State v. Johnson , 2013 Ohio 5430 ( 2013 )

[Cite as State v. Johnson, 2013-Ohio-5430.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 99656
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
DELANO JOHNSON
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED IN PART, REVERSED IN PART
AND REMANDED FOR RESENTENCING
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-569113
BEFORE: E.T. Gallagher, J., Celebrezze, P.J., and Jones, J.
RELEASED AND JOURNALIZED: December 12, 2013
ATTORNEY FOR APPELLANT
Ashley L. Jones
75 Public Square, Suite 714
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Daniel T. Van
Assistant Prosecuting Attorney
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
EILEEN T. GALLAGHER, J.:
{¶1} Defendant-appellant Delano Johnson (“Johnson”) appeals his aggravated
robbery and kidnapping convictions. We find some merit to the appeal, affirm in part
and reverse in part.
{¶2} Johnson was charged with one count of aggravated robbery and one count of
kidnapping. Both charges included one- and three-year firearm specifications. At a
bench trial, the victim, Joy Thomas (“Thomas”), testified she was walking through a
playground at the Outhwaite Estates at approximately 9:30 p.m. when she was
approached by three men. One of the men pressed a silver gun into her stomach while
another man went through her pockets and took her cell phone and two five-dollar bills.
Thomas asked the men to let her keep the cell phone because it contained all her contacts
and photographs, and the man who went through her pockets responded: “Shut the fuck
up and don’t move.”
{¶3} After the men took everything from Thomas’s pockets, they ordered her to
walk away. Thomas walked toward East 55th Street, and the three men walked toward
Outhwaite Avenue. Almost immediately, Thomas flagged down Officer Louis Catalani
(“Catalani”), reported the robbery, and gave detailed descriptions of the suspects. She
described the man who went through her pockets as a male, in his late teens or early
twenties, 5’8” tall, wearing a gray knit hat, a black jacket, and black jeans. Catalani
broadcast the descriptions of the suspects to other officers in the area.
{¶4} Within minutes, one of the officers observed a suspect matching Thomas’s
description walking down Outhwaite Avenue at East 43rd Street. Officers stopped the
suspect and drove him to a nearby gas station where Thomas and Catalani were
completing a police report. Thomas became “very excited” upon seeing the suspect and
demanded the return of her cell phone. She recognized the suspect, who was later
identified as Johnson, the man who searched her pockets. She told police she was 100
percent certain this was the man.
{¶5} Johnson, who lives in the Outhwaite Estates, testified on his own behalf. He
stated that on the night of the robbery he was sleeping until 10:00 p.m. when he left for
the store to buy diapers and milk. He denied knowing anything about the robbery and
asserted that this was a case of mistaken identity.
{¶6} After hearing the evidence, the court found Johnson guilty of one count of
aggravated robbery and one count of kidnapping. The court sentenced Johnson to three
years each on the aggravated robbery and kidnapping convictions. Each count carried
mandatory three-year prison sentences for gun specifications. The court ordered the
sentences for the underlying convictions to run concurrently but consecutive to the
mandatory three years on the gun specifications for an aggregate six-year prison term.
Johnson now appeals and raises four assignments of error.
Ineffective Assistance of Counsel
{¶7} In the first assignment of error, Johnson argues he was denied his Sixth
Amendment right to the effective assistance of counsel. He contends his trial counsel
was deficient because she failed to file a motion to suppress Thomas’s cold-stand
identification of Johnson.
{¶8} To establish ineffective assistance of counsel, a defendant must show that
counsel’s representation “fell below an objective standard of reasonableness,” and “there
is a reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” State v. Sanders, 94 Ohio St.3d 150, 151, 761
N.E.2d 18 (2002), citing Strickland v. Washington, 466 U.S. 668, 687-688, 104 S.Ct.
2052, 80 L.Ed.2d 674 (1984). “A reasonable probability is a probability sufficient to
undermine confidence in the outcome.” State v. Bradley, 42 Ohio St.3d 136, 142, 538
N.E.2d 373 (1989), quoting Strickland at 694.
