State v. Talley , 2016 Ohio 8010 ( 2016 )

[Cite as State v. Talley, 2016-Ohio-8010.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY
State of Ohio Court of Appeals No. L-15-1187
Appellee Trial Court No. CR0201501211
v.
Christopher Talley DECISION AND JUDGMENT
Appellant Decided: December 2, 2016
*****
Julia R. Bates, Lucas County Prosecuting Attorney, and
Evy M. Jarrett, Assistant Prosecuting Attorney, for appellee.
Karin L. Coble, for appellant.
*****
YARBROUGH, J.
I. Introduction
{¶ 1} Appellant, Christopher Talley, appeals the judgment of the Lucas County
Court of Common Pleas, ordering him to serve a prison sentence of 21 years after a jury
found him guilty of two counts of aggravated robbery with attendant firearms
specifications and two counts of having weapons while under disability.
A. Facts and Procedural Background
{¶ 2} This matter stems from a series of two robberies that occurred in Toledo in
January 2015. The first robbery occurred on January 23, 2015, at a Valero store located
at 950 West Alexis Road. Saif Fouad, the store clerk working at the Valero store,
testified at trial that two individuals entered the store and one of the individuals pointed a
gun at Fouad, instructing him to “put the money in the plastic bag and give it to me.”
Fouad recognized the gunman as one of his “regular customers.” Fouad complied with
the robber’s request and placed the money from the register into the plastic bag.
Afterwards, the two individuals exited the store and Fouad called 911. The robbery was
captured on Valero’s video surveillance system.
{¶ 3} When asked about the physical characteristics of the gunman, Fouad
described the individual as a tall black male with a goatee and a mustache. During his
911 phone call, Fouad stated that the gunman was wearing a gray hoodie and black pants.
Fouad stated that the other robber locked the entrance door and remained next to the door
during the robbery, acting as a lookout. Fouad could not identify the other robber’s
gender. According to Fouad’s estimate, the robbery lasted between 15 and 25 seconds.
{¶ 4} Toledo police officer Don O’Brien responded to Fouad’s report of an armed
robbery at the Valero store. Upon O’Brien’s arrival, Fouad explained to O’Brien that the
gunman was a black male wearing a gray hoodie with black pants, black shoes, and a
black knit hat. Fouad went on to state that the gunman was six feet two inches tall.
2.
Fouad informed O’Brien that the other robber was a black female who was
approximately five feet six inches tall and about 150 pounds. He recounted to O’Brien
that the second robber was wearing a black coat, black pants, and black shoes.
{¶ 5} Four days later, the same two individuals that were displayed on Valero’s
video surveillance system during the robbery entered the BP Stop & Shop located at 1702
West Laskey and robbed it as well. Larry Roberts, the store clerk at the BP Stop & Shop,
was working on the morning of the robbery. After opening the store, Roberts waited on a
couple of customers. Within an hour of opening the store, Roberts noticed two
individuals enter. At trial, Roberts described one of the individuals as a male standing
between six feet and six feet one inch tall with a medium build and light skin. When
asked about the race of the individual, Roberts stated he was unsure, but suggested the
individual could have been Puerto Rican or black. He also stated that this individual was
wearing gray sweatpants with a black stripe and was holding a black .45 caliber handgun
at his side. Roberts stated that he was unable to see the gunman’s face but was able to
see his eyes. As for the individual who accompanied the gunman, Roberts indicated that
she was a female who was wearing black sweatpants, a dark leather coat, a red scarf, and
a black knit hat. Later in his testimony, Roberts stated that he recognized the female
robber as a former employee, Jamika Tucker, whom he had counseled on occasion.1 He
noticed that the leather jacket and scarf she was wearing was the same jacket and scarf
Tucker had previously worn to work, and he also recognized her eyes.
1
The state called the district manager who worked for the stores involved in the robberies
in this case, Tiffany Ortega, who also recognized Tucker as the female robber.
3.
{¶ 6} Upon entering the store, the gunman approached Roberts and told him that
he intended to rob the store. The gunman stated that he did not intend to hurt anyone.
