State v. Ruff , 2013 Ohio 5892 ( 2013 )

[Cite as State v. Ruff, 2013-Ohio-5892.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-120844
TRIAL NO. B-1007073
Plaintiff-Appellee, :
O P I N I O N.
vs. :
LAMOUR RUFF, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: December 24, 2013
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Philip R. Cummings,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Timothy J. Bicknell, for Defendant-Appellant.
Please note: this case has been removed from the accelerated calendar.
OHIO FIRST DISTRICT COURT OF APPEALS
D E W INE , Judge.
{¶1} Lamour Ruff appeals his convictions for aggravated robbery with a
specification, carrying concealed weapons, and having a weapon while under a
disability. He contends that the trial court should have suppressed a gun found on him
during a search, that he was denied a fair trial due to prosecutorial misconduct, and that
the trial court should have severed the robbery charges from the weapons charges. We
conclude that the trial court properly overruled his motion to suppress and that Mr. Ruff
waived his objection to not severing the charges. We also conclude that, while certain
comments made by the assistant prosecutor were improper, Mr. Ruff was not denied a
fair trial. We therefore affirm the judgment of the trial court.
I.
{¶2} Mr. Ruff was indicted for two separate incidents. The state alleged that
on September 21, 2011, Mr. Ruff robbed Deboragh Lynn Evans and Ronald Sanders at
gunpoint. It also alleged that on October 17, Mr. Ruff was found to be carrying a
concealed weapon and that he was under a disability.
{¶3} Prior to trial, Mr. Ruff moved to suppress testimony about
identifications that Ms. Evans and Mr. Sanders made after they were shown a
photograph array and also to suppress evidence found on Mr. Ruff following a police
stop. The trial court granted the motion with respect to the identification testimony but
denied it with respect to the stop. The state appealed the trial court’s decision on the
photo identification. We reversed the court’s judgment and remanded the case. See
State v. Ruff, 1st Dist. Hamilton No. C-110250, 2012-Ohio-1910.
{¶4} On remand, the following evidence was adduced at a jury trial. On
September 21, 2011, around 8:00 p.m., Ms. Evans and Mr. Sanders were walking from a
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OHIO FIRST DISTRICT COURT OF APPEALS
hair salon in downtown Cincinnati to a parking garage. A man on a bicycle rode past
them. Later, while they were standing near Ms. Evans’s car, the man on the bike
approached, pointed a gun at them, and demanded their phones, money and jewelry.
Both victims testified that they had gotten a good look at the man during the robbery.
{¶5} A few weeks later, on October 17 around midnight, Officer Alicia
Bruewer was patrolling the Over-the-Rhine area of Cincinnati. Officer Bruewer saw a
man dressed in all black riding his bicycle with no lights on the sidewalk in violation of
Cincinnati Municipal Code 506-5 and R.C. 4511.56. Officer Bruewer testified that based
on her experience, she believed that the man, later identified as Mr. Ruff, might be
dealing drugs. As the police officer watched, Mr. Ruff stopped and handed his bike off to
another person. Because she was alone in her police cruiser, she asked for backup
before stopping Mr. Ruff to cite him for the bicycle violation. When she heard that a
two-man unit would be at the scene shortly, she stopped Mr. Ruff and asked him to sit
on the step until her backup came. After the other officers arrived, Officer Bruewer
asked Mr. Ruff for his identification, and he provided it. She ran Mr. Ruff’s information
through the computer in her cruiser and determined that he did not have any open
warrants.
{¶6} Because he was acting nervous, had “shifty eyes,” and seemed to be
sitting in a way as to conceal something, Officer Bruewer told Mr. Ruff that the police
officers were going to pat him down before she issued the bicycle citation to him. Mr.
Ruff threw his hands in the air, became agitated, and reached for his belt area, so Officer
Branden Mentz handcuffed him. When Office Mentz patted him down, he found a gun
in Mr. Ruff’s back right pocket. Mr. Ruff was arrested and informed of his Miranda
rights.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶7} Officer Craig Ball, who had been investigating the parking-garage
robbery, saw the report of Mr. Ruff’s arrest. After realizing that Mr. Ruff had been riding
a bike and had approximately the same build as the suspect in the robbery, Officer Ball
created a photograph array that contained Mr. Ruff’s picture. The array was shown to
Mr. Sanders and Ms. Evans on separate occasions, and both identified Mr. Ruff as the
man who had robbed them. They identified him again at trial as the robber.
{¶8} The jury found Mr. Ruff guilty of two counts of aggravated robbery, two
counts of robbery, one count of carrying a concealed weapon and one count of having a
weapon under a disability. The trial court merged the robbery counts with the
aggravated robbery counts and sentenced him accordingly.
II.
{¶9} In his first assignment of error, Mr. Ruff asserts that the trial court
erred when it refused to suppress the gun found on him during the search. He also
argues that statements made by him following the discovery of the gun should have
been suppressed as fruits of the poisonous tree.
{¶10} Mr. Ruff does not dispute that Officer Bruewer had probable cause to
stop him for the bicycle violation. Rather, he contends that the stop was
unreasonably prolonged.
