicle. During

the exchange of gunfire, Rice began to flee the parking lot in the Ford Fusion.

However, before he exited the parking lot, Rice suddenly put the Ford Fusion in

reverse and drove backwards, towards Pinson's vehicle. Once Rice ensured that

Wagner, Pinson, and the unidentified male were safely inside Pinson's vehicle, he

fled the scene, alone, in the Ford Fusion at approximately 10:28 p.m. Pinson's

vehicle immediately followed the Ford Fusion out of the parking lot.

White, who had a concealed carry permit, called the police and

remained at the scene. During the subsequent police investigation into the shooting,

White identified Wagner and Pinson in a photo array as the two other individuals

involved in his robbery. He did not identify Rice as a perpetrator.

In the course of his investigation, Det. Fischbach also processed

evidence from the crime scene. Det. Fischbach testified that there was a total of 16

spent shell casings and three bullet fragments recovered from three separate areas

connected to the shooting, including (1) the area near White's van, (2) the area where

Wilson retreated to and was treated by emergency medical personnel, and (3) a

nearby cul-de-sac where additional shots were fired at White. In addition, the police

recovered the .45 caliber handgun used by White during the altercation. Detective Mark Peoples ("Det. Peoples”) of the Cleveland Police

Department testified that he responded to the scene of the shooting. In the course

of his investigation, Det. Peoples collected and photographed relevant evidence.

Relevant to this appeal, Det. Peoples testified that he recovered two spent bullet

fragments and four spent .380 cases near the van. Approximately ten feet or less

away from the van, Det. Peoples recovered six spent .45 cases in a grassy area. Near

the cul-de-sac area referred to by Det. Fischbach, Det. Peoples recovered three spent

.40 cases and three spent .380 cases.

Juelia Haywood ("Haywood”) testified that on the day of the shooting,

her boyfriend, Wilson, and his friends, Wagner, Pinson, and Rice were at the home

she shared with Wilson. At some point, Wilson asked Haywood to borrow her Ford

Fusion vehicle so that he and his friends could go to the liquor store. Haywood

explained that it was not unusual for Wilson to use her vehicle. Haywood testified

that she did not see Wilson again until she received a phone call notifying her that

Wilson had been transported to a hospital as a result of his gunshot injuries.

Haywood testified that her Ford Fusion was later retrieved from an unknown

location by her brother's girlfriend. Upon examination of her vehicle, Haywood

discovered three guns inside the trunk. Haywood testified that she did not touch the

guns and immediately contacted the police. Her vehicle and the discovered guns

were confiscated by the police for further examination. One of the three firearms

recovered from the trunk of the Ford Fusion was the .40 caliber firearm taken from

White during the robbery. (Tr. 931.) Subsequent forensic testing also confirmed that Rice's DNA matched a profile taken from a swab of the rear passenger door

panel of Haywood's vehicle. (Tr. 842-843.)

Ballistics expert, James Kooser ("Kooser”), testified that in

preparation for trial he tested various items recovered during the course of the

investigation in this case. Kooser confirmed that the Metro Arms .45 caliber

handgun recovered from White after the shooting was operable. In addition, Kooser

confirmed the operability of the three guns recovered from the trunk of Haywood's

vehicle — a Ruger .45 ACP caliber pistol, a Cobra .38o ACP caliber pistol, and a Kahr

Arms .40 Smith & Wesson caliber pistol. (Tr. 567-571.) Kooser testified that he also

tested various spent casings recovered at the scene. He confirmed that four of the

spent .380 caliber casings were fired from the recovered Cobra .380 caliber

handgun. (Tr. 578-582.) He also confirmed that three spent .40 caliber cases were

fired from the recovered Kahr Arms .40 caliber handgun and that six spent .45

caliber cases were fired by the Metro Arms .45 caliber handgun. (Tr. 582, 584.)

