State v. Reives-Bey , 2011 Ohio 1778 ( 2011 )

[Cite as State v. Reives-Bey, 2011-Ohio-1778.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
STATE OF OHIO C. A. No. 25138
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
TREVELL JULLIAN REIVES-BEY COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellant CASE No. CR 09 08 2572
DECISION AND JOURNAL ENTRY
Dated: April 13, 2011
MOORE, Judge.
{¶1} Appellant, Trevell Reives-Bey, appeals from the judgment of the Summit County
Court of Common Pleas. This Court affirms in part, reverses in part, and remands the matter to
the trial court for further proceedings.
I.
{¶2} On the evening of August 16, 2009, Federico Jimnez was drinking at a bar called
Fiesta in Akron, Ohio. He had met some women and consumed a number of drinks, including
liquor and beer. Shortly after he called his brother-in-law, Guersom Rodaz, for a ride home, the
women convinced him to visit another bar with them. When Rodaz arrived, he followed Jimnez
and the women to a bar called Karam’s Lounge, also in Akron, Ohio. While waiting for Jimnez
to wind down his night, Rodaz drank two beers. Around midnight, Rodaz convinced Jimnez that
it was time to leave. They exited the bar and got into Rodaz’s minivan.
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{¶3} As they began to drive, two men approached and Jimnez told Rodaz to stop.
Jimnez had met the men in the bathroom at Karam’s and bought each of them a beer at the bar.
The men requested a ride home and Rodaz agreed to accommodate them. The men were unable
to provide specific directions, but eventually directed Rodaz to drive to the apartment building
located at 286 West Miller. After arriving at the address, each of Jimnez’s acquaintances threw
their beer bottles, smashing them on the ground. The men convinced Jimnez and Rodaz to
follow them to the back of the building. Behind the building, the men each pulled a gun on
Jimnez and Rodaz and robbed them. The men took their wallets, cell phones, car keys, pants,
and boots. The men then drove off in Rodaz’s minivan.
{¶4} Rodaz and Jimnez sought help from residents of the area and eventually borrowed
a phone to call 911. Officer Michael Stanar and his partner, Officer Robert McClish, arrived
prior to the end of the phone call and began investigating the robbery. They radioed for other
officers in the area to look for a red Dodge Caravan. Jimnez, who spoke very little English,
communicated through Rodaz. The two described the perpetrators as black males, one of whom
was wearing a white t-shirt, black pants and a red baseball cap. The second perpetrator was
described as wearing a black t-shirt and black pants.
{¶5} At 2:18 a.m., approximately 20 minutes after the 911 call, Officer Justin
Winebrenner and his partner, Michael Murphy, observed a van matching the radioed description
and turned to follow it. The van immediately drove up on the curb, causing the officers to
initiate a traffic stop. The driver of the van sped up and fled. When the officers radioed the
van’s license plates, they came back registered to Rodaz. The officers pursued the van, which
traveled into the grass, twice attempting and finally succeeding to smash through a fence. The
van traveled high up on an embankment before crashing back through the fence and re-entering
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the roadway. The van used an exit ramp from I-76 to enter the highway and traveled west in the
eastbound lanes of I-76, followed by the police car with flashing lights and sirens. Traffic
traveling in the correct direction had to swerve to avoid the van, which at times reached 60 miles
per hour. At one point, the officers had to stop their cruiser to avoid a collision with a citizen’s
vehicle. The van eventually exited the highway, traveled on side streets and crashed into a pole.
The officers were able to pin the van to the pole with their cruiser. The van’s lone occupant,
Reives-Bey, then fled on foot. After a brief chase through backyards, the officers apprehended
him. A search of the van did not reveal any guns, Rodaz’s Blackberry cell phone, or the amount
of money taken from Jimnez and Rodaz. Reives-Bey did, however, have Jimnez’s cell phone
and one sock. Reives-Bey was taken into custody.
