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Date: 05-14-2018

Case Style:

STATE OF OHIO vs. DELVONTA L. MALLORY

Case Number: 106052

Judge: MELODY J. STEWART

Court: Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

Plaintiff's Attorney: Michael C. O’Malley
Cuyahoga County Prosecutor

Kerry A. Sowul
Assistant County Prosecutor

Defendant's Attorney: Susan J. Moran

Description: Defendant-appellant Delvonta Mallory appeals from a judgment of
conviction, entered after a trial to the court, finding him guilty of felonious assault,
improperly discharging a firearm into a habitation, aggravated menacing, having a
weapon while under disability, vandalism, and theft. The state charged that Mallory,
after being accused of taking the victim’s car keys, threatened the victim and later fired
shots into the victim’s house. On appeal, Mallory complains that the court, having
barred an identification of the defendant made by the victim as a discovery sanction,
improperly allowed a police officer to detail the substance of the victim’s identification;
that the state engaged in misconduct by eliciting hearsay from the police officer and
otherwise misstated the evidence in its closing argument; and that the court’s judgment of
conviction was not supported by sufficient evidence or by the weight of the evidence.
I. Sufficiency of the Evidence
{¶2} We first address Mallory’s claim that there was insufficient evidence to prove
that the state established his identity as the person who shot into the victim’s house. He
also argues that the state failed to show that he made any specific threat sufficient to
prove aggravated menacing, that there was insufficient evidence of the cost of any
damage to the house sufficient to prove vandalism, and that there was no physical
evidence that he took the victim’s car keys.
{¶3} The evidence shows that Mallory, whom the victim knew casually, went to
the victim’s house to borrow movies. While there, Mallory received permission to take a
slice of the victim’s pizza. Not long after Mallory left, the victim realized that both his
car keys and his car were missing. A few hours later, the victim found his car parked
two blocks away. Later that evening, the victim and a friend were on their way to a store
when they saw Mallory in the parking lot of the victim’s housing complex. At that point,
it dawned on the victim that his car keys, which had been placed on a chair near the pizza
box, disappeared after Mallory had asked for a slice of pizza. The victim confronted
Mallory, saying that he heard car keys jingling in Mallory’s pants. Mallory said that the
keys belonged to his sister. The victim had a friend with him, and the friend started
choking Mallory. Mallory threw the victim’s keys into some leaves. The victim
returned to his apartment to watch television and later heard gunshots from outside the
house. The victim saw a person wearing a “hoodie sweatshirt” similar to that worn by
Mallory running down the street. The police found several bullet holes inside the
victim’s house.
{¶4} Three of the counts for which Mallory was found guilty were related to the
shooting: improperly discharging a firearm into a habitation; felonious assault; and having
a weapon while under disability. Mallory argues that none of those counts were
supported by sufficient evidence because the victim failed to identify Mallory.
{¶5} When reviewing the legal sufficiency of the evidence, we view the facts and
inferences most favorable to the state to determine whether any reasonable trier of fact
could have found the essential elements of an offense proven beyond a reasonable doubt.
State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus.
{¶6} The victim testified that when he first confronted Mallory about stealing his
car keys, Mallory was wearing “a hoodie sweatshirt” and “brown slippers.” When asked
if he recognized any of the people who ran from his apartment after the shooting, the
victim testified, “I thought I did because of [sic] he had a hoodie sweatshirt on and the
incident had just happened so I didn’t never see his face.” The victim said that “[b]uild,
looked like it could have been him, but I can’t say that it was him exactly because I didn’t
see his face.” But when asked if the person he saw running from the apartment was
wearing the same outfit as earlier, the victim replied, “[a]s far as the hoodie sweatshirt,
yes.” On redirect examination, the state asked the victim if he recognized the hoodie:
A. Yeah. Well, I didn’t recognize it, but I know he wore — I can’t lie and say that was 100 percent knew that it was him. I was still like — because what happened and I had been drinking at that point. I was talking about seeing the hoodie and I seen him running. I just put it together and assumed it was him.

