State v. Buford , 2012 Ohio 1948 ( 2012 )

[Cite as State v. Buford, 2012-Ohio-1948.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
Nos. 97218 and 97529
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
ERIC BUFORD
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case Nos. CR-541097 and CR-541098
BEFORE: Jones, J., Blackmon, A.J., and Stewart, J.
RELEASED AND JOURNALIZED: May 3, 2012
ATTORNEY FOR APPELLANT
Rick L. Ferrara
2077 East 4th Street, 2nd Floor
Cleveland, Ohio 44114
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
BY: Steven N. Szelagiewicz
Assistant County Prosecutor
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
LARRY A. JONES, SR., J.:
{¶1} Defendant-appellant, Eric Buford, appeals his convictions in two cases,
which we have sua sponte consolidated for review and disposition. We affirm.
{¶2} In August 2010, Buford was charged in Case No. CR-541097 with having
weapons while under disability and carrying a concealed weapon. He was also charged
in Case No. CR-541098 with two counts of felonious assault with one- and three-year
firearm specifications and one count of having weapons while under disability.
{¶3} Case No. CR-541098 proceeded to a trial by jury on the felonious assault
charges. The trial court granted Buford’s motion to bifurcate the disability charge and
that count was tried to the bench.
{¶4} The following pertinent evidence was presented at trial.
{¶5} On July 21, 2010, James Scott went to visit his former girlfriend, LaToya
Buford. Scott’s friend, Rodell Booze, drove him to LaToya’s house. Scott and LaToya
began to argue about their recent breakup; Scott was standing at the front door. Scott
testified that he saw Eric Buford, LaToya’s brother, standing in the kitchen, pointing a
gun at him. When Scott saw the gun, he slammed the door and took off running.
Booze testified that he heard gunshots as he drove away; a bullet hit his driver’s side
window, shattering it. He further testified that he saw Buford shooting at his car.
{¶6} LaToya testified that she was arguing with Scott, who was standing at her
front door. They were arguing about $40 that Scott said she owed him because she had
cut a hole in a pair of his jeans. She testified that she saw Scott slam the door and run,
her brother point the gun at Scott, and then she heard gunshots. After the first gunshot,
LaToya testified, she “hit the floor” and heard a total of three to four gunshots. LaToya
asked her brother why he shot at Scott and, according to LaToya, he replied, “I don’t
know.” He then told her not to tell anyone.
{¶7} Buford left the house, taking the gun with him. LaToya did not initially call
the police but later gave a written statement implicating her brother. During trial,
LaToya testified that her brother threatened to kill her if she told the police about the
shooting.
{¶8} Cleveland Police Officer Mark Pesta testified that he responded to a call of
shots being fired at two males. When he arrived on the scene, he observed a shattered
driver’s side window and a bullet hole in the inside of the passenger door of Booze’s car.
Detective James Bellanca testified that Booze’s father later gave him the bullet that the
body shop recovered from the car door.
{¶9} Buford was convicted of all charges in Case No. CR-541098. In Case No.
CR-541097, Buford pleaded guilty to attempted having weapons while under disability
and carrying a concealed weapon. The trial court sentenced Buford to a total of nine
years in Case No. CR-541098 to run consecutive to a total of eight months in Case No.
CR-541097, for a total sentence of nine years and eight months in prison.
{¶10} It is from this sentence that Buford now appeals, raising the following
assignments of error for our review:1
I. The trial court erred when it failed to make mandatory findings before
imposing consecutive sentences.
II. The trial court erred in admitting unduly prejudicial hearsay evidence at
trial over defense counsel[’s] objection.
III. Insufficient evidence supported a conviction for felonious assault and
gun specifications.
IV. The manifest weight of the evidence did not support a conviction for
felonious assault or accompanying gun specifications.
[V.] The trial court acted contrary to law when it imposed consecutive
sentences without authority to do so under the Ohio Revised Code.
[VI.] The trial court erred when it failed to make mandatory
findings before imposing consecutive sentences.
Hearsay Evidence
{¶11} In the second assignment of error, Buford argues that the trial court
improperly allowed LaToya to refresh her memory using her written statement without
laying a proper foundation.
{¶12} A trial court has broad discretion in determining the admissibility of
evidence. State v. Maurer, 15 Ohio St.3d 239, 265, 473 N.E.2d 768 (1984), citing State
v. Hymore, 9 Ohio St.2d 122, 224 N.E.2d 126 (1967). Accordingly, an appellate court
should not interfere with a trial court’s evidentiary rulings absent an abuse of discretion.
Id. “An abuse of discretion connotes more than an error of law or of judgment; it
implies that the court’s attitude is unreasonable, arbitrary or unconscionable.” State v.
We have renumbered the assignments of error for ease of review.
1
Jackson, 107 Ohio St.3d 53, 89, 2005-Ohio-5981, 836 N.E.2d 1173, citing State v.
Adams, 62 Ohio St.2d 151, 404 N.E.2d 144 (1980).