{¶9} Johnson argues trial counsel’s failure to file a motion to suppress the
cold-stand identification was deficient because there was both a statutory and
constitutional basis for suppression. He contends the police violated R.C. 2933.83(B)
when they conducted the cold-stand identification. He also contends the identification
procedure violated due process because it was unduly suggestive.
{¶10} R.C. 2933.83(B) requires any law enforcement agency that conducts live or
photo lineups to adopt specific procedures for conducting the lineups. State v.
Alexander, 8th Dist. Cuyahoga No. 98941, 2013-Ohio-2533, ¶ 25. However, the failure
of a law enforcement agency to comply with the procedures set forth in R.C. 2933.83
does not automatically warrant suppression, and a trial court errs in solely relying on the
statute alone in suppressing an identification. State v. Wells, 8th Dist. Cuyahoga No.
98388, 2013-Ohio-3722, ¶ 84.
{¶11} R.C. 2933.83(C)(1) requires the trial court to consider evidence of
noncompliance with the statute in ruling on a defendant’s motion to suppress. The fact
of noncompliance is also admissible to support any claim of eyewitness misidentification
at trial. R.C. 2933.83(C)(2). “The ‘penalty’ for failure to comply with R.C. 2933.83 is a
potential jury instruction regarding the noncompliance, not immediate suppression.”
Wells at ¶ 83.
{¶12} In determining whether to suppress an out-of-court identification that failed
to comply with the procedures outlined in R.C. 2933.83, the court must determine
whether the procedure was “impermissibly suggestive.” Neil v. Biggers, 409 U.S. 188,
93 S.Ct. 375, 34 L.Ed.2d 401 (1972). In Neil, the United States Supreme Court outlined
a two-prong analysis for determining if due process has been violated by the use of
evidence derived through suggestive identification procedures. First, the court must
decide whether the identification procedure was unnecessarily suggestive of the
defendant’s guilt. State v. Waddy, 63 Ohio St.3d 424, 438, 588 N.E.2d 819 (1992),
superseded by constitutional amendment on other grounds, citing Neil at 188. Second,
the court must determine “whether, under all the circumstances, the identification was
reliable, i.e., whether suggestive procedures created ‘a very substantial likelihood of
irreparable misidentification.’” Id. at 439.
{¶13} The presentation of a single suspect for identification is ordinarily
discouraged. However, an exception is recognized when the suspect is apprehended at or
near the scene of the crime and is presented to the victim or witness shortly thereafter.
State v. Smith, 8th Dist. Cuyahoga No. 94545, 2011-Ohio-924, citing State v. Davis, 8th
Dist. Cuyahoga No. 83033, 2004-Ohio-1908. The focus is on the reliability of the
identification, not the identification procedures. State v. Jells, 53 Ohio St.3d 22, 26, 559
N.E.2d 464 (1990).
{¶14} In evaluating the reliability of an identification, the court must consider (1)
the witness’s opportunity to view the individual at the time of the crime, (2) the witness’s
degree of attention, (3) the accuracy of the witness’s prior description of the criminal, (4)
the level of certainty demonstrated by the witness at the confrontation, and (5) the length
of time between the crime and the confrontation. Neil, 409 U.S. at 199. Moreover, the
defendant bears the burden of demonstrating that the identification procedure was
unfairly suggestive. State v. Freeman, 8th Dist. Cuyahoga No. 85137, 2005-Ohio-3480,
rev’d on other grounds, In re Ohio Criminal Sentencing Statutes Cases, 109 Ohio St.3d
313, 2006-Ohio-2109, 847 N.E.2d 1174.
{¶15} The cold-stand identification of Johnson was not impermissively suggestive
and did not warrant suppression. Thomas testified that she saw Johnson’s entire face as
he was searching through her pockets. Although it was night, Johnson’s face was eight
inches away from Thomas, and there was plenty of light in the playground to see his
features and the color of his clothes. Thomas gave police a detailed description of the
suspect including his attire, build, and features. Johnson matched the description
completely. Police apprehended him near the scene of the crime, and Thomas identified
him within 30 minutes. Furthermore, there is no evidence that police suggested the
suspect was the individual who robbed her. Under these circumstances, the cold-stand
identification was reliable, and a motion to suppress would have been denied. Therefore,
trial counsel’s decision not to file a motion to suppress does not constitute ineffective
assistance of counsel.
