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Date: 12-03-2020

Case Style:

STATE OF OHIO v. MYCHAEL JULIAN JENKINS

Case Number: 28595

Judge: Jeffrey Froelich

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

Plaintiff's Attorney: JAMIE J. RIZZO, Atty. Reg. No. 0099218, Montgomery
County Prosecutorís Office

Defendant's Attorney:


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Description:

Dayton, OH - Criminal defense lawyer represented defendant Mychael Julian Jenkins charged with having weapons while under disability.



Between October 2016 and early November 2018, Haley Daniels and Tejay
Byrd were in a relationship and lived together. On November 12, 2018, Daniels resided
alone in a one-bedroom apartment; Byrd had recently moved out. Daniels testified that
she and Byrd had broken up; Byrd disagreed. Byrd did not have a key to the apartment,
and he had taken most of his belongings; some of Byrdís nicer clothing remained in the
apartmentís bedroom closet.
{∂ 4} Daniels testified that she knew Jenkins from exchanging messages with him
through Facebook. Daniels stated that Jenkins had attempted to start a relationship with
her several times, but she rejected all of his offers prior to November 12.
{∂ 5} In the early morning hours on November 12, Jenkins contacted Daniels via
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Facebook and asked her if she wanted to smoke marijuana and hang out. Jenkins also
asked if her ex-boyfriend would be there. Daniels responded that he (Byrd) would not.
Daniels testified that Jenkins responded that he would shoot Byrd if Byrd showed up.
(On cross-examination, defense counsel showed Daniels the Facebook messages from
Jenkinsís phone, which did not include that threat. Daniels claimed that the messages
had been modified; Jenkins denied this.) About 30 to 45 minutes later, Jenkins asked if
he could still come over. Daniels responded that he could and told him that her door was
unlocked. Jenkins went to Danielsís apartment, bringing a suitcase. Daniels
acknowledged that he was an invited guest to her home. Daniels and Jenkins went into
the bedroom.
{∂ 6} Around 6:00 a.m., Byrd came to Danielsís apartment. Byrdís, Danielsís, and
Jenkinsís testimony varied regarding Byrdís demeanor, his actions, and his purpose for
being at the apartment. Daniels testified that Byrd started banging on her apartment
door, throwing things at her window, and then banging on her door again, damaging the
door frame. Byrd stated that he knocked on the door. Jenkins testified that he heard
what sounded like kicking at the door, and that Daniels had asked him (Jenkins) to get in
the closet before she left to answer the door. Jenkins testified that he did not get in the
closet.
{∂ 7} The testimony is consistent in that, when Daniels eventually opened the door,
she told Byrd that she had company. Byrd either smacked or pushed Daniels, called her
a ďwhore,Ē and went into the bedroom. Byrd testified that he believed Danielsís guest
was in the bathroom, that he went into the bedroom to get boots from the closet, and that
he was shot as he looked for his boots. Daniels, in contrast, testified that she heard Byrd
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begin to yell at Jenkins to get out and then heard multiple gunshots from the bedroom.
Jenkins testified that he was getting dressed in the bedroom when he heard ďwhoreĒ and
then a slap, and he was tying his shoe when Byrd ďrushedĒ into the bedroom and said,
ďGet the f**k out the house, bitch ass ni**er.Ē Jenkins testified that Byrd reached out to
grab him, causing him (Jenkins) to fall back in front of the closet. Jenkins pulled out his
gun, which he had brought with him, and started shooting.
{∂ 8} Daniels ran to the bedroom, screaming, and saw Byrd slumped against a
wall, holding his side. Daniels saw flashes from the gun coming from the closet.
Daniels entered the bedroom and was shot in the stomach. Panicked, Daniels ran out
of the bedroom and into the living room. She circled back to her bedroom, where she
grabbed her phone and then collapsed by the bedroom door. Daniels and Byrd both
called 911. Jenkins jumped over Daniels and fled, leaving his belongings. Four days
later, while in the hospital, Daniels identified Jenkins as the shooter from a photospread.
