State v. Cassano , 2012 Ohio 3073 ( 2012 )

[Cite as State v. Cassano, 2012-Ohio-3073.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 97228
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
ADAM CASSANO
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-535072
BEFORE: Stewart, P.J., Boyle, J., and Rocco, J.
RELEASED AND JOURNALIZED: July 5, 2012
ATTORNEY FOR APPELLANT
Robert A. Dixon
The Brownhoist Building
4403 St. Clair Avenue
Cleveland, OH 44103
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
BY: Stephanie Heibertshausen
John Wojton
Assistant County Prosecutors
The Justice Center
1200 Ontario Street, 9th Floor
Cleveland, OH 44113
MELODY J. STEWART, P.J.:
{¶1} Defendant-appellant Adam Cassano was found guilty by the trial court of
four counts of felonious assault, two counts of aggravated robbery, and two counts of
having a weapon while under disability. The state charged that Cassano, acting on
information provided by codefendant Jerrell Glenn, robbed a group of victims, shooting
two of them. The issues on appeal concern the sufficiency and weight of the evidence,
the admission of telephone text messages, ineffective assistance of counsel, and the
court’s failure to merge firearm specifications at sentencing.
I
{¶2} The first and second assignments of error raise issues relating to the weight
and sufficiency of the evidence. Cassano does not make a specific argument as to why
there was insufficient evidence to support his convictions. Instead, he refers us to the
arguments made in support of arguments for why the court’s judgment is against the
manifest weight of the evidence. This fails the App.R. 16(A)(7) requirement that the
appellant present an “argument with respect to each assignment of error presented for
review[.]” State v. Sparent, 8th Dist. No. 96710, 2012-Ohio-586, ¶ 11. We consider
only the argument that the court’s judgment is against the manifest weight of the
evidence.
{¶3} Cassano’s manifest weight of the evidence argument is simply that the court
lost its way by finding that he was the gunman who robbed and shot two of the victims.
His argument rests primarily on the state’s use of certain text messages sent by
codefendant Glenn that appeared to tell the recipient the time and location that Glenn and
the victims would arrive at a certain location. The state theorized that these messages
were sent by Glenn to guide Cassano to a place where the robbery could be committed.
Cassano argues that the state failed to prove that he was the recipient of Glenn’s text
messages and, given the victims’ failure to identify him as the shooter, there was
significant doubt whether he was correctly convicted.
{¶4} The manifest weight of the evidence standard of review requires us to 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. State v. Otten, 33 Ohio App.3d
339, 340, 515 N.E.2d 1009 (9th Dist.1986). The use of the word “manifest” means that
the trier of fact’s decision must be plainly or obviously contrary to all of the evidence.
This is a difficult burden for an appellant to overcome because the resolution of factual
issues resides with the trier of fact. State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212(1967), paragraph one of the syllabus. The trier of fact has the authority to “believe or
disbelieve any witness or accept part of what a witness says and reject the rest.” State v.
Antill, 176 Ohio St. 61, 67, 197 N.E .2d 548 (1964).
{¶5} The state’s evidence showed that the victims, accompanied by Glenn, visited
several bars during an evening out. One of those victims, Kenneth Elsleger, was known
by Glenn to be a drug dealer who carried large amounts of cash. As the group was
returning to Elsleger’s apartment at about 2:30 a.m., one of them noticed Glenn was
sending text messages from his telephone, but trying to hide the telephone’s screen from
view of the others as he did so. When they arrived and parked at Elsleger’s apartment,
the group exited the car. One of the victims noticed that Glenn immediately ran away.
A few minutes later a male approached Elsleger and asked for help lighting a cigarette.
The male then pulled a gun, fired a single shot in the air, and demanded that Elsleger
empty his pockets. Elsleger began moving backwards and watched as his brother
grabbed the male’s arm. The male apparently threw the brother to the ground and then
ripped away a necklace that Elsleger was wearing. The male then shot Elsleger in the
neck. The brother regained his footing and grappled with the male, but he, too, was shot
in the scuffle. The male then fled.
{¶6} The victims were unable to identify their assailant from photo arrays. Three
of the four victims described the robber as short, white, and bald; the fourth believed that
the robber was African-American, but allowed that she might have mistakenly reached
that conclusion because the male was wearing a dark, hooded sweatshirt that cast a
shadow over his face.