{¶7} “The general rule is that to warrant conviction the evidence must establish
beyond a reasonable doubt the identity of the accused as the person who committed the
crime.” State v. Scott, 3 Ohio App.2d 239, 244, 210 N.E.2d 289 (11th Dist.1965).
Although the victim candidly testified that he did not see the face of the person he saw
running from his house after shots were fired, “[t]here is no requirement that a victim
state she is making an identification with 100 percent certainty.” State v. Gallagher, 6th
Dist. Lucas No. L-15-1102, 2016-Ohio-8524, ¶ 9. Even where an eyewitness does not
see the perpetrator’s face, identification can be based on circumstantial evidence of
peculiarities such as clothing. See, e.g., In re A.W., 8th Dist. Cuyahoga No. 103269,
2016-Ohio-7297, ¶ 31; State v. Merriweather, 2017-Ohio-421, 84 N.E.3d 72, ¶ 30 (12th
Dist.). For identification purposes, whether the clothing is distinctive or not goes to the
weight, not the sufficiency, of the evidence. State v. Rudd, 8th Dist. Cuyahoga No.
102754, 2016-Ohio-106, ¶ 73, citing State v. Roper, 9th Dist. Summit No. 20836,
2002-Ohio-7321, ¶ 55.
{¶8} The evidence in this case barely meets the threshold of proving identity. The
victim testified that the person he saw running from the house was wearing the same
“hoodie sweatshirt” that he saw Mallory wearing earlier in the day. That single
statement was, standing alone, sufficient evidence from which the trial judge could
rationally find that Mallory was the person seen leaving the victim’s house.
{¶9} Mallory next argues that the state failed to present sufficient evidence of
aggravated menacing. The state charged Mallory under R.C. 2903.21(A), alleging that
he knowingly caused the victim to believe that Mallory “will cause serious physical
harm” to the victim or his property. The term “serious physical harm” is defined in R.C.
2901.01(A)(5) to include any of the following: (a) any mental illness or condition of such
gravity as would normally require hospitalization or prolonged psychiatric treatment; (b)
any physical harm that carries a substantial risk of death; (c) any physical harm that
involves some permanent incapacity, whether partial or total, or that involves some
temporary, substantial incapacity; (d) any physical harm that involves some permanent
disfigurement or that involves some temporary, serious disfigurement; (e) any physical
harm that involves acute pain of such duration as to result in substantial suffering or that
involves any degree of prolonged or intractable pain.
{¶10} The victim testified that when he and his companion were retrieving his car
keys from Mallory, “that he was just yelling at me in a threatening manner.” The victim
described Mallory as “angry” and “kind of physical, a little bit, not much.”
{¶11} The victim testified only that Mallory yelled in a “threatening manner.” He
did not say what words Mallory actually used, so we have no objective means of verifying
whether an actual threat had been made. And although the offense of aggravated
menacing can be proved by evidence that the victim, in the moment, believed the
defendant to be in earnest and capable of acting, Cleveland v. Reynolds, 8th Dist.
Cuyahoga No. 105546, 2018-Ohio-97, ¶ 6, the victim did not testify that he subjectively
believed Mallory would cause him serious physical harm. State v. Thomas, 8th Dist.
Cuyahoga No. 104174, 2017-Ohio-957, ¶ 22 (“In order to prove aggravated menacing,
the state must show that the victim had a subjective belief of fear of serious physical
harm.”). The testimony was insufficient to establish the elements of aggravated
menacing.1 We sustain this portion of the assignment of error and vacate the conviction
for aggravated menacing.
{¶12} The state also charged Mallory with vandalism under R.C. 2909.05(A) for
shooting into the victim’s house. That section states that “[n]o person shall knowingly
cause serious physical harm to an occupied structure or any of its contents.” For
purposes of R.C. 2909.05, “serious physical harm” means “physical harm to property that
results in loss to the value of the property of one thousand dollars or more.” R.C.
2909.05(F)(2).