Following Rice's arrest, he placed a phone call to his mother,

Demarlah Perkins ("Perkins”), from inside jail on the day his trial was scheduled to

begin. During this phone call, Rice informed Perkins that "nobody jumped into the

car he was in.” (Tr. 744.) During a later portion of the phone call, which was

recorded and played for the jury, Rice explained to Perkins that White could not

identify him and that Wagner and Pinson had fled the scene in a different vehicle

than the one he was sitting inside during the incident. At the conclusion of trial, the trial court dismissed Count 1, aggravated

murder, pursuant to Crim.R. 29. Thereafter, the jury found Rice not guilty of Counts

2-9 and their accompanying specifications. The trial court, however, found Rice

guilty of having weapons while under disability, as charged in Count 10 of the

indictment, and the accompanying firearm specifications. In rendering its verdict,

the trial court acknowledged Rice's jailhouse phone call to his mother, during which

Rice placed himself at the scene of the robbery. At sentencing, the trial court

imposed an aggregate 85-month prison term.

Rice now appeals from his conviction.

II. Law and Analysis

A. Sufficiency of the Evidence

In his first assignment of error, Rice argues his conviction for having

weapons while under disability was not supported by sufficient evidence. Rice

contends that while there were guns discovered inside the trunk of the vehicle he

had driven, "there is no evidence indicating that he put them there, that they were

put there while he was in possession of the car, or that he knew they were there.”

"[T]he test for sufficiency requires a determination of whether the

prosecution met its burden of production at trial.” State v. Bowden, 8th Dist.

Cuyahoga No. 92266, 2009-Ohio-3598, ¶ 13. "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.” State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus. The state may use direct evidence, circumstantial

evidence, or both, in order to establish the elements of a crime. See State v. Durr,

58 Ohio St.3d 86, 568 N.E.2d 674 (1991). Circumstantial evidence is "proof of facts

or circumstances by direct evidence from which the trier of fact may reasonably infer

other related or connected facts that naturally or logically follow.” State v. Seals,

8th Dist. Cuyahoga No. 101081, 2015-Ohio-517, ¶ 32.

In this case, Rice was convicted of having weapons while under

disability in violation of R.C. 2923.13(A)(2). The statute provides, in relevant part:

[u]nless relieved from disability under operation of law or legal process,

no person shall knowingly acquire, have, carry, or use any firearm or

dangerous ordnance, if * * * [t]he person is under indictment for or has

been convicted of any felony offense of violence or has been adjudicated

a delinquent child for the commission of an offense that, if committed

by an adult, would have been a felony offense of violence.

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

A person acts knowingly, regardless of purpose, when the person is

aware that the person's conduct will probably cause a certain result or

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

circumstances when the person is aware that such circumstances

probably exist. When knowledge of the existence of a particular fact is

an element of an offense, such knowledge is established if a person

subjectively believes that there is a high probability of its existence and

fails to make inquiry or acts with a conscious purpose to avoid learning

the fact.

R.C. 2901.22(B).

On appeal, Rice does not dispute that he was under disability based

on his prior convictions for robbery and felonious assault in Cuyahoga C.P. No. CR14-587937-C. Rather, Rice asserts that his having weapons while under disability

conviction must be reversed because he was merely present at the scene of the shooting, and did not knowingly acquire, have, or use any of the firearms that were

eventually discovered inside the Ford Fusion.

To "have” a firearm within the meaning of R.C. 2923.13(A), a person

must have actual or constructive possession of it. State v. Davis, 8th Dist. Cuyahoga

No. 104221, 2016-Ohio-7964, ¶ 13, citing State v. Adams, 8th Dist. Cuyahoga No.

93513, 2010-Ohio-4478, ¶ 19.

