State v. Pryor , 2017 Ohio 8935 ( 2017 )

[Cite as State v. Pryor, 2017-Ohio-8935.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
ALLEN COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 1-17-20
v.
JEREMY L. PRYOR, OPINION
DEFENDANT-APPELLANT.
Appeal from Allen County Common Pleas Court
Trial Court No. CR2016 0467
Judgment Affirmed
Date of Decision: December 11, 2017
APPEARANCES:
Kenneth J. Rexford for Appellant
Jana E. Emerick for Appellee
Case No. 1-17-20
SHAW, J.
{¶1} Defendant-appellant, Jeremy Pryor (“Pryor”), brings this appeal from
the April 13, 2017, judgment of the Allen County Common Pleas Court sentencing
Pryor to an aggregate 10-year prison term after he was convicted by a jury of two
counts of Complicity to Felonious Assault in violation of R.C. 2903.11(A)(2), both
felonies of the second degree and both containing firearm specifications pursuant to
R.C. 2941.145(A), one count of Complicity to Aggravated Robbery in violation of
R.C. 2911.01(A)(1), a felony of the first degree, also containing a firearm
specification pursuant to R.C. 2941.145(A), and one count of Carrying a Concealed
Weapon in violation of R.C. 2923.12(A)(2), a felony of the fourth degree. On
appeal, Pryor argues that his convictions were not supported by sufficient evidence,
that the convictions were against the manifest weight of the evidence, that he
received ineffective assistance of counsel, that the trial court failed to properly
instruct the jury, that the trial court erred by failing to merge certain counts for the
purposes of sentencing, and that the trial court erred in imposing consecutive
sentences.
Procedural History
{¶2} On December 15, 2016, Pryor was indicted for two counts of Felonious
Assault in violation of R.C. 2903.11(A)(2), both felonies of the second degree and
both containing firearm specifications, two counts of Aggravated Robbery in
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violation of R.C. 2911.01(A)(1), both felonies of the first degree and both
containing firearm specifications, and one count of Carrying a Concealed Weapon
in violation of R.C. 2923.12(A)(2), a felony of the fourth degree. Pryor pled not
guilty to the charges.
{¶3} On February 7-8, 2017, Pryor’s case proceeded to a jury trial. Just prior
to the beginning of the trial, the State dismissed one of the Aggravated Robbery
counts against Pryor. The trial proceeded on the remaining counts, with the State
calling 10 witnesses and entering multiple exhibits into evidence including
surveillance video of the incident. The State argued that Pryor was guilty of the
Felonious Assaults and the Aggravated Robbery under a Complicity theory for
either soliciting or aiding and abetting Brandon Bolden in committing the offenses.
Pryor then presented his case-in-chief, testifying on his own behalf as the sole
witness for the defense. Ultimately the jury found Pryor guilty of all four of the
remaining counts against him.
{¶4} On April 13, 2017, a sentencing hearing was held. Pryor was ordered
to serve 2 years in prison on each of the Felonious Assault convictions, consecutive
to each other, and 3 years in prison on each of the firearm specifications, consecutive
to each other, and consecutive to the prison terms from the Felonious Assault
convictions. Pryor was also ordered to serve 3 years in prison on the Aggravated
Robbery conviction and 12 months in prison on the Carrying a Concealed Weapon
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conviction; however, both of those prison terms were ordered to be served
concurrent to the remaining charges. A judgment entry memorializing Pryor’s
sentence was filed the same day of the sentencing hearing.
{¶5} It is from this judgment that Pryor appeals, asserting the following
assignments of error for our review.
Assignment of Error No. 1
The conviction for Carrying a Concealed Weapon was not
supported by sufficient evidence.
Assignment of Error No. 2
The conviction for Carrying a Concealed Weapon was against the
manifest weight of the evidence.
Assignment of Error No. 3
The Trial Court erred and denied to Mr. Pryor his right to a fair
trial by jury by not properly instructing the jury as to complicity.
Assignment of Error No. 4
The complicity convictions were not supported by sufficient
evidence.
Assignment of Error No. 5
The complicity convictions were against the manifest weight of the
evidence.
Assignment of Error No. 6
Mr. Pryor was denied the effective assistance of counsel.
Assignment of Error No. 7
The trial Court erred in denying the defense motion to merge
Counts I and II with Count III.
Assignment of Error No. 8
The Trial Court erred in imposing consecutive sentences as to
Counts I and II.
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{¶6} We elect to address some of the assignments of error together, and out
of the order in which they were raised.