{¶6} Two officers transported Jimnez and Rodaz to the minivan. They arrived at the
scene of Reives-Bey’s arrest within 50 minutes of the 911 call. At the time of their arrival,
Reives-Bey was already in a police transport van. The officers then conducted a “show-up” in
which they maneuvered their cruiser perpendicular to the broad-side of the transport van and
illuminated the side of the van with the cruiser’s headlights and a takedown light. Officers then
brought Reives-Bey out to the illuminated area where both Jimnez and Rodaz identified him as
one of the perpetrators. Reives-Bey was wearing all black clothing.
{¶7} On August 28, 2009, the Summit County Grand Jury indicted Reives-Bey on two
counts of aggravated robbery in violation of R.C. 2911.01(A)(1), both felonies of the first
degree, two counts of kidnapping in violation of R.C. 2905.01(B)(2), both felonies of the first
degree, firearm specifications to each count of aggravated robbery and kidnapping in violation of
R.C. 2941.145, one count of failure to comply with the order or signal of a police officer in
violation of R.C. 2921.331(B), a felony of the third degree, and one count of grand theft in
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violation of R.C. 2913.02(A), a felony of the fourth degree. Beginning November 5, 2009, the
charges were tried to a jury. On November 9, 2009, the jury found Reives-Bey guilty of failure
to comply with the order or signal of a police officer and grand theft. The jury was unable to
reach a verdict on the remaining counts. On November 17, 2009, the day of sentencing, the State
amended count one of the indictment to the lesser-included offense of robbery and Reives-Bey
pleaded guilty to that count. The State dismissed the remaining counts, including all firearm
specifications.
{¶8} Reives-Bey timely filed a notice of appeal. He raises six assignments of error for
our review. We have consolidated some assignments of error to facilitate our review.
II.
ASSIGNMENT OF ERROR I
“THE TRIAL COURT ERRED BY ADMITTING THE PROFERRED
IDENTIFICATION EVIDENCE.”
{¶9} In his first assignment of error, Reives-Bey contends that the trial court
committed plain error by admitting evidence of the victims’ pre-trial and courtroom
identification of him. We do not agree.
{¶10} “A challenge to the admissibility of identification testimony on the basis that it
was illegally obtained must be raised before trial in a motion to suppress.” State v. Keenan, 9th
Dist. No. 08CA009368, 2008-Ohio-5529, at ¶6, citing Crim.R. 12(C)(3). Reives-Bey “did not
file a motion to suppress and could not raise the admissibility of the identification testimony
during trial.” Id. at ¶6. Even if we treat Reives-Bey’s failure to file a motion to suppress as mere
forfeiture of the issue rather than waiver, as stated in Crim.R. 12(H), he is limited to arguing
plain error. See State v. Gray, 9th Dist. No. 08CA0057, 2009-Ohio-3165, at ¶7 (limiting the
discussion of a forfeited evidentiary issue to plain error).
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{¶11} Pursuant to Crim.R. 52(B), a plain error or defect that affects a substantial right
may be noticed although it was not brought to the attention of the trial court. “A plain error must
be obvious on the record, such that it should have been apparent to the trial court without
objection.” State v. Kobelka (Nov. 7, 2001), 9th Dist. No. 01CA007808, at *2, citing State v.
Tichon (1995), 102 Ohio App.3d 758, 767. As notice of plain error is to be taken with utmost
caution and only to prevent a manifest miscarriage of justice, the decision of a trial court will not
be reversed due to plain error unless the defendant has “established that the outcome of the trial
clearly would have been different but for the alleged error.” Kobelka, 9th Dist. No.
01CA007808, at *2, citing State v. Waddell (1996), 75 Ohio St.3d 163, 166, and State v. Phillips
(1995), 74 Ohio St.3d 72, 83.