{¶16} The first assignment of error is overruled.
Sufficiency and Weight of the Evidence
{¶17} In the second and third assignments of error, Johnson argues there was
insufficient evidence to support his convictions and that his convictions were against the
manifest weight of the evidence. Although the terms “sufficiency” and “weight” of the
evidence are “quantitatively and qualitatively different,” we will address these issues
together, while applying the distinct standards of review to Johnson’s arguments. State
v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997).
{¶18} The 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, ¶ 12. 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.
{¶19} In contrast to sufficiency, “weight of the evidence involves the inclination of
the greater amount of credible evidence.” Thompkins at 387. While “sufficiency of the
evidence is a test of adequacy as to whether the evidence is legally sufficient to support a
verdict as a matter of law, * * * weight of the evidence addresses the evidence’s effect of
inducing belief.” State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d
1264, ¶ 25, citing Thompkins at 386-387. “In other words, a reviewing court asks whose
evidence is more persuasive — the state’s or the defendant’s?” Id. The reviewing court
must consider all the evidence in the record, the reasonable inferences, and the credibility
of the witnesses, to determine 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.” Thompkins at 387, quoting State v. Martin, 20
Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).
{¶20} The court found Johnson guilty of aggravated robbery in violation of R.C.
2911.01(A)(1), which states that “[n]o person, in attempting or committing a theft offense
or in fleeing immediately after the attempt or offense, shall * * * have a deadly weapon
on or about the offender’s person or under the offender’s control.” Thomas testified that
Johnson removed her belongings from her pockets while his accomplice held a gun to her
stomach. Although Johnson did not brandish the weapon, he is deemed to have used the
weapon under the complicity statute because his accomplice used it to facilitate the
offense. State v. Quarterman, 8th Dist. Cuyahoga No. 99317, 2013-Ohio-4037, ¶ 18;
R.C. 2929.03(A). Therefore, there was sufficient evidence that Johnson committed
aggravated robbery.
{¶21} Johnson’s aggravated robbery conviction is also supported by the manifest
weight of the evidence. Thomas testified she was 100 percent certain Johnson was the
one who stole her cell phone and money. In describing the incident, Thomas stated:
A: I saw them the entire time. The entire time it was not dark where we
were standing. There was still another light on the playground.
Q: How much of an opportunity did you have to see the face of Mr.
Johnson?
A: One hundred percent he is the one that went through my pockets. He
was right in my face, frisked me and went through my pockets. And then
when I asked for my phone, he retorted back to shut the fuck up and don’t
move.
* * *
Q: And you are certain that that is the person who had just robbed you?
A: The one that went through my pockets, yes, ma’am. He did not have the
gun. He is the one who went through my pockets. Yes one hundred
percent. Yes.
{¶22} As previously stated, police found Johnson near the scene of the crime, and
Thomas identified him as one of the perpetrators within minutes. Catalani’s description of
Thomas’s reaction during the cold-stand identification also weighs in favor of her
positive identification. He testified:
A: I advised Ms. Thomas that I wanted her to look at somebody and tell me
if she recognized him. I walked her over. She observed the male and
advised me that’s him. One hundred percent sure that’s him.
***
As soon as she saw him, she immediately began to say, that’s him, how
could you do that to me. She became very excited. I advised her to calm
down, take a breath. And then I asked again, could you please just make
sure. Are you sure this is the guy? She said, yes. He went through my
pockets. This is the guy.
Although Johnson denied knowing anything about the robbery, the record is replete with
credible evidence that Johnson was involved in these crimes.
{¶23} Johnson was also convicted of kidnapping in violation of R.C.
2905.01(A)(1), which states that “[n]o person, by force [or] threat * * * shall * * *
restrain the liberty of another person * * * to facilitate the commission of any felony.”
Here, Thomas testified that Johnson and his accomplice restrained her with a gun in order
to commit a theft offense. Johnson verbally demanded that she be quiet and ordered her
not to move. Therefore, there is sufficient evidence to support the kidnapping
conviction.
