State v. Sanders-Frye , 2012 Ohio 934 ( 2012 )

[Cite as State v. Sanders-Frye, 2012-Ohio-934.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 97443
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
AMINA SANDERS-FRYE
DEFENDANT-APPELLANT
JUDGMENT:
CONVICTIONS AFFIRMED; SENTENCE VACATED IN PART
AND REMANDED FOR RESENTENCING
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-531081
BEFORE: Kilbane, J., Rocco, P.J., and E. Gallagher, J.
RELEASED AND JOURNALIZED: March 8, 2012
ATTORNEY FOR APPELLANT
Donald Gallick
190 North Union Street, #102
Akron, Ohio 44304
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
Mary Court Weston
Assistant County Prosecutor
The Justice Center - 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
MARY EILEEN KILBANE, J.:
{¶1} Defendant-appellant, Amina Sanders-Frye (“Sanders-Frye”), appeals her
convictions and sentence. Finding merit to the appeal, we affirm her convictions, but
vacate her sentence in part and remand for resentencing.
{¶2} In November 2009, Sanders-Frye was charged with two codefendants in an
11-count indictment. Counts 1-6 charged her with robbery, Counts 7-8 charged her with
child endangering, and Counts 9-10 charged her with contributing to the unruliness of a
child. Count 11 charged her with possessing criminal tools and carried a forfeiture
specification. The matter proceeded to a jury trial, at which the following evidence was
adduced.
{¶3} On November 10, 2009, Jennifer Rivera (“Rivera”) was working as a loss
prevention manager for Macy’s Department Store at Parmatown Mall in Parma, Ohio.
As she watched the security camera videos in the loss prevention office, she noticed
suspicious behavior by a juvenile male. She observed the juvenile male in the men’s
cologne department. He picked up a boxed cologne set and a messenger bag that came
with the cologne. He placed the messenger bag across his body and held the boxed
cologne set in his hand. The messenger bag had a large price tag attached to it. Rivera
also observed the juvenile male walk to the young men’s department and take several
baseball caps.
{¶4} At this point, Rivera and her coworker, Julie Marinin, a loss prevention agent
for Macy’s, were trying to determine if this juvenile was with an adult. They continued
monitoring the security cameras and first observed him interacting with a juvenile female,
who was later identified to be his sister. They observed this juvenile female with an
adult female, who was later identified as Sanders-Frye. Sanders-Frye made a purchase at
a register, while the juvenile male was in the young men’s department. Sanders-Frye
gave the shopping bag containing her purchase to the juvenile female. Both of them then
walked over to the juvenile male. They were all standing by a display rack of clothes,
when the juvenile female handed the juvenile male the shopping bag, who then placed the
cologne set and all of the baseball caps into the shopping bag. He continued to wear the
messenger bag across his body.
{¶5} Rivera testified that it appeared as though the juvenile male then showed
Sanders-Frye the unpaid merchandise he put in the shopping bag. The three of them then
left the young men’s department and proceeded to exit the store. Once Sanders-Frye and
her two children passed all points of purchase, Rivera and Marinin ran after them. They
approached Sanders-Frye and her two children before they exited through the second set
of doors. Rivera and Marinin escorted them back into the store and the children placed
the bag with the unpaid merchandise and the messenger bag on the floor. The group then
turned to leave, but Rivera advised that they needed to come to the loss prevention office
to complete paperwork. Sanders-Frye refused to cooperate. Then Macy’s loss
prevention agent, Kevin Brown (“Brown”), came to assist Rivera and Marinin by
attempting to handcuff Sanders-Frye. Sanders-Frye resisted and the two of them
struggled with each other, ending up on the ground. Sanders-Frye pushed and kicked
Brown. Her children were also kicking Brown and screaming, “[g]et off my mom.”
Rivera then called the Parma Police Department.
{¶6} At that point, another female, later identified as Sanders-Frye’s mother,
Diana Burton, entered the store, pushed Rivera out of the way, and asked, “[w]hat are you
doing to [Sanders-Frye]?” Sanders-Frye’s husband, Donald Curtis, also entered the
store. He told Brown to “[g]et off his wife,” and punched Brown in the face. The entire
group then exited the store and attempted to leave in a vehicle. By that time, the Parma
police arrived on the scene and blocked the vehicle.
