State v. Neil , 2016 Ohio 4762 ( 2016 )

[Cite as State v. Neil, 2016-Ohio-4762.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellee, : No. 14AP-981
(C.P.C. No. 12CR-5963)
v. : and
No. 15AP-594
Miguel E. Neil, : (C.P.C. No. 13CR-4174)
Defendant-Appellant. : (REGULAR CALENDAR)
D E C I S I O N
Rendered on June 30, 2016
On brief: Ron O'Brien, Prosecuting Attorney, and Valerie B.
Swanson, for appellee. Argued: Valerie B. Swanson.
On brief: Yeura R. Venters, Public Defender, and John W.
Keeling, for appellant. Argued: John W. Keeling.
On brief: Miguel E. Neil, pro se.
APPEALS from the Franklin County Court of Common Pleas
DORRIAN, P.J.
{¶ 1} Defendant-appellant, Miguel E. Neil, appeals from judgments of conviction
and sentence entered by the Franklin County Court of Common Pleas pursuant to jury
verdicts finding appellant guilty of 30 counts of robbery and 6 counts of kidnapping. For
the reasons that follow, we affirm.
I. Facts and Procedural History
{¶ 2} The charges against appellant arose from a series of robberies that occurred
in 2011 and two robberies that occurred in 2012. On November 15, 2012, immediately
following the final robbery, Columbus police arrested appellant. Appellant was indicted
in common pleas court case No. 12CR-5963 on 4 counts of robbery and 6 counts of
Nos. 14AP-981 and 15AP-594 2
kidnapping arising from the 2012 robberies. He also was indicted in common pleas court
case No. 13CR-4174 on 26 counts of robbery and 1 count of kidnapping arising from 13
separate robberies committed in 2011. Pursuant to motion filed by plaintiff-appellee,
State of Ohio, the trial court joined the indictments for a single trial. Appellant moved to
sever the indictments but the trial court denied the motion. Appellant also moved to
suppress certain evidence but the trial court denied that motion. The charges were tried
to a jury during a six-day trial beginning September 24, 2014, and ending October 1, 2014.
A. Robberies Committed in 2011
{¶ 3} The state presented witness testimony, as well as video and photographic
evidence, related to the 13 robberies the state alleged appellant committed in 2011.
{¶ 4} On March 23, 2011, a Subway restaurant at 3626 Gender Road was robbed.
An employee testified that at approximately 9:30 p.m., a man dressed in all black and
brandishing a small handgun entered the restaurant demanding money. The robber wore
a hood and a mask covering his face; the employee could only see from the bridge of the
robber's nose up because the lower portion of the robber's face was covered by the mask.
The robber ordered the employee to get on the floor and not to look at him. The robber
then reached over the counter into the cash register, which the employee had opened.
The robber did not jump over the counter or step into the area behind the counter. The
employee testified that the robber was a dark-skinned African-American man with a
normal build, approximately 5'10" to 6" tall, weighing 180 to 220 pounds. The state also
introduced photos taken from the restaurant's security camera. In the photos, the robber,
who is wearing dark clothing, including a hood and mask, dark shoes, and dark gloves
with white markings or letters, can be seen pointing a handgun, which is held in his left
hand.
{¶ 5} On April 18, 2011, a Subway restaurant at 354 West Third Avenue was
robbed. A customer who was present that evening testified that a man entered and
announced that he was robbing the restaurant. The robber then ordered the customer
and employees to get down on the floor. When the customer did not move, the robber
pushed him down to the floor. The robber then took two Subway employees into the area
behind the cash register. The customer testified that the robber was an African-American
man with a medium-to-dark complexion and a deep voice. He stated that the robber wore
Nos. 14AP-981 and 15AP-594 3
dark gloves and a very dark blue hooded sweatshirt with the drawstring pulled so that
only part of his face and mouth were visible. The customer testified that the robber was
medium height and "had a potbelly or close to it." (Sept. 25, 2014 Tr. at 138.) One of the
two employees who were present testified that the robber entered the store holding a
small gun, pointed the gun at the back of the customer's head, and told the employee to go
to the front of the store and get the money. She testified that the robber was wearing dark
colors and she could only see his eyes. She stated that the robber made them all get down
on the floor, then took the money from the register and left. A video of the robbery from
the restaurant's surveillance system was played for the jury, with the employee narrating
the events depicted. The employee pointed out that the robber held the gun in his left
hand. The second employee who was present during the robbery also testified. She
indicated that the robber was wearing gloves and carrying a handgun, and that he used his
right hand to take money out of the cash register. She said that the robber was an
African-American male with a deep voice and that she believed he was approximately 5'8"
tall.
{¶ 6} On May 8, 2011, a Tim Horton's restaurant at 6780 East Main Street was
robbed. An employee of the restaurant testified that the robbery occurred near the end of
his shift, around 9:10 p.m. He testified that the robber was an African-American male
who wore a black ski mask, black hooded sweatshirt, black pants, and brown or black
gloves, and carried a small handgun in his left hand. He testified that the robber entered
the restaurant, took another employee at gunpoint, and went to the drive-through area
where he was working. The robber then ordered him to open the register and get on the
ground. After removing the money from the drive-through register, the robber took the
other employee back to the front of the restaurant, ordered him to open the register, and
then ordered him to get on the ground. A video from the restaurant's surveillance system
was played for the jury. In the video, the robber could be seen wearing dark gloves with
white markings or letters. The video also depicted the robber walking behind the counter
and removing money from the cash register with his right hand while holding a handgun
in his left hand.
{¶ 7} On June 28, 2011, a Tim Horton's restaurant at the corner of Sawmill Road
and Hard Road was robbed. An employee testified that just before the restaurant closed,
Nos. 14AP-981 and 15AP-594 4
at about 10:58 p.m., an African-American man entered the store and got past the counter.
The robber had a gun in his left hand; he pointed it at the employee and ordered him to
open the cash registers. The employee opened the cash registers and then got on the
ground. The robber used his right hand to empty the cash registers. The robber wore
dark clothing and black gloves with white markings or letters. The employee testified that
he could only see from the top of the robber's nose to his eyebrows because the lower part
of his face was covered. He stated that the robber was dark skinned, approximately 5'11"
to 6'0" tall and "had a little bit of a build to him." (Sept. 25, 2014 Tr. at 194.) A second
employee, who was also present during the robbery, testified that the robber walked in
carrying a small handgun and demanded money. The robber ordered the two employees
to get down on the floor and then made one of them open the cash registers. The second
employee testified that he tried to press an alarm button, but the robber came over,
pointed the gun at him and told him to stay down. A video from the restaurant's
surveillance system was also played for the jury.
{¶ 8} On August 10, 2011, a Subway restaurant at 7558 Worthington-Galena Road
was robbed. An employee of the restaurant testified that around 9:30 p.m., as she was
preparing to close the restaurant, a man entered and ordered her to give him all the
money. The robber jumped over the counter and forced her to open the cash register; he
then kneed her in the back and ordered her to get on the ground. The employee testified
that the robber wore black clothing, including a black mask, hooded sweatshirt, pants,
gloves, and shoes. A video from the restaurant's surveillance system was played for the
jury. In the video, the robber can be seen wearing black gloves with white markings or
letters and holding a gun in his left hand while reaching into the cash register with his
right hand. The employee testified that the robber was an African-American male who
was taller than she was and indicated that her height was 5'6". She further testified that
she was scared during the incident and that shortly thereafter she quit her job because she
could not handle working there any longer.
{¶ 9} On the evening of September 11, 2011, a Tim Horton's restaurant at 8333
North High Street was robbed. The employee who was present during the robbery was
unavailable at trial due to military service, but the state called the owner/operator of the
store as a witness. He testified that he watched the store's surveillance video after the
Nos. 14AP-981 and 15AP-594 5
robbery. The surveillance video was played for the jury. In the video, the robber can be
seen entering the restaurant and jumping over the counter. The robber wore dark
clothing and black gloves with white markings or letters. In the video, a restaurant
employee can be seen getting on the floor. The video shows the robber holding a gun in
his left hand and using his right hand to reach into the cash register. The state also
presented part of the video from earlier that same evening, when an individual appeared
to enter the restaurant, go to the restroom and then leave without purchasing anything.
That individual appeared to be holding his hands up to shield his face as he walked
through the restaurant. The store owner testified that approximately 15 minutes passed
between that individual entering and leaving the restaurant and the robbery occurring.
{¶ 10} On September 13, 2011, a BP gas station at 1263 East Dublin-Granville Road
was robbed. An employee testified that sometime between 2:00 and 3:00 p.m., a man
entered the store with a gun pointed at him and ordered him to open the cash register.
The robber told another employee who was present to get on the ground. During the
robbery, a customer entered the store and the robber also told him to get on the ground.
He testified that the robber wore a mask, a black hooded jacket, and black gloves. He
could only see around the robber's eyes, and testified that the robber was a male with light
brown skin. The employee testified that the gun was small and the robber held it in his
left hand. The store employee testified that following the robbery, the other employee
who was present during the robbery quit her job. A video from the store's surveillance
system was played for the jury, in which the robber could be seen walking behind the
counter while holding a gun in his left hand. In the video, the robber could be seen
wearing dark gloves with white markings or letters and using his right hand to reach into
the cash register.
{¶ 11} On the evening of September 17, 2011, a Subway restaurant at 1898 Brice
Road was robbed. An employee who was present during the robbery testified at trial. She
indicated that she was training a new employee on the night of the robbery. When the
robber entered the store, the cash register was open because the employee had been
counting out money to put in the safe. She heard the robber demand money and looked
up to see a gun in her face. She stepped back, leaving the cash register open; the robber
jumped over the counter and grabbed the money from inside the register. The robber
Nos. 14AP-981 and 15AP-594 6
then made her walk to another part of the restaurant to prove there was no cash register
there. The robber told the other employee to lie down on the floor and not look at him.
She testified that the robber was an African-American male with a deep voice, wearing a
dark hooded sweatshirt and a bandanna over his mouth area. A video from the
restaurant's surveillance system was played for the jury. In the video, the robber could be
seen wearing dark clothes, including dark gloves with white markings or letters. The
video depicted the robber jumping over the counter to reach the cash register, while
holding a gun in his left hand, and showed him reaching into the cash register with his
right hand to remove the money.
{¶ 12} On October 10, 2011, a Marathon gas station at 7200 Sawmill Road was
robbed. An employee testified that early in the morning a man entered the store with a
gun and declared his intention to rob the store. He then jumped over the counter and
ordered the employee to open the cash register. The robber wore black clothing including
a hooded sweatshirt, a face mask or ski mask, and gloves. The employee testified he could
only see the area around the robber's eyes, and that he was a male with dark skin. He
testified that the robber grabbed his collar and punched him in the back when he pressed
the panic alarm. The robber held the gun in his left hand and reached into the register
with his right hand to remove the money. The employee testified that the robber ordered
both employees to get on the ground and departed the store after taking the money. The
other employee testified similarly that the robber was an African-American male,
approximately 5'7" to 5'10" tall, and that he wore black clothing. She stated that the
robber pushed her to the ground and ordered her to open the store's safe, but she
indicated that she did not have the keys to the safe. A video from the store's surveillance
system was played for the jury in which the robber could be seen wearing dark clothing,
including dark gloves with white markings or letters, and holding a gun in his left hand.
The video showed the robber jumping over the counter to reach the area where the cash
registers were located.
{¶ 13} On October 12, 2011, a Family Video store at 5540 North High Street was
robbed. An employee testified that at approximately 11:30 p.m., shortly before the store
closed, a man entered the store, walked behind the counter, and demanded money. The
employee testified that the robber was an African-American male, dressed in all black,
Nos. 14AP-981 and 15AP-594 7
including black gloves. She testified that he told her to open the cash registers and then
get on the floor. Before she got down, he wrapped his left arm around her; she felt
something against her side that she believed was a gun. The robber used his right hand to
remove the money from the cash register. She testified that the robber was approximately
5'6" to 5'7" tall and weighed 150 to 160 pounds. Photographs taken from the store's
surveillance system were presented to the jury. In the photographs, the robber could be
seen wearing dark clothing and dark gloves with white markings or letters. The robber
was depicted standing behind the counter, holding a gun in his left hand, and using his
right hand to remove money from the cash register.
