State v. Williams , 2012 Ohio 1043 ( 2012 )

[Cite as State v. Williams, 2012-Ohio-1043.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 96752
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
JAMES L. WILLIAMS
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED IN PART; VACATED IN PART;
REMANDED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-544610
BEFORE: Rocco, J., Stewart, P.J., and Jones, J.
RELEASED AND JOURNALIZED: March 15, 2012
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ATTORNEY FOR APPELLANT
John B. Gibbons
2000 Standard Building
1370 Ontario Street
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
BY: Marc D. Bullard
Assistant Prosecuting Attorney
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
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KENNETH A. ROCCO, J.:
{¶1} Defendant-appellant James L. Williams appeals from his convictions for
aggravated burglary, aggravated robbery, and kidnapping, all with firearm specifications,
notices of prior conviction (“NPCs”), and repeat violent offender specifications (“RVOs”),
and for having a weapon while under disability (“HWUD”).1
{¶2} Williams presents three assignments of error. He first claims that his
convictions are against the manifest weight of the evidence. He also claims that the trial
court abused its discretion when it refused to allow him to introduce alibi evidence and
when it permitted a witness during redirect examination to read his written statement he
provided to the police.
{¶3} Upon a review of the record, this court cannot find merit to Williams’s claims.
However, because the record reflects Williams committed only one aggravated burglary,
his conviction on Count 2 must be vacated. Consequently, although his other convictions
are affirmed, this case is remanded with instructions to that effect.
{¶4} Williams’s convictions result from a home invasion that occurred on October
29, 2010. The state’s witnesses gave the following description of the incident.
For sentencing purposes pursuant to R.C. 2941.25(A) the trial court
1
“merged” Williams’s convictions for aggravated burglary and kidnapping into his
convictions for aggravated robbery. Williams challenges all of his convictions.
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{¶5} Fifteen-year-old Clarence Wilson invited a friend, Desmond Franklin, to his
house that afternoon to play video games. The two boys played for a time, then
Clarence’s mother left the house to do laundry. While his mother was away, Clarence
received a telephone call from a neighbor, Shawn Crenshaw. Crenshaw wanted to come
over and Clarence agreed.
{¶6} Crenshaw joined the others in playing video games for a time before he
volunteered to go to the store to obtain a cigar and snacks. Standing at the doorway,
Desmond watched Crenshaw leave; he saw Crenshaw meet with two other young men
outside and begin walking with them toward the store.
{¶7} Desmond recognized both of the young men Crenshaw met outside. One was
Brazie Norman. Desmond’s friend, Dontez Long, had introduced Norman to Desmond
the day before. In fact, at that time, Desmond sold a shirt to Norman, and as he walked
with Crenshaw, Norman wore that shirt. Clarence also knew the shirt, because he had
given it to Desmond.
{¶8} Desmond also knew the other man, appellant Williams, because Long
recently had pointed him out, called Williams “Cool James,” and told Desmond, “That’s
my boy.” Desmond drew Clarence’s attention to the fact that Crenshaw had company.
Clarence looked outside to see Crenshaw and his companions before he closed the door.
{¶9} A short time later, Crenshaw returned to Clarence’s home. As Crenshaw
entered, Clarence instructed him to close the door. Crenshaw told Clarence to “hold on,
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[his] shoe [was] untied,” and bent down. Suddenly, the two men with whom Desmond
and Clarence had seen Crenshaw walking to the store burst in behind him. Although their
faces were partially covered, both Desmond and Clarence recognized the intruders from
their clothing.
{¶10} Norman brandished a gun and ordered the boys not to move as Williams went
upstairs. Clarence attempted to grab the gun, but Norman struck him in the face with it;
the boys made no further resistance.
{¶11} When Williams returned to the living room, Norman handed him the gun.
Williams “tucked it away,” then “grabbed the flat screen” TV while Norman picked up
Clarence’s “Droid phone.” Norman also appropriated the “XBox 360” the boys had been
using to play their games, and then he and Williams left with the items.