{¶24} Johnson does not dispute that Thomas was kidnapped and robbed at
gunpoint. He claims she has misidentified him as one of the culprits. However, as
previously explained, Thomas’s positive identification of Johnson is reliable and credible.
Therefore, the kidnapping conviction is also supported by the manifest weight of the
evidence.
{¶25} Finally, Johnson was convicted of two firearm specifications in violation of
R.C. 2941.145, which required proof that “the offender had a firearm on or about the
offender’s person or under the offender’s control while committing the offense and
displayed the firearm, brandished the firearm, indicated that the offender possessed the
firearm, or used it to facilitate the offense.” As previously stated, although there was no
evidence that Johnson held the firearm, he nevertheless had control over it pursuant to the
complicity statute because there was credible evidence that his accomplice used a firearm
to commit the robbery. Quarterman, 2013-Ohio-4307 at ¶ 18; R.C. 2929.03. Therefore,
the firearm specifications are also supported by both sufficient evidence and the manifest
weight of the evidence.
{¶26} The second and third assignments of error are overruled.
Sentencing
{¶27} In the fourth assignment of error, Johnson argues the trial court erred by
sentencing him to consecutive prison terms without making the findings required under
R.C. 2929.14(C)(4). However, the trial court sentenced Johnson to three years
incarceration for aggravated robbery and three years incarceration for kidnapping, to run
concurrently. Each conviction included a three-year firearm specification, pursuant to
R.C. 2941.145. Under 2929.14(B)(1)(a)(ii), a court must impose a three-year prison term
upon an offender who is convicted of a felony and an attendant firearm specification
under R.C. 2941.145. Additionally, the mandatory three-year firearm specification must
be served consecutively to any prison term imposed for the underlying felony. R.C.
2929.14(C)(1)(a). Therefore, the findings set forth in R.C. 2929.14(C)(4) are
inapplicable here. The court properly ordered the three-year mandatory prison sentence
for the firearm specifications to run consecutive to the underlying offense.
{¶28} The fourth assignment of error is overruled.
Merger of Allied Offenses
{¶29} We nevertheless find plain error in the trial court’s failure to merge the
aggravated robbery and kidnapping convictions for sentencing as required by R.C.
2941.25. Many courts have merged kidnapping and aggravated robbery convictions
where the defendant restrained the victim while robbing him. State v. Walker, 8th Dist.
Cuyahoga No. 94878, 2011-Ohio-1556, ¶ 41. In State v. Logan, 60 Ohio St.2d 126, 397
N.E.2d 1345 (1979), the Supreme Court explained: “[W]hen a person commits the crime
of robbery, he must by the very nature of the crime, restrain the victim for a sufficient
amount of time to complete the robbery.” Id. at 131. In a later case, the Ohio Supreme
Court stated that “implicit within every robbery (and aggravated robbery) is kidnapping.”
State v. Jenkins, 15 Ohio St.3d 164, 198, 473 N.E. 2d 264 (1984), fn. 29. For this reason,
we have, sua sponte, found error in the trial court’s failure to merge aggravated robbery
and kidnapping convictions at sentencing. See State v. Walker, supra; State v. Havergne,
8th Dist. Cuyahoga No. 95090, 2011-Ohio-935.
{¶30} In this case, Johnson restrained the victim to rob her. Although the court
imposed concurrent sentences for the aggravated robbery and kidnapping convictions, “it
is plain error to impose multiple sentences for allied offenses of similar import, even if
the sentences are run concurrently.” Walker at ¶ 42, citing State v. Crowley, 151 Ohio
App.3d 249, 255, 2002-Ohio-7366, 783 N.E.2d 970 (10th Dist.). Therefore, the trial
court should have, sua sponte, merged the kidnapping and aggravated robbery convictions
for purposes of sentencing.
{¶31} Judgment affirmed in part, reversed in part, and remanded to the trial court
for the limited purpose of merging the allied offenses and to allow the state to select the
merged offense for resentencing.
It is ordered that appellant and appellee share 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. The defendant’s conviction having
been affirmed, any bail pending appeal is terminated. Case remanded to the common
pleas court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
EILEEN T. GALLAGHER, JUDGE
FRANK D. CELEBREZZE, JR., P.J., and
LARRY A. JONES, SR., J., CONCUR