{¶7} Through their investigation, the Parma police learned that Sanders-Frye’s
purse contained credit cards in her name and the names of other individuals.
Sanders-Frye had a credit card of a male who resided in Chicago, Illinois. This
individual did not open this credit card account. Sanders-Frye’s purse contained a
receipt indicating that this credit card was used to purchase a Macy’s gift card at the
Macy’s located in the Great Lakes Mall in Mentor, Ohio. Sanders-Frye used this gift
card to purchase merchandise at the Parmatown Mall Macy’s during the incident. The
police found the gift card in the shopping bag when they stopped Sanders-Frye.
{¶8} At the close of the State’s case, the trial court dismissed Counts 3, 5, and 6.
The jury found Sanders-Frye not guilty of Count 4 (robbery) and guilty of Counts 1 and 2
(robbery), Counts 7 and 8 (child endangering), Counts 9 and 10 (contributing to the
unruliness of a child), and Count 11 (possession of criminal tools with forfeiture
specification). The trial court sentenced Sanders-Frye to two years community control
sanction on Counts 1, 2, and 11 and 180 days in prison on Counts 7, 8, 9, and 10. The
trial court suspended Sanders-Frye’s prison sentence and ordered that all counts be served
concurrently.
{¶9} Sanders-Frye now appeals, raising the following four assignments of error for
review.
ASSIGNMENT OF ERROR ONE
Defendant’s [Crim.R. 29] motion should have been granted as to all counts,
as the testimony fails to meet the burden of production that appellant
knowingly participated in a theft offense.
ASSIGNMENT OF ERROR TWO
Defendant’s convictions are against the manifest weight of the evidence
because it was not proven beyond a reasonable doubt that defendant
knowingly participated in a theft offense.
ASSIGNMENT OF ERROR THREE
Defendant suffered prejudice when the trial court admitted improper
evidence of prior bad acts, in violation of [Evid.R. 404(B)], over the
objection of counsel.
ASSIGNMENT OF ERROR FOUR
It was plain error when the trial court failed to merge the three robbery
convictions because [they] were allied offense which resulted from a single
animus.
Sufficiency and Manifest Weight of the Evidence
{¶10} In the first assignment of error, Sanders-Frye argues the State failed to
present sufficient evidence that she knowingly participated in a theft offense. She claims
there was insufficient evidence to demonstrate that she knew her children were
shoplifting. As a result, she contends that all of her convictions must be reversed. For
this same reason, she further argues that her convictions are against the manifest weight
of the evidence.
{¶11} The Ohio Supreme Court in State v. Diar, 120 Ohio St.3d 460,
2008-Ohio-6266, 900 N.E.2d 565, ¶ 113, explained the standard for sufficiency of the
evidence as follows:
Raising the question of whether the evidence is legally sufficient to
support the jury verdict as a matter of law invokes a due process concern.
State v. Thompkins (1997), 78 Ohio St.3d 380, 386, 678 N.E.2d 541. In
reviewing such a challenge, “[t]he relevant inquiry is 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 (1991), 61 Ohio St.3d 259, 574 N.E.2d
492, paragraph two of the syllabus, following Jackson v. Virginia (1979),
443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560.
{¶12} With regard to a manifest weight challenge, the Ohio Supreme Court in
State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, ¶ 25, has stated
that the
reviewing court asks whose evidence is more persuasive — the state’s or
the defendant’s? * * * “When a court of appeals reverses a judgment of a
trial court on the basis that the verdict is against the weight of the evidence,
the appellate court sits as a ‘thirteenth juror’ and disagrees with the
factfinder’s resolution of the conflicting testimony.” [Thompkins at 387],
citing Tibbs v. Florida (1982), 457 U.S. 31, 42, 102 S.Ct. 2211, 72 L.Ed.2d
652.