{¶ 14} On October 17, 2011, a McDonald's restaurant at 1300 Morse Road was
robbed. The shift manager working that evening testified that, at approximately 7:57
p.m., a man entered the store demanding to speak to the manager. The man then ran
behind the counter with a gun drawn and told her to open the cash register. After taking
the money, the robber told the manager and the other employees to lie down on the floor.
The manager testified that the robber wore black clothes, including a hat, hooded
sweatshirt, gloves, and a mask covering the lower part of his face. The robber carried a
small handgun in his left hand. The manager testified that the robber was an African-
American male, approximately 5'8" to 5'10" tall, weighing approximately 180 pounds. A
video from the restaurant's surveillance system was played for the jury. In the video, the
robber could be seen wearing dark clothing, including dark gloves with white markings or
letters. The robber could also be seen holding a gun in his left hand and running behind
the counter to reach the cash registers, where he removed the money with his right hand.
{¶ 15} On November 1, 2011, a BP gas station at 7310 Sawmill Road was robbed.
An employee who was present during the robbery testified that at approximately 11:00
p.m., a man entered the store and demanded that his co-worker open the cash registers.
The robber demanded that the employee get on the ground, then walked over and shoved
him down. The employee testified that the robber wore all black clothing, including a
hood and mask covering part of his face, black pants, and black gloves. He could only see
part of the robber's face around his eyes, but testified that he was an African-American
man with dark skin. He testified that the robber was approximately 5'7" to 5'8" tall and
weighed approximately 180 pounds. A video from the store's surveillance system was
Nos. 14AP-981 and 15AP-594 8
played for the jury. In the video, the robber could be seen wearing dark clothing,
including dark gloves with white markings or letters, and carrying a gun in his left hand.
The robber could also be seen walking behind the counter and reaching into the cash
registers with his right hand after ordering the employee to open them.
{¶ 16} On November 10, 2011, a PNC bank location at 7644 Sawmill Road was
robbed. An employee who was present during the robbery testified that at approximately
9:30 a.m., a man entered the bank, jumped over the counter, and demanded cash from
her and another teller. She indicated that after opening her cash drawer, the robber
reached in to remove the money. She testified that the robber wore black clothing and had
something over his mouth so that she could only see the area around his eyes. She
testified that the robber was an African-American male with dark skin. The employee
testified that the robber ordered everyone in the bank to get on the floor. She testified
that the robber appeared to have "a little bit of a bulk to him." (Sept. 29, 2014 Tr. at 490.)
Photographs taken from the bank's surveillance system were presented to the jury, in
which the robber could be seen entering the bank dressed in all black, including a mask
and hooded sweatshirt. In the photos, the robber can be seen jumping over the counter
and he appears to be holding a small handgun in his left hand. The photos also show the
robber wearing dark gloves with white markings or letters.
B. Investigation of 2011 Robberies
{¶ 17} Former Columbus Police Detective Gregory Franken testified that he was
assigned to a joint investigative team with Special Agent Craig Brennaman of the United
States Bureau of Alcohol, Tobacco, Firearms, and Explosives ("ATF"). The purpose of the
joint investigative team was to investigate armed serial robberies. Detective Franken was
involved in the investigation of the series of robberies that occurred in 2011; investigators
came to refer to the suspect in those crimes as the "counter jumper." (Sept. 30, 2014 Tr.
at 828.) He testified he developed approximately one dozen potential suspects for the
robberies. Detective Franken testified that he began to investigate appellant as a potential
suspect in mid-to-late November 2011; part of that investigation involved using GPS
tracking devices on appellant's vehicles. No crimes attributed to the "counter jumper"
robber were committed during this initial period of GPS surveillance. Special Agent
Brennaman testified similarly that he was involved with investigating the series of
Nos. 14AP-981 and 15AP-594 9
robberies committed in 2011. He testified that at some point in the investigation, cell
phone records for appellant were obtained and examined to determine whether appellant
was in the applicable areas at around the times of the 2011 robberies. The state also
introduced evidence from appellant's driver's license indicating that he was 5'9" tall and
weighed 222 pounds.
C. November 8, 2012 Wendy's Robbery
{¶ 18} On November 8, 2012, a Wendy's restaurant at 1500 Worthington Woods
Boulevard was robbed. A manager who was present during the robbery testified that at
approximately 9:00 p.m., a man entered the restaurant dressed in all black, including
black gloves. He pointed a gun at her head and told the employees to get down on the
floor. The robber went behind the counter and made the manager open the cash registers.
The manager testified that after taking the money the robber left the restaurant; one of
the employees ran after him, but the robber turned and pointed the gun at him and told
him to stop running. The manager testified that the robber was approximately 5'7" and
weighed about 200 pounds. A video from the restaurant's surveillance system was played
for the jury. In the video, the robber could be seen wearing dark gloves with white
markings or letters, and holding a gun in his left hand while using his right hand to reach
into the cash register.
{¶ 19} Appellant presented a witness to the November 8, 2012 Wendy's robbery
who testified that he was parked outside the restaurant eating a sandwich on the evening
of the robbery. He saw an individual dressed in dark clothing jog past his car toward a
nearby muffler shop. He then heard screaming from Wendy's and watched the individual
get into a burgundy late-1990s or early 2000 Astro van parked near the muffler shop. On
cross-examination, this witness admitted that he gave a statement to the police indicating
that the van was a "maroon, rusty green or dark colored Astro-like van." (Sept. 29, 2014
Tr. at 547.)
{¶ 20} The prosecution also presented testimony from Detective Chris Davis of the
Westerville Police Department. Detective Davis testified that he was a patrol officer at the
time of the November 8, 2012 Wendy's robbery. After hearing the robbery-in-progress
call, he began to drive his patrol cruiser toward the area. His patrol cruiser was equipped
with a license plate reader camera. Detective Davis testified that the license plate reader
Nos. 14AP-981 and 15AP-594 10
on his cruiser identified license plate number ERR6711 at 9:07 p.m. on South Cleveland
Avenue in the area in front of St. Ann's Hospital. He testified that this location was
approximately 2.7 miles from the Wendy's location that was robbed on November 8,
2012.
{¶ 21} Detective Franken testified that following the November 8, 2012 Wendy's
robbery, members of the Columbus police contacted the Westerville Police Department
and received the license plate reader information described by Detective Davis. As a
result of that information, Detective Todd Cress of the Columbus Division of Police
prepared an affidavit in support of a second GPS tracking warrant for appellant's vehicles,
a black 2004 Dodge Stratus with the license plate number BIGNEIL, and a blue 1995 Ford
Aerostar van with the license plate number ERR6711. The affidavit was presented to a
judge of the Franklin County Municipal Court and the installation of GPS devices was
authorized at 1:13 a.m. on November 9, 2012.
D. November 15, 2012 Bureau of Motor Vehicles Office Robbery
{¶ 22} On November 15, 2012, an Ohio Bureau of Motor Vehicles office ("BMV
office") at 112 Dillmont Drive was robbed. The state presented testimony from two
employees of the BMV office and a customer who were present at the time. One of the
employees testified that the office closed at 6:30 p.m. Near closing time on November 15,
2012, a man rushed through the door and demanded money. The robber wore a
sweatshirt and track pants, a black mask, gloves, and dark shoes. The employee testified
that he pointed a small gun at her as he demanded money. She testified that the robber
walked behind the counter; she handed him money and then he also grabbed money from
another employee. When the office manager emerged from the back room of the office,
the robber pointed the gun at her and told her to sit down. The employee testified that the
robber was an African-American man, and that he held the gun in his left hand. The other
employee testified similarly that the robber ran into the office demanding money and
telling the employees to keep their heads down. She testified that the robber was an
African-American man, dressed in black clothing, including a hood, mask, and gloves.
The customer who was present in the BMV office likewise testified that the robber wore a
mask and gloves, and pointed a small handgun at the employees. The prosecution also
presented a video of the robbery, taken from the BMV office's surveillance system. In the
Nos. 14AP-981 and 15AP-594 11
video, the robber could be seen dressed in dark clothing, wearing a mask and dark gloves
with white markings or letters. The robber held a gun in his left hand and went behind
the counter of the BMV office, but instead of reaching into cash registers, he took money
directly from the employees who handed it to him.
{¶ 23} Officer Howard Brenner, a member of the Columbus Division of Police
SWAT team, testified that he was assigned to follow appellant on the evening of
November 15, 2012. He ultimately located appellant's Dodge Stratus parked in a lot near
the BMV office, but appellant was not in the vehicle. He then observed an individual
matching appellant's description, wearing a dark cap, dark clothes, and shiny tennis shoes
walking along Dillmont Road. Officer Brenner testified that he saw that same individual,
later identified as appellant, run into the BMV office just as the "open sign" was turned
off. (Sept. 29, 2014 Tr. at 642.) Officer Brenner watched as appellant entered the BMV
office, moved past the counters, and committed the robbery. Officer Brenner testified
that he saw appellant confront the clerks at the BMV office while holding a gun. Officer
Brenner and other SWAT officers pursued appellant after he left the BMV office,
ultimately arresting appellant after he attempted to flee.
{¶ 24} Detective Franken interrogated appellant following his arrest, along with
Columbus Police Detective Dana Farbacher. A videotape of the interrogation, with certain
redactions as stipulated by the parties, was played for the jury. During the interrogation,
appellant admitted he robbed the BMV office. Appellant stated that "I just figured if I
could just get 1,400, I mean, I know how the old saying goes, you know, I'm going to quit,
I'm going to quit, you know what I'm saying." (Sept. 30, 2014 Tr. at 719.) Appellant
repeatedly denied committing any other robberies; however, he also stated that "I
understand it becomes habitual, you know, especially if you get away." (Sept. 30, 2014 Tr.
at 728.) During the interrogation, appellant was shown a photographic image taken from
the surveillance video at the Tim Horton's that was robbed on September 11, 2011.
However, the interrogating detectives did not tell appellant the source of the photograph.
When asked what the photograph looked like, appellant responded "[t]hat's my van."
(Sept. 30, 2014 Tr. at 734.) Appellant later reiterated, "I'm not going to sit here and tell
you that that is not my van, you know, you showed me a picture of my car, you showed me
a picture of my van. I'm going to know it." (Sept. 30, 2014 Tr. at 760.)
Nos. 14AP-981 and 15AP-594 12
{¶ 25} When asked about his whereabouts on November 8, 2012, appellant stated
he was driving his van that evening and that, after working out at a fitness center in
Worthington, he went to the home of one of his personal training clients located in
Hilliard. Appellant was inconsistent in describing when he arrived at his client's home; at
various times he referred to his arrival time as around 8:30 p.m. or as sometime after
9:00 p.m. He stated that he remained at the client's home until around 10:00 or 10:30
p.m. Appellant further stated that after leaving his client's home, he ran out of gas near
Interstates 270 and 71 and his wife had to bring him a gas can so that he could refill the
vehicle. When asked how his van's license plate could have been detected on a license
plate reader from a Westerville police department cruiser on Cleveland Avenue, near the
area of St. Ann's Hospital at 9:07 p.m., appellant reiterated that he traveled from
Worthington to Hilliard and then returned home.
E. Jury Verdicts and Sentencing
{¶ 26} At the close of trial, appellant's counsel moved to dismiss all charges under
Crim.R. 29. The trial court granted appellant's motion with respect to Count 6 in case No.
12CR-5963, because the victim named in that kidnapping count was not specifically
identified by the employee who testified about the November 8, 2012 Wendy's robbery.
The jury found appellant guilty of all remaining charges: 4 counts of robbery and 5 counts
of kidnapping in case No. 12CR-5963, and 26 counts of robbery and 1 count of kidnapping
in case No. 13CR-4174. On October 29, 2014, the trial court conducted a sentencing
hearing. On October 31, 2014, the trial court issued judgment entries in both cases,
concluding that certain charges merged for purposes of sentencing and that certain
portions of the sentence were to be served consecutively with each other, for a total
sentence of 42 years imprisonment.
