State v. Cooper , 2012 Ohio 355 ( 2012 )

[Cite as State v. Cooper, 2012-Ohio-355.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 96635
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
BRANDON COOPER
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-542639
BEFORE: Stewart, J., Kilbane, P.J., and E. Gallagher, J.
RELEASED AND JOURNALIZED: February 2, 2012
ATTORNEY FOR APPELLANT
Reuben J. Sheperd
11510 Buckeye Road
Cleveland, OH 44104
ATTORNEYS FOR APPELLEES
William D. Mason
Cuyahoga County Prosecutor
BY: Edward D. Brydle
Assistant County Prosecutor
The Justice Center
1200 Ontario Street, 9th Floor
Cleveland, OH 44113
MELODY J. STEWART, J.:
{¶ 1} A jury found defendant-appellant, Brandon Cooper, guilty of a single count
of robbery (a lesser included offense of the original charge of aggravated robbery) on
evidence that he and an accomplice lured an unsuspecting victim into their car on the
pretense of transacting a drug deal so that they could rob him. In this appeal, he
complains that the court abused its discretion by refusing to instruct the jury on the lesser
included offense of theft and that the court erred by allowing police officers to testify to
hearsay statements made by a victim who did not testify at trial.
{¶ 2} Cooper does not challenge the evidence in any way, so we briefly
summarize it. The state showed that Cooper and a friend concocted a plan in which the
friend, posing as a drug dealer, would pick up a customer and drive to a gas station.
Cooper, who was on foot at the gas station, would reach into the car and rob the victim.
The victim, however, had planned for trouble and arranged for a friend to follow him at a
distance. When Cooper reached into the car as planned, the victim struggled with
Cooper. The victim’s friend then ran up to the car and pulled Cooper away. The victim
exited the car and he and his friend began to beat Cooper. Cooper worked himself free
and ran into the gas station with the angry victim and his friend giving chase. All of
these events were captured by a security camera. The owner of the gas station forced the
victim and his friend outside and called the police while Cooper waited inside. After the
police arrived, Cooper gave a signed statement confirming these events with the sole
exception that he claimed not to own a gun that the police recovered from a gas station
trash can located near the door to the gas station’s store.
I
{¶ 3} The victim did not testify at trial. A police officer who spoke with the
victim on the scene was allowed to testify that the victim told him that Cooper used a gun
during the robbery. Cooper maintains that this hearsay statement was testimonial in
nature and improperly allowed into evidence in violation of his right to confrontation; the
state argues that the statements were non-testimonial and admissible as excited utterances.
{¶ 4} In Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177(2004), the United States Supreme Court held that when a statement that is otherwise
admissible under an established hearsay exception is “testimonial” in nature, the
Confrontation Clause of the Sixth Amendment “demands what the common law required:
unavailability and a prior opportunity for cross-examination.” Id. at 68. The supreme
court did not define what constitutes a “testimonial” statement, but in Davis v.
Washington, 547 U.S. 813, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006), it held that
statements are “non-testimonial” when the circumstances objectively indicate that the
primary purpose of the interrogation is to respond to an “ongoing emergency” and not to
establish or prove past events potentially relevant to later criminal prosecution. Id. at
822. For example, in Davis, the supreme court found that questions asked during a 911
emergency call were asked in order to assist the police in responding to an ongoing
emergency. Id. at 829. In the companion case of Hammon v. Indiana, 547 U.S. 813,
126 S.Ct. 2266, 165 L.Ed.2d 224 (2006), the supreme court held that statements made to a
police officer responding to a domestic violence call were “inherently testimonial”
because the complainant had been separated from her husband and an emergency
situation no longer existed. With no ongoing emergency at hand, the interrogation of the
domestic violence victim had the primary purpose of investigating past criminal behavior.
Id. at 830-831.
{¶ 5} More recently, in Michigan v. Bryant, 562 U.S. ____, 131 S.Ct. 1143, 179
L.Ed.2d 93 (2011), the supreme court clarified the “primary purpose” test by holding that
the courts must objectively look at the statements and actions of both the declarant and
interrogators to determine the interrogation’s primary purpose. Id. at 1160-1162. By
doing so, the courts ameliorate problems that could arise from looking solely to one
participant, since both interrogators and declarants may have mixed motives. Id. at 1161.
{¶ 6} The hearsay statement at issue in this case was not prompted by any police
interrogation. The officer testified that the victim came running up to the police car as he
and his partner pulled into the gas station and told them that Cooper came up to him,
stuck a gun in his face and told him to “lay it down.” Because there was no testimony
that the victim’s statement had been prompted by police interrogation, we consider only
the victim’s primary purpose in making the statement.