Rather, he simply wanted Roberts to “open the safe.” Meanwhile, Tucker was attempting
to steal cigarettes from the cigarette cabinet inside the store. At the conclusion of the
robbery, Roberts activated the silent alarm and dialed 911.
{¶ 7} After being notified of Tucker’s identity, Toledo police dispatched a team of
officers, including Sergeant Kevin Korsog, to Tucker’s address at 6153 Jackman, Toledo,
Ohio. Upon arrival, Korsog knocked on the door. After some hesitation, Tucker
eventually answered the door and the officers entered the home. Once inside, Korsog
found another male individual, Jacinto Reed. He ordered Reed to remain seated and
asked Tucker if any other individuals were inside the home. Tucker failed to provide a
direct answer to Korsog’s question, so officers proceeded to search the home for other
occupants. As a result of their search, the officers discovered appellant hiding in the
kitchen. Tucker, Reed, and appellant were then separated and transported to the Safety
Building to be interviewed. After three interviews, Tucker confessed to the robberies and
implicated appellant as the gunman.
{¶ 8} Thereafter, a search warrant was obtained for Tucker’s residence. Upon
executing the search warrant, Toledo police officer Israel Garrett discovered a blue
knapsack, two black leather jackets, two cartons of Fortuna cigarettes, and a black
handgun with tape around the handle. The cigarettes were located inside the sleeve of
one of the black leather jackets found in the home. The handgun was found inside a
window sill in the kitchen behind a mattress that was lying against the wall.
4.
{¶ 9} As a result of the search and the statement Tucker provided to police,
appellant was indicted on February 5, 2015, and charged with two counts of aggravated
robbery in violation of R.C. 2911.01(A)(1), felonies of the first degree, along with
attendant firearms specifications as to each count, as well as two counts of having
weapons while under disability in violation of R.C. 2923.13(A)(2), felonies of the third
degree. The matter proceeded through pretrial and a four-day jury trial commenced on
June 22, 2015.
{¶ 10} At trial, the state called several witnesses, including Tucker. Tucker
testified that she formerly worked with Larry Roberts at the BP Stop & Shop. She stated
that she was in an “on and off” relationship with appellant for one year prior to the
commission of the robberies in this case, during which time appellant would occasionally
walk her to and from work.
{¶ 11} When asked about the robberies, Tucker acknowledged her involvement
and identified appellant as the gunman. She described appellant’s firearm as a “black
gun with tape on * * * the hand part.” This description matched the firearm that was
seized by authorities during the execution of the search warrant at Tucker’s residence.
Tucker stated that appellant wore a gray hooded sweatshirt and gray sweatpants during
the robbery of the Valero store. She went on to testify that appellant dressed in layers
during the robbery of the BP Stop & Shop. Tucker further explained that appellant wore
jeans underneath his gray sweatpants. All of these statements were corroborated by the
evidence discovered by authorities during the search of Tucker’s residence, which was
admitted at trial.
5.
{¶ 12} After the robbery of the BP Stop & Shop was finished, Tucker and
appellant walked across the street and entered a Kroger store to change clothes. On the
way to Kroger, appellant placed his handgun inside a plastic Kroger bag and placed the
bag in a trash can. Appellant then entered Kroger, walked to the restroom, took off the
sweatpants and jeans, and put the jeans back on over the sweatpants. Eventually, the two
made their way back to Tucker’s residence, where they were subsequently arrested.
{¶ 13} At the conclusion of the state’s case-in-chief, appellant moved for acquittal
under Crim.R. 29. In denying the motion, the court noted the extent of the evidence
produced by the state at trial. The matter then proceeded to closing arguments and jury
instructions, appellant having elected not to take the stand in his defense or present any
witnesses of his own. Ultimately, the jury returned verdicts of guilty as to all charges
contained in the indictment. The court then set the matter for sentencing and ordered a
presentence investigation report.