II. ASSIGNMENTS OF ERROR
{¶ 27} Appellant appeals from the trial court's judgments, assigning six errors for
this court's review in a brief filed by counsel:
[I.] THE DEFENDANT WAS DEPRIVED OF HIS RIGHT TO
A FAIR TRIAL AND DUE PROCESS OF LAW WHEN
POLICE OFFICERS WERE ALLOWED TO INDICATE
THEIR BELIEFS THAT THE IMAGES OF THE SUSPECT OR
SUSPECTS IN THE OTHER ROBBERIES WERE THAT OF
Nos. 14AP-981 and 15AP-594 13
THE DEFENDANT AND THAT THEY WERE CERTAIN
THAT ALL THE OFFENSES WERE COMMITTED BY THE
SAME DEFENDANT AND BY THE INTRODUCTION OF
INADMISSIBLE COMMUNITY AND VICTIM IMPACT
EVIDENCE.
[II.] THE TRIAL COURT ERRED WHEN IT JOINED THE
TWO INDICTMENTS FOR TRIAL WHEN THE JOINDER
WAS EXTREMELY PREJUDICIAL TO THE DEFENDANT
AND THE STATE WAS UNABLE TO ESTABLISH THAT THE
EVIDENCE OF THE ONE OFFENSE WOULD HAVE BEEN
ADMISSIBLE TO SHOW A MODUS OPERANDI
INDICATIVE OF A BEHAVIORAL FINGERPRINT OR
UNIQUE, SIGNATURE-LIKE MANNER OF COMMITTING
THE OTHER OFFENSES.
[III.] THE TRIAL COURT ERRED WHEN IT INSTRUCTED
THE JURY, OVER THE DEFENDANT'S OBJECTION, THAT
THEY COULD CONSIDER THE ACTS OF THE DEFENDANT
IN ONE INSTANCE TO PROVE IDENTITY IN THE OTHER
INCIDENTS.
[IV.] THE DEFENDANT DID NOT RECEIVE EFFECTIVE
ASSISTANCE OF COUNSEL IN VIOLATION OF THE SIXTH
AND FOURTEENTH AMENDMENTS TO THE UNITED
STATES CONSTITUTION AND SECTION 10, ARTICLE I, OF
THE OHIO CONSTITUTION WHEN COUNSEL FAILED TO
OBJECT TO IMPROPER POLICE OFFICER OPINIONS OF
THE DEFENDANT'S GUILT, PREJUDICIAL AND
IRRELEVANT VICTIM IMPACT EVIDENCE, AND FAILED
TO HAVE A RECORD MADE OF THE JOIN[D]ER
HEARING.
[V.] THE TRIAL COURT ERRED WHEN IT ENTERED
JUDGMENT AGAINST THE DEFENDANT WHEN THE
EVIDENCE WAS INSUFFICIENT TO SUSTAIN THE
CONVICTIONS.
[VI.] THE TRIAL COURT ERRED WHEN IT ENTERED
JUDGMENT AGAINST THE DEFENDANT AGAINST THE
MANIFEST WEIGHT OF THE EVIDENCE.
{¶ 28} Appellant also submitted a pro se supplemental brief, assigning five
additional errors for this court's review:
Nos. 14AP-981 and 15AP-594 14
[VII.] The Trial Court erred by not addressing the first search
warrant and allowing testimony of information not within the
four corners of the affidavit nor made part of the record
during issuance to rehabilitate the lack of veracity and basis of
knowledge upon which the affiant based his subjective beliefs,
which do not support probable cause nor a good faith reliance.
The Trial court abused its discretion giving weight to the
extraneous testimony and counsel was ineffective under
Strickland for not objecting to such testimony.
[VIII.] The Trial Court erred by refusing to acknowledge and
address that detective Todd Cress knowingly, and
intentionally, with reckless disregard for the truth, did not
inform the second judge, nor referenced his intent to reuse
and incorporate the uncorroborated information from the
fruitless January affidavit with appropriate words of
incorporation, at all. Knowing uncorroborated information
does not support probable cause. Thus, it cannot legally be
part of the November 9th, 2012 affidavit and must be excised.
[IX.] The Trial Court erred by not finding that the misleading
"new indicia" provided by witness Troy Huff was falsified by
detective Todd Cress in bad faith having the signed hand
written statements in possession. The trial court[']s
application of the good faith exception under these
circumstances, resulted as in 28 USCS § 2254, "a decision that
was contrary to, or involved an unreasonable application of,
clearly established law, as determined by the United States,
and a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in
the state court proceeding," permitting a false statement to
justify it.
[X.] The January affidavit, illegally incorporated under false
pretenses, without informing the judge, and the misleading
and falsified statement of Troy Huff, should then be excised or
set aside. With the affidavit's material set to one side, the
affidavit's remaining content is insufficient to establish
probable cause for the warrant to issue, and the search
warrant must be voided and the fruits of the search excluded
to the same extent as if probable cause was lacking on the face
of the affidavit. State v. Hunt, 22 Ohio App.3d 43, at 903,
citing Franks v. Delaware.
[XI.] Counsel was Ineffective Assistance in violation of the
Sixth Amendment to the United States Constitution and
Nos. 14AP-981 and 15AP-594 15
Section 10, Article I of the Ohio Constitution for failing to
raise the following Fourth Amendment violations.
(Sic passim.)
III. DISCUSSION
A. Denial of Appellant's Motion to Suppress
{¶ 29} We begin with appellant's five supplemental assignments of error set forth
in his pro se supplemental brief, which we will refer to as the seventh through eleventh
assignments of error. These alleged errors relate to the trial court's denial of appellant's
motion to suppress evidence obtained pursuant to the November 2012 GPS tracking
warrant and to allegations of ineffective assistance of counsel related to that warrant.
{¶ 30} Prior to trial, appellant moved to suppress the evidence obtained pursuant
to the November 2012 GPS tracking warrant, asserting that the affidavit submitted by
Detective Cress in support of that warrant ("Cress affidavit") did not demonstrate
probable cause. The state filed a memorandum in opposition to the motion to suppress,
asserting that the information in the Cress affidavit established probable cause to support
the warrant. In the alternative, the state asserted that even if the Cress affidavit was
insufficient, the evidence obtained pursuant to the warrant would be admissible under the
good-faith exception to the exclusionary rule. The trial court denied appellant's motion to
suppress, concluding that the judge issuing the November 2012 GPS tracking warrant had
a substantial basis for concluding that probable cause existed and that, in the alternative,
the good-faith exception to the exclusionary rule would have applied.
{¶ 31} "Appellate review of a motion to suppress presents a mixed question of law
and fact." State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, ¶ 8. See also State v.
Belton, __ Ohio St.3d __, 2016-Ohio-1581, ¶ 100, citing Burnside. In evaluating the
motion to suppress, the trial court acts as the finder of fact and, therefore, is in the best
position to resolve factual questions and evaluate the credibility of witnesses. Burnside at
¶ 8. Therefore, we must accept the trial court's findings of fact if they are supported by
competent, credible evidence. Id. "Accepting these facts as true, the appellate court must
then independently determine, without deference to the conclusion of the trial court,
whether the facts satisfy the applicable legal standard." Id. See also State v. Johnson,
Nos. 14AP-981 and 15AP-594 16
10th Dist. No. 13AP-637, 2014-Ohio-671, ¶ 6 ("We apply a de novo standard in
determining whether the trial court properly denied appellant's motion to suppress.").
{¶ 32} In his seventh assignment of error, appellant appears to assert the trial
court erred by relying on testimony presented at the suppression hearing, which was
beyond the face of the Cress affidavit, in determining that the judge issuing the warrant
had a substantial basis for concluding that probable cause existed. Appellant argues that
the Cress affidavit failed to demonstrate the veracity and basis of knowledge to support
the assertions contained therein; he claims that the trial court improperly relied on
extraneous testimony from the suppression hearing to rehabilitate the allegedly
insufficient affidavit.
{¶ 33} The Fourth Amendment to the United States Constitution, applied to the
states through the Fourteenth Amendment, provides that "[t]he right of the people to be
secure in their persons, houses, papers, and effects, against unreasonable searches and
seizures, shall not be violated, and no warrants shall issue, but upon probable cause,
supported by oath or affirmation, and particularly describing the place to be searched,
and the persons or other things to be seized." The Ohio Constitution contains a nearly
identical provision. Ohio Constitution, Article I, Section 14. See also R.C. 2933.22(A);
Crim.R. 41(C).
{¶ 34} When determining whether a search warrant affidavit demonstrates
probable cause, a magistrate must " 'make a practical, common-sense decision whether,
given all the circumstances set forth in the affidavit before him, including the "veracity"
and "basis of knowledge" of persons supplying hearsay information, there is a fair
probability that contraband or evidence of a crime will be found in a particular place.' "
State v. George, 45 Ohio St.3d 325 (1989), paragraph one of the syllabus, quoting Illinois
v. Gates, 462 U.S. 213, 238-39 (1983). An appellate court reviewing the sufficiency of
probable cause contained in an affidavit must not substitute its judgment for that of the
magistrate but, rather, ensure that the magistrate "had a substantial basis for concluding
that probable cause existed." Id. at paragraph two of the syllabus. This analysis is
undertaken with great deference to the magistrate's determination of probable cause, and
marginal cases should be resolved in favor of upholding the warrant. Id. The Supreme
Court of Ohio has held that "when no oral testimony is presented to the neutral and
Nos. 14AP-981 and 15AP-594 17
detached magistrate in conjunction with an affidavit for a search warrant, the probable-
cause determination is based on the four corners of the document." State v. Castagnola,
145 Ohio St.3d 1, 2015-Ohio-1565, ¶ 106.
{¶ 35} The trial court denied appellant's motion to suppress because it concluded
that, given the totality of the circumstances, the Cress affidavit contained information
providing the issuing magistrate with a substantial basis for concluding that probable
cause for the warrant existed. However, despite appellant's contention in the seventh
assignment of error, the trial court does not appear to rely on testimony beyond the face
of the Cress affidavit to reach this conclusion. Instead, the trial court expressly referred to
the information contained in the Cress affidavit and concluded that this information
provided a substantial basis for the issuing magistrate to find probable cause to support
the warrant. The trial court did refer to testimony from the suppression hearing, but this
reference was in the context of addressing appellant's claim that the Cress affidavit
contained material misrepresentations of fact that were presented in bad faith or in
reckless disregard for the truth. In the motion to suppress, appellant argued that
Detective Cress misrepresented the witnesses' descriptions of the robbery suspect, citing
aspects of various witness statements that were not set forth in the affidavit. The trial
court concluded that, based on the suppression hearing testimony, Detective Cress had a
good-faith belief that he was presenting the facts in an accurate manner to the issuing
magistrate. The court noted that, despite some variance in the witnesses' descriptions of
the robbery suspect and the vehicle used in the robberies, there was a general theme to
the descriptions and concluded that the Cress affidavit accurately set forth this
information. Under these circumstances, we cannot conclude that the trial court
improperly relied on testimony outside the four corners of the affidavit in determining
that the magistrate had a substantial basis for finding probable cause.
{¶ 36} Accordingly, we overrule appellant's seventh assignment of error.
{¶ 37} Appellant's eighth assignment of error asserts the trial court erred by
denying the motion to suppress because the affidavit in support of the November 2012
GPS tracking warrant incorporated information from the affidavit presented in support of
the January 2012 GPS tracking warrant without advising the magistrate that such
material was being incorporated or that the January 2012 GPS tracking warrant had not
Nos. 14AP-981 and 15AP-594 18
resulted in evidence of criminal activity. This assignment of error appears to raise two
arguments and we will address each in turn.