{¶13} Evid.R. 612 permits a party to use a writing to refresh a witness’s
recollection. But the witness is not permitted to read the writing aloud or have it
otherwise placed before the jury. State v. Ballew, 76 Ohio St.3d 244, 254, 667 N.E.2d
369 (1996). Rather, the witness reads the writing silently in order to refresh her
recollection; if the writing refreshes the witness’s recollection, the witness then testifies
using present independent knowledge. State v. Scott, 31 Ohio St.2d 1, 5-6, 285 N.E.2d
344 (1972). It is this testimony, not the writing, that is the evidence. State v. Woods,
48 Ohio App.3d 1, 548 N.E.2d 954 (1st Dist. 1988).
{¶14} Buford urges this court to reverse his conviction arguing that the state failed
to lay a proper foundation when it asked LaToya to read her written statement to police
and then answer questions about the statement. We disagree.
{¶15} First, we note that Buford did not object at trial to LaToya using her written
statement to refresh her memory.2 While Crim.R. 52(B) permits a court to notice plain
errors or defects that affect substantial rights although they have not been brought to the
attention of the court, a reviewing court must take notice of plain error only with the
utmost caution, and only then to prevent a manifest miscarriage of justice. State v. Long,
53 Ohio St.2d 91, 372 N.E.2d 804 (1978), at the syllabus. Plain error does not exist
Although Buford’s attorney objected as LaToya answered the prosecutor’s questions after she
2
looked at her statement, he did not object to the foundation or procedure by which LaToya refreshed
her memory.
unless it can be said that, but for the error, the outcome of the trial would clearly have
been otherwise. State v. Moreland, 50 Ohio St.3d 58, 552 N.E.2d 894 (1990).
{¶16} During direct examination, the prosecutor asked LaToya what Buford told
her immediately after the shooting. LaToya replied that she was confused and that
looking at her statement to police may help her to refresh her memory because she
completed her written statement shortly after the shooting. LaToya reviewed the
statement at sidebar and then returned the statement to the prosecutor before continuing
with her testimony. She then testified that Buford had told her that “if me, my mother,
or James told the police what happened he’d come back and kill someone.”
{¶17} Based on these facts, we find no error, plain or otherwise, with the manner
in which the trial court allowed LaToya to refresh her memory.
{¶18} The second assignment of error is overruled.
Sufficiency and Manifest Weight of the Evidence
{¶19} In the third and fourth assignments of error, Buford claims that his
convictions were not supported by sufficient evidence and were against the manifest
weight of the evidence.
{¶20} Although sufficiency and manifest weight are different legal concepts,
manifest weight may subsume sufficiency in conducting the analysis; that is, a finding
that a conviction is supported by the manifest weight of the evidence necessarily includes
a finding of sufficiency. State v. McCrary, 10th Dist. No. 10AP-881, 2011-Ohio-3161,
¶ 11, citing State v. Braxton, 10th Dist. No. 04AP-725, 2005-Ohio-2198, ¶ 15. Thus, a
determination that a conviction is supported by the weight of the evidence will also be
dispositive of the issue of sufficiency. Id. We find the manifest weight of the evidence
argument dispositive in this case.
{¶21} The weight of the evidence concerns the inclination of the greater amount of
credible evidence offered to support one side of the issue rather than the other. State v.
Thompkins, 78 Ohio St.3d 380, 387, 1997-Ohio-52, 678 N.E.2d 541. Although there may
be sufficient evidence to support a judgment, a court may nevertheless conclude that a
judgment is against the manifest weight of the evidence. Id.{¶22} When presented with a challenge to the manifest weight of the evidence, an
appellate court may not merely substitute its view for that of the trier of fact, but must
review the entire record, weigh the evidence and all reasonable inferences, consider the
credibility of witnesses and determine whether in resolving conflicts in the evidence, the
trier of fact clearly lost its way and created such a manifest miscarriage of justice that the
conviction must be reversed and a new trial ordered. Id. An appellate court should
reserve reversal of a conviction as being against the manifest weight of the evidence for
only the most “exceptional case in which the evidence weighs heavily against the
conviction.” Id.{¶23} Buford argues that there was insufficient evidence to support his convictions
and they were against the manifest weight of the evidence because the state could not
show that he intended to harm Scott and Booze. He claims he only intended to scare
Scott. We find this argument without merit. Buford was convicted of felonious assault
pursuant to R.C. 2903.11(A)(2), which provides, in part, that “[n]o person shall
knowingly * * * [c]ause or attempt to cause physical harm to another * * * by means of a
deadly weapon.”
{¶24} Felonious assault requires that a person acts “knowingly.” R.C.