{¶ 14} At sentencing, the court ordered appellant to serve six years in prison as to
each aggravated robbery charge, to be served consecutively, plus another three years on
each charge pursuant to the firearms specifications. In addition, the court imposed a two-
year prison sentence on each charge for having weapons while under disability, to be
served concurrently to one another but consecutively to the sentences imposed for the
aggravated robbery charges. Further, the court found that appellant committed the
aforementioned crimes while under post release control from a prior aggravated robbery
conviction. Because of this post release control violation, the court imposed an
additional one-year sentence, to be served consecutive to the sentences imposed in this
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case. In all, appellant was ordered to serve 21 years in prison and pay the costs of
supervision, confinement, assigned counsel, prosecution, and restitution to Valero and BP
Stop & Shop.
B. Assignments of Error
{¶ 15} Appellant timely appealed the trial court’s order, assigning the following
errors for our review:
Assignment of Error One: Appellant’s convictions are not supported
by sufficient evidence and are against the manifest weight of the evidence.
Assignment of Error Two: The trial court erred in failing to merge
the two counts of having weapons under a disability for sentencing, and
violated the Double Jeopardy Clauses of the Fifth Amendment to the
United States Constitution and Section 10, Article I of the Ohio
Constitution.
Assignment of Error Three: The State committed prosecutorial
misconduct in closing arguments, such that appellant was deprived of a fair
trial.
Assignment of Error Four: The trial court erred in imposing the cost
of appointed counsel fees and costs of confinement.
II. Analysis
A. Sufficiency and Manifest Weight
{¶ 16} In appellant’s first assignment of error, he argues that his convictions are
not supported by sufficient evidence and are against the manifest weight of the evidence.
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While sufficiency and manifest weight are distinct concepts, we will address them
together.
{¶ 17} When evaluating whether the evidence was sufficient to sustain a
conviction, we must determine whether the evidence admitted at trial, “if believed, would
convince the average mind of the defendant’s guilt beyond a reasonable doubt. The
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, 61 Ohio St.3d 259, 574 N.E.2d 492(1991), paragraph two of the syllabus, citing Jackson v. Virginia, 443 U.S. 307, 99 S.Ct.
2781, 61 L.E.2d 560 (1979); see also State v. Thompkins, 78 Ohio St.3d 380, 678 N.E.2d
541 (1997). Therefore, “[t]he verdict will not be disturbed unless the appellate court
finds that reasonable minds could not reach the conclusion reached by the trier-of-fact.”
State v. Dennis, 79 Ohio St.3d 421, 430, 683 N.E.2d 1096 (1997), citing Jenks at
paragraph two of the syllabus.
{¶ 18} When reviewing a manifest weight claim,
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
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evidence weighs heavily against the conviction. State v. Lang, 129 Ohio
St.3d 512, 2011-Ohio-4215, 954 N.E.2d 596, ¶ 220.
{¶ 19} The crime of aggravated robbery is codified in R.C. 2911.01. Relevant
here, R.C. 2911.01 provides:
(A) No person, in attempting or committing a theft offense, as
defined in section 2913.01 of the Revised Code, or in fleeing immediately
after the attempt or offense, shall do any of the following:
(1) 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;
***
(C) Whoever violates this section is guilty of aggravated robbery, a
felony of the first degree.
{¶ 20} The crime of having weapons while under disability is codified in R.C.
2923.13, which states in relevant part:
(A) Unless relieved from disability under operation of law or legal
process, no person shall knowingly acquire, have, carry, or use any firearm
or dangerous ordnance, if any of the following apply:
***
(2) The person is under indictment for or has been convicted of any
felony offense of violence or has been adjudicated a delinquent child for the
9.
commission of an offense that, if committed by an adult, would have been a
felony offense of violence.
{¶ 21} That two robberies were committed in this case, one at the Valero store and
another at the BP Stop & Shop, is uncontested. Indeed, the video surveillance and trial
testimony confirm that Tucker and another individual entered both stores and demanded
money from the cashiers. Further, the video surveillance depicts the other individual
brandishing a deadly weapon in an effort to force the cashiers to comply with his
demands.