{¶ 38} Appellant first argues that the Cress affidavit improperly incorporated the
affidavit submitted by Detective Franken in support of the January 2012 GPS tracking
warrant ("Franken affidavit") without advising the magistrate that the prior warrant was
being incorporated. Appellant cites State v. Hardy, 2d Dist. No. 19029, 2002-Ohio-2371,
as setting forth the standard for when a search warrant affidavit may incorporate a
previous affidavit. In Hardy, a police detective obtained a search warrant by written
affidavit for a particular address that he believed to be the defendant's residence. Id. at
¶ 2. After attempting to execute the search warrant, the detective went to the defendant's
workplace; she was not present, but her employer advised the detective that he had a
different residential address for the defendant. The detective then created a one-
paragraph addendum to the affidavit in support of the search warrant setting forth the
new address. He presented it to the same judge who had executed the prior warrant, and
the judge approved the addendum. Id. at ¶ 3. The detective located the defendant at the
second address and presented her with the search warrant; she spoke with the detective
and told him where the documents he sought were located, and accompanied him to the
first address where a search revealed items obtained by fraudulently obtained credit. Id.
The defendant subsequently filed a motion to suppress, which the trial court denied. Id.
at ¶ 4.
{¶ 39} The Second District Court of Appeals held that "[a]n addendum used when
seeking a warrant may incorporate a previous affidavit, but it must do so by referencing
the previous affidavit, being attached to the previous affidavit and swearing to the
affidavit a second time before the same judge who issued the first warrant." Id. at ¶ 9,
citing State v. Owens, 51 Ohio App.2d 132, 148 (9th Dist.1975). The court further held
that "an addendum can be part of an affidavit for a search warrant if the two are presented
contemporaneously to the issuing judge and the judge administers the oath with the
understanding of the police officer and the judge that the oath applies to both the affidavit
and the addendum." Id., citing State v. Thurman, 2d Dist. No. 12420 (July 2, 1991). The
court found that it was unclear from the record whether the addendum was attached to
the previous affidavit and search warrant when presented to the issuing judge and
Nos. 14AP-981 and 15AP-594 19
whether the detective took an oath as to the veracity of the addendum's statements;
accordingly, the court of appeals remanded to the trial court for further proceedings.
{¶ 40} Here, appellant argues that the Cress affidavit incorporated the Franken
affidavit as an addendum without an oath that applied to both the affidavit and the
addendum. However, after reviewing both affidavits and the transcript of the hearing on
appellant's motion to suppress, we find this case to be distinguishable from Hardy. In
this case, the Cress affidavit set forth the same information that had been contained in the
Franken affidavit with respect to the series of robberies committed in 2011 and the results
of the joint investigation into those robberies. However, Detective Cress did not
incorporate this information through a reference to the Franken affidavit or attempt to
use the Franken affidavit as an addendum to his own. Instead, Detective Cress set forth
this information as part of his own affidavit, presenting the magistrate with information
regarding the 2011 robberies and joint investigation, as well as additional information
regarding the November 8, 2012 robbery and subsequent additional investigation. Thus,
this is not a case involving an addendum incorporated by reference and a factual question
as to whether the addendum was presented to the judge at the time the warrant was
issued.
{¶ 41} Appellant further appears to argue that the Cress affidavit was improper
because it did not inform the magistrate about the January 2012 GPS tracking warrant
and that no evidence of criminal activity was obtained as a result of that warrant. "To
successfully attack the veracity of a facially sufficient search warrant affidavit, a defendant
must show by a preponderance of the evidence that the affiant made a false statement,
either 'intentionally, or with reckless disregard for the truth.' " State v. Waddy, 63 Ohio
St.3d 424, 441 (1992), quoting Franks v. Delaware, 438 U.S. 154, 155-56 (1978).
"Omissions count as false statements if 'designed to mislead, or * * * made in reckless
disregard of whether they would mislead, the magistrate.' " (Emphasis omitted.) Id.,quoting United States v. Colkley, 899 F.2d 297, 301 (4th Cir.1990). See also State v.
Dibble, 133 Ohio St.3d 451, 2012-Ohio-4630, ¶ 18, citing Waddy. Thus, appellant must
demonstrate that Detective Cress intended to mislead the magistrate by omitting the
information about the January 2012 GPS tracking warrant or acted with reckless
disregard as to whether omitting such information would mislead the magistrate.
Nos. 14AP-981 and 15AP-594 20
{¶ 42} The Second District Court of Appeals considered a similar argument in
State v. Stropkaj, 2d Dist. No. 18712 (Nov. 16, 2001). In Stropkaj, the defendant, who
operated an escort service, was charged with promoting prostitution. She filed a motion to
suppress certain evidence obtained pursuant to three search warrants, arguing that there
were material misleading omissions in the common affidavit in support of the search
warrants. The trial court denied the defendant's motion to suppress and a subsequent
motion to reconsider and for findings of fact and conclusions of law. The defendant
subsequently pled no contest and appealed from her conviction and sentence. On appeal,
the Second District ultimately reversed and remanded, finding that there were material
omissions from the search warrant affidavits and that the trial court erred by failing to
make a determination as to whether those omissions were made intentionally or with
reckless disregard as to whether the omissions would tend to mislead a magistrate.
However, the court concluded that certain alleged omissions, which are similar to the
alleged omission in this case, were not misleading. Id.{¶ 43} The defendant in Stropkaj asserted that the affidavit in support of the
search warrants was misleading because it failed to inform the magistrate that (1) there
were no criminal charges or arrests following a search of the escort service in 1993,
(2) there were no complaints or investigations of the defendant between 1993 and 1998,
and (3) two earlier search warrants (issued in 1993 and 1997) produced no evidence. The
Second District found that the affiant's failure to aver the absence of additional
incriminating facts was not misleading. The court concluded that in order for an omitted
fact to be intentionally misleading or made with reckless disregard of its tendency to
mislead the magistrate, the fact would necessarily have to be exculpatory information or
information that impeaches a source of incriminating information. The court reasoned
that a magistrate would naturally assume that any incriminating evidence would be set
forth in the affidavit and there would be no useful purpose in requiring the affiant to
include a paragraph asserting that he was not aware of any incriminating facts beyond
those set forth in the affidavit. Thus, the court rejected the defendant's argument that the
affidavit was misleading because it failed to inform the magistrate of the lack of certain
incriminating evidence, including the fact that two prior search warrants produced no
evidence. Id.Nos. 14AP-981 and 15AP-594 21
{¶ 44} In this case, the Cress affidavit did not inform the magistrate that the
January 2012 GPS tracking warrant had been issued and that GPS units were placed on
appellant's vehicle between January 27 and April 25, 2012, and on appellant's wife's
vehicle between January 27 and April 24, 2012 pursuant to that warrant. The Cress
affidavit also did not state that no evidence was obtained pursuant to that warrant.
However, the Cress affidavit stated that following the PNC Bank robbery on November 10,
2011, the series of robberies stopped and no further evidence was obtained against
appellant. Thus, although the Cress affidavit did not expressly notify the magistrate that a
prior GPS tracking warrant had been issued, it did advise the magistrate that no
additional evidence had been obtained against appellant during the nearly one-year
period between the November 10, 2011 PNC Bank robbery and the November 8, 2012
Wendy's robbery. Detective Franken testified at the suppression hearing that there were
no robberies attributed to the "counter jumper" during the period when the GPS tracking
devices were attached to appellant's vehicles pursuant to the January 2012 GPS tracking
warrant. The lack of incriminating evidence from the January 2012 GPS tracking warrant
during a period when there appeared to have been no activity by the "counter jumper"
robber is not, in an of itself, exculpatory information. Under these circumstances, we find
that Detective Cress's omission of the fact that the January 2012 GPS tracking warrant
had been issued and that tracking had been completed without obtaining additional
evidence was not designed to mislead or made in reckless disregard of whether it would
mislead the magistrate. See Waddy at 441.
{¶ 45} Accordingly, we overrule appellant's eighth assignment of error.
{¶ 46} Appellant's ninth assignment of error asserts the trial court erred by not
finding that the Cress affidavit contained an intentionally misleading false statement. As
explained above, a defendant challenging a facially sufficient search warrant affidavit
must demonstrate by a preponderance of the evidence that the affiant made a false
statement intentionally or with reckless disregard for the truth. Id. Appellant argues that
Detective Cress made a false statement with respect to a witness's statement following the
November 8, 2012 Wendy's robbery. In his affidavit, Detective Cress stated that a witness
observed the robbery suspect fleeing in a "dark colored minivan." (Cress Aff. at 8.)
However, the witness's handwritten statement, which was introduced into evidence at the
Nos. 14AP-981 and 15AP-594 22
suppression hearing indicated that the van was a mid-1990s Astro van and was a shade of
red. Additionally, an informational summary completed by another detective who
interviewed the witness stated that the witness described the van as a red or maroon mid-
to-late 1990s Astro van. There was also a preliminary investigation report prepared by
one of the first patrol officers to arrive at the robbery scene, which indicated that the
witness described the van as a maroon, rusty green, or dark-colored "Astro-like" van.
{¶ 47} Appellant asserts that Detective Cress intentionally omitted the witness's
description of the van as red, maroon, or rusty green and as being similar to an Astro van
so that the description of the van in the affidavit would be more consistent with
appellant's vehicle, which was a blue Ford Aerostar minivan. Detective Cress testified at
the suppression hearing with respect to the process of preparing his affidavit in support of
the search warrant, which was obtained at 1:13 a.m. on November 9, 2012, approximately
four hours after the November 8, 2012 Wendy's robbery. Detective Cress testified that
after arriving at the scene of the robbery, he spoke with one of the patrol officers on the
scene, who told him that the witness had given a statement regarding a dark-colored
minivan. Detective Cress further testified that after obtaining the November 2012 GPS
tracking warrant, he received the witness statement summaries from another detective
and read the witness's handwritten statement describing the van as red. He indicated that
he did not attempt to revise the affidavit after learning this information because he
considered red to be a dark color, especially at night.
{¶ 48} Appellant has not shown by a preponderance of the evidence that Detective
Cress made an intentional false statement in his affidavit or made a statement with
reckless disregard for the truth. The affidavit was prepared during a brief period
following the November 8, 2012 Wendy's robbery. Detective Cress testified at the
suppression hearing regarding the basis of his assertion that the vehicle in question was
dark colored. His testimony that one of the patrol officers on the scene advised him that
the witness indicated the vehicle was a dark color is supported by the preliminary
investigation report, which indicated that the witness described the vehicle as maroon,
rusty green, or dark colored. Under these circumstances, we conclude the trial court did
not err by denying the motion to suppress based on appellant's claim of an intentional
false statement.
Nos. 14AP-981 and 15AP-594 23
{¶ 49} Accordingly, we overrule appellant's ninth assignment of error.
{¶ 50} In his tenth assignment of error, appellant asserts that, after setting aside
the portions of the Cress affidavit that he alleges were improperly incorporated from the
earlier Franken affidavit and characterizing the witness's statement regarding the van
used by the individual fleeing the November 8, 2012 Wendy's robbery, the remainder of
the affidavit was insufficient to establish probable cause to support the warrant.
However, for the reasons explained above, we conclude that the portions of the Cress
affidavit describing the robbery events that occurred in 2011 and the joint investigation of
those events did not constitute improper incorporation of the Franken affidavit. Likewise,
we conclude that appellant failed to establish that the portion of the Cress affidavit
characterizing the witness's statement was an intentional false statement or made with
reckless disregard as to the truth. Therefore, we reject the basis for the tenth assignment
of error and need not determine whether the remaining portions of the Cress affidavit
would have been sufficient to establish probable cause.
{¶ 51} Accordingly, we overrule appellant's tenth assignment of error.
{¶ 52} Appellant's eleventh assignment of error asserts that his counsel provided
ineffective assistance in various respects with regard to the November 2012 GPS tracking
warrant. Appellant claims that his counsel was ineffective by failing to raise various
alleged Fourth Amendment violations in support of the motion to suppress; we will
consider each claim separately.
{¶ 53} Courts apply a two-part test to evaluate claims of ineffective assistance of
counsel. Strickland v. Washington, 466 U.S. 668, 687 (1984); State v. Bradley, 42 Ohio
St.3d 136, 141-42 (1989). "First, the defendant must show that counsel's performance was
deficient." Strickland at 687. "Second, the defendant must show that the deficient
performance prejudiced the defense." Id. This court has recognized that the failure to file
a motion to suppress may constitute ineffective assistance of counsel when the record
demonstrates that the motion would have been granted. State v. Hawkins, 10th Dist. No.