Actual possession is ownership or physical control. State v. Jones, 8th

Dist. Cuyahoga No. 101311, 2015-Ohio-1818, ¶ 46. In contrast, constructive

possession exists when an individual knowingly exercises dominion and control

over an object, even though that object may not be within his or her immediate

physical possession. State v. Wolery, 46 Ohio St.2d 316, 329, 348 N.E.2d 351

(1976); State v. Washington, 8th Dist. Cuyahoga Nos. 98882 and 98883, 2013-

Ohio-2904, ¶ 22. "[C]ircumstantial evidence is sufficient to support the element of

constructive possession.” State v. Brooks, 8th Dist. Cuyahoga No. 94978, 2011-

Ohio-1679, ¶ 17. Thus,

if the evidence demonstrates that the defendant was in close proximity

to the contraband, such that the defendant was able to exercise

dominion or control over the contraband, this constitutes

circumstantial evidence that the defendant was in constructive

possession of the items.

State v. Walker, 8th Dist. Cuyahoga No. 106378, 2018-Ohio-3588, ¶ 9, quoting

Brooks at id. Furthermore, a person may knowingly possess or control property

belonging to another; the state need not establish ownership to prove constructive possession. See State v. Robinson, 8th Dist. Cuyahoga No. 90751, 2008-Ohio-5580,

¶ 84.

However, "[c]onstructive possession cannot be inferred by a person's

mere presence in the vicinity of contraband” or "mere access” to contraband or to

the area in which contraband is found. State v. Jansen, 8th Dist. Cuyahoga No.

73940, 1999 Ohio App. LEXIS 2060, 8 (May 6, 1999); State v. Burney, 10th Dist.

Franklin No. 11AP-1036, 2012-Ohio-3974, ¶ 22-24, 32, quoting State v. Hall, 8th

Dist. Cuyahoga No. 66206, 1994 Ohio App. LEXIS 5391, 5 (Dec. 1, 1994). It must be

shown that the person was "conscious of the presence of the object.” State v.

Hankerson, 70 Ohio St.2d 87, 91, 434 N.E.2d 1362 (1982); Washington at ¶ 22;

State v. Bray, 8th Dist. Cuyahoga No. 92619, 2009-Ohio-6461, ¶ 21.

In this case, the state did not present any evidence of actual

possession. Rather, the state alleged that Rice aided and abetted his codefendants

in the offenses committed against White and, therefore, constructively possessed a

firearm within the meaning of R.C. 2923.13(A)(3).

Ohio's complicity statute provides that "[n]o person, acting with the

kind of culpability required for the commission of an offense, shall * * * [a]id or abet

another in committing the offense.” R.C. 2923.03(A)(2). Under R.C. 2923.03(F), a

person who is guilty of complicity in the commission of an offense "shall be

prosecuted and punished as if he were a principal offender. A charge of complicity

may be stated * * * in terms of the principal offense.” In order to constitute aiding and abetting, the accused must have

taken some role in causing the commission of the offense. State v. Sims, 10 Ohio

App.3d 56, 460 N.E.2d 672 (8th Dist.1983). A person aids or abets another when

he supports, assists, encourages, cooperates with, advises, or incites the principal in

the commission of the crime and shares the criminal intent of the principal. State

v. Johnson, 93 Ohio St.3d 240, 245-246, 754 N.E.2d 796 (2001). "Such intent may

be inferred from the circumstances surrounding the crime.” Id. at 246.

Aiding and abetting may be shown by both direct and circumstantial

evidence, and participation may be inferred from presence, companionship, and

conduct before and after the offense is committed. State v. Cartellone, 3 Ohio

App.3d 145, 150, 444 N.E.2d 68 (8th Dist.1981), citing State v. Pruett, 28 Ohio

App.2d 29, 34, 273 N.E.2d 884 (4th Dist.1971). Aiding and abetting may also be

established by overt acts of assistance such as driving a getaway car or serving as a

lookout. Id. at 150. See also State v. Trocodaro, 36 Ohio App.2d 1, 301 N.E.2d 898

(10th Dist.1973). However, "[t]he mere presence of an accused at the scene of the

crime is not sufficient to prove, in and of itself, that the accused was an aider and

abettor.” State v. Widner, 69 Ohio St.2d 267, 269, 431 N.E.2d 1025 (1982). "Mere

association with the principal offender * * * is [also] insufficient to establish

complicity.” State v. Hoston, 8th Dist. Cuyahoga No. 102730, 2015-Ohio-5422, ¶

13, citing State v. Doumbas, 8th Dist. Cuyahoga No. 100777, 2015-Ohio-3026.