First, Second, Fourth, and Fifth Assignments of Error
{¶7} In his first and fourth assignments of error, Pryor argues that there was
insufficient evidence presented to convict him of both counts of Complicity to
Felonious Assault, of Complicity to Aggravated Robbery, and of Carrying a
Concealed Weapon. In his second and fifth assignments of error, Pryor argues that
even if his convictions were supported by sufficient evidence, they were against the
manifest weight of the evidence.
Standard of Review
{¶8} Whether there is legally sufficient evidence to sustain a verdict is a
question of law. State v. Thompkins, 78 Ohio St.3d 380, 386 (1997). Sufficiency is
a test of adequacy. Id. When an appellate court reviews a record upon a sufficiency
challenge, “ ‘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.
Leonard, 104 Ohio St.3d 54, 2004-Ohio-6235, ¶ 77, quoting State v. Jenks, 61 Ohio
St.3d 259 (1991), paragraph two of the syllabus.
{¶9} By contrast, in reviewing whether a verdict was against the manifest
weight of the evidence, the appellate court sits as a “thirteenth juror” and examines
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the conflicting testimony. Thompkins at 387. In doing so, this Court must review
the entire record, weigh the evidence and all of the reasonable inferences, consider
the credibility of witnesses and determine whether in resolving conflicts in the
evidence, the factfinder “clearly lost its way and created such a manifest miscarriage
of justice that the conviction must be reversed and a new trial ordered.” Id.Furthermore, “[t]o reverse a judgment of a trial court on the weight of the evidence,
when the judgment results from a trial by jury, a unanimous concurrence of all three
judges on the court of appeals panel reviewing the case is required.” Thompkins at
paragraph 4 of the syllabus, citing Ohio Constitution, Article IV, Section 3(B)(3).
Trial Testimony
{¶10} At trial, the State presented the testimony of Javionte Gilcrease and
Devante Neal who were shot in the early afternoon hours of January 1, 2016, as they
were walking home from a nearby gas station. Gilcrease and Neal had gone to the
gas station to purchase tobacco products.
{¶11} Three men—Pryor, Brandon Bolden, and Alundrous Sanders—left the
gas station together on foot shortly before Gilcrease and Neal. Gilcrease testified
that as he and Neal were coming up behind the three men, the three men slowed
down. Gilcrease indicated that he saw Pryor—whom he did not know at the time
but identified at trial—hand a gun to a man later identified as Brandon Bolden.
Bolden then immediately approached Gilcrease and Neal, pointed the gun at them,
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and told them to empty their pockets. Gilcrease told Bolden he did not have
anything, and Bolden said “Do you think I’m playing?” and then shot Gilcrease in
the leg. (Feb. 7, 2017, Tr. at 161).
{¶12} When Bolden shot Gilcrease, Neal started to run in the opposite
direction. Bolden fired several shots at Neal, striking him in the leg as well. Neal
was able to make it to a nearby residence to get help.
{¶13} While Gilcrease was on the ground after being shot in the leg, Bolden
stepped over him and took his cell phone, then ran off. Pryor and Sanders had
started to run toward Sanders’s residence when Bolden began shooting. Gilcrease
and Neal were both taken to the hospital and treated for their injuries.
{¶14} Officers responded to the area and learned from a witness on the street
that three black males had been observed running from the scene to a house at 821
Madison in Lima, which was approximately two blocks from the gas station.
Officers were let into the residence by the owner, Kimberly Van Meter. When the
officers entered the residence, Pryor was coming upstairs from the basement. Pryor
was detained at that time and as officers checked the basement they found a handgun
in plain view partially hidden under a rock. The handgun was loaded, had a round
in the chamber and seven bullets in the magazine. Officers noticed that there were
muddy boot prints that led from the basement where the gun was found to the chair
where police had Pryor take a seat. Pryor was wearing muddy shoes at the time.
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{¶15} Officers located seven spent shell casings from the scene of the
shooting. BCI determined that the casings had been fired from the gun that had
been located in the basement of 821 Madison. Further testing revealed the
handgun’s serial number, which had been scratched off on the surface. The serial
number was then checked and it was learned that Pryor was the registered owner of
the firearm, having purchased it from MC Sports in Lima in May of 2015.
{¶16} Bolden, the shooter, was located in the alley behind the residence at
821 Madison. After he was detained, Gilcrease’s cell phone was found in Bolden’s
pocket.
{¶17} Surveillance footage from the gas station was entered into evidence
and played for the jury. It showed Bolden, Pryor and Sanders walking to the gas
station, going inside, and then making a purchase. From the interior surveillance
video a Lima Police detective was able to readily identify Pryor and Bolden from
prior dealings. After the business at the gas station was complete, the three spoke
with a man outside for a short time, then began walking off.
