State v. Bowman , 2012 Ohio 1355 ( 2012 )

[Cite as State v. Bowman, 2012-Ohio-1355.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 97165
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
JERMAINE BOWMAN
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-546673
BEFORE: S. Gallagher, J., Jones, P.J., and Cooney, J.
RELEASED AND JOURNALIZED: March 29, 2012
ATTORNEY FOR APPELLANT
Richard Agopian
The Hilliard Building
1415-1419 West 9th Street
Second Floor
Cleveland, OH 44113
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
By: Oscar E. Albores
Assistant Prosecuting Attorney
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, OH 44113
SEAN C. GALLAGHER, J.:
{¶1} Appellant, Jermaine Bowman, appeals his conviction and sentence from the
Cuyahoga County Court of Common Pleas. For the reasons stated herein, we affirm.
{¶2} On February 9, 2011, Bowman was indicted on charges of kidnapping (R.C.
2905.01(A)(3)) and felonious assault (R.C. 2903.11(A)(2)), each with a notice of prior
conviction and a repeat violent offender specification. The indictment later was
amended to include the name of the victim.
{¶3} Bowman pled not guilty to the charges, and he was found competent to
stand trial. After Bowman waived his right to a jury trial and rejected a plea offer, the
case proceeded to a bench trial.
{¶4} The victim testified to an incident that occurred on January 25, 2011. The
victim left work around 2:30 a.m. and was walking to a bus stop at West 3rd Street and
St. Clair Avenue in Cleveland. A man wearing a red “hoodie” and a baseball cap
approached her from behind. The man asked the victim for her name and asked if he
could walk with her. He appeared intoxicated and was making the victim feel
uncomfortable. The victim asked the man to stop following her, but he continued talking
to her and following her.
{¶5} The victim was on the phone with her boyfriend and relayed to him what
was occurring. She tried to walk away, but the man persisted in following her. She told
him to stop following her or she would call the police. She headed into the bus shelter
where other people were waiting. The man then walked into the bus shelter, held up a
knife, and said, “which one of you guys wants to die tonight?” The man grabbed the
victim by her coat and charged at her with the knife. As the man was swinging the knife,
the victim pulled back to avoid getting cut and she began screaming for help. A woman
who was at the bus stop pulled the victim away from the man.
{¶6} The victim began to run and jumped over a gate. The man chased her.
The victim ran to another bus stop and stopped a bus. The bus driver called the police.
{¶7} When the police arrived, they walked the victim over to the bus stop where
the incident began. After the victim gave a description of the man, the officer held up a
red hoodie and a baseball cap and asked if the items were what the man had been
wearing. The victim responded yes. She also identified the knife. The officer then
said, “I think we got him in the car. We’re going to walk up to the car and you tell me if
that’s him or not.” The victim looked in the police car and identified the suspect as the
correct individual.
{¶8} At trial, the victim testified the defendant was the person that she identified
to the police. She also identified the knife that was used during the incident.
{¶9} Officer Daniel Smith responded to the scene. He saw the female victim
crying and noticed a man standing in front of the bus stop. Officer Smith stated that a
bus driver approached him and told him the man was the person who was threatening the
victim. At trial, the officer identified the defendant as the man who was at the bus stop.
{¶10} The officer knew Bowman, who had assisted the officer with solving an
assault case a few days earlier. The officer described Bowman as wearing a red T-shirt
and being extremely intoxicated. The police found a can of Four Loko, a type of alcohol,
in front of the bus stop and a Swiss Army knife lying behind the bus stop bench.
{¶11} Detective Gregory Hunter conducted a follow-up investigation. He took
the victim’s statement. He did not order an examination for fingerprints on the knife.
With regard to the specifications in the indictment, evidence was presented establishing
Bowman’s prior conviction for aggravated robbery.
{¶12} Bowman admitted that he was sitting at the bus stop, was drinking Four
Loko, was intoxicated, and had a knife on him. He stated he was wearing a brown
leather coat, a gray T-shirt, blue jeans, and wheat-colored Timberland boots. This was
consistent with his booking photo. He admitted he also was wearing a baseball cap.