Consistent with the state's theory at trial, this court has recognized

that an unarmed accomplice can be convicted of an underlying felony, along with a firearm specification, based on an aider and abettor status. State v. Howard, 8th

Dist. Cuyahoga No. 97695, 2012-Ohio-3459, ¶ 24; State v. Chapman, 21 Ohio St.3d

41, 487 N.E.2d 566 (1986). The same principle applies to a conviction for having

weapons while under disability in violation of R.C. 2923.13(A)(2). Thus, a defendant

can be convicted of having a weapon while under disability without holding the

firearm if that person was an accomplice who aided and abetted the person who

actually possessed and brandished the weapon. State v. Adams, 8th Dist. Cuyahoga

No. 93513, 2010-Ohio-4478, ¶ 16 (finding that the defendant "constructively”

possessed the weapon where there was an accomplice relationship between the

physical possessor and the accomplice); State v. Lewis, 8th Dist. Cuyahoga No.

81957, 2003-Ohio-3673 (evidence sufficient to prove having a weapon while under

disability when only codefendant pointed the gun at victims during robbery); State

v. Reed, 8th Dist. Cuyahoga No. 93346, 2010-Ohio-1866 (conviction for having a

weapon while under disability upheld despite defendant not being the shooter, but

being an active participant in the crimes).

In this case, there is no dispute that Wagner possessed a firearm

during the commission of the crime against White. The surveillance footage

captured Wagner firing a handgun during the altercation with White. Additionally,

the ballistics evidence established that in addition to White's .45 and .40 caliber

handguns, a third gun, which was transported to the scene and later found in

Haywood's vehicle, was used during the shooting. Thus, regardless of whether the

state failed to demonstrate that Rice was present at the time firearms were placed in the trunk of Haywood's Ford Fusion at some time after the shooting, we find the

determination of whether Rice aided and abetted the codefendants during the

commission of the underlying crimes is dispositive of Rice's sufficiency arguments.

With respect to Rice's culpability, the record reflects that Rice shared

a companionship with Wilson and the codefendants. Haywood confirmed that Rice

was present at Wilson's home prior to the incident. In addition, forensic testing and

Rice's jail-house phone calls with his mother established that Rice did, in fact, arrive

at the scene of the shooting in the vehicle Wilson had borrowed from Haywood.

While at the scene, Rice and his friends mingled with one another until White

arrived at the apartment complex in his company van. Following a lengthy

discussion between White, Wilson, and Wagner, surveillance footage showed

Wilson make a hand gesture towards Rice. In response, Rice walked over to Wilson,

took something from his hand, and then immediately went into the driver's seat of

the Ford Fusion and started the vehicle. Less than one minute later, Rice began

flashing the headlights of the vehicle repeatedly. It was at this point that Wagner

and Wilson circled White and initiated the physical attack. When the conduct

against White escalated, Rice did not leave the scene. Rather, he positioned the

vehicle in such a way that Wagner and Wilson could quickly get into the vehicle and

exit the parking lot. And although the circumstances of the shooting caused Wagner

and Pinson to flee towards the vehicle Pinson had driven to the scene, the video

footage shows that Rice did not immediately flee upon hearing gunshots. In fact,

Rice waited until his companions were safely inside Pinson's vehicle before escorting them out of the parking lot. The guns used during the shooting were later recovered

from inside the trunk of the vehicle Rice had fled the scene inside.