{¶18} The surveillance footage showed Gilcrease and Neal walk up to the
gas station, then exit the gas station. It then showed Gilcrease and Neal walking in
the same direction as Bolden, Pryor and Sanders. It also showed Pryor moving close
to Bolden shortly before Bolden approached Gilcrease and Neal. Pryor handing
Bolden a gun cannot clearly be seen in the video due to the distance from the
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surveillance camera, but the two were momentarily close together and Gilcrease
testified that he saw Pryor give Bolden the handgun that was used in the shooting.
Gilcrease identified the moment on the video where he saw the transfer.
{¶19} After the State rested its case, Pryor took the stand in his own defense.
Pryor testified that he had originally purchased the firearm in question but the
firearm went missing sometime in late 2015 prior to the shooting. Pryor testified
that he did not give the gun to Bolden, that he did not in any manner support or
encourage Bolden to commit a robbery, let alone shoot anyone, and that when
Bolden started shooting he started running.
Sufficiency of the Evidence
{¶20} On appeal, in his first and fourth assignments of error, Pryor argues
that the State presented insufficient evidence to convict him of Complicity to
Felonious Assault of both Gilcrease and Neal, that the State presented insufficient
evidence to convict him of Complicity to Aggravated Robbery of Gilcrease, and
that the State presented insufficient evidence to convict him of Carrying a
Concealed Weapon.
{¶21} As argued in this case, Complicity is codified in R.C. 2923.03, which
reads,
(A) No person, acting with the kind of culpability required for
the commission of an offense, shall do any of the following:
(1) Solicit or procure another to commit the offense;
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(2) Aid or abet another in committing the offense[.]
{¶22} In State v. Johnson, 93 Ohio St.3d 240, 2001-Ohio-1336, the Supreme
Court of Ohio further defined what “complicity by aiding and abetting” means in
the context of R.C. 2923.03(A)(2), holding that: “To support a conviction for
complicity by aiding and abetting pursuant to R.C. 2923.03(A)(2), the evidence
must show that the defendant supported, assisted, encouraged, cooperated with,
advised, or incited the principal in the commission of the crime, and that the
defendant shared the criminal intent of the principal. Such intent may be inferred
from the circumstances surrounding the crime.” Johnson at syllabus.
{¶23} Pryor was convicted of two counts of Complicity to Felonious Assault
in violation of R.C. 2903.11(A)(2), one count for Gilcrease and one count for Neal.
Felonious Assault pursuant to R.C. 2903.11(A)(2) reads, “No person shall
knowingly * * * [c]ause or attempt to cause physical harm to another * * * by means
of a deadly weapon or dangerous ordnance.”
{¶24} Pryor was also convicted of Complicity to Aggravated Robbery in
violation of R.C. 2911.01(A)(1), which reads, “No person, in attempting or
committing a theft offense * * * shall * * * “[h]ave a deadly weapon on or about the
offender’s person or under the offender’s control and either display the weapon,
brandish it, indicate that the offender possesses it, or use it[.]”
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{¶25} Finally, Pryor was convicted of Carrying a Concealed Weapons in
violation of R.C. 2923.12(A)(2), which reads, “No person shall knowingly carry or
have, concealed on the person’s person or concealed ready at hand * * * [a] handgun
other than a dangerous ordnance[.]”
{¶26} With regard to both of his convictions for Complicity to Felonious
Assault and his conviction for Complicity to Aggravated Robbery, Pryor argues in
his fourth assignment of error that the State did not present any evidence, let alone
sufficient evidence, establishing that Pryor had the same “kind of culpability
required for the commission of the offense[s]” as the principal offender. He
contends that there was no evidence of any agreement between Pryor and Bolden as
to what Bolden would do with the gun. He does not contest that Bolden committed
both Felonious Assaults or an Aggravated Robbery; rather, he contests his
Complicity to those crimes.
{¶27} Contrary to Pryor’s arguments, the State presented the testimony of
Gilcrease who indicated that immediately before Bolden approached him, Gilcrease
saw Pryor give Bolden a gun. Gilcrease testified that the action made him concerned
for his safety and that Bolden then walked over to Gilcrease and told him to empty
his pockets.
{¶28} The surveillance video corroborates Gilcrease’s version of events, at
least to an extent, as it shows Pryor congregating near Bolden just before the robbery
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where Pryor could have passed Bolden the gun. Pryor and Bolden are too far from
the camera to see an actual gun being exchanged, but that is what Gilcrease testified
that he witnessed. Given the timing of the events, the jury could readily infer that
Pryor was assisting, supporting, encouraging or inciting Bolden to commit an
Aggravated Robbery and the Felonious Assaults when Pryor was providing Bolden
with the gun just as Gilcrease and Neal approached.