{∂ 9} Daniels and Byrd both suffered serious injuries. Daniels was in the hospital
for three months and had multiple surgeries due to complications. She testified that she
lost a kidney, her gallbladder, her spleen and parts of her stomach and small intestine.
She needed repairs to her pancreas, portal vein (carries blood to the liver), and inferior
vena cava (carries blood to the heart), and she suffered an L2 fracture to her lower back.
Daniels stated that she lost 80 pounds and all of her hair, and she had to relearn how to
walk.
{∂ 10} Byrd had bullet wounds on his chest, upper abdomen, back, and left buttock
area. (The trauma surgeon did not determine which holes were entry versus exit
wounds.) Byrd lost his colon and gallbladder due to his injuries, and he required repairs
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to his duodenum, small intestine, and inferior vena cava. Byrd testified that he also
suffered a fracture to his back and has nerve damage. At the time of trial, Byrd did not
have feeling in one leg and continued to use a wheelchair.
{∂ 11} In March 2019, Jenkins was indicted on two counts of felonious assault
(serious physical harm/ deadly weapon) as to Daniels, two counts of felonious assault
(serious physical harm/ deadly weapon) as to Byrd, and one count of having weapons
while under disability. Each of the felonious assault charges included a firearm
specification.
{∂ 12} On July 30, 2019, Jenkins filed a motion to compel Brady material. The
motion indicated that three cell phones had been found at the scene: phones belonging
to Jenkins, Daniels, and Byrd. The State had advised defense counsel that Danielsís
phone was locked and she claimed not to remember the combination. Byrdís phone,
however, allegedly was not locked and could be accessed. Jenkins asked the trial court
to order the State to download the cell phones of both alleged victims and to provide the
downloaded data to him in a reasonable time for defense counsel to use the data at trial,
which was scheduled for August 19, 2019.
{∂ 13} The trial court held a hearing on the motion to compel on August 9, 2019.
The court informed the parties that the hearing was limited to whether the State could
access the two cell phones.
{∂ 14} The State called Daniels, who testified that on November 12, 2018, she
owned an iPhone 7 with a four-digit passcode. Daniels stated that she had not seen the
phone since November 12 and she did not remember the passcode. Daniels indicated
that she went to the Prosecutorís Office a couple weeks before the hearing and was
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unable to get into her phone. On cross-examination, Daniels stated that she would
cooperate if the court ordered her to obtain assistance from Apple to unlock her phone.
{∂ 15} Detective Thomas Cope testified that Byrdís cell phone, an Alcatel flip
phone, had been held as evidence since November 12, and he (Cope) attempted to have
the phone analyzed a couple of weeks before the hearing. Cope stated that the phone
could not be analyzed because it was password protected. Cope testified that he
contacted Byrd, who provided several possible passwords; none of those worked. An
analyst also tried unsuccessfully to access the phone with the Cellebrite system.
{∂ 16} Immediately following the testimony, the trial court overruled Jenkinsís
motion to compel. The court explained: ď[T]he Defendant still has not advised the Court
of any good faith basis that there is exculpatory evidence on these phones. The State
made a good faith effort to get into those phones. And Iím going to overrule the motion
to compel.Ē The trial court likened defense counselís request for the cell phone data to
a ďfishing expedition.Ē The same day, the trial court issued a written entry adopting its
oral pronouncement.
{∂ 17} The matter proceeded to a jury trial on September 30, 2019.1 As stated
above, the jury acquitted Jenkins of all counts of felonious assault. The jury found him
guilty of having weapons while under disability, and the court imposed a maximum
sentence of 36 months in prison.
{∂ 18} Jenkins appeals from his conviction, challenging the denial of his motion to
compel and the trial courtís imposition of a maximum 36-month sentence.