{¶ 7} Viewed from the victim’s standpoint, the statement was testimonial because
any ongoing emergency had ended. Cooper was safely ensconced inside the gas station
store, held there for his protection after being beaten by the victim and his friend. There
was no testimony that Cooper possessed a gun while he waited inside the gas station or
posed any further threat to the victim. The evidence showed that a crowd had gathered
around the victim outside the gas station as he waited for the police, so there was no
likelihood that Cooper posed any threat to the victim. Indeed, if a threat existed, it was
the threat that the victim and his friend posed to Cooper. Given these circumstances,
anything the victim said to the police once they arrived must have been intended to assist
them in arresting and prosecuting Cooper and was not intended to address an ongoing
emergency.
{¶ 8} If the statement was testimonial in nature, Cooper’s confrontation rights
required that he be allowed to cross-examine the declarant. With the victim’s absence
from trial, cross-examination was not possible, so the court erred by allowing the officer
to testify to the hearsay.
{¶ 9} Our finding that the court erred by allowing the officer to testify to the
hearsay statement by the victim does not end our inquiry, however, because the error in
admitting that statement was harmless beyond a doubt. State v. Lee, 162 Ohio App.3d
648, 2005-Ohio-3395, 834 N.E.2d 825 (1st Dist.), at ¶ 11. An error is harmless if there
is no reasonable possibility that the evidence may have contributed to the accused’s
conviction. State v. Bayless, 48 Ohio St.2d 73, 106, 357 N.E.2d 1035 (1976). In his
signed statement, Cooper admitted to attempting the robbery by reaching into the car and
demanding that the victim “give me everything.” Although Cooper denied that he used a
gun during the commission of the robbery, he conceded in his statement that there was a
gun “on the ground as the fight was going on between me and the guys.” He described
the gun as “black” and “little.” The police were directed to a gun matching that
description that was placed in a trash can by the entrance to the store.
{¶ 10} The evidence of the gun arose separately from any statements made by the
non-testifying victim. Although Cooper denied using a gun, it was undeniable that one
was present on the scene. In any event, Cooper does not challenge the evidence
supporting his conviction for robbery, an offense that unlike the original charge of
aggravated robbery, did not require the jury to find that he used a gun during the
commission of the offense. It follows that the admission of testimonial statements about
Cooper’s use of a gun made by the non-testifying victim was harmless.
II
{¶ 11} At the close of the evidence, the court agreed to instruct the jury on robbery
as a lesser included offense of the original charge of aggravated robbery. Cooper sought
an additional instruction on the lesser included offense of attempted theft, but the court
denied the request, a decision that Cooper maintains was error.
{¶ 12} The court may consider instructing the jury on a lesser included offense if
(1) the lesser offense is a lesser-included offense of the charged offense, and (2) the
evidence when viewed in a light most favorable to the defendant would reasonably
support both an acquittal on the crime charged and a conviction on the lesser included
offense. State v. Thomas, 40 Ohio St.3d 213, 533 N.E.2d 286 (1988), paragraph two of
the syllabus; State v. Monroe, 105 Ohio St.3d 384, 2005-Ohio-2282, 827 N.E.2d 285, ¶
37. Because a determination of whether the evidence might reasonably support both an
acquittal on the crime charged and a conviction on the lesser included offense requires
weighing of the evidence, the court’s decision to charge on a lesser included offense is
reviewable only for an abuse of discretion. State v. Mitchell, 53 Ohio App.3d 117, 120,
559 N.E.2d 1370 (8th Dist.1988).
{¶ 13} In State v. Evans, 122 Ohio St.3d 381, 2009-Ohio-2974, 911 N.E.2d 889,
the supreme court held that:
In determining whether an offense is a lesser included offense of
another, a court shall consider whether one offense carries a greater penalty
than the other, whether some element of the greater offense is not required
to prove commission of the lesser offense, and whether the greater offense
as statutorily defined cannot be committed without the lesser offense as
statutorily defined also being committed. (State v. Deem (1988), 40 Ohio
St.3d 205, 533 N.E.2d 294, clarified.)
The “clarification” consisted of removing the word “ever” from the second part of the
Deem test. Id. at ¶ 25.
{¶ 14} This “clarification” has not necessarily served to reconcile past decisions by
the supreme court.
{¶ 15} In State v. Carter, 89 Ohio St.3d 593, 2000-Ohio-172, 734 N.E.2d 345, the
supreme court applied the Deem test to find that theft is not a lesser included offense of
aggravated robbery because robbery could be committed by an attempt whereas theft
could only be committed by actually obtaining or exerting control over the property of
another.
{¶ 16} In State v. Smith, 117 Ohio St.3d 447, 2008-Ohio-1260, 884 N.E.2d 595,
the supreme court distinguished Carter and held that “[t]heft, as defined in R.C. 2913.02,
is a lesser included offense of robbery, as defined in R.C. 2911.02.” Id. at paragraph two
of the syllabus.