{¶11} The trial court found Officer Bruewer’s testimony to be credible. She
testified that because of the neighborhood that she was in and her suspicion that Mr.
Ruff was dealing drugs, she was concerned about her safety from the beginning of
the encounter. Because of this concern, she called for backup before approaching
Mr. Ruff. Mr. Ruff’s behavior after she stopped him did not allay her safety
concerns. Rather, he acted nervous and had “shifty eyes.” He sat in a way that led
Officer Bruewer to believe he was concealing something. The court found that based
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OHIO FIRST DISTRICT COURT OF APPEALS
upon the totality of the circumstances, the Terry pat down was proper. See Terry v.
Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Having reviewed the record,
we conclude that the court’s findings were supported by competent, credible
evidence. See State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d
71, ¶ 8. In light of the legitimate safety concerns, Officer Bruewer’s decision to delay
citing Mr. Ruff until her backup arrived was not unreasonable. The trial court
properly denied the motion to suppress. The first assignment of error is overruled.
{¶12} Mr. Ruff’s second assignment of error is that he was deprived of a fair
trial due to prosecutorial misconduct. Two of the alleged incidents of misconduct
were not objected to by Mr. Ruff. We thus review them for plain error. Crim.R.
52(B).
{¶13} In the first instance, the prosecuting attorney stated during his
opening that the gun that had been taken from Mr. Ruff on October 17 was the same
gun that had been pointed at Ms. Evans and Mr. Sanders. He repeated his assertion
during his closing argument when he stated, “I know [the gun’s] identical.” The
evidence presented in trial did not establish that the gun was the same one, but there
was testimony that the gun recovered from Mr. Ruff did look like the one used in the
robbery. Moreover, even if we assume the comments were improper, we are unable
to conclude that the result of the trial would have been different had the comments
not been made. See State v. Barnes, 94 Ohio St.3d 21, 27, 2002-Ohio-68, 759 N.E.2d
1240. Ms. Evans and Mr. Sanders consistently testified that Mr. Ruff had pointed a
gun at them and threatened to shoot them if they did not comply with his demands.
Likewise, Officer Mentz testified that he removed a gun that had been concealed
from Mr. Ruff’s person. Whether it was the same gun was inconsequential to the
proof of the individual offenses.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶14} Mr. Ruff contends that the assistant prosecuting attorney also
commented impermissibly on the credibility of the state’s witnesses. During his
opening statement, the assistant prosecuting attorney, referring to Mr. Sanders and
Ms. Evans, improperly stated, “[T]hey’re good witnesses; they’re credible witnesses.”
Again, no objection was made by Mr. Ruff. We conclude that no plain error
occurred. The jury had the opportunity to determine the credibility of the witnesses.
The assistant prosecutor’s comments were insignificant compared to the testimony
of Mr. Sanders and Ms. Evans at trial.
{¶15} Most troubling is a comment made by the assistant prosecuting
attorney to which Mr. Ruff did object. During closing argument, the assistant
prosecutor stated, “This is the defense. There’s been no other evidence that I am
aware of. There have been no witnesses put on. There’s no alibi witness.” The trial
court sustained Mr. Ruff’s objection and immediately instructed the jury:
[I] need to tell you something now. The defendant does not have to do
anything. The defendant doesn’t have to present a defense, doesn’t
have to put on any witnesses, doesn’t have to have alibi witnesses,
doesn’t have to have exhibits. The defendant does not have to do
anything. The burden of proof is upon the state. So please disregard
the comments by the prosecutor.
During jury instructions, the court reiterated, “There is no necessity or requirement
that the defendant present any evidence. The duty of proof rests entirely on the State
of Ohio.”
{¶16} “A jury is presumed to follow the instructions given to it by the trial
judge.” State v. Loza, 71 Ohio St.3d 61, 75, 641 N.E.2d 1082 (1994). We conclude
that given the trial court’s instruction to the jury not only at the time of the statement
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OHIO FIRST DISTRICT COURT OF APPEALS
but during jury instructions, Mr. Ruff’s substantial rights were not prejudiced by the
assistant prosecuting attorney’s misconduct. See State v. Jones, 135 Ohio St.3d 10,
2012-Ohio-5677, 984 N.E.2d 948, ¶ 200. We further conclude that Mr. Ruff was not
unfairly prejudiced by any cumulative effect of the prosecutor’s improper statements.
The second assignment of error is overruled.
{¶17} The final assignment of error is that the trial court erred when it
failed to sever the robbery charges stemming from the September 21 incident from
the weapons charges stemming from the October 17 stop. We are not persuaded.
{¶18} While the state’s appeal of the trial court’s decision on the motion to
suppress was pending, the trial court asked Mr. Ruff if he wanted to move forward on
the weapon charges, which were not impacted by the court’s decision on the
photograph array. Mr. Ruff’s attorney stated that he would rather keep the charges
together. In light of his request to try the offenses together, Mr. Ruff cannot now
claim that the court abused its discretion by not severing the charges. The third
assignment of error is overruled. We therefore affirm the judgment of the trial court.
Judgment affirmed.
H ENDON , P.J., and H ILDEBRANDT , J., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
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