State v. Tackett , 2013 Ohio 4098 ( 2013 )

[Cite as State v. Tackett, 2013-Ohio-4098.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
LAKE COUNTY, OHIO
STATE OF OHIO, : OPINION
Plaintiff-Appellee, :
CASE NO. 2012-L-130
- vs - :
JEREMY P. TACKETT, :
Defendant-Appellant. :
Criminal Appeal from the Lake County Court of Common Pleas.
Case No. 12 CR 000311.
Judgment: Affirmed.
Charles E. Coulson, Lake County Prosecutor, and Karen A. Sheppert, Assistant
Prosecutor, 105 Main Street, P.O. Box 490, Painesville, OH 44077 (For Plaintiff-
Appellee).
R. Paul LaPlante, Lake County Public Defender, and Vanessa R. Clapp, Assistant
Public Defender, 125 East Erie Street, Painesville, OH 44077 (For Defendant-
Appellant).
TIMOTHY P. CANNON, P.J.
{¶1} Appellant, Jeremy P. Tackett, appeals the judgment of conviction entered
by the Lake County Court of Common Pleas, following a jury trial, on one count of
aggravated robbery, one count of kidnapping, and one count of theft of drugs, each with
firearm specifications. Appellant claims the trial court erred when it failed to grant a
motion for a mistrial on the basis of impermissible “other acts” testimony and when it
failed to deliver a cautionary instruction concerning the calling of a witness as a court’s
witness. Appellant further contends the verdict is against the manifest weight of the
evidence. Finally, appellant argues the crimes of aggravated robbery and kidnapping
are allied offenses of similar import which should have merged for the purposes of
sentencing. For the following reasons, the judgment is affirmed.
{¶2} Appellant was indicted on one count of aggravated robbery, a first-degree
felony in violation of R.C. 2911.01(A)(1); one count of kidnapping, a first-degree felony
in violation of R.C. 2905.01(A)(2); and one count of theft of drugs, a fourth-degree
felony in violation of R.C. 2913.02(A)(4). Each count contained a firearm specification
pursuant to R.C. 2941.145. The matter proceeded to a jury trial where the following
facts were adduced through testimony.
{¶3} Appellant, a tattoo artist, agreed to give the victim a tattoo. The victim,
who lived with his aunt, arranged for appellant to come to his aunt’s private residence to
work on the tattoo. The victim did not have any money for the tattoo, but informed
appellant he was anticipating cash gifts for his upcoming birthday. The pair agreed that
the victim would subsequently tender payment once he received the cash gifts.
{¶4} Thus, on April 18, 2012, appellant and his girlfriend, Angela Prince, went
to the residence to initiate the transaction, arriving in Ms. Prince’s automobile, a Pontiac
G5 sedan. Upon arrival, appellant explained he did not have his equipment, and the
tattoo would need to be given at another location. The victim was reluctant to leave his
home as he was confined to a wheelchair, having previously broken both his legs and
ankles after unsuccessfully attempting a back flip on St. Patrick’s Day. Nonetheless,
the victim acquiesced and was lifted into the driver-side backseat of Ms. Prince’s sedan.
Appellant explained that the automobile did not have enough room for the wheelchair;
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thus, the wheelchair was not brought into the car, leaving the victim completely
incapacitated.
{¶5} Testimony differs at this point. The victim testified that, as the trio started
en route to appellant’s residence, appellant initiated a conversation concerning the
victim’s injuries and whether he had been taking any pain medication. The victim
confirmed that he had just been to the pharmacy earlier in the day to refill his
prescription and had about 80 pain pills on his person. The victim’s prescription and his
receipt, dated April 18, 2012, were admitted into evidence. The victim testified that he
kept these pills in his backpack or on his person on a consistent basis because he did
not trust leaving them out at his aunt’s house. Appellant asked to examine the pills, and
the victim complied. Appellant suggested that the victim immediately tender payment
for the tattoo with some of the pain pills. The victim explained this method of payment
was unacceptable because he needed the pills for the immense pain in his legs.
{¶6} According to the victim, appellant directed Ms. Prince to turn around and
pull over into a nearby abandoned gravel lot. Ms. Prince obeyed, pulled into the lot, and
turned off the vehicle according to appellant’s instruction. The victim testified that
appellant turned around, brandished a firearm, and demanded his cellular phone. After
appellant assured the victim that it was not a prank, the victim complied with the
demand and turned over his phone. The victim testified that appellant then dragged him
from the back of the automobile to the middle of the gravel lot and then left with his pills
and cell phone. The victim testified he painfully trudged to a nearby roadway,
eventually flagging down two cyclists who dialed 9-1-1. The 9-1-1 tape was played for
the jury and admitted into evidence. On the tape, the victim detailed the above-framed
narrative and informed the operator that appellant was the perpetrator.