1
During opening statement, the state told the court that “a threat was made to [the victim] at that time by the defendant about him getting shot.” Opening statement is not evidence, State v. Frazier, 73 Ohio St.3d 323, 338, 652 N.E.2d 1000 (1995), so we cannot consider the content of the state’s opening statement as establishing the content of Mallory’s threat.
{¶13} There was no direct evidence to establish the dollar value of damage caused
to the victim’s house, nor could the dollar value of damage be reasonably inferred from
the facts. We note that the state does not make any argument that it proved this element
of vandalism apart from the blanket statement that “[t]he evidence presented was legally
sufficient to support the jury verdicts as a matter of law.” We sustain this portion of the
assignment of error and vacate the conviction for vandalism.
{¶14} Finally, Mallory argues that there was insufficient evidence to prove that he
stole the victim’s car keys. The state charged the theft of the car keys under R.C.
2913.02(A)(1), which states that no person, with purpose to deprive the owner of property
or services, shall knowingly obtain or exert control over either the property without the
consent of the owner.
{¶15} The court could rationally view the circumstantial evidence as proving that
Mallory took the victim’s car keys. The victim had last seen his keys on a chair, near a
pizza box. The keys disappeared after Mallory asked the victim if he could have a slice
of pizza. The victim testified that when he later confronted Mallory about the missing
keys, Mallory pulled a set of keys from his pocket and threw them into some leaves. The
victim testified that the keys Mallory threw belonged to him. This was sufficient
circumstantial evidence of theft.
II. Hearsay
{¶16} The state tried to refresh the victim’s recollection about the clothing worn by
the person he saw fleeing the scene by using his police statement. Upon defense
objection, the court determined that the state had not provided the statement to the
defense during the discovery and barred the state from using it. Instead, the state asked
the police officer who investigated the case if he received a description of the person
leaving the scene. The officer testified that “[i]t was — he said he saw a figure, black
hooded, brown pants, and I believe it was house shoes.” Mallory argues that this was
inadmissible hearsay.
{¶17} Mallory did not object to the police officer’s testimony, so we review it for
plain error under Crim.R. 52(B). State v. Obermiller, 147 Ohio St.3d 175,
2016-Ohio-1594, 63 N.E.3d 93, ¶ 72. “Notice of plain error under Crim.R. 52(B) is to be
taken with the utmost caution, under exceptional circumstances and only to prevent a
manifest miscarriage of justice.” State v. Long, 53 Ohio St.2d 91, 93, 372 N.E.2d 804
(1978), paragraph two of the syllabus.
{¶18} Although the rules of evidence prohibit hearsay — an out-of-court statement
used to prove the truth of the matter asserted, see Evid.R. 801(C) — the hearsay rule
does not ordinarily apply to statements that provide context. It is well established that a
police officer relating an out-of-court statement to explain the course of an investigation
is not hearsay. State v. Thomas, 61 Ohio St.2d 223, 232, 400 N.E.2d 401 (1980); State v.
Warren, 8th Dist. Cuyahoga No. 83823, 2004-Ohio-5599, ¶ 46. And because this case
was tried to the court, we presume, unless affirmatively shown otherwise, that the court
only considered the evidence for that purpose. State v. Colegrove, 8th Dist. Cuyahoga
No. 102173, 2015-Ohio-3476, ¶ 22. There being no indication that the court considered
the police officer’s statement for any improper purpose, we cannot find that the police
officer’s testimony resulted in a manifest miscarriage of justice sufficient to constitute
plain error.
{¶19} Mallory also raises a constitutional issue — that he was denied the right to
confrontation because the state offered the statement for a testimonial purpose.
{¶20} The Confrontation Clause to the Sixth Amendment to the United States
Constitution states that “[i]n all criminal prosecutions, the accused shall enjoy the right *
* * to be confronted with the witnesses against him.” The Confrontation Clause prohibits
testimonial statements from being admitted unless the witness who made the statements is
available to testify or the defendant has previously had an opportunity to cross-examine
the witness. Crawford v. Washington, 541 U.S. 36, 53-54, 124 S.Ct. 1354, 158 L.Ed.2d
177 (2004). The victim was present and testified at trial, so no Confrontation Clause
violation occurred.
III. Manifest Weight of the Evidence
{¶21} Mallory claims that his conviction was against the manifest weight of the
evidence, but he makes no independent argument as required by App.R. 16(A)(7). He
incorporates the arguments he made with respect to his claim that there was insufficient
evidence to support his convictions. We have repeatedly noted that the difference
between the sufficiency of the evidence and the weight of the evidence standards of
review requires an independent argument under both standards. See, e.g., State v.
Thompson, 8th Dist. Cuyahoga No. 99628, 2014-Ohio-202, ¶ 16; State v. Thigpen,
2016-Ohio-1374, 62 N.E.3d 1019, ¶ 7 (8th Dist.). For us to review this assignment of
error on the merits “would be to ignore the separate and distinct nature of arguments
going to the sufficiency and weight of the evidence.” State v. Forte, 8th Dist. Cuyahoga
No. 99573, 2013-Ohio-5126, ¶ 12. We decline to do so.
IV. Prosecutorial Misconduct
{¶22} During closing argument, the state summarized the victim’s testimony as
indicating that the person he saw running from his house after shots were fired was
wearing “a black hoodie and brown pants and house shoes.” Mallory claims that this
was willful misconduct by the prosecutor because the victim did not testify with such
specificity, stating only that the person running from the house was wearing the same
“hoodie sweatshirt” that he saw Mallory wearing earlier that evening. Mallory also
complains that the state improperly referenced the victim’s police statement, even though
the court had excluded that statement.
{¶23} The state has “wide” latitude in closing argument, State v. Dean, 146 Ohio
St.3d 106, 2015-Ohio-4347, 54 N.E.3d 80, ¶ 244, but not so wide as to permit it to
misstate evidence. State v. Williams, 1st Dist. Hamilton No. C-040747, 2005-Ohio-6772,
¶ 28. Nevertheless, Mallory failed to object and thus forfeited all but plain error. We
decline to find any plain error because we presume that the trial judge considered only
relevant, admissible evidence during its deliberations.

Outcome: Judgment affirmed in part, reversed in part, and remanded to the trial court
for instructions to vacate consistent with this opinion.

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