{¶ 17} And in State v. Evans, 122 Ohio St.3d 381, 2009-Ohio-2974, 911 N.E.2d
889, the supreme court held that “[r]obbery as defined in R.C. 2911.02(A)(2) is a lesser
included offense of aggravated robbery as defined in R.C. 2911.01(A)(1).” Id. at
paragraph one of the syllabus.
{¶ 18} These decisions led Justice Pfeiffer, in his dissenting opinion in Smith, to
note that “the law in Ohio now says that theft is a lesser included offense of robbery but
that theft is not a lesser included offense of aggravated robbery. Welcome to
Wonderland.” Smith, at ¶ 35 (emphasis omitted). When presented with the same
question posed by Cooper, the Ninth District Court of Appeals found that Smith
“implicitly overruled the decision in State v. Carter.” See State v. Smith, 9th Dist. No.
2008-T-0023, 2008-Ohio-6998, 2008 WL 5429204, at ¶ 98. The Ninth District stated:
We believe we are bound to apply the new test set forth in State v.
Smith to the analysis of whether theft is a lesser-included offense of
aggravated robbery, irrespective of the Supreme Court’s prior decision in
State v. Carter.
This is because the Carter decision was decided prior to the Supreme Court of Ohio’s
clarification of the Deem test in State v. Smith.
Aggravated robbery may be committed when an offender engages in
prescribed conduct while committing a theft offense or attempting to
commit a theft offense. R.C. 2911.01. Thus, the aggravated robbery
statute contains an element that may be proved alternatively. We are
required to apply the second prong of the Deem test “to each alternative
method of committing the greater offense.” State v. Smith, 117 Ohio St.3d
447, 884 N.E.2d 595, 2008-Ohio-1260, at ¶ 28. We adopt the following
analysis of the Supreme Court of Ohio in State v. Smith, only that we
modify it to also apply to aggravated robbery:
“If these two alternatives are essentially treated as separate offenses,
then fifth-degree felony theft is a lesser included offense of [aggravated]
robbery as statutorily defined in the alternative of [aggravated] robbery by
theft, because it would be impossible to ever commit [an aggravated]
robbery by theft without also committing a theft.
“Accordingly, theft, as defined in R.C. 2913.02, is a lesser included
offense of [aggravated] robbery, as defined in [R.C. 2911.01].” State v.
Smith, 117 Ohio St.3d 447, 884 N.E.2d 595, 2008-Ohio-1260, at ¶28-29.
Id. at ¶ 94-97.
{¶ 19} We agree with the Ninth District that the supreme court’s most recent
decisions justify the conclusion that Carter was impliedly overruled by Smith. To find
otherwise would require us to reconcile holdings that robbery is a lesser included offense
of aggravated robbery; that theft is a lesser included offense of robbery; but that theft is
not a lesser included offense of aggravated robbery. If we assume that Carter was
overruled sub silentio in Smith, the case decisions can be reconciled. We therefore make
that assumption and find, consistent with the Ninth District’s decision in Smith, that theft
is a lesser included offense of aggravated robbery.
{¶ 20} We must next determine whether the court abused its discretion by
concluding that there was an insufficient basis for finding that the jury could reasonably
find Cooper not guilty of aggravated robbery, but guilty of theft. Cooper was charged
with aggravated robbery under R.C. 2911.01(A)(1), which states that no person, in
attempting or committing a theft offense, “shall have a deadly weapon on or about the
offender’s person or under the offender’s control and either display the weapon, brandish
it, indicate that the offender possesses it, or use it[.]” Cooper sought an instruction on
attempted theft under R.C. 2913.02(A)(1) which states that no person, with purpose to
deprive the owner of property or services, “shall knowingly obtain or exert control over
either the property or services without the consent of the owner or person authorized to
give consent.”
{¶ 21} In his statement to the police, Cooper admitted that he reached into the car
in an attempt to rob the victim, an act verified by the security tape offered into evidence.
This act, coupled with his admission that he told the victim to “lay it down” was evidence
of force. As the Committee Comment to R.C. 2911.02 states, “the difference between
theft and robbery is an element of actual or potential harm to persons.” The affirmative
act of reaching into the car and ordering the victim to surrender his money contained an
implied threat of potential harm to the victim if he did not comply with Cooper’s order.
On this basis alone, the court could rationally find that the evidence did not support an
instruction on mere theft.
Judgment affirmed.
It is ordered that appellee recover of appellant its 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 Cuyahoga
County Court of Common Pleas 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.
MELODY J. STEWART, JUDGE
MARY EILEEN KILBANE, P.J., and
EILEEN A. GALLAGHER, J., CONCUR