1 Defense counsel informed the trial court that Jenkins did not want to waive a jury trial
on Count Five, having weapons while under disability. Accordingly, all charges were
submitted to the jury.
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II. Alleged Brady Violation
{∂ 19} In his first assignment of error, Jenkins claims that the trial court erred in
denying his motion to compel the State to provide data from Byrdís and Danielsís cell
phones, pursuant to Brady, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).
{∂ 20} Brady held that ďthe suppression by the prosecution of evidence favorable
to an accused upon request violates due process when the evidence is material either to
guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.Ē
Disciplinary Counsel v. Kellogg-Martin, 124 Ohio St.3d 415, 2010-Ohio-282, 923 N.E.2d
125, ∂ 24, citing Brady at 87. Under Brady, evidence is material ďonly if there is a
reasonable probability that, had the evidence been disclosed to the defense, the result of
the proceeding would have been different.Ē State v. Aldridge, 120 Ohio App.3d 122, 145,
697 N.E.2d 228 (2d Dist.1997), quoting State v. Johnston, 39 Ohio St.3d 48, 529 N.E.2d
898 (1988), paragraph five of the syllabus.
{∂ 21} On this record, any error in the trial courtís denial of Jenkinsís motion to
compel disclosure of data from Byrdís and Danielsís cell phones is now harmless beyond
a reasonable doubt.
{∂ 22} Jenkins was convicted only on the charge of having weapons while under
disability, in violation of R.C. 2923.132(A)(3). To establish that offense, the State was
required to prove that Jenkins knowingly acquired, had, carried, or used any firearm or
dangerous ordnance when he had been convicted of ďany felony offense involving the
illegal possession, use, sale, administration, distribution, or trafficking in any drug of
abuse.Ē See R.C. 2923.13(A)(3). The indictment alleged that Jenkins had previously
been convicted of possession of cocaine in State v. Jenkins, Montgomery C.P. No. 2008-
-8-
CR-3359.
{∂ 23} At trial, the State presented two judgment entries for State v. Jenkins,
Montgomery C.P. No. 2008-CR-3359, showing a conviction for possession of cocaine, a
felony of the fifth degree. Detective Cope testified that he spoke with Jenkins on March
4, 2019, and confirmed Jenkinsís name, birth date, and Social Security number. That
information matched the identifying information on the judgment entries for the prior case.
{∂ 24} Jenkins testified at trial that he had brought the gun used in the shooting to
the apartment with him. He explained that he did so because Daniels lived in a bad
neighborhood. He stated that the gun was on the bed while he was getting dressed, but
he put it on the ground while he was tying his shoes. When Jenkins fell back toward the
closet, the gun was located next to his foot. Jenkins testified that he picked up the gun
and began shooting to protect himself.
{∂ 25} Given the evidence at trial, we find no basis to conclude that Danielsís and
Byrdís cell phones contained any data that would be relevant to Jenkinsís conviction for
having weapons while under disability. The documentary evidence of the 2008
conviction and Detective Copeís testimony established that Jenkins could not lawfully
possess a gun on November 12, 2018. We find nothing to suggest that Danielís and
Byrdís cell phones would have any information relevant to whether Jenkins was the
defendant in Case No. 2008-CR-3359. Jenkins testified that he brought a gun to
Danielsís apartment, and he admitted to firing it there. Jenkins has not suggested that
the cell phones would have any information relevant to Jenkinsís possession and use of
a firearm at Danielís apartment on November 12.
{∂ 26} In short, at this juncture, we find no reasonable probability that the outcome
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of the trial on the charge of having weapons while under disability would have been
different had the trial court granted the motion to compel. There is nothing to suggest
that Danielsís and Byrdís cell phones have any material information as to that charge.
{∂ 27} Jenkinsís first assignment of error is overruled.
III. Maximum Sentence
{∂ 28} In his second assignment of error, Jenkins claims that the trial court erred
in imposing a maximum 36-month sentence.
{∂ 29} In reviewing felony sentences, appellate courts must apply the standard of
review set forth in R.C. 2953.08(G)(2), rather than an abuse of discretion standard. See
State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ∂ 9. Under
R.C. 2953.08(G)(2), an appellate court may increase, reduce, or modify a sentence, or it
may vacate the sentence and remand for resentencing, only if it ďclearly and convincinglyĒ
finds either (1) that the record does not support certain specified findings or (2) that the
sentence imposed is contrary to law. State v. Huffman, 2d Dist. Miami No. 2016-CA-16,
2017-Ohio-4097, ∂ 6.
{∂ 30} ďThe trial court has full discretion to impose any sentence within the