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{¶7} Appellant took the stand to offer a different version of events. According
to appellant, the victim revealed himself to be a drug dealer who was attempting to sell
pain pills and, at some point, brandished a box cutter while in the automobile. Appellant
explained he was so upset with the victim’s audacious behavior that he ejected him
from the automobile. Appellant’s girlfriend, Ms. Prince, testified in a similar fashion,
though was impeached by her prior statements to police and her prior grand jury
testimony.
{¶8} The jury returned a guilty verdict on all counts. The trial court merged the
aggravated robbery and theft of drugs convictions, and sentenced appellant to an
aggregate of 10 years in prison: four years for aggravated robbery and four years for
kidnapping, to be served concurrently, plus two consecutive three-year terms for the
respective gun charges.
{¶9} Appellant appeals and raises four assignments of error for review by this
court. Appellant’s first assignment of error states:
The trial court erred to the prejudice of the Defendant-Appellant
when it failed to give an instruction to the jury after calling one of
the state’s witnesses as a court’s witness, in violation of the
Defendant-Appellant’s due process rights and rights to fair trial as
guaranteed by the Sixth and Fourteenth Amendments to the United
States Constitution and Sections 5 and 10, Article I of the Ohio
Constitution.
{¶10} In his first assignment of error, appellant argues the trial court erred in
failing to issue a cautionary instruction to the jury regarding its calling of a state’s
witness, Ms. Prince, as a court’s witness. The state noted on the record it anticipated
Ms. Prince to be a hostile witness, given that she was uncooperative with trial
preparation efforts and had continued a relationship with appellant. After some
discussion, and with the state’s suggestion and defense’s consent, the trial court
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determined it would call the witness as a court’s witness. Appellant speculates the jury
may have been inclined to believe the trial court was vouching for the witness because
it was the trial court who called the witness. Appellant contends the trial court needed
to provide guidance by instructing that the testimony of the court’s witness should not be
given more credibility than the testimony from others.
{¶11} At the outset, we note appellant did not object to Ms. Prince being called
as a court’s witness but, as noted above, consented to it. Moreover, appellant failed to
request any cautionary instruction or object to the omission of such an instruction.
Accordingly, he has waived all but plain error on appeal. Crim.R. 52(B) provides:
“[p]lain errors or defects affecting substantial rights may be noticed although they were
not brought to the attention of the court.” “Plain error is present only if the error is
obvious and, but for the error, the outcome of the trial clearly would have been
different.” State v. Turner, 11th Dist. Ashtabula No. 2010-A-0060, 2011-Ohio-5098,
¶34, citing State v. Yarbrough, 95 Ohio St.3d 227, 2002-Ohio-2126, ¶108. This court
will recognize plain error, “‘with the utmost caution, under exceptional circumstances
and only to prevent a manifest miscarriage of justice.’” State v. Landrum, 53 Ohio St.3d
107, 111 (1990), quoting State v. Long, 53 Ohio St.2d 91 (1978), paragraph three of the
syllabus.
{¶12} Here, appellant has not demonstrated plain error. First, though called as a
court’s witness, the trial court did not question Ms. Prince. Rather, the two parties
examined the witness pursuant to Evid.R. 614(A). In calling the witness, the trial court
simply stated, “[a]t this time Miss Angela Prince is going to be called as a witness in this
matter.” Thus, appellant’s speculation that the jury may have believed the trial court
was somehow vouching for the witness is unfounded. Further, it is not possible to
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determine that the failure to request an instruction was error at all; rather, it could have
been trial strategy. Indeed, Ms. Prince’s testimony at trial was favorable to appellant
and is even used later in his merit brief to support his manifest weight argument.
Though Ms. Prince’s trial testimony was impeached by her prior statements to police
and prior grand jury testimony, the jury could have still believed her recent recounting of
events, thereby working to appellant’s benefit.
{¶13} Appellant’s first assignment of error is without merit.
{¶14} Appellant’s second assignment of error states:
The trial court erred to the prejudice of the Defendant-Appellant by
overruling his motion for mistrial when a witness testified that he
previously had been incarcerated, in violation of the Defendant-
Appellant’s due process rights and rights to fair trial as guaranteed
by the Sixth and Fourteenth Amendments to the United States
Constitution and Sections 5 and 10, Article I of the Ohio
Constitution.