{¶13} Moreover, an appellate court may not merely substitute its view for that of
the jury, but must find that “‘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.’” Thompkins at 387, quoting State v. Martin, 20 Ohio
App.3d 172, 485 N.E.2d 717 (1st Dist.1983). Accordingly, reversal on manifest weight
grounds is reserved for “‘the exceptional case in which the evidence weighs heavily
against the conviction.’” Id., quoting Martin.
{¶14} Sanders-Frye was convicted of robbery under R.C. 2911.02(A)(2) and (3),
which provides that:
(A) No person, in attempting or committing a theft offense or in fleeing
immediately after the attempt or offense, shall * * *
(2) Inflict, attempt to inflict, or threaten to inflict physical harm on another;
(3) Use or threaten the immediate use of force against another.
{¶15} In addition to reviewing witness testimony, this court reviewed the security
video from Macy’s, which the jury also had the opportunity to view. This video contains
footage from several different security cameras. It shows Sanders-Frye making a
purchase and then handing her shopping bag, which was not full, to her daughter. It also
shows her son take a boxed set of cologne, a large messenger bag, and several hats.
Sanders-Frye and her daughter then walk over to her son, who is standing by a display
rack of clothes. Sanders-Frye’s daughter then hands the shopping bag to her brother,
who places the hats into the shopping bag, which now appears full. Her son was also
wearing the messenger bag, which had a large price tag attached to it. It then appears as
though Sanders-Frye’s son showed her the unpaid merchandise in the shopping bag and
the three of them attempted to exit the store when they were stopped by loss prevention
agents. Sanders-Frye then fought with the loss prevention officers when they attempted
to detain her.
{¶16} The record also reveals that a fraudulent credit card was used to purchase a
Macy’s gift card. Sanders-Frye used this gift card to purchase merchandise at the
Parmatown Mall Macy’s. This evidence coupled with the video and the fact that
Sanders-Frye’s children were eight and ten years old at the time of the incident is
sufficient for any rational trier of fact to conclude that Sanders-Frye knowingly
committed a theft offense. As a result, the State presented sufficient evidence to sustain
her convictions. Furthermore, based on the foregoing, we cannot say the jury clearly lost
its way and created such a manifest miscarriage of justice that her convictions must be
reversed and a new trial ordered. Martin, 20 Ohio App.3d at 175, 485 N.E.2d 717.
{¶17} Accordingly, the first and second assignments of error are overruled.
Other Acts Evidence
{¶18} In the third assignment of error, Sanders-Frye argues that she was prejudiced
when the trial court allowed testimony that she was engaged in credit card fraud and
identity theft in Ohio and Illinois. She claims that this evidence pushed the jury “over
the edge” to their guilty verdicts because Sanders-Frye may not have known that her
children were stealing merchandise while she was making her purchase.
{¶19} “The admission of [other acts] 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.” Diar, 120 Ohio
St.3d 460, 2008-Ohio-6266, 900 N.E.2d 565, at ¶ 66, citing State v. Conway, 109 Ohio
St.3d 412, 2006-Ohio-2815, 848 N.E.2d 810. An abuse of discretion is “more than an
error of law or judgment; it implies that the court’s attitude is unreasonable, arbitrary or
unconscionable.” Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140(1983), quoting State v. Adams 62 Ohio St.2d 151, 157, 404 N.E.2d 144 (1980).
{¶20} Evid.R. 404(B) provides: “Evidence of other crimes, wrongs, or acts is not
admissible to prove the character of a person in order to show that he acted in conformity
therewith. It may, however, be admissible for other purposes, such as proof of motive,
opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or
accident.” See also R.C. 2945.59.
{¶21} Sanders-Frye argues that the trial court erred when it allowed Parma police
officer Patrick Suchan (“Suchan”) and Parma police detective Thomas Connor
(“Connor”) to testify about Sanders-Frye’s connection to identity fraud. Suchan testified
that Sanders-Frye’s purse contained credit cars in her name and in the names of other
individuals. Her purse also contained gift cards and several receipts. Sanders-Frye had
a credit card of a male who resided in Chicago, Illinois.