{¶13} Bowman indicated that he is a paranoid schizophrenic and had not been
taking his medication. He conceded that his condition has led him into physical
altercations. He stated that a female was at the bus stop with another male, that they
began laughing, and that he believed they were conspiring against him. Bowman then
stated, “I’m ready to die.” He claimed that the female walked off and the other male
said, “go on man. I ain’t about to fight you. Go home.”
{¶14} Bowman denied touching the female, swinging a knife at her, or going after
her. He testified that he did not witness the female argue or fight with anyone that night.
He admitted the Swiss Army knife introduced at trial was his. He claimed it had fallen
out of a hole in his coat pocket. He stated that he did not hurt anyone.
{¶15} The court found Bowman guilty of kidnapping and felonious assault, each
with the notice of prior conviction and repeat violent offender specifications. The court
found the charges were allied offenses that merged for sentencing. The state elected to
proceed on the kidnapping count. The court imposed a prison term of five years and
mandatory postrelease control of five years.
{¶16} Bowman timely filed this appeal. He raises four assignments of error for
our review. His first assignment of error challenges his conviction for kidnapping, a
first-degree felony, as being against the manifest weight of the evidence. He argues that
because the victim ran away unharmed, the charge should have been a second-degree
felony.
{¶17} When reviewing a claim challenging the manifest weight of the evidence,
the test is as follows:
“The court, reviewing the entire record, weighs the evidence and all
reasonable inferences, considers the credibility of witnesses and determines
whether in resolving conflicts in the evidence, the jury clearly lost its way
and created such a manifest miscarriage of justice that the conviction must
be reversed and a new trial ordered. The discretionary power to grant a new
trial should be exercised only in the exceptional case in which the evidence
weighs heavily against the conviction.” State v. Thompkins, 78 Ohio St.3d
380, 387, 678 N.E.2d 541 (1997), quoting State v. Martin, 20 Ohio App.3d
172, 175, 485 N.E.2d 717 (1st Dist.1983).
{¶18} Under R.C. 2905.01(A)(3), kidnapping is defined as follows:
(A) No person, by force, threat, or deception * * * shall * * * restrain the
liberty of the other person, for any of the following purposes: * * * (3) To
terrorize, or to inflict serious physical harm on the victim or another[.]
{¶19} Kidnapping under this section is a felony of the first degree; however, if the
offender releases the victim in a safe place unharmed, kidnapping is a felony of the
second degree. R.C. 2905.01(C)(1). The mitigating provision is not an element of the
crime, but rather, the defendant must plead and prove the assertion as an affirmative
defense. State v. McKnight, 107 Ohio St.3d 101, 2005-Ohio-6046, 837 N.E.2d 315, ¶
233.
{¶20} In this case, Bowman failed to establish that the victim was released in a
safe place unharmed. Though the victim herein may have been unharmed, the evidence
does not show that the offender released the victim. Rather, the offender grabbed the
victim by her coat and was swinging a knife at her. She escaped after being pulled away
from the offender, who then ran after her. “When the victim of a kidnapping escapes of
her own accord, a defendant cannot establish the affirmative defense that the victim was
released unharmed.” State v. White, 10th Dist. No. 06AP-607, 2007-Ohio-3217, ¶ 21,
citing State v. Stadmire, 8th Dist. No. 81188, 2003-Ohio-873, ¶ 50.
{¶21} Furthermore, upon our review of the entire record, we cannot say the
conviction was against the manifest weight of the evidence. The victim testified that the
offender held up a knife and said, “which one of you guys wants to die tonight.” He then
grabbed the victim by her coat and charged at her with the knife. The victim pulled back
to avoid getting cut, screamed for help, and was pulled away from his grasp. Though
Bowman denied such actions, Bowman admitted to being present, being intoxicated, and
having a knife on his person. He also indicated he suffers from paranoid schizophrenia
and has been in numerous physical altercations. Both the bus driver and the victim
identified Bowman as the offender. Though Bowman denied being the offender, he did
not witness the victim fight with anyone else. Because we do not find the conviction was
against the manifest weight of the evidence, Bowman’s first assignment of error is
overruled.
