State v. Sweeting , 2013 Ohio 5097 ( 2013 )

[Cite as State v. Sweeting, 2013-Ohio-5097.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-120733
TRIAL NO. B-1107880
Plaintiff-Appellee, :
vs. :
DERRICK SWEETING, : O P I N I O N.
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed in Part, Reversed in Part, and Cause
Remanded
Date of Judgment Entry on Appeal: November 20, 2013
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Scott M. Heenan,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Michaela M. Stagnaro, for Defendant-Appellant.
Please note: this case has been removed from the accelerated calendar.
OHIO FIRST DISTRICT COURT OF APPEALS
CUNNINGHAM, Judge.
{¶1} Following a jury trial, defendant-appellant Derrick Sweeting appeals from
the convictions and sentences imposed for his aggravated robbery of a liquor store and a
convenience store. Despite being under a disability from a prior felony conviction,
Sweeting had robbed both stores at gunpoint. At trial, the jury acquitted Sweeting of
charges stemming from a third aggravated robbery. Because the trial court imposed
consecutive felony sentences without making the statutorily required findings, and failed
to give the required postrelease-control warnings, we must vacate the imposed sentences
and remand the case for resentencing. We affirm the trial court’s judgment in all other
respects.
{¶2} On the afternoon of November 19, 2011, a person matching Sweeting’s
description and wearing a black, hooded sweatshirt entered Twigg’s Carryout in
Sharonville, Ohio. He left the store after asking the clerk a question. When the other
customers left the store, Sweeting returned wearing the same hooded sweatshirt. He used
a red bandanna as a mask and brandished a black, semiautomatic handgun with an
extended magazine. Sweeting ordered the clerk to turn over the store’s money or be killed.
These events were captured on the store’s video-surveillance system.
{¶3} Police investigators also suspected that Sweeting had robbed a Marathon
gas station on November 20, 2011. Evidence gained in the investigation resulted in a
video recording of Sweeting purchasing minutes for his cellular telephone.
{¶4} The next day, Sweeting, again wearing the black hooded sweatshirt and
the red bandanna as a mask, and carrying a black, semiautomatic handgun, robbed the
Food Mart convenience store in Blue Ash, Ohio. The video recording from the store also
revealed unusual markings on Sweeting’s shoes.
{¶5} Three days later, police investigating a report of multiple shots fired in an
area near the other robberies, arrested Sweeting. In his waistband, they found a black,
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OHIO FIRST DISTRICT COURT OF APPEALS
Kel-Tec .380 semiautomatic handgun with an extended magazine. Live ammunition for
the handgun was found wrapped in a red bandanna in his pants pocket. A search of
Sweeting’s home revealed shoes with the same markings seen in the Food Mart video
recording. Images taken from Sweeting’s Facebook page showed him wearing a black
hooded sweatshirt and a red bandanna.
{¶6} At trial, a Cincinnati Bell security manager, in possession of the records of
Sweeting’s cellular telephone, testified that because a cellular telephone will usually
employ the nearest cellular tower to relay texts and phone calls, the records showed
Sweeting’s cellular telephone had been used near the scene of each robbery at times near
to the events charged in the indictment. But under cross-examination, the witness
admitted that cellular phones do not always employ the nearest cell tower and that
Sweeting could have been three miles or more away from the towers.
{¶7} At trial, Sweeting stipulated to a prior conviction for aggravated assault
that had placed him under a disability. At the conclusion of the trial, the jury returned
guilty verdicts for each offense related to the Twigg’s Carryout and the Food Mart
robberies. It also returned verdicts of not guilty for charges stemming from the Marathon
robbery.
{¶8} Nearly three months later, the trial court held a sentencing hearing. The
trial court afforded Sweeting the protection of the multiple-counts statute by finding that
each charged robbery offense was an allied offense of aggravated robbery. The trial court
then imposed four-year prison terms for each of the two aggravated-robbery offenses and
ordered each to be served consecutively to an accompanying three-year firearm
specification. The court imposed 18-month prison terms for each weapon-under-a-
disability offense. The trial court then ordered that each prison term would be served
consecutively for an aggregate sentence of 17 years. Sweeting brought this appeal.
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OHIO FIRST DISTRICT COURT OF APPEALS
I. Batson Challenges
{¶9} In his first assignment of error, Sweeting asserts that his equal-protection
rights were violated when the trial court permitted the state to exclude two potential jurors
based on race in violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d
69 (1986).
{¶10} Evaluation of a Batson challenge occurs in three steps: (1) the opponent of
the peremptory strike must make a prima facie case of racial discrimination; (2) the state
then offers a racially neutral explanation for the challenge; and (3) the trial court must
decide whether the opponent has proved purposeful racial discrimination. See State v.