{¶7} A fresh covering of snow had fallen on the evening of the robbery. The
police discovered footprints and tire marks leading away from the scene. They followed
the footprints to the front entrance of another apartment complex within walking distance
of the shooting. A person later identified as Cassano was exiting the building. Cassano
matched the general description of the robber, so a police officer asked him if he had been
in the building all night. Cassano told them that he had just arrived at the building. The
officer who spoke with Cassano noticed that Cassano appeared “very nervous,” was
giving “disjointed partial answers,” and could not explain who dropped him off or how he
arrived at the building.
{¶8} As Cassano spoke to the police, Glenn exited the building and greeted
Cassano. Glenn told the police that he knew Cassano. He also told the police that he
had been inside an apartment all night. The police took Glenn up to the apartment and
learned from the occupants that Glenn had only just arrived at the apartment and that it
was Cassano who had been at the apartment all evening.
{¶9} When confronted with information that he had not been in the apartment all
evening, Glenn admitted that he had been with the group of victims that evening. He
said that his car was parked at his residence and that he started to walk back to his
apartment as soon as the group of victims arrived at the crime scene. The police were
skeptical of this account because Glenn’s apartment was more than two miles away and it
made no sense to them that Glenn would walk that distance at 2:30 a.m. in falling snow.
As the police were preparing to give Glenn a ride to his house from the police station, one
of the victims casually asked them if they were taking Glenn back to the scene of the
crime so he could get his car. Glenn continued to insist that he did not drive his car that
evening, but the police soon discovered a car at the crime scene that was registered to
Glenn.
{¶10} With Glenn now a person of suspicion, the police obtained a record of
Glenn’s cell phone activity after he provided his telephone number. These records
showed that he sent a number of text messages shortly before the robbery to the same
telephone number. Those messages appeared to be directing the recipient of the text
messages to the parking lot where the robbery occurred, and more specifically to the
location of Glenn’s car in that lot. The recipient’s text messages in reply showed that the
recipient was having difficulty locating the car because the parked cars were covered with
snow. A final message from Glenn was: “we on our way.”
{¶11} Although the police knew the number of the telephone that received Glenn’s
text messages, that telephone was registered to a “pay as you go” cell phone carrier that
did not keep subscriber information. Looking at calling records from what we will refer
to as the “recipient telephone,” the police discovered that the recipient telephone had
made calls to a telephone owned by Cassano’s mother at the house where he, too, resided.
They also learned that Cassano’s brother had called the recipient telephone. In addition,
the police learned that the day after Cassano had been interviewed by the police, Glenn
unsuccessfully attempted to call the recipient cell phone and then immediately called the
Cassano residence telephone.
{¶12} Using this information, the police obtained and executed a search warrant at
Cassano’s residence. They found an ammunition clip from a 9mm Glock handgun. The
discovery of the ammunition clip was significant because shell casings found at the scene
of the robbery were thought to be most likely fired from a 9mm Glock handgun. The
police did not find a Glock handgun, but they found a photograph of Glenn and Cassano
posing with a female.
{¶13} Because none of the victims could positively identify Cassano as the robber,
the state relied on circumstantial evidence. Unlike direct evidence in which a witness
testifies about a matter within the witness’s personal knowledge such that the trier of fact
is not required to draw an inference from the evidence to the proposition that it is offered
to establish, circumstantial evidence requires the drawing of inferences that are
reasonably permitted by the evidence. Although there are obvious differences between
direct and circumstantial evidence, those differences are irrelevant to the probative value
of the evidence — circumstantial evidence carries the same weight as direct evidence.
State v. Treesh, 90 Ohio St.3d 460, 485, 739 N.E.2d 749 (2001). The Ohio Supreme
Court has “long held that circumstantial evidence is sufficient to sustain a conviction if
that evidence would convince the average mind of the defendant’s guilt beyond a
reasonable doubt.” State v. Heinish, 50 Ohio St.3d 231, 238, 553 N.E.2d 1026 (1990).
{¶14} Cassano’s argument is built on two points: the state could not definitively
prove that he was the recipient of Glenn’s text messages on the night of the robbery and
none of the witnesses positively identified him as the robber.