Viewing this evidence in a light most favorable to the prosecution, we

find a rational trier of fact could have found the essential elements of the offense

proven beyond a reasonable doubt. From the evidence presented, the court could

reasonably conclude that Rice participated in the crimes at issue and shared

criminal intent in light of his actions before, during, and after the shooting. Because

Rice was under a disability and aided and abetted his codefendants in the

commission of the underlying offenses with a firearm, we find that the state

presented sufficient evidence of constructive possession to support Rice's conviction

for having a weapon while under disability.

Finally, to the extent Rice contends that the trial court's verdict was

inconsistent with the jury's determination that he was not complicit in the

commission of the underlying offenses, this court has recognized 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.

State v. Callahan, 8th Dist. Cuyahoga No. 106445, 2018-Ohio-3590, ¶ 28, quoting

State v. Eason, 2016-Ohio-5516, 69 N.E.3d 1202, ¶ 67 (8th Dist.). "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.” Eason at ¶ 68. Accordingly, we find that the inconsistency between the jury's and the trial court's verdicts does not require reversal of Rice's conviction for having

weapons while under disability. See State v. Brown, 8th Dist. Cuyahoga No. 89754,

2008-Ohio-1722 (rejecting argument that conviction on bench-tried weapon under

disability count was overridden by jury verdicts of not guilty on attempted murder

and felonious assault); State v. Douthitt, 10th Dist. Franklin No. 18AP-547, 2019-

Ohio-2528, ¶ 10 ("[Defendant]'s contention that the jury verdicts of acquittal

precluded his conviction for having a weapon while under disability is not welltaken.”); State v. Smith, 10th Dist. Franklin No. 14AP-33, 2014-Ohio-5443, ¶ 27

(affirming trial court judgment of guilt on weapon count despite jury verdicts of not

guilty on aggravated burglary, aggravated robbery, and kidnapping); State v. Webb,

10th Dist. Franklin No. 10AP-289, 2010-Ohio-6122 (rejecting defendant's double

jeopardy/collateral estoppel arguments that jury's inability to reach verdict on

improper handling count was inconsistent with trial court's rendering of guilty

verdict on charge of having a weapon while under disability); State v. Page, 10th

Dist. Franklin No. 11AP-466, 2012-Ohio-671 (affirming trial court's conviction

finding defendant guilty of having a weapon while under disability despite the jury's

verdict finding him not guilty of aggravated robbery, attempted murder, and

felonious assault).

Rice's first assignment of error is overruled.

B. Manifest Weight of the Evidence

In his second assignment of error, Rice argues his conviction is against

the manifest weight of the evidence. Rice reiterates that the jury rejected the state's theory that he was complicit in the underlying crimes committed by his

codefendants. He further contends that the state failed to present any evidence to

establish when and how the guns recovered from Haywood's vehicle were placed

inside the trunk. Thus, he maintains that the record is devoid of credible evidence

to suggest he actually or constructively possessed a firearm.

A manifest weight challenge questions whether the state met its

burden of persuasion. Bowden, 8th Dist. Cuyahoga No. 92266, 2009-Ohio-3598, at

¶ 12. A reviewing court "'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.'” 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). "A conviction should be

reversed as against the manifest weight of the evidence only in the most 'exceptional

case in which the evidence weighs heavily against the conviction.'” State v. Burks,

8th Dist. Cuyahoga No. 106639, 2018-Ohio-4777, ¶ 47, quoting Thompkins at 387.

Based on the record before this court, we cannot say that 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. As stated, the trial court had the benefit of reviewing the surveillance

footage and was not bound by the jury's resolution of Counts 2-9. Having weighed

the surveillance footage and the corroborating testimonial and physical evidence presented by the state, we find Rice's conviction for having weapons while under

disability was not against the manifest weight of the evidence. Collectively, the

evidence demonstrated Rice's disability and his participation or assistance in the

commission of crimes that involved the use of a firearm.

Rice's second assignment of error is overruled.

Judgment affirmed.