{¶12} Although charged with six offenses, including two counts of aggravated robbery,
two counts of kidnapping, a firearm specification to each of the aggravated robbery and
kidnapping charges, failure to comply with the order or signal of a police officer and grand theft,
the jury only found him guilty of failure to comply with the order or signal of a police officer and
grand theft. Because the police observed him in the act of failing to comply, only the grand theft
charge, which stemmed from Reives-Bey’s use of Rodaz’s minivan, could have potentially
involved the identification testimony of which he complains.
{¶13} First, Reives-Bey contends that the admission of Jimnez and Rodaz’s in-court and
out-of-court identification testimony violated his due process rights because they were based on
an impermissibly suggestive show-up that gave “rise to a very substantial likelihood of
irreparable misidentification,” citing Simmons v. United States (1968), 390 U.S. 377, 384. He
argues that the admission of this evidence constituted plain error. However, even if an
identification procedure is suggestive, it is admissible so long as the challenged identification
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itself is reliable. Manson v. Brathwaite (1977), 432 U.S. 98. When considering the reliability of
witness identifications, the court should evaluate the following factors: “the opportunity of the
witness to view the criminal at the time of the crime, the witness’ degree of attention, the
accuracy of the level of certainty demonstrated by the witness at the identification procedure, and
the length of time between the crime and the identification.” State v. Scott (Mar. 30, 1982), 10th
Dist. No. 81AP-899, at *1, citing Neil v. Biggers (1972), 409 U.S. 188. The focus of this
approach “is the reliability of the identification, not the identification procedures.” (Emphasis
sic.) State v. Jells (1990), 53 Ohio St.3d 22, 27. The circumstances surrounding Rodaz and
Jimnez’s identification demonstrate reliability. In this case, Rodaz testified that although the
scene of the robbery was dark, he was able to clearly see the men who committed the robbery
when they entered his van because the interior light illuminated their faces. Testimony further
indicated that both Rodaz and Jimnez identified Reives-Bey at the scene of his arrest without
hesitation. Reives-Bey was wearing all black clothing, just as Jimnez and Rodaz described. He
was, however, wearing basketball shorts rather than pants. Neither the State nor Reives-Bey
introduced testimony as to the length of the basketball shorts. Also, Jimnez described the pants
as worn low on the hips. There was some discrepancy between the description Rodaz and
Jimnez gave of their assailant’s hair. They described it as long. An officer described Reives-
Bey’s hair as a “medium afro, not real high[.]” Finally, the officers testified that they transported
Jimnez and Rodaz to the scene of Reives-Bey’s arrest within 30-45 minutes of the 911 call.
Testimony indicated that the first officers arrived at the scene of the robbery during the 911 call.
On cross-examination, Officer McClish acknowledged that it could have been as long as 50
minutes between his arrival at the robbery scene and the arrival of Rodaz and Jimnez at the scene
of Reives-Bey’s arrest. See State v. Walker, 10th Dist. No. 02AP-679, 2003-Ohio-986, at ¶17
7
(identification 45 minutes to one hour after crime); State v. Henton (Aug. 30, 1996), 11th Dist.
No. 95-A-0056, at *5 (rape victim identified attacker in show-up four hours after crime).
Although there was some discrepancy in the descriptions provided by police officers and the
victims, questionable areas in the testimony were proper for the jury to resolve. State v. Moody
(1978), 55 Ohio St.2d 64, 69. Considering these circumstances, we do not agree that the trial
court committed plain error in admitting Jimnez and Rodaz’s testimony with regard to Reives-
Bey’s identification.
{¶14} Reives-Bey further contends that the trial court erred in admitting hearsay
testimony from police officers regarding Rodaz and Jimnez’s identification of Reives-Bey at the
show-up in violation of Evid.R. 801(D)(1)(c). If admitting this evidence constituted error, any
error was harmless. Crim.R. 52(A). As we determined above, the trial court did not commit
plain error by admitting the testimony of Rodaz and Jimnez regarding the show-up identification
of Reives-Bey. Accordingly, the error, if any, in admitting this evidence was harmless. Reives-
Bey’s first assignment of error is overruled.