{¶15} It is true that the state’s evidence concerning the recipient of Glenn’s text
messages did not directly identify Cassano — the recipient number was for a prepaid
phone that did not provide subscriber information. But the circumstantial evidence
allowed the court to infer reasonably that Cassano was in possession of the telephone at
the time of the robbery. Glenn admitted that he and Cassano were friends, so it was not
out of the question that Glenn would have messaged Cassano. Records from Glenn’s
telephone showed that after Cassano had been interviewed and released by the police,
Glenn first tried to call the recipient telephone number and then immediately called the
land line number associated with Cassano’s residence.
{¶16} The nature of the text messages were such that they could be reasonably
interpreted as directing the recipient to the crime scene. Although none of the victims
could specifically identify Cassano from photo arrays, they were able to give a general
description of height, weight, and baldness that matched Cassano. When the police
followed footprints and tire tracks leading from the crime scene to another apartment
complex, they encountered both Cassano and Glenn. As they were friends, it was
plausible that Cassano and Glenn would be together. But it was implausible to suggest
that the tire and footprints leading from the scene of the robbery to an apartment complex
where they were both found was mere coincidence when Cassano’s appearance matched
the general description of the robber and his nervous disposition cast doubt on his story.
{¶17} Police suspicions further arose when it turned out that Cassano had been in
one of the apartments contrary to his claims and that Glenn had not been in the apartment
as he had claimed. At trial, Cassano contradicted the statements he made to the police
shortly after the robbery by offering a new alibi — he had been at a strip bar on the
evening of the robbery until the bar closed at 2:30 a.m. His alibi witnesses, all of whom
claimed to be friends with Cassano, firmly recalled his presence at the bar because of an
incident between Cassano and a dancer who threw roses at Cassano. There was some
uncertainty as to the exact date on which this incident occurred. One alibi witness
testified that she had been at the strip bar on a Thursday/Friday, but this did not help
Cassano because the robbery occurred in the very early hours of a Saturday. The witness
later claimed (prompted by a calendar offered to her by defense counsel on redirect
examination), that she had her dates mixed up and that the incident did occur on a
Friday/Saturday. The dancer who threw the roses at Cassano was even more unclear as
to the exact date this incident occurred and could only say that it may have occurred on
either a Friday or a Saturday. Given the conflicting accounts of the alibi, from both
Cassano and his witnesses, the court undoubtedly believed that they lacked credibility.
{¶18} In addition to evidence suggesting that Glenn sent messages to Cassano’s
telephone and that Cassano had been present on the scene of the robbery, the state offered
evidence that Cassano was in possession of an ammunition clip for a Glock handgun.
While the police did not recover the actual gun used during the commission of the
robbery, one could reasonably believe that there would be no practical explanation for
Cassano having ammunition for a non-existent gun.
{¶19} As with all circumstantial evidence, nothing in the state’s case directly
proved that Cassano was the robber. But the state’s evidence could well have convinced
the court that the application of various facts formed a larger picture that, when viewed as
whole, made a compelling case for Cassano’s guilt. To find otherwise would be to say
that Cassano was the victim of circumstances that were too far beyond the realm of pure
coincidence to be believable. The first and second assignments of error are overruled.
II
{¶20} A major portion of the state’s case consisted of the text messages sent from
Glenn’s telephone on the night of the robbery. Cassano argues that, as to him, these text
messages were inadmissible hearsay, offered for the truth of what was stated in those
messages. Although he concedes that the text messages might have been admissible
against Glenn as admissions, he argues that any connection between those text messages
and himself was just “theory” at the time the court admitted them. The state maintains
that the text messages were offered as business records.
{¶21} Hearsay is “a statement, other than one made by the declarant while
testifying at the trial or hearing, offered in evidence to prove the truth of the matter
asserted.” Evid.R. 801(C). Even though classified as hearsay, certain evidence is
nonetheless admissible under exceptions to the Rules of Evidence. As applicable here,
the court admitted the telephone records under the business record exception listed in
Evid.R. 803(6). That rule excepts business records from exclusion at trial if they are
made in the course of a regularly conducted business activity because the courts presume
that such records are trustworthy given the self-interest to be served by the accuracy of
such entries. Weis v. Weis, 147 Ohio St. 416, 425-426, 72 N.E.2d 245 (1947).
{¶22} To qualify for the business-records exception, a record must meet the
following criteria: (1) the record must be one recorded regularly in a regularly conducted
activity, (2) a person with knowledge of the act, event, or condition recorded must have
made the record, (3) it must have been recorded at or near the time of the act, event, or
condition, and (4) the party who seeks to introduce the record must lay a foundation
through testimony of the record custodian or some other qualified witness. State v.