15AP-35, 2016-Ohio-1404, ¶ 93. Based on this principle, the failure to raise a particular
argument in support of a motion to suppress may constitute ineffective assistance when
the record demonstrates that the motion would have been granted had that argument
Nos. 14AP-981 and 15AP-594 24
been asserted. "Counsel is not deficient for failing to raise a meritless issue." State v.
Massey, 10th Dist. No. 12AP-649, 2013-Ohio-1521, ¶ 13.
{¶ 54} Appellant first argues that his counsel was ineffective by failing to object to
extraneous testimony and evidence beyond the four corners of the Cress affidavit, as
described in the seventh assignment of error. However, as explained above, we conclude
that the trial court did not rely on this testimony in concluding that the Cress affidavit
established probable cause for the warrant. Therefore, even if appellant could establish
that his counsel performed deficiently, he cannot establish that he was prejudiced by the
failure to object by demonstrating that the trial court would have granted the motion to
suppress had the testimony been excluded.
{¶ 55} Appellant next argues that his counsel was ineffective by failing to argue
that granting a GPS tracking warrant for 90 days constituted a fundamental violation of
Crim.R. 41(C)(2) and required automatic suppression of the evidence obtained pursuant
to the warrant. Appellant cites the provision of Crim.R. 41(C)(2) stating that the time an
electronic tracking device may be used may not exceed 45 days. However, as the state
notes, the portion of Crim.R. 41(C)(2) limiting the use of a tracking device to 45 days was
enacted effective July 1, 2014, and, therefore, was not part of the rule at the time the
November 2012 GPS tracking warrant was issued. Accordingly, granting a 90-day
tracking warrant was not a per se constitutional violation. Appellant has failed to
demonstrate that his counsel was deficient for failing to raise this issue or that the motion
would have been granted had the issue been asserted in the motion to suppress.
{¶ 56} Appellant further asserts that his counsel was ineffective by failing to argue
that the information contained in the Cress affidavit was stale because it had been
included in the prior Franken affidavit in support of the January 2012 GPS tracking
warrant, and that warrant had not resulted in evidence of criminal activity by appellant.
"An affidavit in support of a search warrant must present timely information and include
facts so closely related to the time of issuing the warrant as to justify a finding of probable
cause at that time." State v. Ingold, 10th Dist. No. 07AP-648, 2008-Ohio-2303, ¶ 22.
However, "[t]here is no arbitrary time limit that dictates when information becomes
stale." Id. Moreover, this court has recognized that " '[w]here recent information
corroborates otherwise stale information, probable cause may be found.' " Id. at ¶ 35,
Nos. 14AP-981 and 15AP-594 25
quoting United States v. Spikes, 158 F.3d 913 (6th Cir.1998). In this case, the Cress
affidavit provided additional information arising from the November 8, 2012 Wendy's
robbery, indicating that the suspect in that incident wore similar attire and used similar
methods to the suspect in the 2011 robberies. The Cress affidavit also indicated that,
shortly after the robbery, appellant's minivan had registered on a license plate reader
mounted to a police cruiser that was in the area near the robbery. Assuming, without
deciding, that the information regarding the series of robberies in 2011 was stale, this
additional information may have served to corroborate the information about the earlier
robberies. Under these circumstances, we conclude that appellant has failed to
demonstrate that his counsel was deficient for failing to raise this issue or that the motion
would have been granted had the issue been asserted in the motion to suppress.
{¶ 57} Finally, appellant argues that his counsel was ineffective for failing to argue
that the warrant was unconstitutionally overbroad because it did not sufficiently describe
the evidence to be obtained pursuant to the warrant. The November 2012 GPS tracking
warrant provided that officers were authorized to install and use the tracking device to
obtain evidence of the commission of the criminal offense of aggravated robbery.
Appellant appears to argue that authorities may not use GPS tracking in an effort to catch
a suspect in the act of committing a criminal offense, citing several cases including United
States v. Katzin, E.D.Pa. No. 11-226 (May 9, 2012), State v. Sullivan, 10th Dist. No. 13AP-
173, 2014-Ohio-1443, State v. White, 5th Dist. No. 13-CA-11, 2013-Ohio-5221, United
States v. Ford, E.D.Tenn. No. 1:11-cr-42 (Sept. 12, 2012), and United States v. Lee, 862
F.Supp.2d 560 (E.D.Ky. 2012). However, each of those courts was addressing a scenario
involving warrantless GPS tracking, not the question of whether a warrant sufficiently
described the evidence to be obtained from the use of a GPS tracking device. Given the
failure to clearly define or provide authority in support of this proposition, we cannot
conclude that his counsel was ineffective for failing to raise it in support of the motion to
suppress.
{¶ 58} Accordingly, we overrule appellant's eleventh assignment of error.
B. Joinder of Indictments
{¶ 59} Having addressed the assignments of error related to the motion to
suppress, we now turn to appellant's second assignment of error, in which he asserts that
Nos. 14AP-981 and 15AP-594 26
the trial court erred by joining the two indictments for trial. Appellant asserts that joinder
of the indictments was prejudicial to appellant and that the state was unable to rebut the
prejudice by showing that evidence of the offenses under one indictment would have been
admissible at a separate trial on the other indictment.1 Although appellant was not
present to object to joinder, he did file a motion to sever the indictments.
{¶ 60} Pursuant to Crim.R. 13, a trial court may order two or more indictments to
be tried together "if the offenses or the defendants could have been joined in a single
indictment or information." Crim.R. 8(A) provides that two or more offenses may be
charged in the same indictment if they "are of the same or similar character, or are based
on the same act or transaction, or are based on two or more acts or transactions
connected together or constituting parts of a common scheme or plan, or are part of a
course of criminal conduct." "The law favors joining multiple offenses in a single trial
under Crim.R. 8(A) if the offenses charged 'are of the same or similar character.' " State v.
Lott, 51 Ohio St.3d 160, 163 (1990), quoting State v. Torres, 66 Ohio St.2d 340, 343
(1981), fn. 2.
{¶ 61} If similar offenses are properly joined, a defendant may move to sever the
charges pursuant to Crim.R. 14(A): "If it appears that a defendant or the state is
prejudiced by a joinder of offenses or of defendants in an indictment, information, or
1 We note that the portion of appellant's brief addressing the second assignment of error asserts that the trial
court committed certain procedural errors with respect to the motion for joinder. Specifically, appellant's
brief asserts that the trial court conducted an off-the-record hearing on the motion for joinder and that
appellant was not notified and not present for the hearing. Appellant argues that the failure to have the
hearing on the record violated Crim.R. 22, and that the failure to have appellant present violated Crim.R. 43.
As the state notes, however, appellant failed to expressly assign these arguments as errors for the court's
review. Appellant's second assignment of error, as set forth above, asserts that the trial court erred by
granting the motion for joinder because the joinder was prejudicial to appellant and the state was unable to
establish that evidence of the offense where appellant was apprehended would have been admissible as
other act evidence.
We have previously held that pursuant to App.R. 12(A)(1)(b) " 'this court rules on assignments of error only,
and will not address mere arguments.' " State v. McKinney, 10th Dist. No. 13AP-211, 2013-Ohio-5394, ¶ 11,
quoting Ellinger v. Ho, 10th Dist. No. 08AP-1079, 2010-Ohio-553, ¶ 70. See also Bonn v. Bonn, 10th Dist.
No. 12AP-1047, 2013-Ohio-2313, ¶ 9 ("[W]e will address each assignment of error as written and disregard
any superfluous arguments not raised by the actual assignment of error under review."); In re Estate of
Taris, 10th Dist. No. 04AP-1264, 2005-Ohio-1516, ¶ 5 ("Pursuant to App.R. 12(A)(1)(b), this court is
required to determine the appeal based upon the assignments of error set forth in the briefs under App.R.
16. This is procedurally necessary, as we are permitted to sustain or overrule only assignments of error and
not mere arguments."). Accordingly, because appellant did not assign as error any alleged procedural
deficiencies relating to the hearing on the motion for joinder, we will limit our review to his argument that
the trial court committed substantive error by granting the motion for joinder.
Nos. 14AP-981 and 15AP-594 27
complaint, or by such joinder for trial together of indictments, informations or
complaints, the court shall order an election or separate trial of counts, grant a severance
of defendants, or provide such other relief as justice requires." To demonstrate that a trial
court erred by denying a motion to sever, a defendant "must affirmatively demonstrate
(1) that his rights were prejudiced, (2) that at the time of the motion to sever he provided
the trial court with sufficient information so that it could weigh the considerations
favoring joinder against the defendant's right to a fair trial, and (3) that given the
information provided to the court, it abused its discretion in refusing to separate the
charges for trial." State v. Schaim, 65 Ohio St.3d 51, 59 (1992), citing Torres at syllabus.
{¶ 62} We note that appellant's motion to sever provided, at best, minimal support
for his claim of prejudice. The memorandum in support of that motion is scarcely more
than one page long, and with respect to the issue of prejudice, simply asserts that
appellant would be prejudiced by joining the 2011 offenses together with the November
2012 offenses. This unsupported assertion may well fall short of establishing that his
rights were prejudiced or providing the "trial court with sufficient information so that it
could weigh the considerations favoring joinder against the defendant's right to fair trial."
Schaim at 59. See also State v. Massey, 10th Dist. No. 99AP-1355 (Nov. 28, 2000)
("Defendant has not pointed to any evidence of actual prejudice, and may not prevail by
presuming prejudice based on the number of counts. Defendant has failed to suggest how
he likely would have been acquitted on some counts had the four incidents been tried
separately, and thus has not satisfied the first prong of Torres."). Appellant's counsel
indicated to the trial court immediately before trial that the brief motion was effectively
intended to preserve the issue for appellate review. Despite the minimal support
contained in the motion to sever, however, we will consider the question of whether the
state could rebut any showing of prejudice.
{¶ 63} Even if a defendant establishes that the joinder was prejudicial, the state
may rebut the showing of prejudice in two ways. State v. LaMar, 95 Ohio St.3d 181,
2002-Ohio-2128, ¶ 50. First, the state may demonstrate that evidence of the joined
offenses would be admissible as "other acts" evidence under Evid.R. 404(B) in separate
trials. Id. Second, the state may demonstrate that evidence of the joined offenses is
simple and direct. Id. These tests are disjunctive; satisfying one test negates a
Nos. 14AP-981 and 15AP-594 28
defendant's claim of prejudice without having to consider the other test. State v. Wilson,
10th Dist. No. 10AP-251, 2011-Ohio-430, ¶ 15.
{¶ 64} Evid.R. 404(B) provides, in relevant part, that evidence of other crimes or
acts is not admissible to prove the character of a person in order to show action in
conformity with such character. Such evidence may, however, be "admissible for other
purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident." Evid.R. 404(B). In this case, the state argues
that the evidence related to the charges in each indictment would have been admissible at
separate trials under Evid.R. 404(B) to prove identity by establishing a modus operandi.
"To be admissible to prove identity through a certain modus operandi, other acts evidence
must be related to and share common features with the crime in question." State v. Lowe,
69 Ohio St.3d 527 (1994), paragraph one of the syllabus.
{¶ 65} The Supreme Court of Ohio and this court have held that evidence of
multiple robberies may be admissible as other acts evidence where there are sufficient
common features to establish a modus operandi. In State v. Jamison, 49 Ohio St.3d 182(1990), the Supreme Court found that evidence of seven other robberies was admissible in
a trial for aggravated murder and aggravated robbery to prove identity. The court
concluded that the evidence regarding the seven other robberies established a pattern:
each of the robberies occurred during a six-month period; each establishment robbed was
located in the downtown area of Cincinnati; all but one of the robberies occurred on
weekday afternoons; all of the establishments were first-floor, walk-in businesses; the
defendant physically took or attempted to take money from the register except for the one
business that had no register; and the defendant forced, threw, or knocked victims to the
floor and consistently directed violence toward his victims' heads. Id. at 186. Because the
characteristics of this pattern were consistent with the incident giving rise to the
aggravated murder and aggravated robbery charges, evidence related to the other
robberies was admissible to prove that the defendant committed the aggravated murder
and aggravated robbery. Id. ("These other acts, i.e., robberies, do not simply prove
appellant's character; more importantly, they are probative to ascertain appellant's
identity as the Central Bar killer.").