{¶ 22} Notwithstanding the foregoing, appellant argues that the state failed to
establish that appellant was the gunman responsible for the robberies that took place at
Valero and BP Stop & Shop. In so arguing, appellant alleges certain inconsistencies in
the trial testimony, and urges that Tucker’s testimony lacked credibility in light of the
fact that she was a “co-defendant with an interest in receiving a lesser sentence through
her testimony.”
{¶ 23} Regarding appellant’s argument concerning alleged inconsistencies in the
testimony, it is well-established that “‘[a] conviction is not against the manifest weight of
the evidence solely because the jury heard inconsistent testimony.’” State v. Wade, 8th
Dist. Cuyahoga No. 90029, 2008-Ohio-4574, ¶ 38, quoting State v. Asberry, 10th Dist.
Franklin No. 04AP-1113, 2005-Ohio-4547, ¶ 11. Having considered the testimony
presented at trial, we find no inconsistencies that are material to the identification of
appellant as the perpetrator of the robberies at issue in this case.
10.
{¶ 24} We now turn to appellant’s argument that Tucker was an unbelievable
witness because she was upset with him and wished to receive a lesser sentence by
testifying against him. During cross-examination, Tucker was subjected to rigorous
questioning exploring her potential bias stemming from her angst against appellant and
her desire to receive a reduced sentence by testifying in this case. While we must
consider the credibility of the witnesses in a manifest weight challenge, “that review must
nevertheless be tempered by the principle that weight and credibility are primarily for the
trier of fact.” State v. Kash, 1st Dist. Butler No. CA2002-10-247, 2004-Ohio-415, ¶ 25.
The trier of fact is in the best position to “view the witnesses and observe their demeanor,
gestures and voice inflections, and use these observations in weighing the credibility of
the proffered testimony.” Id. at ¶ 25. “The jury may believe all that a witness has said,
or part or none of it.” Barker v. Century Ins. Group, 10th Dist. Franklin No. 06AP-377,
2007-Ohio-2729, ¶ 14.
{¶ 25} Tucker’s credibility was primarily for the jury to determine. After
reviewing the record, we cannot say that the jury clearly lost its way in believing Tucker.
Tucker testified that she acted in concert with appellant to commit the robberies for
which appellant was convicted. The clothing, handgun, and other evidence discovered at
Tucker’s residence matches the description of the items used in the commission of the
robberies provided by Tucker, Fouad, and Roberts. Moreover, Tucker’s articulation of
the facts was in harmony with the video surveillance recovered from the crime scenes.
Therefore, we find no merit to appellant’s assertion that the jury lost its way in believing
11.
Tucker’s identification of appellant as the gunman. Further, we find that the jury’s
verdict was supported by sufficient evidence and was not against the manifest weight of
the evidence.
{¶ 26} Accordingly, appellant’s first assignment of error is not well-taken.
B. Allied Offenses of Similar Import
{¶ 27} In his second assignment of error, appellant asserts that the trial court erred
in failing to merge his convictions for having weapons while under disability.
Concerning merger of allied offenses of similar import, R.C. 2941.25 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.
{¶ 28} In State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, ¶ 25,
the Supreme Court of Ohio examined R.C. 2941.25 and held that a defendant may be
convicted and sentenced for multiple offenses where the offenses (1) caused separate,
identifiable harm, (2) were committed separately, or (3) were committed with separate
animus or motivation. The court went on to indicate that “the allied-offense analysis is
12.
dependent upon the facts of a case because R.C. 2941.25 focuses on the defendant’s
conduct. * * * When a defendant’s conduct victimizes more than one person, the harm
for each person is separate and distinct, and therefore, the defendant can be convicted of
multiple counts.”