{¶12} After the two intruders were gone, Clarence got word to his mother about the
incident and called the police. When Clarence’s mother arrived, Desmond informed her
he knew who the intruders were. Clarence’s mother provided to the responding officers
the names Desmond gave her, directed the officers to Crenshaw’s house, and, further, told
the detective assigned to the case that Desmond’s friend Long knew Williams’s real name.
{¶13} Williams subsequently was indicted in this case on seven counts. In Counts
1 and 2, he was charged with aggravated burglary, in Counts 2 and 3, he was charged with
aggravated robbery, in Counts 5 and 6, he was charged with kidnapping, and in Count 7,
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he was charged with HWUD. The first six counts also contained firearm specifications,
NPCs, and RVOs.
{¶14} Williams’s case proceeded to a jury trial on Counts 1 through 6; Williams
executed a jury waiver with respect to Count 7. After considering the evidence, the jury
convicted Williams on all counts. The trial court thereafter found Williams guilty on
Count 7.2
{¶15} At sentencing, the trial court merged Counts 1, 2, 5, and 6 into Counts 3 and
4. The court then imposed a three-year sentence for the firearm specifications to be
served prior to and consecutive with consecutive terms of five years on each of Counts 3
and 4, for a total of 13 years.
{¶16} Williams presents the following assignments of error in this appeal.
“I. The jury verdicts returned against James L. Williams for the multiple
offenses of aggravated robbery, aggravated burglary, [and] kidnapping, and the trial
court’s guilty verdict of having a weapon while under a disability charge were all
contrary to the manifest weight of the evidence.
“II. The trial court erred and denied the Defendant-Appellant, James L.
Williams, his right to due process of law, as guaranteed by the United States and
2 Althoughthe state’s “Exhibit 1,” which demonstrated Williams had been
convicted of robbery in a previous case, is not included in the record on appeal, the
record reflects Williams stipulated to the fact of his prior conviction.
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Ohio Constitutions, by prohibiting him from presenting an alibi defense and by
prohibiting the presentation of witnesses in support of his alibi defense.
“III. The trial court erred and denied the Defendant-Appellant his right to
due process of law by permitting on redirect examination the witness Desmond
Franklin to read for the jury, word for word, the written investigative statement that
he had previously provided to the police officers.”
{¶17} In his first assignment of error, Williams argues that none of his convictions
is supported by the manifest weight of the evidence. He asserts that the state’s witnesses
provided “uncertain” and unreliable testimony. This court disagrees. Nonetheless, on
the facts of this case, Williams’s conviction on Count 2 constitutes plain error and,
therefore, must be vacated.
{¶18} In reviewing a challenge to the manifest weight of the evidence,
[t]he question to be answered is whether there is substantial evidence upon
which [the trier-of-fact] could reasonably conclude that all the elements have
been proved beyond a reasonable doubt. In conducting this review, we
must examine the entire record, weigh the evidence and all reasonable
inferences, consider the credibility of the witnesses, and determine whether
the [triers-of-fact] clearly lost [their] way and created such a manifest
miscarriage of justice that the conviction must be reversed and a new trial
ordered.
(Internal quotes and citations omitted.) State v. Leonard, 104 Ohio St.3d 54,
2004-Ohio-6235, 818 N.E.2d 229, ¶ 81. Moreover, this court must remain mindful that
the weight of the evidence and the credibility of the witnesses are matters primarily for the
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fact-finder to assess. State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967),
paragraph one of the syllabus.
{¶19} The record in this case does not support a conclusion that either the jury or
the trial court lost its way in finding Williams guilty of committing aggravated burglary,
aggravated robbery, kidnapping, and HWUD. Clarence and Desmond provided a clear
and coherent description of the incident. The other witnesses corroborated their
testimony.
{¶20} Desmond recognized both Williams and Norman, and although initially
reluctant to assist police in their investigation, he explained his reasons for his reluctance.