Nos. 14AP-981 and 15AP-594 29
{¶ 66} This court has similarly ruled that joinder of multiple robbery charges is not
improper where evidence of the robberies would be admissible in separate trials under
Evid.R. 404(B). Wilson at ¶ 21; State v. Sealy, 10th Dist. No. 09AP-1128, 2010-Ohio-
6294, ¶ 19. In Wilson, the court described the similarity of the relevant crimes:
The crimes here all occurred during business hours and all
involved restaurants in the south-side area of Columbus so as
to be geographically linked. All four robberies involved a black
man with missing teeth that approached the register and
demanded money from it. In three of the four robberies the
evidence established the perpetrator placed a food order prior
to demanding money, and in fact, the same item, i.e., pepper
steak, was ordered in each of the robberies at Hunan King.
Also, in three of the four robberies, the evidence established
the perpetrator showed a gun while making his demands.
Both the Pizza Hut and the KFC robberies involved the use of
a note and the presence of a plastic bag, and both Hunan King
robberies involved the person counting to ten while waiting
for the money. Moreover, appellant was identified by
witnesses from three of the four robberies.
Id. at ¶ 20. The court noted that although the crimes differed from one another in some
respects, "admissibility under Evid.R. 404(B) is not adversely affected simply because the
other [crimes] differed in some details." (Internal citations omitted.) Id. at ¶ 21.
Similarly, in Sealy, the court found that the state had rebutted the defendant's claims of
prejudicial joinder:
Here, the record contains evidence of five aggravated
robberies and related offenses that occurred over a five-month
period. The crimes are geographically linked as they all
occurred within less than a two-mile radius of appellant's
residence. In each crime, appellant was described as wearing
dark clothing, entering a business brandishing a handgun,
and demanding money from the cash register. In three of the
robberies, appellant was described as firing the gun.
Appellant's car was placed at three of the robberies, and he
was positively identified by witnesses from four of the
robberies. Clearly, the evidence here establishes the robberies
followed a similar pattern and were geographically linked
such that evidence of one could have been introduced by the
state in a trial of each of the others under Evid.R. 404(B) to
establish appellant's identity through his modus operandi.
Nos. 14AP-981 and 15AP-594 30
Thus, appellant was not prejudiced by the joinder of the
offenses for trial.
Sealy at ¶ 19.
{¶ 67} In this case, the 2011 robberies shared many similar characteristics: the
suspect was an African-American male, wearing dark clothing, including a mask, and dark
gloves with white markings or letters on the gloves. The suspect brandished a small
handgun, which he held in his left hand. The suspect had employees open cash registers
and reached into the cash registers with his right hand to take the contents. In all but the
first robbery, the suspect either jumped over or walked behind the counter, thereby
entering an area where the public would not normally be present. In all but one of the
robberies, the suspect ordered the employees to get on the ground. Ten of the 13
robberies in 2011 occurred at night. Eight of the 13 robberies occurred at restaurants,
mostly Subway or Tim Horton establishments, and another 3 robberies occurred at gas
stations. Nine of the robberies occurred in the northern part of Franklin County.
{¶ 68} Many of the distinguishing characteristics from the 2011 robberies were also
present in the 2012 robberies that were charged in case No. 12CR-5963. In the
November 8, 2012 Wendy's robbery, the suspect was an African-American male who wore
dark clothing, including a mask, and dark gloves with white markings or letters. The
robbery occurred at night, and the suspect, who held a small handgun in his left hand,
went behind the counter and reached into the cash register after ordering the employees
to open it. He also ordered the employees to get on the floor. The robbery occurred in the
northern part of Franklin County. Similarly, in the November 15, 2012 BMV office
robbery, appellant, an African-American male, wore dark clothing, including a mask, and
dark gloves with white markings or letters. He brandished a small handgun in his left
hand. The robbery occurred just after 6:30 p.m., as the BMV office was closing for the
day. In committing the robbery, appellant went behind the counter into an area where
the public would not normally be present. The BMV office was located in the northern
part of Franklin County. Under these circumstances, we find that the 2012 robberies
followed a similar pattern and shared numerous characteristics with the series of
robberies committed in 2011. Therefore, the evidence of the 2011 robberies could have
Nos. 14AP-981 and 15AP-594 31
been introduced by the state in a trial of the 2012 robberies under Evid.R. 404(B), and
vice versa. Appellant was not prejudiced by the joinder of these offenses for trial.
{¶ 69} Accordingly, we overrule appellant's second assignment of error.
C. Opinion and Victim Impact Testimony
{¶ 70} Appellant argues in his first assignment of error that he was deprived of due
process and his right to a fair trial when the trial court admitted opinion testimony from
police officers and victim impact testimony. Appellant asserts that police officers were
improperly allowed to testify at trial as to their opinions regarding appellant's guilt; he
further asserts that portions of an interrogation video that was played for the jury
contained improper opinion and hearsay statements from the interrogating police
officers. Appellant also argues that the trial court erred by admitting victim impact
testimony that was inflammatory and prejudicial. We will consider each of appellant's
arguments in turn.
{¶ 71} Generally, "the admission of evidence lies within the broad discretion of the
trial court, and a reviewing court should not disturb evidentiary decisions in the absence
of an abuse of discretion that has created material prejudice." State v. Conway, 109 Ohio
St.3d 412, 2006-Ohio-2815, ¶ 62. Pursuant to Evid.R. 701, a witness who has not been
qualified as an expert may testify as to opinions that are "(1) rationally based on the
perception of the witness[,] and (2) helpful to a clear understanding of the witness'
testimony or the determination of a fact in issue." A trial court has broad latitude in
allowing or controlling lay witness opinion testimony. We will not overturn a trial court's
decision concerning such testimony absent an abuse of discretion and a demonstration
that the abuse of discretion materially prejudiced the objecting party. State v. Bond, 10th
Dist. No. 11AP-403, 2011-Ohio-6828, ¶ 14.
{¶ 72} Appellant specifically cites trial testimony from Detective Davis, Detective
Franken, and Special Agent Brennaman regarding the joint investigation into the serial
robberies. After explaining that he had shared information with representatives from the
Columbus Division of Police, ATF, Reynoldsburg Police Department, and other agencies,
Detective Davis was asked whether he reached any conclusions from his comparison of
videos and surveillance photos from the various robberies. As the state notes, appellant's
counsel objected to the question at trial, and the trial court sustained the objection. After
Nos. 14AP-981 and 15AP-594 32
additional description of the collective efforts of the law enforcement agencies, Detective
Davis testified that he observed common characteristics across the robberies, including
the suspect's clothing, physical characteristics, method of operation upon entering the
premises, type of weapon used, and hand the weapon was carried in. Similarly, Detective
Franken testified that he investigated the series of robberies, which he believed were
linked, and developed approximately one dozen suspects. Detective Franken further
testified that he believed that if he could link a suspect to one of the robberies, he would
have identified the culprit in all of the crimes. Special Agent Brennaman testified that he
worked with Detective Franken on multiple serial robbery cases, including the
investigation of the 2011 robberies.
{¶ 73} Notably, the trial testimony cited in appellant's brief did not involve the law
enforcement officers offering opinions about appellant's guilt but, rather, about whether
all of the robberies were committed by a single suspect. Additionally, we note that, other
than the objection discussed above that was sustained by the trial court, appellant's
counsel did not object to this testimony at trial. Because there was no objection, appellant
waived all but plain error as to this testimony. State v. Noor, 10th Dist. No. 13AP-165,
2014-Ohio-3397, ¶ 56 ("[T]he record reflects that no contemporaneous objection was
made either to the prosecutor's questions or to the officers' answers. We must determine,
therefore, whether it was plain error to allow this testimony."). Plain error involves an
obvious error or defect in the proceedings that affects a substantial right; reversal is
warranted only if the outcome of the trial clearly would have been different absent the
error. Id.{¶ 74} To the extent Detectives Davis and Franken, and Special Agent Brennaman
offered opinion testimony, it was admissible lay opinion testimony under Evid.R. 701.
The cited portion of Special Agent Brennaman's testimony does not appear to contain
opinion testimony—he simply testified that he was involved in an investigation in which
the Columbus police believed the robberies were linked. Detective Davis's testimony was
clearly based on his own perceptions because he testified that he reached his conclusions
based on his review of the video and photographic evidence. Likewise, Detective Franken
testified that he reviewed the surveillance videos from the robbery incidents. Testimony
from both Detectives Davis and Franken was helpful to the jury's understanding of each
Nos. 14AP-981 and 15AP-594 33
witness's testimony regarding the investigatory process. It also assisted the jury in
determining a fact in issue, i.e., the identity of the suspect in the robberies. Therefore,
admission of this testimony did not constitute plain error.
{¶ 75} Appellant asserts that the most damaging evidence was introduced through
the interrogation video that was played for the jury. Appellant cites to statements from
Detectives Franken and Farbacher during the interrogation asserting that they believed
appellant was involved in the 2011 robberies and that they had surveillance videos and cell
phone records to prove that appellant committed those crimes. Appellant argues that
these statements constituted hearsay and that they were improper opinion evidence
because the detectives expressed their opinions that appellant was guilty of the robberies.
Prior to introduction of the interrogation video at trial, appellant's attorney indicated
there was a stipulation with respect to the video and that it had been edited and redacted
to remove certain content. Thus, the state argues that because the parties agreed to redact
certain portions of the video, any alleged error arising from admission of the remaining
portions of the video could be considered invited error. "Under the 'invited error'
doctrine, a party may not take advantage of an error which he invited or induced." State v.
Griffin, 10th Dist. No. 10AP-902, 2011-Ohio-4250, ¶ 16. "Pursuant to this doctrine, a
party cannot claim that a trial court erred by accepting the party's own stipulation." State
v. McClendon, 10th Dist. No. 11AP-354, 2011-Ohio-6235, ¶ 37.
{¶ 76} Even if admission of the interrogation video does not constitute invited
error, it would be subject to review under the plain error standard because appellant's
counsel did not object to introduction of the non-redacted portions of the video. With
respect to appellant's hearsay argument, we conclude that the detectives' statements in
the interrogation video did not constitute hearsay. Hearsay is "a statement, other than
one made by the declarant while testifying at the trial or hearing, offered in evidence to
prove the truth of the matter asserted." Evid.R. 801(C). In the context of the trial
proceedings, it appears that the purpose of including the detectives' statements in the
portions of the interrogation video played for the jury was to provide context for
appellant's statements and admissions during the interrogation. See, e.g., State v. Woods,
10th Dist. No. 05AP-704 (Aug. 17, 2006) ("[T]he testimony of [Detective] Junk about
Dickson's statement regarding appellant's location on the morning of the robbery and the
Nos. 14AP-981 and 15AP-594 34
videotape of Junk relaying Dickson's statement to appellant during the interview, were
not hearsay as they were not offered for the truth of the matter asserted. Instead, they
were offered to explain the context behind why appellant first claimed to Junk that he had
an alibi, but later recanted his story and offered to 'let it all out,' and tell Junk that Koonts
allegedly gave him money to purchase cocaine."); State v. Rice, 11th Dist. No. 2009-A-
0034, 2010-Ohio-1638, ¶ 23 ("The focus or purpose of playing the tape was to show Mr.
Rice's voluntary confession. Thus, the statements made by the detectives were not
intended to improperly interject medical 'expert testimony' as to the cause of death as Mr.
Rice contends. Rather, the statements were an interrogation technique employed to elicit
a response from Mr. Rice."). Moreover, assuming for purposes of analysis that the
portions of the video in which the detectives expressed their opinion that appellant was
involved in all the robberies would constitute impermissible opinion testimony, appellant
has failed to demonstrate plain error by showing that the outcome of the trial clearly
would have been different had those statements not been presented to the jury. Appellant
asserts that it was the most damaging evidence against him, but there was a substantial
volume of evidence presented against appellant, including his own admission to the BMV
office robbery and his attempt to explain his whereabouts when the license plate reader
identified his van near the location of the November 8, 2012 Wendy's robbery, as well as
the testimony and evidence establishing the similarities between those robberies and the
2011 robberies.