{¶22} Connor testified that this individual did not open this credit card account.
Sanders-Frye’s purse contained a receipt indicating that this credit card was used to
purchase a Macy’s gift card at the Macy’s located in the Great Lakes Mall in Mentor,
Ohio. Sanders-Frye used this gift card to purchase merchandise at the Parmatown Mall
Macy’s during the incident.
{¶23} In State v. Foster, 8th Dist. No. 95209, 2011-Ohio-2781, ¶ 53, we stated
that:
Evid.R. 404(B), by its very terms, “excludes only extrinsic evidence
— ‘evidence of other crimes, wrongs, or acts’ — whose probative value
exclusively depends upon a forbidden inference of criminal propensity.”
U.S. v. Manning (C.A.1, 1996), 79 F.3d 212, 218, cert. denied, (1996), 519
U.S. 853, 117 S.Ct. 147, 136 L.Ed.2d 93. Thus, “[e]vidence intrinsic to the
crime for which the defendant is on trial * * * is not governed by Rule
404(b).” Id. (discussing the federal rule, which is nearly identical to the
Ohio rule).
{¶24} In State v. Watson, 28 Ohio St.2d 15, 275 N.E.2d 153 (1971), the Ohio
Supreme Court reviewed the admissibility of other acts evidence involving a defendant
seen with a gun. The court stated that the
general rule of exclusion does not apply where the evidence of another
crime is relevant and tends directly * * * to prove * * * [the] accused’s guilt
of the crime charged, or to connect him with it, or to prove some particular
element or material fact in such crime; and evidence of other offenses may
be received if relevant for any purpose other than to show mere propensity
or disposition on [an] accused’s part to commit the crime. Id. at 21,
quoting 22A Corpus Juris Secundum, Criminal Law, Section 683 (1962).
{¶25} The Watson Court went on to say:
Stated another way, * * * ‘The general tests of the admissibility of
evidence in a criminal case are: * * * does it tend logically, naturally, and
by reasonable inference to establish any fact material for the people, or to
overcome any material matter sought to be proved by the defense? If it
does, then it is admissible, whether it embraces the commission of another
crime or does not, whether the other crime be similar in kind or not,
whether it be part of a single design or not.’ People v. Peete (1946), 28
Cal.2d 306, 314, 169 P.2d 924, 929. Id.{¶26} The evidence introduced in the instant case regarding the credit card and
illegally procured Macy’s gift card was not introduced to provide “a forbidden inference
of criminal propensity.” That is, it was not introduced to prove that Sanders-Frye was
engaged in credit card fraud. Rather, the evidence was offered to demonstrate
Sanders-Frye’s knowledge of an ongoing course of theft conduct. In State v. Smith, 49
Ohio St.3d 137, 141, 551 N.E.2d 190 (1990), the Ohio Supreme Court explained that
“[e]vidence of extrinsic acts may be used to prove intent or guilty knowledge when it is a
genuine issue in a case. The acts should tend to prove that the accused understood the
wrongful nature of his act by virtue of the fact that he committed prior or subsequent
wrongful acts.” Id., citing State v. Greer, 66 Ohio St.2d 139, 420 N.E.2d 982 (1981).
It’s also evidence of absence of any mistake or accident on Sanders-Frye’s behalf. It
demonstrates that the shoplifting by her children did not occur in isolation. Sanders-Frye
knew that her children were shoplifting at Macy’s while she purchased merchandise with
an illegally procured gift card.
{¶27} Therefore, the third assignment of error is overruled.
Merger
{¶28} In State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061,
the Ohio Supreme Court redefined the test for determining whether two offenses are
allied offenses of similar import subject to merger under R.C. 2941.25.1 The Johnson
court expressly overruled State v. Rance, 85 Ohio St.3d 632, 1999-Ohio-291, 710 N.E.2d
699, which required a “comparison of the statutory elements in the abstract” to determine
whether the statutory elements of the crimes correspond to such a degree that the
commission of one crime will result in the commission of the other.