Long admitted he introduced Desmond to Norman, that he knew Williams, Norman, and
Crenshaw all took part in the incident, and that he had even been present when those three
planned it. Both Clarence and Desmond stated Norman handed the gun to Williams
before the two of them left Clarence’s house.
{¶21} In short, Williams’s convictions are supported by the manifest weight of the
evidence. State v. Smith, 8th Dist. No. 95541, 2011-Ohio-3581,
¶ 53-55. Williams’s first assignment of error is overruled.
{¶22} Williams does not raise any challenge to his multiple convictions for
aggravated burglary. However, because only one residence was invaded, this court finds
plain error with respect to Williams’s conviction on Count 2. State v. Lynott, 8th Dist.
No. 89079, 2007-Ohio-5849, ¶ 27.
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R.C. 2911.01(A), which defines aggravated burglary, raises the degree of the
criminal conduct if certain factors attend the offender’s entry. However, it
does not contain an additional penalty for each person affected by the
conduct. See, e.g., State v. Johnson, [11th Dist. No. 2004-L-215,
2006-Ohio-4540]; see also, State v. Allen, Cuyahoga App. No. 82618,
2003-Ohio-6908, citing State v. Harrison (Dec. 9, 1999), Cuyahoga App.
No. 75294 [1999 WL 1129587].
Lynott, ¶ 29.
{¶23} Because Williams’s sentence on Count 2 was one of the ones the trial court
ordered merged into his sentence on Count 3, Williams’s total sentence remains unaffected
by the foregoing. Only the final journal entry in this case, therefore, needs correction.
{¶24} Williams argues in his second assignment of error that the trial court abused
its discretion when it denied his motion for leave to file an untimely notice of alibi. He
contends the trial court’s action was unreasonable and prevented him from presenting an
adequate defense to the charges against him. The record does not support his argument.
{¶25} The record demonstrates defense counsel asked for leave to file a notice of
alibi on the scheduled date of trial. The state objected to the introduction of the alibi as
being both untimely raised and a prejudicial surprise.
{¶26} Crim.R. 12.1 requires a defendant to file and serve notice of the alibi seven
days before trial, “unless the court determines that in the interest of justice such evidence
should be admitted.” (Emphasis added.) Thus, the rule bars evidence filed in
contravention of it, but “grants the trial court the discretion to waive that [seven day]
requirement and to admit unfiled alibi testimony if it is in the ‘interest of justice’ to do so.”
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State v. Pitts, 8th Dist. No. 72304, 1998 WL 166152 (Apr. 9, 1998), quoting State v.
Smith, 50 Ohio St.2d 51, 53, 362 N.E.2d 988 (1977).
{¶27} If the evidence is offered within seven days before trial, the court may allow
the evidence in “[i]f the alibi testimony does not surprise or otherwise prejudice the
prosecution’s case[,] * * * if the defense operated in good faith when it failed to give
proper notice of an alibi defense[,]” and if the admission of the evidence is necessary to
ensure the defendant a fair trial. Smith at 53.
{¶28} In this case, the trial court noted that the matter had been set for trial “on
March the 8th, March the 11th, March the 21st and then * * * April 11th.” On that date,
defense counsel notified the prosecutor that he wanted to present an alibi defense.
{¶29} The record reflects that on April 12, 2011, Williams’s counsel filed the
defense witness list containing the names of the proposed three alibi witnesses, taking
advantage of the fact that the case had been “on standby status from Monday [April 11] to
Wednesday [April 13].” Defense counsel explained his delay in presenting an alibi by
stating he had been contacted by one of Williams’s family members on April 6, 2011 and
informed there was “a potential alibi.” After interviewing the witnesses over the
weekend, he learned they were willing to testify.
{¶30} The prosecutor objected on the basis that he had been provided with all the
information on April 12, 2011, in spite of the fact the case had been set for trial on April
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11. The prosecutor told the court that he had not had the opportunity to investigate
Williams’s sudden claim of alibi.