ASSIGNMENT OF ERROR II
“MR. REIVES-BEY’S TRIAL COURT COUNSEL WAS INEFFECTIVE FOR
NOT MAKING A PRETRIAL MOTION TO EXCLUDE IDENTIFICATION
EVIDENCE.”
{¶15} In his second assignment of error, Reives-Bey contends that he was deprived of
effective assistance of counsel because his trial counsel did not file a pretrial motion to exclude
identification evidence. We do not agree.
{¶16} In order to show ineffective assistance of counsel, Reives-Bey must satisfy a two-
prong test. Strickland v. Washington (1984), 466 U.S. 668, 669. First, he must show that his
trial counsel engaged in a “‘substantial violation of any * * * essential duties to his client.’”
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State v. Bradley (1989), 42 Ohio St.3d 136, 141, quoting State v. Lytle (1976), 48 Ohio St.2d
391, 396. Second, he must show that his trial counsel’s ineffectiveness resulted in prejudice.
Bradley, 42 Ohio St.3d at 141-142, quoting Lytle, 48 Ohio St.2d at 396-397. “Prejudice exists
where there is a reasonable probability that the trial result would have been different but for the
alleged deficiencies of counsel.” State v. Velez, 9th Dist. No. 06CA008997, 2007-Ohio-5122, at
¶37, citing Bradley, 42 Ohio St.3d at paragraph three of the syllabus. This Court need not
address both Strickland prongs if Reives-Bey fails to prove either one. State v. Ray, 9th Dist.
No. 22459, 2005-Ohio-4941, at ¶10.
{¶17} Reives-Bey is unable to demonstrate prejudice from the failure of his counsel to
file a motion to suppress the identification evidence. Reives-Bey’s discussion of his second
assignment of error is similarly bereft of authority indicating that a motion to suppress would
have been successful. App.R. 16(A)(7). As noted above, the jury did not find Reives-Bey guilty
of the most serious charges, all of which were first-degree felonies, and their accompanying
firearm specifications. The only charge subject to the identification evidence was the grand theft
charge.
{¶18} Any suggestion that the trial court would have suppressed the identification
testimony after a hearing is entirely speculative. In reviewing a motion to suppress the
identification testimony, the trial court would be required to apply the same Neil factors as
discussed in the previous assignment of error. Scott, 10th Dist. No. 81AP-899, at *1. Reives-
Bey has failed to demonstrate that a motion to suppress would have been successful. Thus, he
cannot demonstrate that the outcome of the trial itself would have been different had trial counsel
filed a motion to suppress. Velez, at ¶37. Reives-Bey’s second assignment of error is overruled.
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ASSIGNMENT OF ERROR III
“THE TRIAL COURT ERRED BY DENYING MR. REIVES-BEY’S MOTION
TO DISMISS PURSUANT TO CRIMINAL RULE 29.”
ASSIGNMENT OF ERROR IV
“MR[.] REIVES-BEY’S CONVICTION ON COUNT SIX, GRAND THEFT,
WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.”
{¶19} Because Reives-Bey’s third and fourth assignments are related, we consider them
together. In his third and fourth assignments of error, Reives-Bey contends that the trial court
erred in denying his motion for acquittal pursuant to Crim.R. 29 and that his conviction for grand
theft was against the manifest weight of the evidence. In the argument portion of his third
assignment of error, Reives-Bey contends not that the evidence was insufficient when viewed in
the light most favorable to the State, but rather that the victims’ identification of Reives-Bey was
unreliable for a variety of reasons. He also argues that the trial court should have granted his
motion for acquittal on the aggravated robbery, kidnapping and grand theft charges. Of these
charges, the jury found him guilty only of grand theft. Accordingly, we review both
assignments together as a challenge to the manifest weight of the evidence with regard only to
Reives-Bey’s conviction for grand theft.