{¶ 77} Appellant further argues that the trial court erred by admitting victim
impact testimony during the guilt phase of the trial. Appellant claims that this evidence
was not relevant to determining whether appellant committed the robberies and only
served to invoke the jury's sympathy for the victims and make the jurors more likely to
convict him. Appellant cites to several specific instances of alleged victim impact
testimony. The witness regarding the August 10, 2011 Subway robbery testified that she
had a two-year-old child at the time of the robbery and that, following the robbery, she
stopped working for Subway because she was afraid to work alone. The witness regarding
the September 13, 2011 BP robbery testified that his co-worker got down on the floor
crying after the robbery and quit her job immediately after the robbery. The witness
regarding the September 17, 2011 Subway robbery testified that her co-worker, who was a
Nos. 14AP-981 and 15AP-594 35
new employee, was laying on the floor crying after the robbery. She testified that they
both decided that Subway was not a good place to work, and that the new employee quit
after the robbery. She further stated that she did not know if her former co-worker would
ever get a job again. The witness to the October 10, 2011 Marathon robbery testified that
both he and his co-worker were very upset following the robbery. The employee who
testified about the November 8, 2012 Wendy's robbery stated that she was so frightened
during the robbery that she urinated on herself. She further testified that during the
robbery she tried to stay calm so the robber would not hurt one of her co-workers, who
was seven months pregnant at the time. One of the employees present during the
November 15, 2012 BMV office robbery testified that she was concerned for her daughter,
who was a co-worker and was present during the robbery, because she was five months
pregnant at the time and had lost a child the prior year. She testified that her daughter
was very upset and crying after the robbery and that she asked whether her daughter
wanted an ambulance to be called. The daughter also testified, stating that her first
instinct during the robbery was to get down on the floor to protect her unborn child.
Appellant also cites to comments by Detective Franken regarding the impact on the
victims that were included in the interrogation video presented to the jury.
{¶ 78} This court has recognized that testimony as to the effect of a criminal act on
the victim, the victim's family, or both, is usually not considered relevant evidence with
regard to the guilt or innocence of the defendant. State v. F.R., 10th Dist. No. 14AP-440,
2015-Ohio-1914, ¶ 45. Victim impact testimony creates a risk of inflaming the passions of
the jury and resulting in a conviction on facts unrelated to the defendant's guilt or
innocence. Id. However, "[e]vidence relating to the facts attendant to the offense is
'clearly admissible' during the guilt phase, even though it might be characterized as
victim-impact evidence." State v. McKnight, 107 Ohio St.3d 101, 2005-Ohio-6046, ¶ 98,
citing State v. Fautenberry, 72 Ohio St.3d 435, 440 (1995).
{¶ 79} The F.R. case involved a prosecution for gross sexual imposition against an
11-year-old victim. F.R. at ¶ 2-3. On appeal, the defendant argued in part that the trial
court erred by allowing the prosecution to elicit testimony about the psychological harm
suffered by the victim and her family. Id. at ¶ 42. The prosecutor asked the victim's
mother what impact the incident had on the family. Over objection by defense counsel,
Nos. 14AP-981 and 15AP-594 36
the trial court permitted the testimony to proceed and the witness testified that there had
been a lot of tears and uneasiness in the neighborhood, along with having conversations
with her son about why the family was careful. Id. at ¶ 43. This court found that the
testimony was not relevant to the defendant's guilt or innocence and that the only
apparent purpose for the question was to elicit sympathy from the jury. Accordingly, the
court found that the trial court erred by admitting the testimony; however, the court
further concluded that the error was harmless because there was no reasonable possibility
it contributed to the conviction. Id. at ¶ 46. The court noted that the prosecutor did not
dwell on the impact of the crimes during questioning or in closing argument. Id. at ¶ 47.
The court contrasted the facts with those present in State v. Presley, 10th Dist. No. 02AP-
1354, 2003-Ohio-6069, where a rape victim testified that she suffered nightmares about
the rape and both the victim and her mother testified that the victim attempted suicide as
a result of the rape. F.R. at ¶ 48. The Presley court concluded that the trial court abused
its discretion by admitting that testimony which prejudiced the defendant. Presley at
¶ 86. Because the F.R. court found that there was "no reasonable possibility that the
limited victim impact testimony contributed to [the defendant's] conviction," it overruled
his challenge to the victim impact testimony. F.R. at ¶ 48.
{¶ 80} In the present case, appellant concedes that his trial counsel did not object
to the purported victim impact testimony. Therefore, we apply the plain error standard.
With respect to the statements of Detective Franken contained in the interrogation video,
we apply the same reasoning set forth above—i.e., the statements provided context for the
interrogation and appellant's responses and they were not offered to prove the truth of the
matter asserted. With respect to the trial testimony cited by appellant, it seems clear that
the testimony from employees of the various businesses that were robbed was not directly
relevant to appellant's guilt or innocence and there was some risk that this testimony
would inflame the sympathies of the jury. The evidence appears to be more substantial
than the testimony deemed to be harmless in F.R., but less detailed and emotional than
the improper testimony in Presley. Moreover, in determining whether admission of this
testimony constituted plain error, the entire context of the trial must be considered. The
trial lasted six days and involved testimony from 30 witnesses relating to 15 separate
robberies; the printed transcript of the trial spans 6 volumes and nearly 1200 pages of
Nos. 14AP-981 and 15AP-594 37
testimony and argument. Thus, while the various statements cited in appellant's brief
may appear to create a notable risk of prejudice to appellant when compiled into a single
paragraph, we must consider that the jury heard them as individual comments by certain
witnesses throughout the course of a six-day trial. Absent the victim impact statement,
the jurors would still have been provided with voluminous evidence including
descriptions and video or photographic evidence related to each robbery, as well as
appellant's statements during his interrogation. Under these circumstances, we conclude
that appellant has failed to show that the outcome of his trial clearly would have been
different had the victim impact testimony not been admitted; accordingly, admission of
this testimony did not constitute plain error.
{¶ 81} Finally, we note that appellant generally argues in support of his first
assignment of error that the prosecution relied on the opinion testimony and victim
impact testimony in its closing argument. Appellant claims that the jury must have
necessarily relied on this testimony in convicting him because the jurors deliberated for
less than one hour before reaching final verdicts on all charges. We conclude, however,
the jury's relatively brief deliberation does not necessarily mean their verdicts were based
on emotion. Although there was voluminous evidence and testimony presented in this
case, as discussed more fully below in response to appellant's weight and sufficiency
challenges, the evidence as to each robbery was largely straightforward and direct. The
key issue for the jury was identity with respect to the 2011 robberies and the November 8,
2012 Wendy's robbery, and whether the state had established sufficient similarities
between those crimes and the November 15, 2012 BMV office robbery where appellant
was arrested. It is conceivable that the jurors quickly reached a consensus on this issue by
reviewing the evidence and testimony presented to them.
{¶ 82} Accordingly, we overrule appellant's first assignment of error.
D. Jury Instructions
{¶ 83} In his third assignment of error, appellant asserts the trial court erred by
instructing the jurors that they could consider other acts evidence on the issue of identity.
Appellant argues that this instruction was not properly tailored to the facts of the case and
allowed the jury to use evidence of the November 15, 2012 BMV office robbery, where
appellant was apprehended, to prove that he committed all the other robberies. The state
Nos. 14AP-981 and 15AP-594 38
responds that the instruction at issue properly served to limit the jury's use of the other
acts evidence and ensure that such evidence was not used as propensity evidence.
{¶ 84} A trial court has broad discretion in instructing the jury. State v. Daniels,
10th Dist. No. 13AP-969, 2014-Ohio-3697, ¶ 17. Accordingly, we review the trial court's
instructions for abuse of discretion. An abuse of discretion implies that the court's
attitude was unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore, 5 Ohio
St.3d 217, 219 (1983).
{¶ 85} The Ohio Jury Instructions provides the following instruction related to
other acts evidence:
1. * * * Evidence was received about the commission of
(crime[s]) (wrong[s]) (act[s]) other than the offense(s) with
which the defendant is charged in this trial. That evidence
was received only for a limited purpose. It was not received,
and you may not consider it, to prove the character of the
defendant in order to show that he acted in (conformity)
(accordance) with that character. If you find that the
evidence of other (crime[s]) (wrong[s]) (act[s]) is true and
that the defendant committed (it) (them), you may consider
that evidence only for the purpose of deciding whether it
proves
(Use appropriate alternative[s])
(a) the absence of (mistake) (accident),
(or)
(b) the defendant's (motive) (opportunity) (intent or
purpose) (preparation) (plan) to commit the offense charged
in this trial,
(or)
(c) knowledge of circumstances surrounding the offense
charged in this trial,
(or)
(d) the identity of the person who committed the offense in
this trial,
Nos. 14AP-981 and 15AP-594 39
(or)
(e) (describe other purposes).
That evidence cannot be considered for any other purpose.
(Emphasis sic.) Ohio Jury Instructions, CR Section 401.25.
{¶ 86} In this case, the trial court gave the jury the following instruction:
Now, members of the jury, evidence was admitted of other
acts which may have been committed by the defendant. You
are to consider this evidence only on the issue of identity. If
you believe that the defendant committed the other act, you
may consider evidence of scheme, plan or system as you
decide whether the acts alleged in the indictment, if
committed, were committed by the defendant rather than
some other person.
Now, members of the jury, let me caution you that the
evidence of the scheme, plan or system is only one of the
things you are to consider in determining identity. The State
of Ohio must prove identity beyond a reasonable doubt. If you
find that the defendant committed the other act, you may not
presume that he committed the acts charged. You may,
however, consider the other act, along with all the other
evidence, in deciding whether the State of Ohio has proved
beyond a reasonable doubt that the defendant, rather than
some other person, committed the offense charged.
(Oct. 1, 2014 Tr. at 1091-92.)
{¶ 87} As explained above, we conclude that, under the circumstances in this case,
the other acts evidence presented in this case shared sufficient common characteristics to
be admissible to prove identity through a particular modus operandi. See Lowe at
paragraph one of the syllabus. The trial court's instruction in this case, which was
consistent with the model instruction provided in the Ohio Jury Instructions, constituted
a proper explanation of the permissible and impermissible uses of the other acts evidence.
Therefore, we cannot conclude that the trial court abused its discretion by giving this
instruction. See State v. Hillman, 10th Dist. No. 14AP-252, 2014-Ohio-5760, ¶ 37.
{¶ 88} Accordingly, we overrule appellant's third assignment of error.
Nos. 14AP-981 and 15AP-594 40
E. Ineffective Assistance of Counsel
{¶ 89} In his fourth assignment of error, appellant argues that his trial counsel
provided ineffective assistance by failing to have a record made of the joinder hearing and
by failing to object to opinion testimony and victim impact testimony at trial. As
explained above, we apply a two-part standard to claims of ineffective assistance,
examining (1) whether counsel's performance was deficient, and (2) whether that
deficient performance resulted in prejudice to the defendant. See Strickland at 687;
Bradley at 141-42. A party seeking to show prejudice as a result of counsel's alleged
deficient performance at trial must establish that there is a reasonable probability that,
but for the unprofessional errors of counsel, the outcome of the trial would have been
different. State v. Phillips, 10th Dist. No. 14AP-79, 2014-Ohio-5162, ¶ 81. "A reasonable
probability is one sufficient to undermine confidence in the outcome." Id., citing
Strickland at 694.
{¶ 90} For the reasons set forth above, we have concluded that joinder of the
indictments was proper in this case. Accordingly, even if appellant's counsel performed
deficiently by failing to have a record made of the joinder hearing, appellant cannot
demonstrate that he was prejudiced by such deficiency.
{¶ 91} With respect to counsel's failure to object to opinion testimony and victim
impact testimony, we note that decisions on trial strategy and tactics are generally granted
a wide latitude of professional judgment and it is not our duty to analyze trial counsel's
legal tactics and maneuvers. Id. at ¶ 86. However, assuming without deciding that
appellant's counsel performed deficiently by failing to object to this testimony, we cannot
conclude that there is a reasonable probability that the result of the trial would have been
different. As discussed more fully below, there was a substantial amount of evidence
presented with respect to each of the charges against appellant. Additionally, while the
victim impact testimony created a risk of invoking the jurors' sympathies, the testimony
constituted a small part of the overall presentation in support of the state's case and must
be considered in that broader context. Appellant has failed to demonstrate a reasonable
probability that the outcome of the trial would have been different absent the opinion
testimony and victim impact testimony.