{¶29} This is particularly true given that after the shooting in question, the
jury could infer that Pryor attempted to hide the gun from the incident in the
basement of 821 Madison, which Bolden would have had to give back to him in
order to do so. Because the State presented evidence from which Pryor’s culpability
could be reasonably inferred, we cannot find that the State presented insufficient
evidence regarding the Complicity convictions. Thus Pryor’s fourth assignment of
error is overruled.
{¶30} With regard to Pryor’s conviction for Carrying a Concealed Weapon,
Pryor contends in his first assignment of error that no witnesses testified that the
handgun was concealed and that it was error to allow the charge to proceed to a jury
where the only evidence was an inability to see a weapon on Pryor in the “grainy”
surveillance video.
{¶31} Notably, Pryor was identified on the gas station surveillance video,
including the interior gas station video. The interior video shows both the front and
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back of Pryor from a relatively close distance and a handgun cannot be seen.
Combining this with Gilcrease’s testimony that Pryor handed Bolden the handgun,
we cannot find that the State presented insufficient evidence to convict Bolden of
Carrying a Concealed Weapon. Pryor’s first assignment of error is therefore
overruled.
Manifest Weight
{¶32} Pryor next argues in his second and fifth assignments of error that even
if there was sufficient evidence presented to support his convictions, his convictions
were against the manifest weight of the evidence. Pryor argues that for the same
reasons that he contended that the State presented insufficient evidence to convict
him, his convictions were against the manifest weight of the evidence. We disagree.
{¶33} Although Pryor took the stand in his own defense to deny the
allegations presented by the State, the jury was free to find his denials not to be
credible. “[T]he weight to be given the evidence and the credibility of the witnesses
are primarily for the trier of the facts.” State v. DeHass, 10 Ohio St.2d 230 (1967),
paragraph one of the syllabus. In other words, “jurors are entitled to believe the
testimony offered by the State’s witnesses.” State v. Wareham, 3d Dist. Crawford
No. 3–12–11, 2013–Ohio–3191, ¶ 25, citing State v. Bates, 12th Dist. Butler No.
CA2009–06–174, 2010–Ohio–1723, ¶ 11.
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{¶34} In this case, Pryor’s testimony seemed particularly suspect given that
he claimed to have lost the weapon that he purchased from MC Sports, which was
the same weapon Gilcrease indicated that Pryor gave to Bolden just before the
shootings, and the same weapon a jury could infer Pryor was hiding in the basement
of the residence at 821 Madison.
{¶35} The jury was provided with the testimony of the two victims, Gilcrease
and Neal, the investigating officers, and video surveillance of the incident. Based
on the evidence that was presented, we cannot find that the jury clearly lost its way
in convicting Pryor of two counts of Complicity to Felonious Assault, Complicity
to Aggravated Robbery, and Carrying a Concealed Weapon, or that the jury created
a manifest miscarriage of justice. Therefore, Pryor’s second and fifth assignments
of error are overruled.
Third Assignment of Error
{¶36} In Pryor’s third assignment of error, having failed to enter any
objection at trial, he argues that the trial court committed plain error by failing to
properly instruct the jury as to “Complicity.”
Standard of Review
{¶37} Generally, “ ‘[w]hen reviewing a trial court’s jury instructions, the
proper standard of review for an appellate court is whether the trial court’s refusal
to give a requested jury instruction constituted an abuse of discretion under the facts
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and circumstances of the case.’ ” State v. Leasure, 4th Dist. Ross No. 15CA3484,
2015–Ohio–5327, ¶ 49, quoting State v. Ellis, 5th Dist. Fairfield No. 02 CA 96,
2004–Ohio–610, ¶ 19; see also State v. Wolons, 44 Ohio St.3d 64, 68 (1989).
However, “a party may not assign as error the giving or the failure to give any
instructions unless the party objects before the jury retires to consider its verdict,
stating specifically the matter objected to and the grounds of the
objection.” Crim.R. 30(A).
{¶38} The Supreme Court of Ohio has repeatedly held that a failure to object
before the jury retires in accordance with this provision, absent plain error,
constitutes a waiver. State v. Williford, 49 Ohio St.3d 247, 251 (1990), citing State
v. Underwood, 3 Ohio St.3d 12 (1983). To have plain error under Crim.R. 52(B),
the error must be an “obvious” defect in the trial proceedings that affected the
defendant’s “substantial rights.” State v. Barnes, 94 Ohio St.3d 21, 27 (2002). Plain
error is to be used “ ‘with the utmost caution, under exceptional circumstances and
only to prevent a manifest miscarriage of justice.’ ” Id. quoting State v. Barnes, 94
Ohio St.3d 21, 28, 2002-Ohio-68. Further, plain error only exists where “but for the
error, the outcome of the trial would clearly have been otherwise.” State v. Biros, 78
Ohio St.3d 426, 431 (1997).