{¶20} A determination of whether a conviction is against the manifest weight of the
evidence does not permit this court to view the evidence in the light most favorable to the State
to determine whether the State has met its burden of persuasion. State v. Love, 9th Dist. No.
21654, 2004-Ohio-1422, at ¶11. Rather,
“an appellate court 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.” State v. Otten (1986), 33 Ohio App.3d 339,
340.
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This discretionary power should be invoked only in extraordinary circumstances when the
evidence presented weighs heavily in favor of the defendant. Id.{¶21} Reives-Bey contends that the identification evidence offered against him is
unreliable because 1) he was identified under suggestive circumstances, 2) Jimnez had been
drinking heavily, 3) Rodaz only saw the perpetrators as they entered the van, 4) as they exited
the van and walked behind the apartment at West Miller one perpetrator walked in front of and
the other walked behind both of the victims, 5) the perpetrators forced Jimnez and Rodaz to lie
down face-first while they were being robbed and the area where the robbery took place was
fairly dark. He further contends that the jury should have believed his testimony.
{¶22} Reives-Bey testified that he was walking to his girlfriend’s house when two men
matching the descriptions given by the victims pulled up beside him in Rodaz’s minivan and
asked him if he wanted to rent the minivan. He negotiated the price down to $25 because he
only had $30 and he still wanted to buy some marijuana. The rental was to last two hours. He
then noticed Jimnez’s cell phone and decided to call his girlfriend. While he was driving, he saw
a police car behind him and became paranoid. Due to his nervousness he bumped the corner
while turning. The officers illuminated their lights and Reives-Bey attempted to flee. After
leading the police on a chase, he crashed the minivan and fled on foot. He was arrested. He
testified that he thought he was being arrested for trying to escape from the police and “having
the stolen car, probably.” Defense counsel attempted to have him clarify the statement, but he
further stated that “‘cause the type of people it was, they not -- they not about to handle a
minivan.” He also testified that those who rented cars out would often call the police and report
a vehicle stolen if they felt that a renter kept the car too long. His flight from the police is
11
admissible evidence of a “‘consciousness of guilt.’” State v. Brady, 9th Dist. No. 22034, 2005-
Ohio-593, at ¶9, quoting State v. Taylor (1997), 78 Ohio St.3d 15, 27.
{¶23} While he admitted that he fled from the police, Reives-Bey notes that he was
found only with Jimnez’s cell phone and not with any guns or the other items taken in the
robbery. Reives-Bey further notes that he was found in black shorts, rather than black pants, and
his hair was described at trial as medium-length instead of long. Rachel Kopec testified on
behalf of Reives-Bey that his belongings from jail, which included the clothes he wore the night
of his arrest, consisted of a black t-shirt and black shorts. The defense did not move to admit the
shorts into evidence. Finally, Rieves-Bey points out that some testimony indicated he was not
under the influence of drugs or alcohol at the time of arrest, while other testimony indicated that
the perpetrators consumed alcohol. Essentially, Reives-Bey contends that the jury should have
believed his explanation of events, that he rented the van from the perpetrators and used the cell
phone that they left behind.
{¶24} Reives-Bey was identified under circumstances whereby the police brought
Jimnez and Rodaz to scene where he crashed Rodaz’s van and was arrested. He was in custody
at the time. Testimony indicated, however, that the victims’ identification took place within 50
minutes of the robbery. Additionally, although Jimnez had consumed several alcoholic
beverages, Rodaz was not intoxicated. In fact, Lieutenant Phister stated that Rodaz was in
acceptable condition to drive. As to the ability of the victims to observe Reives-Bey, Rodaz
testified that he observed Reives-Bey in a well-lit area when he entered the van in the parking lot
of Karam’s Lounge because the van’s interior light illuminated the interior of the vehicle when
the door opened. The victims both testified that one perpetrator wore black pants and a black t-
shirt and another wore black pants, a white t-shirt and a red baseball cap.