2903.11(A)(2). “A person acts knowingly, regardless of his purpose, when he is aware
that his conduct will probably cause a certain result or will probably be of a certain
nature.” R.C. 2901.22(B). Whether a defendant acted “knowingly” must be inferred
from the totality of the circumstances surrounding the alleged offense. State v. Booth,
133 Ohio App.3d 555, 562, 729 N.E.2d 406 (10th Dist. 1999). In its instructions to the
jury, the trial court defined “cause” as “an act or failure to act which in a natural and
continuous sequence directly produces physical harm to a person, and without which it
would not have occurred.” See also 4 Ohio Jury Instructions (2006) 64-65, Section
409.55.
{¶25} Scott testified that he was standing at LaToya’s front door when he saw
Buford standing “about seven yards away,” pointing a gun at him. Scott turned and ran,
and LaToya testified that Buford ran after Scott and started shooting. Booze, who was
waiting in his car, began to drive away, but not before he saw Buford standing on the
porch shooting in his direction. One of the bullets hit Booze’s driver’s side window and
passed through, hitting the passenger door. Pieces of glass from the door hit Booze’s
face and the bullet was recovered from the inside of the car door. Both victims and
Buford’s sister all testified that Buford shot at Scott and Booze; Buford then threatened
his sister if she told anyone.
{¶26} Under the totality of the circumstances, we find that there was ample
evidence for the jury to conclude that Buford was aware that his conduct of shooting a
gun at the two victims would probably cause physical harm to them. Thus, Booze’s
convictions were not against the manifest weight of the evidence; therefore, they also
were supported by sufficient evidence.
{¶27} The third and fourth assignments of error are overruled.
Sentencing
{¶28} In the first, fifth, and sixth assignments of error, Buford challenges his
sentences in both cases. Buford contends that the trial court erred in sentencing him to
consecutive sentences without engaging in the fact-finding required by R.C.
2929.14(C)(4).
{¶29} As an initial matter, the General Assembly recently amended former R.C.
2929.14(E)(4), renumbered R.C. 2929.14(C)(4), and enacted new language requiring
fact-finding for consecutive sentences. Am.Sub.H.B. No. 86. Buford claims that R.C.
1.58 operates so as to entitle him to any reduction in penalty that H.B. 86 brought about
because he was sentenced after it was signed into law. We disagree.
{¶30} R.C. 1.58(B) provides that “[i]f the penalty, forfeiture, or punishment for
any offense is reduced by a reenactment or amendment of a statute, the penalty, forfeiture,
or punishment, if not already imposed, shall be imposed according to the statute as
amended.” Buford claims that R.C. 2929.14(C)(4) reduces the penalty because it
imposes limitations on consecutive sentences.
{¶31} But the court must look to the date legislation became effective, not to the
date it was signed into law. H.B. 86 had an effective date of September 30, 2011, and
Buford was sentenced in August 2011. It is well-settled that new sentencing guidelines
for felony offenders do not apply to those persons already sentenced under prior law.
See State v. Banks, 116 Ohio App.3d 659, 688 N.E.2d 1118 (3d Dist.1996). Therefore,
the new sentencing guidelines are not applicable to the case at bar and we proceed to
review Buford’s sentence under the framework set forth in State v. Kalish, 120 Ohio St.3d
23, 2008-Ohio-4912, 896 N.E.2d 124. In Kalish, the Supreme Court of Ohio articulated
a two-step approach for appellate courts in reviewing felony sentences: “First, they
must examine the sentencing court’s compliance with all applicable rules and statutes in
imposing the sentence to determine whether the sentence is clearly and convincingly
contrary to law. If this first prong is satisfied, the trial court’s decision shall be reviewed
under an abuse-of-discretion standard.” Id. at ¶ 4. The trial court has wide discretion
to sentence an offender within the allowable statutory range permitted for a particular
degree of offense. State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, ¶
100.
{¶32} In Foster, the Ohio Supreme Court declared the requirements imposed by
R.C. 2929.14(C)(4) unconstitutional and held that “judicial fact-finding is not required
before imposition of consecutive prison terms.” Id. at ¶ 99. Thereafter, in State v.
Hodge, 128 Ohio St.3d 1, 2010-Ohio-6320, 941 N.E.2d 768, the Ohio Supreme Court
reiterated that R.C. 2929.14(C)(4) remained unconstitutional and imposed no fact-finding
obligation on Ohio’s trial courts. Id. at ¶ 39. This applies to both the consecutive
sentences imposed in CR-541097 and to the court’s running the sentence in CR-541097
consecutive to the sentence imposed in CR-541098.
{¶33} In light of the above, Buford’s sentence was not contrary to law, the first
prong under Kalish. Buford does not contend, under the second prong of Kalish, that his
sentence was an abuse of discretion, and we do not find that it was. The record
demonstrates that Buford has a lengthy criminal history.
{¶34} In light of these facts, we find that Buford’s consecutive sentences were not
contrary to law or an abuse of discretion. Accordingly, the first, fifth, and sixth
assignments of error are overruled.
{¶35} Judgment affirmed.
It is ordered that appellee recover of 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.
LARRY A. JONES, SR., JUDGE
PATRICIA A. BLACKMON, A.J., and
MELODY J. STEWART, J., CONCUR