{¶39} Finally, we note that when reviewing jury instructions, courts have
held that they are to “be considered as a whole and not merely by examining isolated
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portions thereof.” State v. Williams, 10th Dist. Franklin No. 90AP-638, 75 Ohio
App.3d 102, 116 (1991) citing State v. Price, 60 Ohio St.2d 136 (1979); State v.
Dues, 8th Dist. Cuyahoga No. 100861, 2014-Ohio-5276, ¶ 39 (“jury instructions are
to be viewed as a whole to determine whether they contain prejudicial error.”). “
‘Instructions that in their totality are sufficiently clear to permit the jury to
understand the relevant law will not be the cause of a reversal upon appeal.’ ”
” State v. Thiel, 3d Dist. Wyandot No. 16-16-01, 2017-Ohio-242, ¶ 135,
quoting Schnipke v. Safe–Turf Installation Group, L.L.C., 3d Dist. Allen No. 1-10-
07, 2010–Ohio–4173, ¶ 30, citing Burns v. Prudential Secs., Inc., 3d Dist. Marion
No. 9-03-49, 2006–Ohio–3550, ¶ 41.
{¶40} In this case, Pryor argues that the jury was inadequately instructed as
to Complicity.1 In pertinent part, the trial court instructed the jury as follows.
On Counts One, Two, and Three, the State has charged the
defendant under a theory that the defendant was complicit with
another person in the offenses in those counts. A charge of
complicity may be stated in terms of being an accomplice with
another in an offense or in terms of the principal offense.
Before you can find the defendant guilty of complicity in any
crime you must find beyond a reasonable doubt that on or about
the stated date, and in Allen County, Ohio, the defendant either
knowingly solicited or procured another to commit the offense in
the particular count of the indictment, or knowingly aided or
abetted another in committing the offense.
1
The statutory elements of Complicity have been cited previously in this opinion.
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Now, the defendant cannot be found guilty of complicity unless
the offense was actually committed.
Solicit means to seek, to ask, to influence, to invite, to tempt, to
lead on, or to bring pressure to bear.
Procure means to get, obtain, induce, bring about, or motivate.
Aided or abetted. Before you can find the defendant guilty of
complicity by aiding and abetting you must find beyond a
reasonable doubt that the defendant shared the criminal intent of
the principal offender. Such intent may be inferred from the
circumstances surrounding the offense including, but not limited
to, presence, companionship, and conduct before and after the
offense was committed. The mere presence of the defendant at
the scene of the offense is not sufficient to prove, in and of itself,
that the defendant was an aider and abettor.
The charges set forth in each count constitute a separate and
distinct matter. You must consider each count and the evidence
applicable to each count separately and you must state your
finding as to each count uninfluenced by your verdict as to any
other count. The defendant may be found guilty or not guilty of
any one or all of the offenses charged.
Remember, although the charges in Counts One, Two, and Three
of the indictment are stated in terms of defendant committing the
principal offenses therein, he is being tried as an alleged
accomplice with another person, Brandon Bolden, in the
commission of those offenses.
(Emphasis added.) (Feb. 8, 2017, Tr. at 391-393).
{¶41} After covering Complicity in its instructions, the trial court then
provided instructions on the first two counts, both Felonious Assaults, including the
requisite mental culpability, knowingly. In both instances the trial court reiterated
that the State had to prove beyond a reasonable doubt that Pryor “solicited, procured,
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or aided or abetted another in the commission of the Felonious Assault.” (Id. at
396). Next the trial court instructed the jury on Aggravated Robbery, including the
applicable mental state. It was similarly reiterated that Pryor was being charged
with Complicity.
{¶42} When reviewing the jury instructions in this case, we cannot find that
plain error existed here. The jury was clearly instructed as to what it had to find
regarding each count of complicity and what elements it had to find regarding the
principal offense. Pryor may argue on appeal that the instructions were somehow
inadequate, but the requisite instructions were given. Pryor seems to contend that
the trial court should have repeated the aided and abetted language regarding sharing
the intent of the principal offender each time complicity is later mentioned in the
instructions. Even assuming arguendo that this was true, the jury instructions as a
whole do not demonstrate any inadequacy and they certainly could not rise to the
level of plain error in this case.2 Thus Pryor’s third assignment of error is overruled.
Sixth Assignment of Error
{¶43} In Pryor’s sixth assignment of error, he argues that he was denied the
effective assistance of counsel. Specifically, he contends that his trial counsel was
ineffective for failing to call Brandon Bolden, the principal actor, as a witness in
2
Notably the trial court went over every page of the jury instructions individually with the prosecution and
the defense prior to instructing the jury. The defense raised no objections to anything regarding the mental
culpability related to the Complicity counts.