{¶ 92} Accordingly, we overrule appellant's fourth assignment of error.
Nos. 14AP-981 and 15AP-594 41
F. Weight and Sufficiency of the Evidence
{¶ 93} Finally, we turn to appellant's fifth and sixth assignments of error, in which
he asserts the evidence was insufficient to sustain his convictions and that the judgment
was against the manifest weight of the evidence.
{¶ 94} "Sufficiency of the evidence is a legal standard that tests whether the
evidence introduced at trial is legally sufficient to support a verdict." State v. Cassell, 10th
Dist. No. 08AP-1093, 2010-Ohio-1881, ¶ 36, citing State v. Thompkins, 78 Ohio St.3d
380, 386 (1997). In reviewing a challenge to the sufficiency of the evidence, an appellate
court must determine "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 (1991), paragraph
two of the syllabus. Where the evidence, "if believed, would convince the average mind of
the defendant's guilt beyond a reasonable doubt," it is sufficient to sustain a conviction.
Id.{¶ 95} Appellant was convicted of 2 counts of robbery with respect to each of the 15
incidents described above. The indictments charged that in attempting or committing a
theft offense or in fleeing immediately after the attempt or offense, appellant recklessly
inflicted, attempted to inflict, or threatened to inflict physical harm on another, thereby
violating R.C. 2911.02(A)(2). The indictments also charged that in attempting or
committing a theft offense or in fleeing immediately after the attempt or offense,
appellant recklessly used or threatened the immediate use of force against another,
thereby violating R.C. 2911.02(A)(3). Appellant was also convicted on one count of
kidnapping with respect to the October 10, 2011 Marathon robbery, four counts of
kidnapping with respect to the November 8, 2012 Wendy's robbery, and one count of
kidnapping with respect to the November 15, 2012 BMV office robbery. With regard to
those charges, the indictments asserted that by force, threat, or deception, appellant
restrained another of his or her liberty with the purpose to facilitate the commission of the
robbery or flight thereafter, thereby violating R.C. 2905.01(A)(2). In the count arising
from the October 10, 2011 Marathon robbery, appellant was charged with kidnapping one
or both of the employees who were present during the robbery. For the November 8,
2012 Wendy's robbery, appellant was charged with kidnapping four of the employees who
Nos. 14AP-981 and 15AP-594 42
were present during the robbery. Similarly, for the November 15, 2012 BMV office
robbery, appellant was charged with kidnapping the office manager who was present
during the robbery.
1. Sufficiency of evidence related to the November 15, 2012 BMV
office robbery
{¶ 96} Appellant does not appear to contest his convictions on the two robbery
charges and one kidnapping charge arising from the November 15, 2012 robbery; his brief
on appeal only refers to convictions based on the other 14 incidents. Nonetheless, we will
briefly review the evidence supporting those convictions. Appellant admitted to
committing the November 15, 2012 BMV office robbery in the interrogation video and his
counsel acknowledged at trial that appellant committed that robbery. The state presented
testimony and evidence demonstrating that appellant entered the BMV office carrying a
handgun, pointed that handgun at one or more of the employees, demanded money, and
took money from the employees. By taking the money, appellant committed a theft
offense. See, e.g., State v. Green, 10th Dist. No. 03AP-813, 2004-Ohio-3697, ¶ 11
(explaining that a "theft offense" includes knowingly obtaining or exerting control over
property or services without consent of the owner, with purpose to deprive the owner of
the property or services).
{¶ 97} The Supreme Court of Ohio has held that "[o]ne cannot display, brandish,
indicate possession of, or use a deadly weapon in the context of committing a theft offense
without conveying an implied threat to inflict physical harm." State v. Evans, 122 Ohio
St.3d 381, 2009-Ohio-2974, ¶ 23. "It is the very act of displaying, brandishing, indicating
possession, or using the weapon that constitutes the threat to inflict harm because it
intimidates the victim into complying with the command to relinquish property without
consent." Id. Thus, there was sufficient evidence to establish that all of the elements of
robbery, as defined under R.C. 2911.02(A)(2), were established. Similarly, we conclude
that appellant's actions of pointing the gun at the BMV office employees constituted a
threat of the immediate use of force against them in the commission of the theft offense,
thereby establishing the elements of robbery as defined under R.C. 2911.02(A)(3). See,
e.g., State v. Taylor, 10th Dist. No. 14AP-254, 2015-Ohio-2490, ¶ 17 (testimony that
defendant pointed a gun at victims during robbery, made one victim lie on the ground at
Nos. 14AP-981 and 15AP-594 43
gunpoint, and threatened that accomplice would shoot victims if they got up off the
ground was sufficient to support robbery conviction based on use or threat of immediate
use of force).
{¶ 98} With respect to the kidnapping charge arising from the November 15, 2012
BMV office robbery, one of the employees present during the robbery testified that when
the office manager started to come out of the back room and move toward the front area,
appellant pointed his gun at the office manager and told her to go sit down. As the video
of the robbery was played for the jury, the employee identified the office manager and
demonstrated when appellant told her to go sit down. Thus, there was evidence that to
facilitate the commission of the robbery, appellant restrained the liberty of the office
manager by ordering her, at gunpoint, to sit down. See, e.g., State v. Jackson, 10th Dist.
No. 14AP-748, 2015-Ohio-5114, ¶ 21 (holding that evidence was sufficient to support
kidnapping conviction where appellant held victims at gunpoint and prevented them from
leaving). Therefore, the evidence was sufficient to establish the elements of kidnapping,
as defined under R.C. 2905.01(A)(2).
2. Sufficiency of evidence related to November 8, 2012 Wendy's
robbery
{¶ 99} Appellant was convicted on two counts of robbery and four counts of
kidnapping as a result of the November 8, 2012 Wendy's robbery. The state presented
evidence and testimony establishing that a masked man entered the Wendy's restaurant,
pointed a gun at the manager and instructed all the employees to get on the floor. The
restaurant manager testified that the robber compelled her to open the cash registers.
The robber took the money from the cash registers and fled the restaurant. The
restaurant manager identified herself and the three other employees named in the
kidnapping counts as being present during the robbery and testified that they were forced
to get on the floor or otherwise prevented from moving about freely. Similar to the
reasoning set forth above, we conclude that this evidence was sufficient to demonstrate
that the individual depicted in the Wendy's surveillance video committed robbery and
kidnapping.
{¶ 100} Appellant, however, asserts that there was not sufficient evidence to
establish that he was the individual who committed those crimes. As explained above,
Nos. 14AP-981 and 15AP-594 44
there were numerous similarities between appellant's actions in robbing the BMV office
on November 15, 2012, and the conduct of the robber during the November 8, 2012
Wendy's robbery. Both robberies occurred during the evening. Appellant and the
Wendy's robber were African-American men who wore dark clothing and masks while
committing the robberies. Appellant and the Wendy's robber both wore dark gloves with
white markings or letters. Appellant and the Wendy's robber each held a small handgun
in the left hand while committing the robberies and each went behind the counter into
areas where the public would not normally be present. The restaurant manager testified
that the robber was approximately 5'7" and weighed about 200 pounds; there was
evidence introduced that appellant was 5'9" and weighed 222 pounds. Additionally, there
was evidence from the police license plate reader that appellant's van was in the area near
the robbery a few minutes after it occurred. This evidence, viewed in the light most
favorable to the prosecution, would be sufficient to establish that appellant committed the
robbery and kidnapping on November 8, 2012.
3. Sufficiency of the evidence related to the 2011 robberies
{¶ 101} Appellant similarly argues that the evidence was insufficient to establish
that he committed the robberies giving rise to the 26 robbery counts and 1 kidnapping
count contained in the indictment in case No. 13CR-4174. As set forth above, the state
presented evidence and testimony with respect to each incident establishing that an
African-American man entered each of the establishments, brandished or pointed a gun
at the employees, and demanded money. The robber wore dark clothing and a mask
obscuring most of his face. He wore dark gloves with white markings or lettering. He
ordered the employees of the various establishments to get on the ground. He carried a
gun in his left hand and used his right hand to reach into the cash registers to take money.
Ten of the 13 robberies that occurred in 2011 were committed in the evening or at night.
In all but the first of the 2011 robberies, the robber jumped over or went behind the
counters into areas where the public would not normally be present. As with the
November 8, 2012 Wendy's robbery, these characteristics of the individual who
committed the 2011 robberies were similar to appellant's actions during the November 15,
2012 BMV office robbery. Additionally, several of the witnesses' descriptions of the
robber's height and weight were consistent with appellant's height and weight. With
Nos. 14AP-981 and 15AP-594 45
regard to the kidnapping charge arising from the October 10, 2011 Marathon robbery, one
of the employees testified that the robber pushed his fellow employee to the ground,
thereby restricting her movement. This act was also visible on the video that was played
for the jury. Viewing all of this evidence in the light most favorable to the prosecution, it
was sufficient to establish that appellant committed the crimes for which he was convicted
in case No. 13CR-4174.
4. Manifest weight of the evidence
{¶ 102} "While sufficiency of the evidence is a test of adequacy regarding whether
the evidence is legally sufficient to support the verdict as a matter of law, the criminal
manifest weight of the evidence standard addresses the evidence's effect of inducing
belief." Cassell at ¶ 38, citing State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, ¶ 25.
"When presented with a challenge to the manifest weight of the evidence, an appellate
court may not merely substitute its view for that of the trier of fact, but must review the
entire record, weigh the evidence and all reasonable inferences, consider the credibility of
witnesses and determine whether in resolving conflicts in the evidence, the trier of fact
clearly lost its way and created such a manifest miscarriage of justice that the conviction
must be reversed and a new trial ordered." State v. McCrary, 10th Dist. No. 10AP-881,
2011-Ohio-3161, ¶ 12, citing Thompkins at 387. This authority " 'should be exercised only
in the exceptional case in which the evidence weighs heavily against the conviction.' "
Thompkins at 387, quoting State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist.1983). In
conducting our review of the evidence, "we are guided by the presumption that the jury, or
the trial court in a bench trial, 'is best able to view the witnesses and observe their
demeanor, gestures and voice inflections, and use these observations in weighing the
credibility of the proffered testimony.' " State v. Cattledge, 10th Dist. No. 10AP-105,
2010-Ohio-4953, ¶ 6, quoting Seasons Coal Co. v. Cleveland, 10 Ohio St.3d 77, 80 (1984).
{¶ 103} In this case, the state set forth extensive evidence and testimony related to
each of the robbery incidents. In addition to testimony from at least one employee of each
business that was robbed, the state offered into evidence video and or photographic
evidence from each of the robberies. The state also presented the video of appellant's
interrogation, in which he admitted to committing the November 15, 2012 BMV office
robbery. Appellant's explanation of his whereabouts on the evening of November 8, 2012
Nos. 14AP-981 and 15AP-594 46
was inconsistent with the evidence showing that his van was near the area of the Wendy's
robbery shortly after the robbery occurred. Appellant stated that he worked out at a
fitness center in Worthington and then traveled to a private client's home, which would
have required him to travel west, away from the location of the robbery. However, the
location where the license plate reader detected his van was east of the fitness center
where he claimed to have worked out. Appellant also made comments during his
interrogation that could be construed to indicate that he had committed other robberies.
As noted above, in several instances the witnesses' descriptions of the robber were
consistent with appellant's height and weight. Based on the record before us, we cannot
conclude that the jury clearly lost its way or that the evidence weighed heavily against
appellant's convictions.
{¶ 104} Accordingly, we overrule appellant's fifth and sixth assignments of error.
IV. Conclusion
{¶ 105} For the foregoing reasons, we overrule appellant's six assignments of error
and five supplemental assignments of error and affirm the judgments of the Franklin
County Court of Common Pleas.
Judgments affirmed.
BROWN and LUPER SCHUSTER, JJ., concur.