State v. Shepherd , 2014 Ohio 827 ( 2014 )

[Cite as State v. Shepherd, 2014-Ohio-827.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 99959
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
RAYMOND J. SHEPHERD
DEFENDANT-APPELLANT
JUDGMENT:
REVERSED AND REMANDED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-570663-A
BEFORE: Keough, J., Celebrezze, P.J., and Blackmon, J.
RELEASED AND JOURNALIZED: March 6, 2014
ATTORNEYS FOR APPELLANT
Robert L. Tobik
Cuyahoga County Public Defender
By: Jeffrey Gamso
Assistant Public Defender
310 Lakeside Avenue, Suite 200
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
By: Brad S. Meyer
Assistant Prosecuting Attorney
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
KATHLEEN ANN KEOUGH, J.:
{¶1} Defendant-appellant, Raymond Shepherd, appeals his robbery conviction,
which we reverse for the reasons that follow.
{¶2} In 2012, Shepherd was charged with kidnapping in violation of R.C.
2905.01(A)(2) and aggravated robbery in violation of R.C. 2911.01(A)(1). Each charge
carried one - and three-year firearm specifications. Shepherd waived his right to a jury,
and the trial proceeded before the bench, where the trial judge heard the following
evidence.
{¶3} In the early morning hours of July 14, 2012, Librae Cohen placed a telephone
call to Kenneth Washington suggesting a particular sexual encounter for $400.
Washington agreed to meet Cohen at her apartment. When he arrived at her apartment
building, he called Cohen to tell her that he was there. Cohen asked Washington if he
would buy her a soda pop, which he agreed to do. When he arrived back to Cohen’s
apartment building, he called her again. While he waited for Cohen to come to the front
entrance to let him in, a tall, dark-skinned man stuck his head out the door, looked
around, said “that ain’t my ride,” and went back inside.
{¶4} After another phone call, Cohen told Washington to enter the apartment
building and go to an apartment on the third floor, instead of her apartment on the seventh
floor. Washington rode the elevator to the third floor. As he stepped off the elevator, a
gun was placed to the right side of his head, behind his ear. Washington testified that as
the gun was placed to his head, the person holding the gun tapped it against the back of
his head. Washington testified that he only saw the gun; he did not see who was holding
the gun. Washington immediately laid on the ground, face down, begging the person not
to kill him, and to just take the money. According to Washington, it felt like the person
was waiting for him and he “knew she set me up.” Washington then placed the money
on the floor and the person ran off down the hall. Washington testified that as the person
ran away, he could see that the person was a male wearing a white t-shirt and jeans.
{¶5} As soon as the male ran off, Washington got up, ran down the stairs, called
Cohen, and accused her of getting “him robbed,” which Cohen denied. Washington
repeatedly called Cohen accusing her of robbing him. According to Washington, Cohen
then told him that the police had caught a male in a white t-shirt and blue pants; however,
Washington did not believe her.
{¶6} Later that day, Washington went to the police station and reported the
robbery. After several months, he received notice that the police had a suspect.
According to Washington, when he told Cohen about the suspect, she said the police
caught the person “because of her.”
{¶7} On cross-examination, Washington admitted that he felt like the male at the
apartment building who came to the front entrance was watching and looking for him.
However, he testified that the male was not Shepherd. Additionally, he admitted that he
did not see who robbed him and never identified Shepherd as the person who robbed him.
{¶8} Cohen testified that Washington was a client of hers for six to eight months
and that she knew Shepherd through mutual friends. According to Cohen, Shepherd
knew that she was a prostitute and that Washington was one of her clients. She admitted
that she entered into a plea agreement with the state and agreed to testify against
Shepherd.
{¶9} According to Cohen, Shepherd orchestrated the plan to rob Washington. She
testified that Shepherd told her to call Washington to arrange an encounter and “make it
believable.” According to Cohen, part of the plan was to get Washington to the third floor
of the apartment building. Cohen testified that she told Washington to go to the store to
buy her a soda pop because she was hoping to stall Shepherd’s plan.
{¶10} However, after she told Washington to come to the third floor, Shepherd left
her apartment on the seventh floor. Cohen assumed he went to the third floor because
when he returned 15 minutes later he gave her $200 and then left. Cohen testified she
started receiving phone calls from Washington accusing her of setting him up and robbing
him. Cohen stated she lied to Washington stating that the police had apprehended a male
wearing a white t-shirt and jeans, hoping he would just “leave it alone.”
{¶11} After learning that she was wanted by the police for questioning in
connection with the robbery, she gave a statement to the police and agreed to place a
phone call to Shepherd, hoping he would incriminate himself. The recorded phone call
was played before the court. During the course of the conversation, Cohen repeatedly
stated she was scared about what would happen if Washington went to the police. While
Shepherd’s responses were at times incoherent and inaudible, at the end of the recording
Shepherd stated that there were not any cameras on “that floor” because “he checked,”
and that there were only cameras in the lobby. Additionally, when Cohen questioned
whether he smacked Washington, Shepherd respond “no.”
{¶12} Following the close of evidence, the trial court found Shepherd not guilty of
kidnapping. The trial court also found Shepherd not guilty of aggravated robbery, but
guilty of the lesser included offense of robbery, without firearm specifications, in
violation of R.C. 2911.02(A)(1). Shepherd was sentenced to three years in prison.
{¶13} Shepherd now appeals, raising two assignments of error.