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this case and that his counsel was ineffective for failing to make sure that the jury
was properly instructed regarding complicity in this case as he argued in the third
assignment of error.
Standard of Review
{¶44} To establish an ineffective assistance of counsel claim, Pryor must
show that his trial counsel’s performance was deficient and that counsel’s
performance prejudiced him. State v. Jackson, 107 Ohio St.3d 53, 2005-Ohio-5981,
¶ 133, citing Strickland v. Washington, 466 U.S. 668, 687 (1984). The failure to
make either showing defeats a claim of ineffective assistance of counsel. State v.
Bradley, 42 Ohio St.3d 136, 143 (1989), quoting Strickland at 697 (“[T]here is no
reason for a court deciding an ineffective assistance claim to approach the inquiry
in the same order or even to address both components of the inquiry if the defendant
makes an insufficient showing on one.”).
Analysis
{¶45} At the outset, we have already determined in our third assignment of
error that no prejudicial error existed regarding the jury instructions in this case,
thus Pryor’s ineffective assistance claim related to that issue is not well-taken.
{¶46} Turning then to Pryor’s remaining argument, Pryor claims that his trial
counsel was ineffective for failing to call Brandon Bolden as a witness at trial. Pryor
bases his argument on a “letter” that Pryor produced at the sentencing hearing in
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this case. The “letter” is a handwritten, unsigned, unsworn statement that Pryor
contended was drafted by Brandon Bolden. The “letter” stated as follows.
This what I gave my lawyer John I only know how to say this one
way and that’s the truthful way Devante kept shooting at me and
my friend Aaron bullets a [sic] be whistling past our head’s [sic]
it got to the point every where [sic] I went he would pop up out of
no where [sic] and start shooting at me I use [sic] to run because
I had no gun I got tired of running John I got tired so I bought me
a gun to prepare myself and I had no intention of running into
him that day it just happened we leaving the store finna [sic] turn
in the alley I hear somebody say run yo pocket’s [sic] I turn to see
who said it when I turn I see Devante with a gun I seen thru [sic]
the barrel he ain’t have one in the head that’s when I started
shooting that’s when the other 2 guys ran they didn’t have no
involvement in it that’s why they ran.
(Apr. 13, 2017, Hr., Def.’s Ex. A).
{¶47} Pryor presented this “letter” at his sentencing hearing claiming that he
wanted to have a new trial based on this “new” evidence, even though the letter was
dated prior to his trial. Pryor’s attorney stated that he had never seen the letter
before, though he was advised that it existed and he asked family members multiple
times to produce it but they never did. Pryor’s attorney also stated that he had
spoken with Bolden’s attorney multiple times regarding whether Bolden would
testify in this case, and Bolden said he would not testify and that if he was called he
would invoke his Fifth Amendment right because he was making an appeal in his
own criminal case from these issues.
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{¶48} As the letter cannot remotely be authenticated—it is unsigned, not
notarized, and could literally have been written by anyone—and as Pryor’s trial
counsel had multiple reasons for not calling Bolden as a witness, including a distinct
possibility that Bolden might corroborate the State’s witnesses regarding the firearm
in some fashion, we cannot find that trial counsel was ineffective. This is
particularly true given that we have no way of knowing what, if anything, Bolden’s
testimony would have been. Pryor’s argument is thus not well-taken, and his sixth
assignment of error is overruled.
Seventh Assignment of Error
{¶49} In Pryor’s seventh assignment of error, he argues that the trial court
erred by failing to merge the two Felonious Assault convictions with the Aggravated
Robbery conviction. Pryor essentially contends that the act of delivering the
handgun to Bolden completed his involvement in the Felonious Assaults and the
Aggravated Robbery, and that this single act should have resulted in a merger of the
Felonious Assaults with the Aggravated Robbery.
Standard of Review
{¶50} Revised Code 2941.25, Ohio’s multiple-count statute, governs allied
offenses, and states as follows.
(A) Where the same conduct by defendant can be construed to
constitute two or more allied offenses of similar import, the
indictment or information may contain counts for all such
offenses, but the defendant may be convicted of only one.
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(B) Where the defendant’s conduct constitutes two or more
offenses of dissimilar import, or where his conduct results in two
or more offenses of the same or similar kind committed separately
or with a separate animus as to each, the indictment or
information may contain counts for all such offenses, and the
defendant may be convicted of all of them.
{¶51} In State v. Ruff, 143 Ohio St.3d 114, 2015–Ohio–995, the Supreme
Court of Ohio provided Ohio courts with the following guidelines as to how to
interpret R.C. 2941.25.