{¶15} During the state’s examination, Ms. Prince briefly mentioned—without
solicitation—that appellant was incarcerated. Appellant then moved for a mistrial, which
was denied. Appellant argues the trial court abused its discretion by overruling his
motion for a mistrial. Specifically, appellant contends Ms. Prince’s mention of
appellant’s incarceration is inadmissible testimony of “other acts” under Evid.R. 404(B);
i.e., the jury was permitted to infer appellant must have committed wrongful acts in the
past that led to his incarceration.
{¶16} “‘The trial judge is in the best position to determine whether the situation in
[the] courtroom warrants the declaration of a mistrial.’” State v. Ahmed, 103 Ohio St.3d
27, 2004-Ohio-4190, ¶92, quoting State v. Glover, 35 Ohio St.3d 18, 19 (1988).
Accordingly, a trial court’s decision on whether to grant or deny a motion for a mistrial
lies within its discretion. See State v. Hale, 119 Ohio St.3d 118, 2008-Ohio-3426, ¶192.
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A reviewing court will not second-guess a trial court’s decision unless there is an abuse
of discretion. Ahmed at ¶92. An abuse of discretion is the trial court’s “‘failure to
exercise sound, reasonable, and legal decision-making.’” State v. Beechler, 2d Dist.
Clark No. 09-CA-54, 2010-Ohio-1900, ¶61-62, quoting Black’s Law Dictionary 11 (8th
Ed.2004). The Supreme Court of Ohio has cautioned that “[m]istrials are necessary
‘only when the ends of justice so require and a fair trial is no longer possible.’” State v.
Brinkley, 105 Ohio St.3d 231, 2005-Ohio-1507, ¶105, quoting State v. Garner, 74 Ohio
St.3d 49, 59 (1995).
{¶17} As a preliminary matter, we note that evidence of appellant’s other crimes
ultimately came out when he took the stand in his own defense. In fact, during direct
examination, he explained he was in jail prior to this incident. In any respect, Ms.
Prince’s statement was not permitted by the trial court and was stricken from the record.
The trial court immediately instructed the jury to disregard this portion of Ms. Prince’s
testimony, explaining, “[y]ou are not to consider her response for any reason.” Thus,
the statement regarding appellant’s prior incarceration was not before the jury for its
consideration.
{¶18} Appellant acknowledges the trial court gave a cautionary instruction, but
argues the instruction was insufficient to remedy the error. However, a trial court’s
action of instructing a jury to disregard a comment is sufficient to render a purported
error harmless because a jury is presumed to follow the instructions of the court. See
State v. Griesmar, 11th Dist. Lake No. 2009-L-061, 2010-Ohio-824, ¶31-32, and State
v. Adams, 11th Dist. Ashtabula No. 2012-A-0025, 2013-Ohio-1603, ¶58. As held in
Adams, supra, which similarly addressed a purported Evid.R. 404(B) violation under a
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mistrial claim, “[t]here is nothing in the record to indicate that the trial court’s instruction
was not followed in this matter.” Id.{¶19} Appellant’s second assignment of error is without merit.
{¶20} Appellant’s third assignment of error states:
{¶21} “The trial court erred to the prejudice of the Defendant-Appellant when it
returned a verdict of guilty against the manifest weight of the evidence.”
{¶22} To determine whether a verdict is against the manifest weight of the
evidence, a reviewing court must consider the weight of the evidence, including the
credibility of the witnesses and all reasonable inferences, to determine whether the trier
of fact “lost its way and created such a manifest miscarriage of justice that the
conviction must be reversed and a new trial ordered.” State v. Thompkins, 78 Ohio
St.3d 380, 387 (1997). In weighing the evidence submitted at a criminal trial, an
appellate court must defer to the factual findings of the trier of fact regarding the weight
to be given the evidence and credibility of the witnesses. State v. DeHass, 10 Ohio
St.2d 230 (1967), paragraph one of the syllabus. Further, no conviction resulting from a
trial by jury shall be reversed on the weight of the evidence except by the concurrence
of all three judges hearing the appeal. Thompkins at 386.