I. Lesser Included Offense
{¶14} In his first assignment of error, Shepherd contends that the trial court
committed error and denied him his right to a fair trial and a verdict supported by the
evidence as protected by the Sixth and Fourteenth Amendments and by the Ohio
Constitution, Article I, Section 10 when it found him guilty of robbery in violation of
R.C. 2911.02(A)(1) as a lesser included offense of aggravated robbery in violation of
R.C. 2911.01(A)(1).
{¶15} The indictment charged Shepherd with aggravated robbery in violation of
R.C. 2911.01(A)(1), which provided that Shepherd
did, in attempting or committing a theft offense, as defined in section
2913.01 and 2913.02 of the Revised Code, or in fleeing immediately after
the attempt or offense upon Kenneth Washington did have a deadly
weapon, to wit: gun, on or about their person or under their control and
either displayed the weapon, brandished it, indicated that they possessed it,
or used it.
{¶16} When rendering the verdict, the trial court stated: “As to Count 2,
aggravated robbery, the Court’s going to find him guilty of the lesser-included offense
without the gun specifications; robbery in violation of R.C. 2911.02(A)(1).”
{¶17} R.C. 2911.02(A)(1) provides that “no person, in attempting or committing a
theft offense or in fleeing immediately thereafter the attempt or offense, shall * * * have
a deadly weapon on or about the offender’s person or under the offender’s control.”
{¶18} A two-step analysis is conducted to determine when a factfinder is permitted
to consider a lesser included offense: “(1) is the offense a lesser included offense of the
charged offense, and (2) could the trier of fact reasonably find the defendant not guilty of
the charged offense, but convict the defendant of the lesser included offense.” State v.
Deanda, 136 Ohio St.3d 18, 2013-Ohio-1722, 989 N.E.2d 986, ¶ 6.
{¶19} Shepherd contends that this charge of robbery was not available as a lesser
offense of aggravated robbery as indicted. Shepherd concedes on appeal that robbery in
violation of R.C. 2911.02(A)(1) is a lesser included offense of aggravated robbery as
defined in R.C. 2911.01(A)(1) as provided under the law; however, the facts do not
support a lesser-included finding; thus, not satisfying the second tier of the Deanda
analysis.
{¶20} In order to convict Shepherd of the lesser included, the court had to believe
that Shepherd had the gun in his possession or under his control, but did not display,
brandish, indicate possession, or use it. The only testimony presented about the actual
robbery was that of the victim. Washington testified that when he stepped off the
elevator, a gun was immediately placed to the right side of his head behind his ear. He
further testified: “[h]e hit me on the back of my head, like a tap with the gun.”
Washington responded to these actions by immediately lying down on the ground face
down. He testified that he “glanced” and all he saw was “the gun.” Although Cohen
testified that Shepherd denied hitting Washington, the evidence was that Shepherd
displayed, brandished, and used the gun during the commission of the offense.
{¶21} The testimony, if believed is sufficient to support the indicted charged of
aggravated robbery and the verdict that Shepherd was guilty of robbery. But a lesser
offense may not be considered merely because the defendant could be found guilty of the
offense. It may only be considered when the evidence is such that the defendant could
reasonably have been found not guilty of the greater offense but guilty of the lesser
offense. The evidence in this case does not make that possible.
{¶22} In State v. Huber, 8th Dist. Cuyahoga No. 93923, 2011-Ohio-62, ¶ 19, this
court found that the trial court did not abuse its discretion in not giving a jury instruction
on robbery as a lesser included offense of aggravated robbery because the evidence that
the knife had been held against the victim’s throat was sufficient to prove the brandishing
element of aggravated robbery as charged under R.C. 2911.01(A)(1). The jury could not
have found defendant not guilty of aggravated robbery and guilty of robbery, since
robbery under R.C. 2911.02(A) would have nonetheless been based on the presence of the
knife as a deadly weapon.
{¶23} Much like in Huber, the trial court in this case could not reasonably find
Shepherd not guilty of aggravated robbery and guilty of robbery, since robbery would
have nonetheless been based on the display and brandishing of the gun as a deadly
weapon. Accordingly, the court erred in finding Shepherd guilty of robbery in violation
of R.C. 2911.02(A)(1) as a lesser included offense of aggravated robbery in violation of
R.C. 2911.01(A)(1) because the evidence did not reasonably support both acquittal of the
greater offense and conviction of the lesser offense. Therefore, the guilty verdict of
robbery was improper.
{¶24} Because the conviction on the lesser offense serves as an implied acquittal
on the greater offense, Shepherd’s conviction for robbery is overturned and the case is
dismissed. See State v. Fanning, 8th Dist. Cuyahoga No. 89914, 2008-Ohio-2185, ¶ 20
(because defendant was not indicted for the offense he was found guilty of and because it
is not a lesser-included offense of the indicted offense, the conviction must be vacated);
State v. Green, 8th Dist. Cuyahoga No. 89326, 2008-Ohio-228, ¶ 21.
{¶25} The assignment of error is sustained. Having sustained Shepherd’s first
assignment of error, his second assignment of error regarding effective assistance of
counsel is rendered moot.
{¶26} Judgment reversed. Case remanded for the trial court to vacate Shepherd’s
conviction, dismiss the case, and order Shepherd discharged from prison.
It is ordered that appellant recover from appellee 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.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
KATHLEEN ANN KEOUGH, JUDGE
FRANK D. CELEBREZZE, JR., P.J., and
PATRICIA ANN BLACKMON, J., CONCUR