As a practical matter, when determining whether offenses
are allied offenses of similar import within the meaning of R.C.
2941.25, courts must ask three questions when the defendant’s
conduct supports multiple offenses: (1) Were the offenses
dissimilar in import or significance? (2) Were they committed
separately? and (3) Were they committed with separate animus
or motivation? An affirmative answer to any of the above will
permit separate convictions. The conduct, the animus, and the
import must all be considered.
(Emphasis added.) Ruff at ¶ 31. The Supreme Court of Ohio further held
in Ruff that “two or more offenses of dissimilar import exist within the meaning
of R.C. 2941.25(B) when the defendant’s conduct constitutes offenses involving
separate victims or if the harm that results from each offense is separate and
identifiable.” Id. at ¶ 26.
{¶52} Whether offenses are allied offenses of similar import is a question of
law that this Court reviews de novo. State v. Badertscher, 3d Dist. Putnam No.
1214–06, 2015–Ohio–927, ¶ 21, citing State v. Stall, 3d Dist. Crawford No. 3–10–
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12, 2011–Ohio–5733, ¶ 15, citing State v. Brown, 3d Dist. Allen No. 1–10–31,
2011–Ohio–1461, ¶ 36.
Analysis
{¶53} In this case, Pryor argued at the sentencing hearing that his Felonious
Assault convictions should merge with the Aggravated Robbery conviction. The
trial court directly addressed Pryor’s merger arguments, including an additional
argument that he does not renew on appeal regarding merger of the Felonious
Assaults with each other.
With regard to the Felonious Assaults, notwithstanding that the
case proceeded under a complicity theory, I find that obviously
there are two separate identifiable victims with regard to the two
Felonious Assaults. So, I would find that the two Felonious
Assaults do not merge under the Ruff analysis.
With regard to the Aggravated Robbery in Count Three merging
with either of the Felonious Assaults, the Court would just cite to
State vs. Fields, a Twelfth District Court of Appeals Case, 2015-
Ohio-1345. I think the facts of this case are similar in that, or,
that they were in that case. The way the Ruff case was applied
therein, they found that Aggravated Robbery was separate and
complete before the Felonious Assaults occurred. Once the
defendant pointed the gun, or, in this case Mr. Bolden pointed the
gun, and the defendant being complicit in that, the Agg. Robbery
was completed before the actual Felonious Assaults occurred. So,
under the Fields case and State vs. Bailey is another case, and
that’s the First District Court of Appeals, 2015-Ohio-2997, and in
that case a Robbery and a Felonious Assault did not merge under
the same kind of analysis.
I would find that none of the counts in this case merge.
(Apr. 13, 2017, Tr. at 5-6).
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{¶54} When reviewing the trial court’s decision, we note that the trial court
was correct that the Twelfth District Court of Appeals determined in State v. Fields,
12th Dist. Clermont No. CA2014-03-025, 2015-Ohio-1345, that a Felonious
Assault conviction did not merge with an Aggravated Robbery conviction.
However, the facts in Fields are slightly different than the facts of the case here, and
the Felonious Assault in Fields was charged under a different provision than in the
case before us (R.C. 2903.11(A)(1) in Fields rather than (A)(2) here).
{¶55} Nevertheless, as the trial court found, the Aggravated Robbery was
completed when Bolden pointed the gun at Gilcrease and demanded that he empty
his pockets. Both Felonious Assaults were committed after that. Or, conversely,
the trial court could have found that both Felonious Assaults occurred before an
Aggravated Robbery, when Bolden actually took the phone from Gilcrease, who
was still on the ground from having been shot by Bolden.
{¶56} Pryor seems to contend that because he only conducted the single act
of giving the gun to Bolden, he should only be held liable for one act. We disagree.
Based on the facts and circumstances specific to this case, we cannot find that the
trial court erred in determining that the Felonious Assault convictions and the
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Aggravated Robbery conviction do not merge.3 Thus Pryor’s seventh assignment
of error is overruled.
Eighth Assignment of Error
{¶57} In Pryor’s eighth assignment of error, he contends that the trial court
erred in imposing consecutive sentences as to the Felonious Assault counts.
Specifically, he argues that the trial court erred in making its consecutive sentences
findings pursuant to R.C. 2929.14(C)(4).
Standard of Review
{¶58} Revised Code 2953.08(G)(2) governs the review of felony sentencing,
reading in pertinent part:
The appellate court may increase, reduce, or otherwise modify a
sentence that is appealed under this section or may vacate the
sentence and remand the matter to the sentencing court for
resentencing. The appellate court’s standard for review is not
whether the sentencing court abused its discretion. The appellate
court may take any action authorized by this division if it clearly
and convincingly finds either of the following:
(a) That the record does not support the sentencing court’s
findings under division (B) or (D) of section 2929.13, division
(B)(2)(e) or (C)(4) of section 2929.14, or division (I) of section
2929.20 of the Revised Code, whichever, if any, is relevant;
(b) That the sentence is otherwise contrary to law.