{¶23} Here, we cannot conclude the jury lost its way in returning a verdict of
guilty. The victim’s version of events—which supports a conviction under each
charge—was corroborated by the 9-1-1 recording, where he excitedly recounted the
events that had just transpired, explaining that appellant pointed a gun (either a .25 or
.38 caliber) right in his face. Conversely, Ms. Prince, who testified favorably to
appellant, was impeached by her prior inconsistent statements to the police and her
prior inconsistent grand jury testimony. In fact, Ms. Prince ultimately presented three
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versions of the same event since the investigation commenced. Appellant’s credibility
was also affected by the admission of jail-call recordings, authenticated by Detective
Brian Butler, between himself and Ms. Prince. The recordings detail the duo attempting
to “get the story straight,” with appellant explaining that he has “a pretty rock solid story
put together now.”
{¶24} Despite this evidence, appellant nonetheless exhausts the remainder of
his argument contending that his version of events was “more rational” than the victim’s
account, detailing the numerous ways in which the victim’s testimony contradicts
appellant’s testimony. This court, in State v. Williams, 11th Dist. Lake No. 2012-L-078,
2013-Ohio-2040, recently addressed an identical contention. There, the defendant
highlighted inconsistent testimony in the record, arguing his version of events was more
credible than another witness’s account, just as in the case sub judice. We noted that
the jury, as the trier of fact, is entitled to believe all, part, or none of a witness’s
testimony. Id. at ¶21. Moreover, “[t]he trier of fact is in the best position to evaluate
inconsistencies in testimony by observing the witness’s manner and demeanor on the
witness stand—attributes impossible to glean through a printed record.” Id.; see also
State v. Barnes, 11th Dist. Portage No. 2012-P-0133, 2013-Ohio-2836, ¶49 (“we must
defer to the weight and credibility the jury gave to the evidence in this case”).
{¶25} Appellant’s third assignment of error is without merit.
{¶26} Appellant’s fourth and final assignment of error states:
The trial court erred to the prejudice of the Defendant-Appellant
when it failed to merge his convictions [for] aggravated robbery
and kidnapping, in violation of his rights against double jeopardy
under the Fifth and Fourteenth Amendment[s] to the United States
Constitution and Article I, Section 10 of the Ohio Constitution.
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{¶27} In his fourth assignment of error, appellant alleges the offenses of
aggravated robbery and kidnapping were allied and should have merged for the
purpose of sentencing.
{¶28} R.C. 2941.25(A) codifies the doctrine of merger, explaining that, “[w]here
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.”
{¶29} R.C. 2941.25(B) provides the converse:
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.
{¶30} In State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, the Ohio
Supreme Court set forth the current standard for determining whether merger is
apposite, holding that, “[w]hen determining whether two offenses are allied offenses of
similar import subject to merger under R.C. 2941.25, the conduct of the accused must
be considered.” Id. at syllabus. In making such a determination, a court must consider
whether it is possible to commit the offenses by the same conduct and, if so, whether
the offenses were, in fact, committed by the same conduct: i.e., “‘a single act committed
with a single state of mind.’” Id. at ¶49, quoting State v. Brown, 119 Ohio St.3d 447,
2008-Ohio-4569, ¶50 (Lanzinger, J., concurring in judgment only). If both questions are
answered affirmatively, then merger is appropriate. The results of the analysis will vary
by case, as the examination of the defendant’s conduct is necessarily non-formulaic and
inherently subjective. Id. at ¶52.
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{¶31} “An appellate court should apply a de novo standard of review in reviewing
a trial court’s R.C. 2941.25 merger determination.” State v. Williams, 134 Ohio St.3d
482, 2012-Ohio-5699, ¶28.
{¶32} The offenses of aggravated robbery and kidnapping are not allied offenses
of similar import in this case. The conviction for aggravated robbery was premised upon
appellant taking the victim’s pain medication, brandishing a firearm, and demanding the
victim’s cell phone at gunpoint while inside a car. The conviction for kidnapping was
premised upon appellant putting the victim in the car, effectively trapping him there,
driving him to a remote area, then forcing the victim out of the vehicle and leaving him
incapacitated in a gravel pit. The victim had to painfully crawl to the roadway and yell for
help. The act of taking the medication and demanding the cell phone from the victim at
gun point and the acts related to the kidnapping charge are two separate and distinct
acts that were not committed with a single state of mind. We therefore cannot conclude
the trial court erred in its sentencing.
{¶33} Appellant’s fourth assignment of error is without merit.
{¶34} The judgment of the Lake County Court of Common Pleas is affirmed.
DIANE V. GRENDELL, J.,
CYNTHIA WESTCOTT RICE, J.,
concur.
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