{¶ 29} Here, appellant argues the offenses should merge “[b]ecause appellant’s
possession of the firearm was one continuous act, from the unknown date of acquisition
until his arrest.” A similar argument was recently rejected in State v. Dean, 146 Ohio
St.3d 106, 2015-Ohio-4347, 54 N.E.3d 80. In that case, the defendant was convicted of
four counts of having weapons while under disability. Three of these convictions
coincided with a theft, a drive-by shooting, and a murder, each committed on different
dates. The fourth conviction related to the date the defendant was arrested. Noting the
defendant’s possession of a handgun on four separate occasions at different times and
locations, the court held that the trial court did not commit plain error in failing to merge
the offenses because “[e]ach offense occurred with a separate animus, meaning a separate
purpose or intent. Thus, the ‘same conduct’ did not result in multiple convictions.” Id. at
¶ 217.
{¶ 30} Upon consideration of the facts of the present case, we find that the trial
court did not err in failing to merge appellant’s convictions for having weapons while
under disability. Indeed, the two offenses were separated by a period of four days and
were thus committed separately. Further, the offenses were committed with a separate
animus or motivation; the first offense was motivated by appellant’s desire to rob the
13.
Valero store and the second offense was motivated by appellant’s desire to rob the BP
Stop & Shop store.
{¶ 31} Accordingly, appellant’s second assignment of error is not well-taken.
C. Prosecutorial Misconduct
{¶ 32} In his third assignment of error, appellant argues that the state committed
prosecutorial misconduct during closing arguments.
{¶ 33} “The test for prosecutorial misconduct is whether remarks are improper
and, if so, whether they prejudicially affected substantial rights of the accused.” State v.
Lott, 51 Ohio St.3d 160, 165, 555 N.E.2d 293 (1990). “[T]he touchstone of due process
analysis in cases of alleged prosecutorial misconduct is the fairness of the trial, not the
culpability of the prosecutor.” Id. at 166, quoting Smith v. Phillips, 455 U.S. 209, 219,
102 S.Ct. 940, 71 L.Ed.2d 78 (1982). Where there are improper remarks, “it must be
clear beyond a reasonable doubt that, absent the prosecutor’s comments, the jury would
have found defendant guilty.” State v. Smith, 14 Ohio St.3d 13, 15, 470 N.E.2d 883(1984).
{¶ 34} Appellant alleges two instances of prosecutorial misconduct. “The
prosecution is normally entitled to a certain degree of latitude in its concluding remarks.”
Id. at 13. While it is not permissible for the state to vouch for the credibility of a witness,
State v. Jackson, 107 Ohio St.3d 53, 2005-Ohio-5981, 836 N.E.2d 1173, ¶ 117, the state
may respond to defense counsel’s attacks on a witness’s credibility by arguing that the
witness was reliable and referring to facts in evidence that tend to make the witness more
credible. Id. at ¶ 120.
14.
{¶ 35} First, appellant claims that the state improperly vouched for Tucker’s
credibility by telling the jury that Tucker was telling the truth during her testimony at
trial. Specifically, appellant takes issue with the following statements made during
closing arguments:
You heard Jamika Tucker, 21-year-old girl. Because of [appellant],
she’s now a convicted felon. She pled to a robbery and is facing up to eight
years in prison because of him. You will hear about, oh, what a benefit, oh,
what a bargain. Eight years in prison is no bargain to me. She came and
told you the truth. She told you what happened, and after a barrage of
questions, dirtying her up, prior employment, loss of her children, she told
you the truth. She didn’t sugar coat it, she didn’t deny it. As unsavory as it
was, unflattering as it was, she still told you the truth. And no one is going
to ask you to like her. Going to ask you to listen to her and decide if she is
telling the truth. She said that this guy, Christopher Tally, robbed both of
those stores with her. He was the driving force.
***
So, we’re going to ask you, again, to look at Jamika Tucker. You
promised, if believed, you could convict on her word alone, but there is a
lot more evidence to support her. Remember, a 21-year-old girl with two
babies, timid, low self-esteem, overborne by him. He threatened to put her
out of her very own house. You may just hate the fact, I don’t get it, I don’t
know why she would smoke marijuana while she was pregnant, you may
15.
even hate that. It doesn’t make her a liar. Unfortunately, it’s all over the
place. Heck, it’s going to be even on a ballot initiative to make it legal in
Ohio. I don’t understand it, but that’s what she’s around all the time. You
may hate the fact that she was behind on rent. So what. That doesn’t make
her a robber. Well, it makes her a robber. It doesn’t make her a liar is what
I meant to say. She lost some jobs. It doesn’t make her a liar. She sat in
front of you and told you some real unflattering things about herself. She
didn’t lie. She explained what happened. She was supported by the
evidence, the 911 calls, and the videos from the store, and the witnesses
that were called supported her. She said that the defendant was the gunman
and the evidence supports it.