3
We note that even if Pryor’s convictions did merge, it would not likely lessen his sentence as the Aggravated
Robbery sentence was run concurrently with the other convictions. However, that would not make such an
error harmless as Pryor would still have an extra unnecessary conviction.
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Based on the controlling statute, in order to reverse a trial court’s sentence, we must
determine that the sentence is clearly and convincingly contrary to law.
Consecutive Sentences
{¶59} In this case Pryor argues that the trial court erred by imposing
consecutive sentences for his Felonious Assault convictions. Before a trial court
can impose consecutive sentences, the trial court has to make certain findings
pursuant to R.C. 2929.14(C)(4), which reads:
(4) If multiple prison terms are imposed on an offender for
convictions of multiple offenses, the court may require the
offender to serve the prison terms consecutively if the court finds
that the consecutive service is necessary to protect the public from
future crime or to punish the offender and that consecutive
sentences are not disproportionate to the seriousness of the
offender’s conduct and to the danger the offender poses to the
public, and if the court also finds any of the following:
(a) The offender committed one or more of the multiple offenses
while the offender was awaiting trial or sentencing, was under a
sanction imposed pursuant to section 2929.16, 2929.17, or 2929.18
of the Revised Code, or was under post-release control for a prior
offense.
(b) At least two of the multiple offenses were committed as part
of one or more courses of conduct, and the harm caused by two or
more of the multiple offenses so committed was so great or
unusual that no single prison term for any of the offenses
committed as part of any of the courses of conduct adequately
reflects the seriousness of the offender’s conduct.
(c) The offender’s history of criminal conduct demonstrates that
consecutive sentences are necessary to protect the public from
future crime by the offender.
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{¶60} In making its consecutive sentence findings pursuant to R.C.
2929.14(C)(4), the trial court is required to make the findings and incorporate them
into the sentencing entry; however, the trial court has “no obligation to state reasons
to support its findings.” State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, at
syllabus.
Analysis
{¶61} In this case, the trial court made the following findings with regard to
consecutive sentencing at the sentencing hearing.
I’m going to impose the sentences on Count One and Count Two,
the two Felonious Assaults, since they’re separate victims, I’m
going to impose those consecutive to each other. The reason I’m
making Counts one and Two consecutive to each other is I find
that consecutive sentences are necessary to protect the public
from future crime and also to punish the defendant and I find that
consecutive sentences are not disproportionate to the seriousness
of his conduct on those two Felonious Assaults and to the danger
that he poses. I also find that the two Felonious Assaults were
committed as part of one or more courses of conduct and that the
harm caused was so great and unusual that no single prison term
for any of those two offenses adequately reflects the seriousness of
the conduct.
(Apr. 13, 2017, Tr. at 29). The trial court’s findings at the sentencing hearing were
explicitly incorporated into its judgment entry.
{¶62} The findings that were made by the trial court appear to be in clear
compliance with R.C. 2929.14(C)(4). However, Pryor does not really contest
whether the trial court made the findings pursuant to R.C. 2929.14(C)(4), rather, he
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essentially contends that the trial court’s findings were not supported by the
evidence in this case.
{¶63} More specifically, Pryor argues that it is illogical for the trial court to
find that no single sentence could adequately reflect the seriousness of Pryor’s
conduct, and yet the trial court sentenced Pryor to two minimum consecutive
sentences on the felonious assault counts, which combined would equal less than
the maximum possible sentence for one count of Felonious Assault.4 Basically,
Pryor seeks to have this Court issue a ruling that a trial court cannot sentence an
offender to consecutive sentences if the consecutive sentences amount to less than
the maximum allowable prison term for one of the two counts. Such a blanket ruling
would severely restrict a trial court from fashioning a sentence as it sees fit, and
Pryor cites no legal authority to support it. Given that Pryor is unable to demonstrate
that the trial court’s sentence was clearly and convincingly contrary to law, we
cannot find that the trial court erred and Pryor’s eighth assignment of error is
overruled.
4
One count of Felonious Assault carries a minimum prison term of 2 years and a maximum prison term of 8
years. Consecutive prison terms of 2 years for two separate counts amounts to 4 years, one-half of a
maximum prison term for a single count.
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Conclusion
{¶64} For the foregoing reasons Pryor’s assignments of error are overruled
and the judgment of the Allen County Common Pleas Court is affirmed.
Judgment Affirmed
WILLAMOWSKI and ZIMMERMAN, J.J., concur.
/jlr
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