{¶31} According to Williams’s proffer of the evidence his witnesses would have
provided, Williams had been at “his mother’s home” with some friends when the home
invasion was alleged to have occurred. Testimony to this effect “would have been backed
up by a photograph from a cell phone camera that one of the potential alibi witnesses had
taken.”
{¶32} Under the circumstances presented in this case, this court cannot find the trial
court abused its discretion in denying Williams’s motion. State v. Tucker, 8th Dist. No.
80221, 2002-Ohio-4902, ¶ 15. The prosecution’s case would have been prejudiced in the
face of this lately-alleged alibi, it is impossible to believe Williams had not thought of
informing his defense attorney well before the date of trial that he had an alibi, and, in
light of the evidence of Williams’s guilt, the alibi testimony was not “necessary to ensure
the defendant a fair trial.” Id.{¶33} Accordingly, Williams’s second assignment of error also is overruled.
{¶34} In his third assignment of error, Williams argues that the trial court erred in
permitting Desmond on redirect examination to read to the jury the written statement he
provided to the police. Williams asserts this testimony
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constituted hearsay. As authority for his argument, Williams cites State v. Moore, 8th
Dist. No. 94277, 2011-Ohio-449. Moore, however, is inapplicable to the facts of this
case.
{¶35} Evid.R. 801 provides in relevant part as follows:
(D) Statements which are not hearsay. A statement is not hearsay
if:
(1) Prior statement by witness. The declarant testifies at the trial or
hearing and is subject to cross-examination concerning the statement, and
the statement is * * * (b) consistent with his testimony and is offered to rebut
an express or implied charge against him of recent fabrication or improper
influence or motive.
{¶36} In addition, Evid.R. 106 provides:
When a writing or recorded statement or part thereof is introduced by
a party, an adverse party may require him at that time to introduce any other
part or any other writing or recorded statement which is otherwise
admissible and which ought in fairness to be considered contemporaneously
with it.
{¶37} It is axiomatic that a trial court’s evidentiary rulings are reversible only if they
constitute an abuse of discretion. State v. Sage, 31 Ohio St.3d 173, 510 N.E.2d 343(1987). In this case, Williams’s defense attorney referred to Desmond’s written statement
during cross-examination. Counsel’s questions were designed to imply that Desmond was
not being truthful during his direct examination when he stated he never met Williams,
because when the police
interviewed him soon after the incident, he indicated he had. Desmond also testified
Norman was like a brother to him, but failed to choose Norman’s photo from the original
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array the detective showed him. On redirect examination, the trial court permitted
Desmond, in fairness, to read his written statement in order to explain and to place in
context the portions on which defense counsel had focused.
{¶38} In contrast, Moore presented a situation in which a police officer was
improperly permitted to read an out-of-court witness statement he obtained during his
investigation. Here, Desmond read his own statement after Williams had used portions of
it on cross-examination to challenge Desmond’s credibility with respect to both his
acquaintance with Williams and his observations at the time of the incident. See, e.g.,
State v. Davis, 4 Ohio App.3d 199, 447 N.E.2d 139 (9th Dist.1982). No abuse of
discretion occurred under these circumstances.
{¶39} Accordingly, Williams’s third assignment of error is overruled.
{¶40} Consistent with the foregoing opinion, Williams’s convictions on Count 1 and
Counts 3 through 7 are affirmed. His conviction on Count 2 is vacated, and this case is
remanded to the trial court with instructions to correct
the journal entry to reflect that disposition; Williams’s sentence remains unaffected.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
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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 convictions having
been affirmed, any bail pending appeal is terminated. Case remanded to the trial court
with instructions.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the
Rules of Appellate Procedure.
_________________________________
KENNETH A. ROCCO, JUDGE
MELODY J. STEWART, P.J., and
LARRY A. JONES, J., CONCUR