{¶22} Bowman’s second assignment of error argues he was denied effective
assistance of counsel and a fair trial. He claims that the eyewitness identification was
unduly suggestive and that his counsel should have filed a motion to suppress. He
further argues there were numerous instances when counsel failed to object to
inadmissible evidence; however, he fails to point to any instances in the record or to
otherwise substantiate this argument.
{¶23} In order to substantiate a claim of ineffective assistance of counsel, the
appellant must show that (1) counsel’s performance was deficient and (2) the deficient
performance prejudiced the defendant so as to deprive him of a fair trial. State v.
Trimble, 122 Ohio St.3d 297, 2009-Ohio-2961, 911 N.E.2d 242, ¶ 98, citing Strickland v.
Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Judicial
scrutiny of defense counsel’s performance must be highly deferential. Strickland at 689.
A party claiming his counsel was ineffective for failing to file a motion to suppress must
show resulting prejudice. State v. Jackson, 8th Dist. No. 86542, 2006-Ohio-1938, ¶ 17,
citing State v. Robinson, 108 Ohio App.3d 428, 433, 670 N.E.2d 1077 (3d Dist.1996).
{¶24} Bowman argues that he was identified by the victim after an unduly
suggestive “show-up” in which the police officer stated, “I think we got him in the car.”
While a one-man show-up is inherently suggestive, the identification is still admissible
when the circumstances show the identification is reliable. State v. Jennings, 7th Dist.
No. 08-MA-181, 2009-Ohio-6536, ¶ 17, citing State v. Sutton, 10th Dist. No. 06AP-708,
2007-Ohio-3792, ¶ 38.
{¶25} In this matter, the victim identified the offender as wearing a red hoodie and
a baseball cap and having a knife. She further indicated that he appeared intoxicated.
Bowman was also identified by the bus driver, and the police officer described him as
wearing a red T-shirt and being extremely intoxicated. While there were some
inconsistencies as to the type of pants Bowman was wearing, the witnesses were
testifying to the best of their recollection. A red hoodie, a baseball cap, and a knife were
recovered by the police and identified by the victim before she was shown the suspect.
She was taken to a police car at the scene and positively identified the suspect. Bowman
conceded that he was present at the bus stop, that he had been wearing a baseball cap, and
that the knife was his. He admitted he had been drinking and was intoxicated.
{¶26} The circumstances reflect that the victim’s identification of Bowman was
reliable, and therefore admissible, despite the suggestiveness in the identification
procedure. Because Bowman has failed to demonstrate that a motion to suppress would
have been granted or that he suffered any prejudice as a result of his counsel’s
performance, his ineffective assistance of counsel claim lacks merit. Therefore, we
overrule Bowman’s second assignment of error.
{¶27} Bowman’s third assignment of error claims the trial court did not properly
merge the allied offenses. Bowman essentially argues that the trial court should have
sentenced him on each of the two counts before the state’s election for merger. We
disagree.
{¶28} Bowman relies on this court’s decision in State v. White, 8th Dist. No.
92972, 2010-Ohio-2342, ¶ 62, where the panel indicated: “the sentencing judge must
comply with Crim.R. 32(C) by announcing a sentence on all counts for which the
defendant has been found guilty, including the allied offense.” Because the Ohio
Supreme Court has instructed otherwise, White is no longer applicable.
{¶29} In State v. Whitfield, the Ohio Supreme Court recognized that
R.C. 2941.25(A) prohibits multiple punishments for the same conduct. 124 Ohio St.3d
319, 2010-Ohio-2, 922 N.E.2d 182, ¶ 10. “[F]or purposes of R.C. 2941.25, a
‘conviction’ consists of a guilty verdict and the imposition of a sentence or penalty.”