Davis, 116 Ohio St.3d 404, 2008-Ohio-2, 880 N.E.2d 31, ¶ 171.
{¶23} Cassano argues that a representative of Verizon Wireless, the carrier for
Glenn and the parent company of a subsidiary wireless service that acted as the carrier for
the recipient telephone, was not allowed by the court to testify to how the cell phone
records were compiled and whether the method of record retention was reliable. This is
not accurate. The representative testified that the records were maintained in the
“normal course of business activity” through an automated computer system. That
testimony alone was sufficient to establish the prerequisites for admitting the text
messages as business records.
{¶24} The court did sustain a defense objection to the representative’s statement
that the records were “reliable.” The reliability of evidence has two components here.
Proper authentication of a business record under Evid.R. 901(A) requires that a proponent
of a document produce “evidence sufficient to support a finding that the matter in
question is what the proponent claims it to be.” State v. Easter, 75 Ohio App.3d 22, 25,
598 N.E.2d 845 (4th Dist.1991). To do this, a witness must “testify as to the regularity
and reliability of the business activity involved in the creation of the record.” State v.
Hirtzinger, 124 Ohio App.3d 40, 49, 705 N.E.2d 395 (2d Dist. 1997). This goes to the
fundamental reason why the courts allow certain forms of hearsay into evidence. As
business records, the text messages are deemed inherently trustworthy because we assume
Glenn’s cell phone carrier had a particular self-interest in the accuracy of the records it
produced.
{¶25} This form of reliability must not be confused with the reliability or
credibility of the text messages as evidence that implicated Cassano in the robbery.
When viewed in context, the court’s statement about whether the text messages were
“reliable” was not that the text messages were not reliable as business records (they
were), but whether they credibly showed that Cassano had been the recipient and sender
of the text messages when there was no direct evidence to show that he received and sent
those messages. That kind of reliability was a matter for the court to determine, so the
court properly sustained an objection to a question that might have allowed the cell phone
representative to give an opinion that encroached into the court’s factfinding function.
{¶26} But whether the court was wrong to admit the text messages under the
business record exception to the hearsay rule is of no consequence because two possible
outcomes existed from the use of the evidence, neither of which benefit Cassano. If the
court was to find from the circumstantial evidence that Cassano owned the recipient
telephone, any text messages sent from the recipient telephone were nonhearsay as
admissions under Evid.R. 801(D)(2), consistent with Cassano’s concession that the text
messages sent from Glenn’s telephone were admissions against Glenn. Alternatively, if
the court was to find that Cassano did not own or was not using the recipient telephone,
the text messages would have no prejudical effect whatsoever on Cassano because they
would not have been evidence implicating Cassano.
{¶27} This is exactly what the court concluded after extensive discussions on
whether to allow the text messages into evidence. The court confirmed that if it
concluded that Cassano did not own the recipient telephone, the text messages sent from
that telephone would not constitute proof against Cassano and their admission would not
“hurt” him. It ultimately allowed them as having “some relevance.”
{¶28} Exactly what relevance and weight the court gave to the text messages is
unclear because the court gave no reasons for its guilty finding. Cassano finds it
“unsettling” that the court did not alert counsel prior to delivering the verdict that it gave
weight to the text messages in its deliberations, but the court was under no obligation to
do so and it is unclear just how Cassano might have benefitted from prior notice. He
claims that he would have filed a motion for a mistrial based on a Bruton violation, but as
we address in the following section, a motion on those grounds would not have been
viable. While the court’s basis for admitting the text messages might have been
equivocal, no error is manifest, so we have no basis for finding that the court abused its
discretion by admitting the text messages.
III
{¶29} For his fourth assignment of error, Cassano argues that trial counsel was
ineffective for failing to request a mistrial under the Bruton rule when the state introduced
Glenn’s text messages. He argues that the admission of a series of text messages
between him and Glenn were statements of a coconspirator in furtherance of a conspiracy
that should not have been admitted against him.
{¶30} In Bruton v. United States, 391 U.S. 123, 135, 88 S.Ct. 1620, 20 L.Ed.2d
476 (1968), the United States Supreme Court held that the confession of a codefendant
who exercises his or her Fifth Amendment right not to testify is not admissible against the
other defendant because that defendant has no opportunity to cross-examine the
confessing codefendant. But the admission of nonhearsay is not a Bruton violation.