Were, 118 Ohio St.3d 448, 2008-Ohio-2762, 890 N.E.2d 263, ¶ 61. A trial court’s
determination that a challenge was not motivated by a discriminatory intent will not be
reversed on appeal unless it is clearly erroneous. See State v. Hernandez, 63 Ohio St.3d
577, 583, 589 N.E.2d 1310 (1992).
{¶11} Here, the state used peremptory challenges to excuse two African-
Americans from the jury over Sweeting’s objections. But the state’s subsequent race-
neutral explanations for striking both prospective jurors demonstrated the absence of
discriminatory intent in its use of peremptory challenges. The state struck one prospective
juror because of his youth and his lack of life experience, and struck the other because her
religious beliefs would have made it difficult for her to pass judgment on another, and
because she had family members who had previously been convicted of crimes in
Hamilton County. Consequently, we cannot say that the trial court erred in overruling
Sweeting’s objections to the state’s challenges. The first assignment of error is overruled.
II. Lack of Cautionary Instructions Not Plain Error
{¶12} In Sweeting’s second assignment of error, he asserts that the trial court
erred by failing to give curative instructions to the jury, including during “the final
instructions,” regarding the jury’s use of Sweeting’s prior conviction for aggravated
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OHIO FIRST DISTRICT COURT OF APPEALS
assault. The state was required to prove this prior conviction as an element of the
weapons-while-under-disability offenses.
{¶13} As Sweeting made no objection or request for a curative instruction, any
error, save plain error, was waived. See State v. Hale, 119 Ohio St.3d 118, 2008-Ohio-
3426, 892 N.E.2d 864, ¶ 182; see also Crim.R. 30(A) and (B).
{¶14} We note that the trial court in fact had charged the jury that the
stipulation that Sweeting had been convicted of aggravated assault in 2009 was admitted
“for the purposes of your determination of the weapon under disability charge which
states that he was so convicted and then possessed a gun illegally.” In light of the jury’s
decision to acquit Sweeting of the offenses surrounding the Marathon robbery, we cannot
say that the jury impermissibly used the stipulation of prior criminal conduct to conclude
that he had acted in a similar manner in these offenses. See Evid.R. 404(B). Since we do
not conclude that the outcome clearly would have been different absent the alleged error,
we overrule the assignment of error. See Crim.R. 52(B); see also State v. Barnes, 94 Ohio
St.3d 21, 27, 759 N.E.2d 1240 (2002).
III. Trial Counsel’s Spirited Defense
{¶15} Sweeting next argues that he was denied the effective assistance of counsel
for various claimed deficiencies, including counsel’s failure to object to the testimony of
witnesses who had identified Sweeting from the store videotapes, her failure to object to
the admission of cellular-telephone-tower usage data, and her failure to seek cautionary
instructions for the use of Sweeting’s prior criminal offense. The arguments are feckless.
{¶16} To prevail on a claim of ineffective assistance of trial counsel, an appellant
must show, first, that trial counsel’s performance was deficient and, second, that the
deficient performance was so prejudicial that he was denied a reliable and fundamentally
fair proceeding. See Lockhart v. Fretwell, 506 U.S. 364, 113 S.Ct. 838, 122 L.Ed.2d 180(1993); see also Strickland v. Washington, 466 U.S. 668, 689, 104 S.Ct. 2052, 80 L.Ed.2d
674 (1984); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), paragraphs two
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OHIO FIRST DISTRICT COURT OF APPEALS
and three of the syllabus. A reviewing court will not second-guess trial strategy and must
indulge a strong presumption that counsel’s conduct fell within the wide range of
reasonable professional assistance. See State v. Mason, 82 Ohio St.3d 144, 157-158, 694
N.E.2d 932 (1998).
{¶17} Here, Sweeting’s trial counsel worked vigorously to discredit the state’s
theory of the case and conducted a spirited defense. She succeeded to a substantial
degree, in that Sweeting was acquitted of the offenses surrounding the Marathon robbery.
Before trial, counsel also had moved successfully for severance of yet another convenience
store robbery, as charged in counts 10, 11, and 12, from this trial. Her vigorous cross-
examination of the state’s witnesses revealed the deficiencies in the use of cell-tower data.
After reviewing the entire record, and in light of our resolution of the second assignment
of error, we hold that counsel’s efforts were not deficient, and that Sweeting was not
prejudiced in any way. The result of the trial was reliable and fundamentally fair. The
third assignment of error is overruled
IV. Sufficiency and Weight-of-the-Evidence Claims
{¶18} In his fourth assignment of error, Sweeting challenges the weight and
sufficiency of the evidence adduced at trial to support his convictions. Sweeting
argues that there was little physical evidence linking him to the robberies, that the
videotape evidence of the robberies did not permit a clear identification of Sweeting
as the perpetrator, and that data indicating that his cellular phone had been used
near the robbery sites was equivocal at best.