(Emphasis sic.) Id. at ¶ 12. Because there may be only one conviction under R.C.
2941.25(A), “[a] defendant may be indicted and tried for allied offenses of similar import,
but may be sentenced on only one of the allied offenses.” See id. at ¶ 17. The state
retains the right to elect which allied offense to pursue at sentencing. Id. at 20. Upon
the state’s election, the court is required to “merge the crimes into a single conviction for
sentencing, * * * and impose a sentence that is appropriate for the merged offense.”
(Citation omitted.) Id. at ¶ 24. Although a defendant may not be punished for both
allied offenses, the finding of guilt remains intact, both before and after the merger of
allied offenses for sentencing. Id. at ¶ 27.
{¶30} In State v. Johnson, the Ohio Supreme Court held that the analysis of allied
offenses of similar import under R.C. 2941.25 requires a court to determine whether both
offenses can be committed by the same conduct and whether the defendant did commit
the offenses by the same conduct. 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d
1061, ¶ 48. The determination is to be made prior to sentencing the defendant. Id. at ¶
47.
{¶31} In State v. Wilson, the court recognized that the state’s election and the
merger of offenses precedes the imposition of sentence:
Pursuant to [State v.] Whitfield, 124 Ohio St.3d 319, 2010-Ohio-2, 922
N.E.2d 182, the trial court must accept the state’s selection, merge the
offenses accordingly for the purposes of sentencing, and impose a sentence
that is appropriate for the remaining offense or offenses. Wilson, 129 Ohio
St.3d 214, 2011-Ohio-2669, 951 N.E.2d 381, ¶ 18.
{¶32} In this case, the trial court determined that Counts 1 and 2 were allied
offenses of similar import that merged for the purposes of sentencing. The state elected
to proceed to sentencing on the kidnapping offense. The trial court sentenced Bowman
to a prison term of five years with mandatory postrelease control of five years. Finding
no error occurred, we overrule Bowman’s third assignment of error.
{¶33} Bowman’s fourth assignment of error asserts he was punished for exercising
his right to trial. Bowman complains that he was sentenced to five years rather than two
years when he rejected a plea bargain and elected to proceed to trial. It is well
recognized that “a defendant is guaranteed the right to a trial and should never be
punished for exercising that right for refusing to enter a plea agreement[.]” State v.
O’Dell, 45 Ohio St.3d 140, 147, 543 N.E.2d 1220 (1989).
{¶34} The record in this case reflects that the trial court ensured that Bowman was
aware of his plea options and his right to go to trial. Bowman complained about his
attorney’s advising him of his plea options because Bowman wished to go to trial. The
judge advised Bowman of the obligation to inform him of his plea options. The judge
also advised Bowman that he did not have to take a plea, that the judge was fine with his
choice, and that the judge was happy to have a trial in the case. The court appointed new
defense counsel, and a new trial date was set. Before proceeding with trial, the court had
the state place the plea offer on the record, which included the ability to plead to lesser
counts. The court discussed the possible sentence that could be imposed upon the plea
agreement, as well as the sentence that could be imposed if the case went to trial.
{¶35} Bowman elected to proceed with a bench trial and was found guilty of the
charges. The court heard the testimony at trial and reviewed the evidence presented.
After considering the nature of the offenses, Bowman’s record for violent offenses, and
his troublesome failure to stay med-compliant, the court did not find a minimum sentence
to be appropriate. There is simply no indication in the record that the imposition of a
five-year sentence was in retaliation for rejecting the plea offer or for exercising his right
to trial. Accordingly, Bowman’s fourth assignment of error is overruled.
{¶36} Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common
pleas court to carry this judgment into execution. The defendant’s conviction having
been affirmed, any bail pending appeal is terminated. Case remanded to the trial court
for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
SEAN C. GALLAGHER, JUDGE
LARRY A. JONES, SR., P.J., and
COLLEEN CONWAY COONEY, J., CONCUR