United States v. Inadi, 475 U.S. 387, 398, 106 S.Ct. 1121, 1128, 89 L.Ed.2d 390, fn. 11
(1986) (stating that nonhearsay does not violate the defendant’s right to confront
witnesses); White v. Lewis, 874 F.2d 599, 603 (9th Cir.1989) (“Because this testimony
was not used for the truth of the matter asserted by the out-of-court declarant, it was not
hearsay, and Bruton is inapposite.”) If, as Cassano concedes, the text messages sent by
Glenn constituted admissions by him, they were nonhearsay and Bruton does not apply.
{¶31} Even if Glenn’s text messages were not considered nonhearsay, Cassano
would have no confrontation argument because the Bruton rule applies to trials by juries.
Cassano waived the right to a trial by jury and elected to be tried by the court. In Lee v.
Illinois, 476 U.S. 530, 542, 106 S.Ct. 2056, 90 L.Ed.2d 514 (1986), the court noted that
the admission of a non-testifying codefendant’s confession in a joint bench trial was “not
strictly speaking a Bruton case because we are not here concerned with the effectiveness
of limiting instructions in preventing spill-over prejudice to a defendant.” And courts
have held that “the Bruton rule is inapplicable to the incriminating confession of a
non-testifying codefendant in a joint bench trial.” Johnson v. Tennis, 549 F.3d 296, 298
(3d Cir. 2008); In re Jones, 1st Dist. Nos. C-090497 and C-090499, 2010-Ohio-3994, ¶
24. This is because the law “recognizes the presumption that a judge in a bench trial has
no difficulty in disregarding inadmissible evidence in reaching his verdict[.]” United
States. v. Cardenas, 9 F.3d 1139, 1155 (5th Cir.1993).
IV
{¶32} Finally, Cassano complains that the court erred by sentencing him to three
consecutive three-year terms on firearm specifications. The three firearm specifications
related to the felonious assault and aggravated robbery counts against Elsleger and a
single count of felonious assault against the brother. Cassano argues that the firearm
specifications should have merged because he claims they all derived from “a continuous
sequence of events, connected in time and space.”
{¶33} Ordinarily, the court is forbidden from imposing sentence on multiple
firearm specifications for “felonies committed as part of the same act or transaction.”
See former R.C. 2929.14(D)(1)(b) [now R.C. 2929.14(B)(1)(b)]. However, that section
applies only to the extent that former R.C. 2929.14(D)(1)(g) [now R.C. 2929.14(B)(1)(g)]
does not apply. Former R.C. 2929.14(D)(1)(g) states:
If an offender is convicted of or pleads guilty to two or more felonies, if one
or more of those felonies are aggravated murder, murder, attempted
aggravated murder, attempted murder, aggravated robbery, felonious
assault, or rape, and if the offender is convicted of or pleads guilty to a
specification of the type described under division (B)(1)(a) of this section in
connection with two or more of the felonies, the sentencing court shall
impose on the offender the prison term specified under division (B)(1)(a) of
this section for each of the two most serious specifications of which the
offender is convicted or to which the offender pleads guilty and, in its
discretion, also may impose on the offender the prison term specified under
that division for any or all of the remaining specifications. (emphasis
added).
{¶34} Cassano was found guilty of committing two or more felonies. One of
those felonies was felonious assault, and he was found guilty of firearm specifications
under former R.C. 2929.14(D)(1)(a) [now R.C. 2929.14(B)(1)(a)]. Under former R.C.
2929.14(D)(1)(g), the court was required to impose on Cassano prison terms for the two
most serious specifications, and could also, in its discretion, impose sentence for any
other specifications. State v. Worth, 10th Dist. No. 10AP-1125, 2012-Ohio-666, ¶ 96;
State v. Beatty-Jones, 2d Dist. No. 24245, 2011-Ohio-3719, ¶ 16. The court imposed
sentence on all three firearm specifications and Cassano makes no argument that the court
abused its discretion by doing so. We thus have no basis for finding an abuse of
discretion necessary to overturn the imposition of the consecutive sentence for three
firearm specifications.
{¶35} 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, PRESIDING JUDGE
MARY J. BOYLE, J., and
KENNETH A. ROCCO, J., CONCUR