{¶ 36} In general, these statements were made in response to defense counsel’s
attack on Tucker’s truthfulness during trial. These attacks formed the basis for defense
counsel’s chief defense at trial, which attempted to cast doubt upon Tucker’s
identification of appellant as the gunman. The state, in response, relied upon facts in
evidence that tended to bolster Tucker’s credibility in order to support its assertion that
Tucker was telling the truth. This is not improper vouching. Jackson at ¶ 120.
{¶ 37} We do note, however, that it was improper for the state to tell the jury that
Tucker “told the truth” and “didn’t lie.” See State v. Thomas, 2d Dist. Clark No. 2000-
CA-43, 2001 Ohio App. LEXIS 4226, *22 (Sep. 21, 2001) (“In other words, a prosecutor
cannot say, ‘I believe my witnesses told the truth,’ but he can say, ‘other evidence
demonstrates my witnesses told the truth.’”). Nevertheless, given the unrefuted evidence
16.
presented by the state at trial, we find that it is clear beyond a reasonable doubt that,
absent the state’s comments, the jury would have found defendant guilty. In that regard,
we find that the state’s misconduct was “an isolated incident in an otherwise properly
tried case,” State v. Keenan, 66 Ohio St.3d 402, 410, 613 N.E.2d 203 (1993), which did
not deprive appellant of a fair trial.
{¶ 38} Second, appellant challenges the state’s argument at closing wherein the
state told the jury:
The armed robber has a black stocking cap down covering his head,
and very prominent dark facial hair, just like [appellant] had before he
shaved it. And yes, indeed Mr. Fouad wasn’t asked to identify this
Defendant, and there is a very good reason; he changed his look before
trial. And when [defense counsel] talks about a right for confrontation, it is
his right. [Appellant] didn’t ask either, did he?
Larry Roberts, he wasn’t asked to identify because the armed robber
was covering his face the whole time with a black glove, so as to cover up
his chin and his mustache because Mr. Roberts had seen him before. That’s
why Mr. Roberts wasn’t asked to identify this Defendant.
Appellant argues that this comment improperly implied that defense counsel did not ask
Fouad or Roberts to identify appellant as the gunman at trial because he did not believe
appellant was innocent.
{¶ 39} In support of his argument, appellant cites the Supreme Court of Ohio’s
decision in Keenan. In that case, the state told the jury during closing arguments that
17.
defense counsel’s conduct showed that they were “not looking at this objectively. They
are paid to do that. They are paid to get him off the hook.” Id. at 405. Upon review of
this statement, the Supreme Court of Ohio found that it was improper insofar as it
“imputed insincerity to defense counsel, thus suggesting that they believed Keenan
guilty.” Id. The court was further troubled by the following comments made by the state
during rebuttal: “Not once did they tell you their client was innocent. Not once did they
tell you to find him not guilty.” Id. at 406. The court expressed concern that the jury
might be unduly persuaded to convict a defendant if they believe that “even the
defendant's own advocates think him guilty.” Id. Additionally, the court noted that the
jury would be more likely to believe a prosecutor’s suggestion that defense counsel is
merely a “hired [gun],” given the prosecutor’s position as an impartial representative of
the state. Id.