authorized statutory range, and the court is not required to make any findings or give its
reasons for imposing maximum or more than minimum sentences.Ē State v. King, 2013-
Ohio-2021, 992 N.E.2d 491, ∂ 45 (2d Dist.). However, in exercising its discretion, a trial
court must consider the statutory policies that apply to every felony offense, including
those set out in R.C. 2929.11 and R.C. 2929.12. State v. Leopard, 194 Ohio App.3d
500, 2011-Ohio-3864, 957 N.E.2d 55, ∂ 11 (2d Dist.), citing State v. Mathis, 109 Ohio
St.3d 54, 2006-Ohio-855, 846 N.E.2d 1, ∂ 38.
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{∂ 31} At sentencing, the trial court heard from defense counsel and reviewed the
presentence investigation report (PSI); Jenkins declined to make a statement. Defense
counsel emphasized that ďthis is a midlevel felony.Ē Counsel noted that the prior
conviction used to establish Jenkinsís legal disability was from ď11 years ago, a nonviolent felony of the fifth degree.Ē Counsel acknowledged that there were ďa number of
offenses that the PSI writer noted, the vast majority of which [were] misdemeanors.Ē
Counsel requested community control for Jenkins. (Counsel also noted that the PSI
misspelled the name of Jenkinsís hair salon business, which the probation department
could not find during an internet search.)
{∂ 32} Prior to imposing sentence, the trial court told Jenkins that it was
considering only the offense for which he had been found guilty and was ďin no way
considering the offenses for which the jury found [him] not guilty.Ē The court then
discussed Jenkinsís criminal record, stating:
You have a lengthy juvenile record, including an assault, a number
of theft offenses, you have -- looks like five misdemeanor offenses,
including a conviction for domestic violence in 2017.
As to your felony record, while the conviction for which -- which was
-- or the convictions, actually, which were utilized for the disability, I note
that you have numerous other felony convictions, including possession of
cocaine in 2009, an F5. You were originally granted supervision and
eventually revoked for non-compliance. Another case in '09, F4,
possession of drugs. You were sentenced in that case. 2010 engaging
in a pattern of corrupt activity, F4. You were originally sentenced in that,
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granted -- excuse me, transitional control, and revoked from parole and
returned to the institution in that case. 2010, a trafficking in drugs, F4.
You were sentenced on that.
And I have to give strong consideration, sir, to the fact that you were
convicted of possession of drugs in April of 2019 in Hamilton County. All
of those offenses prohibit you from at any time carrying a weapon. There
is no defense to carrying a weapon under these circumstances. It appears
that you again, from your statements, in the pre-sentence investigation -- let
me just go back to that. You acknowledged that you knew that it was
unlawful for you to carry a weapon, that Ė Iím going to be honest with you,
sir. It appears that what Ė your lifestyle -- and thatís your choice, but you
choose to carry a weapon and youíre not permitted under any
circumstances to do so.
The court stated that, ďafter considering the purposes and principals of sentencing, and
the seriousness and recidivism factors, the Defendantís lengthy felony record, and history
of noncompliance,Ē it was imposing 36 months in prison.
{∂ 33} Jenkins was 32 years old at sentencing. The PSI reflects that Jenkins had
nine juvenile adjudications between 2003 and 2005 and five misdemeanor adult
convictions, the most recent of which was a domestic violence conviction in 2017.
Jenkinsís felony record consisted of four prior drug cases (two in 2009, one in 2010, and
one in 2019), all of which involved fourth- and fifth-degree felonies, and a conviction for
engaging in a pattern of corrupt activity (2010). As noted by the trial court, Jenkins was
sentenced to prison in three of those felony cases. Jenkins originally received
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community control for his 2009 possession of cocaine conviction, but his community
control was revoked and he was sentenced to six months in prison on that offense, as
well.
{∂ 34} As stated by the trial court, Jenkins acknowledged during the presentence
investigation that he was not lawfully permitted to own a firearm. He told the PSI
investigator that he possessed the firearm because he had received multiple threats due
to the success of his entertainment business in Georgia. Jenkins said that one of his
vehicles had been shot at in Atlanta. At trial, Jenkins had testified that he brought the
gun to Danielsís apartment because she lived in a bad neighborhood.
{∂ 35} With the record before us, we cannot conclude that the trial courtís
imposition of a maximum 36-month sentence was clearly and convincingly unsupported
by the record. Jenkinsís second assignment of error is overruled.

Outcome: } The trial courtís judgment will be affirmed.

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