{¶29} The Johnson court held that rather than compare the elements of the crimes
in the abstract, courts must consider the defendant’s conduct. Id. at syllabus. The
Johnson court found:
In determining whether offenses are allied offenses of similar import
under R.C. 2941.25(A), the question is whether it is possible to commit one
offense and commit the other with the same conduct, not whether it is
possible to commit one without committing the other. * * *
If multiple offenses can be committed by the same conduct, then the
court must determine whether the offenses were committed by the same
conduct, i.e., “a single act, committed with a single state of mind.” [State]
v. Brown, 119 Ohio St.3d 447, 2008-Ohio-4569, 895 N.E.2d 149, at ¶ 50,
(Lanzinger, J., dissenting).
If the answer to both questions is yes, then the offenses are allied
offenses of similar import and will be merged.
1R.C. 2941.25 governs allied offenses and provides:
(A) Where the same conduct by defendant can be construed to
constitute two or more allied offenses of similar import, the indictment
or information may contain counts for all such offenses, but the
defendant may be convicted of only one.
(B) Where the defendant’s conduct constitutes two or more offenses of
dissimilar import, or where his conduct results in two or more offenses
of the same or similar kind committed separately or with a separate
animus as to each, the indictment or information may contain counts
for all such offenses, and the defendant may be convicted of all of them.
Conversely, if the court determines that the commission of one
offense will never result in the commission of the other, or if the offenses
are committed separately, or if the defendant has separate animus for each
offense, then, according to R.C. 2941.25(B), the offenses will not merge.
Id. at ¶ 48-50.
{¶30} A review of the record reveals that there was no discussion of the merger of
allied offenses at sentencing. The Ohio Supreme Court has found that the failure to
merge allied offenses of similar import constitutes plain error. State v. Underwood, 124
Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d 923, ¶ 31, citing State v. Yarbrough, 104 Ohio
St.3d 1, 2004-Ohio-6087, 817 N.E.2d 845. Under Crim.R. 52(B), “[p]lain errors or
defects affecting substantial rights may be noticed although they were not brought to the
attention of the court.”
{¶31} In the instant case, the trial court sentenced Sanders-Frye to two years
community control sanctions on Count 1 (robbery in violation of R.C. 2911.02(A)(2)) and
two years community control sanction on Count 2 (robbery in violation of R.C.
2911.02(A)(3)), to be served concurrent to each other. As stated above, R.C. 2911.02
provides that:
(A) No person, in attempting or committing a theft offense or in fleeing
immediately after the attempt or offense, shall * * *
(2) Inflict, attempt to inflict, or threaten to inflict physical harm on another;
(3) Use or threaten the immediate use of force against another.
{¶32} Here, both counts identify the victim as Brown. The State relied on the
same conduct to prove Sanders-Frye’s guilt for each count of robbery, but under different
subsections of the statute. Sanders-Frye’s conduct of participating in the theft of
merchandise from Macy’s and then pushing and kicking Brown were all part of a single
transaction with a single intention. “Where there is only one victim and one single
continuous transaction, the trial court erred in not merging the kidnapping, aggravated
robbery, and the theft charges.” State v. Cook, 8th Dist. No. 95987, 2011-Ohio-5156, ¶
43. Thus, both robbery counts (Count 1 and 2) should be merged into a single count for
sentencing.
{¶33} Accordingly, the fourth assignment of error is sustained. Sanders-Frye’s
sentence on both Count 1 and Count 2 is vacated, and the matter is remanded for a
sentencing hearing, at which the State will elect which allied offense it will pursue against
Sanders-Frye. See State v. Whitfield, 124 Ohio St.3d 319, 2010-Ohio-2, 922 N.E.2d
182, paragraph two of syllabus.
{¶34} Thus, Sanders-Frye’s convictions are affirmed, her sentence is vacated in
part, and the case is remanded for further proceedings on merger of allied offenses and
resentencing.
It is ordered that appellant recover from appellee 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.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
MARY EILEEN KILBANE, JUDGE
KENNETH A. ROCCO, P.J., and
EILEEN A. GALLAGHER, J., CONCUR