{¶ 40} Having compared the comments made by the prosecution in Keenan to the
comments made by the state in this case, we conclude that the state’s comments here do
not implicate the prejudicial concerns raised by the court in Keenan. In particular, we
find that defense counsel’s failure to question Fouad and Roberts on the identity of the
gunman would not lead the jury to conclude that defense counsel believed appellant was
guilty. When read in its proper context, it is clear that the state was simply responding to
defense counsel’s argument that Fouad and Roberts did not identify appellant as the
gunman at trial by noting that defense counsel did not elicit any identification testimony
from those witnesses when given the opportunity to do so. The connection between the
state’s comments and appellant’s assertion that those comments led the jury to believe
18.
that defense counsel thought appellant was guilty is attenuated at best. Therefore, we
find no impropriety in the state’s comments.
{¶ 41} Having ascertained that appellant was not deprived of a fair trial on account
of the state’s assertions of Tucker’s truthfulness at closing, and having concluded that the
state’s comments regarding the lack of identification testimony from Fouad and Roberts
were not improper, we find appellant’s third assignment of error not well-taken.
D. Costs
{¶ 42} In his fourth and final assignment of error, appellant argues that the trial
court erred in imposing the costs of confinement and appointed counsel.
{¶ 43} R.C. 2929.18(A)(5)(a)(ii) provides that a sentencing court may impose, as a
financial sanction, “[a]ll or part of the costs of confinement * * * provided that the
amount of reimbursement ordered under this division shall not exceed the total amount of
reimbursement the offender is able to pay as determined at a hearing and shall not exceed
the actual cost of the confinement.” “Before imposing a financial sanction under [R.C.
2929.18], the court shall consider the offender’s present and future ability to pay the
amount of the sanction or fine.” R.C. 2929.19(B)(6). We have held that a sentencing
court is not required to hold a hearing when determining whether to impose a financial
sanction under this provision. State v. Phillips, 6th Dist. Fulton No. F-05-032, 2006-
Ohio-4135, ¶ 18, citing State v. Lamonds, 6th Dist. Lucas No. L-03-1100, 2005-Ohio-
1219, ¶ 42. However, the record must contain some evidence that the court considered
the offender’s ability to pay such a sanction. Id.
19.
{¶ 44} The recovery of appointed counsel fees is governed by R.C. 2941.51(D),
which provides that such fees “shall not be taxed as part of the costs and shall be paid by
the county. However, if the person represented has, or reasonably may be expected to
have, the means to meet some part of the cost of the services rendered to the person, the
person shall pay the county an amount that the person reasonably can be expected to
pay.” Again, no hearing on this matter is expressly required, but the court must enter a
finding that that the offender has the ability to pay and that determination must be
supported by clear and convincing evidence of record. State v. Knight, 6th Dist.
Sandusky No. S-05-007, 2006-Ohio-4807, ¶ 6-7.
{¶ 45} Here, the trial court did not conduct a separate hearing to determine
appellant’s ability to pay the costs of confinement or the costs of appointed counsel, but
did enter a finding that appellant had the ability to pay. However, the state has not
directed our attention to any fact in the record that would demonstrate appellant’s ability
to pay. Further, the presentence investigation report demonstrates that appellant, a 31-
year-old man, did not graduate high school and has never been employed. According to
the report, appellant has been supported by his family and friends for his entire life.
Given these circumstances, it is difficult to imagine how appellant might be able to pay
the imposed costs after being released from prison in 21 years as a 52-year-old convicted
felon with no prior work experience or meaningful education.
{¶ 46} On this record, we find that the trial court’s determination of appellant’s
ability to pay the costs of confinement and court appointed fees was not supported by
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clear and convincing evidence. Accordingly, appellant’s fourth assignment of error is
well-taken.
III. Conclusion
{¶ 47} On consideration whereof, the judgment of the Lucas County Court of
Common Pleas is affirmed, in part, and reversed, in part. The trial court’s imposition of
the costs of confinement and appointed counsel fees is hereby vacated, and the court’s
judgment is affirmed in all other respects. It is ordered that appellee pay the costs of this
appeal pursuant to App.R. 24.
Judgment affirmed, in part
and reversed, in part.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J. _______________________________
JUDGE
Arlene Singer, J.
_______________________________
Stephen A. Yarbrough, J. JUDGE
CONCUR.
_______________________________
JUDGE
21.