{¶19} But the state presented ample evidence to support the convictions.
The state introduced the videotapes of the Twigg’s Carryout and the Food Mart
robberies showing a perpetrator that matched Sweeting’s description using a firearm
to obtain cash. Data of usage from Sweeting’s cellular telephone placed him near the
scene of the robberies at the time the offenses had occurred. The clothing that he
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OHIO FIRST DISTRICT COURT OF APPEALS
was wearing during the robberies was nearly identical to clothing that Sweeting wore
in his Facebook profile images. That clothing was found inside his home, and on his
person when taken into custody. The handgun that Sweeting was carrying when
arrested had the same extended magazine as the handgun wielded by the perpetrator
in the robbery videos. Sweeting stipulated that he had a prior conviction that had
placed him under a disability.
{¶20} We note that direct and circumstantial evidence inherently possess
the same probative value. See State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492(1991), paragraph one of the syllabus. Thus while there were inconsistencies in
witnesses’ testimony and the evidence adduced at trial, the weight to be given that
evidence and the credibility of the witnesses were for the jury, acting as the trier of
fact, to determine in resolving conflicts and limitations in the testimony. See State v.
DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967), paragraph one of the syllabus. Our
review of the entire record fails to persuade us that the jury clearly lost its way and
created such a manifest miscarriage of justice that the convictions must be reversed and a
new trial ordered. See State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541(1997). The jury was entitled to reject Sweeting’s theory that the state had failed to
adduce anything more than circumstantial evidence to prove he had committed the
robberies.
{¶21} Moreover, the record reflects substantial, credible evidence from which
the jury could have reasonably concluded that all elements of the charged crimes had been
proved beyond a reasonable doubt. See State v. Conway, 108 Ohio St.3d 214, 2006-Ohio-
791, 842 N.E.2d 996, ¶ 36. The fourth assignment of error is overruled.
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OHIO FIRST DISTRICT COURT OF APPEALS
V. Consecutive-Sentencing & Postrelease-Control Errors
{¶22} Finally, Sweeting contends that his aggregate sentence was contrary to law
because the trial court failed to make the findings required by R.C. 2929.14(C)(4) before
imposing consecutive sentences. He also calls this court’s attention to the fact that the
trial court had failed to provide postrelease-control warnings at sentencing.
{¶23} The sentencing court’s compliance with R.C. 2929.14(C)(4) involves a
three-step process that flows from the statute. See State v. Alexander, 1st Dist. Hamilton
Nos. C-110828 and C-110829, 2012-Ohio-3349, ¶ 13, 15, and 16. Although the court is not
required to use “talismanic words” to comply with the statutory-findings requirement, the
trial court satisfies the requirements of R.C. 2929.14(C)(4) when the record reflects that
the court has engaged in the required analysis and has selected the appropriate statutory
criteria. Id. at ¶ 16.
{¶24} Consecutive sentences imposed without the findings required by R.C.
2929.14(C)(4) are contrary to law and must be vacated. State v. Cowins, 1st Dist.
Hamilton No. C-120191, 2013-Ohio-277, ¶ 36.
{¶25} Here, the trial court ordered Sweeting to serve each imposed prison term
consecutively. The state concedes, and we have confirmed, that the trial court failed to
make the findings to support these consecutive sentences. The consecutive sentences
were thus contrary to law and we must vacate them. Cowins at ¶ 37.
{¶26} We also agree that the trial court failed to provide Sweeting with
postrelease-control warnings at the sentencing hearing. The trial court was statutorily
required to provide Sweeting with postrelease-control warnings as part of his sentences
for each of his first- and third-degree felony offenses. See R.C. 2929.19(B)(2)(c)-(e); see
also State v. Kennedy, 1st Dist. Hamilton No. C-120337, 2013-Ohio-4221, ¶ 119. The trial
court’s failure to comply with the statutory postrelease-control notification requirements
after imposing prison terms for those felony offenses renders that part of those sentences
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OHIO FIRST DISTRICT COURT OF APPEALS
void. See State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332, ¶ 26. The
fifth assignment of error is sustained.
VI. Conclusion
{¶27} Therefore, we vacate that portion of the trial court’s judgment ordering
that the sentences for aggravated robbery and having a weapon under a disability as
charged under counts one, three, seven, and nine be imposed consecutively. The matter is
remanded to the trial court for it to consider whether consecutive sentences for those
offenses are appropriate under R.C. 2929.14(C), and if so, to make the proper findings on
the record. Further, the trial court must provide Sweeting with the appropriate
postrelease-control notifications. Finally, the sentencing entry mistakenly indicates that
Sweeting had pleaded guilty to the charged offenses. The trial court should correct this
matter when resentencing Sweeting.
{¶28} In all other respects we affirm the trial court’s judgment.
Judgment accordingly.
HENDON, P.J., and DEWINE, J., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
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