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{¶25} While Reives-Bey admitted to making phone calls on Jimnez’s cell phone, he was
not arrested in possession of any guns, Rodaz’s BlackBerry phone, money approaching the value
of that taken in the robbery or the victims’ clothes, other than a sock. A photograph of Reives-
Bey on the night of his arrest demonstrates medium-length hair, which an officer described as a
“medium afro, not real high * * * [h]is hair wasn’t short by any means.” Jimnez described his
hair as long and “sort of messed up.” Rodaz described his hair as “really long.” At trial, Jimnez
was unable to identify a small black and white photo of Reives-Bey as one of the perpetrators
despite identifying a larger color version of the same photo during the State’s case-in-chief.
{¶26} Given the discrepancies in the testimony, it was not unreasonable for the jury to
believe that Reives-Bey committed grand theft with regard to the minivan despite the fact that
the they could not agree that the State proved the aggravated robbery and kidnapping charges
beyond a reasonable doubt. Defense counsel elicited testimony on cross-examination from the
various witnesses that brought out potential weaknesses in the identification of Reives-Bey. The
jury, as factfinder, apparently was satisfied with the State’s evidence with regard to the grand
theft charge but remained unconvinced with regard to the charges for aggravated robbery and
kidnapping, which it had the right to do. See State v. McClure, 9th Dist. No. 25070, 2010-Ohio-
3002, at ¶19. Accordingly, upon review of the record, we do not conclude that “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.” Otten, 33
Ohio App.3d at 340. Reives-Bey’s third and fourth assignments of error are overruled.
ASSIGNMENT OF ERROR V
“MR. REIVES-BEY WAS UNLAWFULLY SENTENCE[D] UPON TWO
ALLIED OFFENSES OF SIMILAR IMPORT.”
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{¶27} In his fifth assignment of error, Reives-Bey contends that the trial court
committed plain error when it unlawfully sentenced him on two allied offenses of similar import.
We reverse and remand to the trial court for further proceedings consistent with this opinion.
{¶28} The Supreme Court of Ohio has held that the failure to properly merge
convictions on allied offenses of similar import constitutes plain error because even when
sentences are run concurrently, “a defendant is prejudiced by having more convictions than are
authorized by law.” State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, at ¶31. Here,
Reives-Bey was potentially prejudiced not just by multiple convictions but also consecutive
sentences.
{¶29} In its initial brief1, the State concedes, and we agree, that robbery and theft
constitute allied offenses of similar import. State v. Johnson (1983), 6 Ohio St.3d 420, 423,
overruled on other grounds by Ohio v. Johnson (1984), 467 U.S. 493. The State requests that we
remand this matter to the trial court for a determination of whether the offenses were committed
separately or with a separate animus, pursuant to State v. Bigelow, 9th Dist. No. 08CA0072-M,
2009-Ohio-4093, at ¶11. Reives-Bey requests that we vacate his sentences for robbery and grand
theft with instructions to the trial court that it must sentence him on one of the offenses.
{¶30} The Ohio Supreme Court recently decided State v. Johnson, Slip Opinion No.
2010-Ohio-6314. Johnson involved a defendant who was charged with child endangering as
well as felony murder with respect to the death of a seven-year-old boy. On direct appeal, the
First District Court of Appeals ruled that the trial court should have merged the felony murder
1
In light of the Supreme Court’s recent decision in State v. Johnson, decided December
29, 2010, we ordered the parties to submit supplemental briefs addressing Johnson’s effect, if
any, on this matter.
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conviction and the child-endangering conviction under R.C. 2941.25 as allied offenses. The
Fifth District in State v. Mills, 5th Dist. No. 2007 AP 07 0039, 2009-Ohio-1849, reached the
opposite result. The Ohio Supreme Court certified the conflict, and concluded that, in
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. In reaching this conclusion, the
court overruled its previous precedent in State v. Rance (1999), 85 Ohio St.3d 632, to the extent
that Rance required a comparison of the offenses in the abstract. Johnson at ¶44.
{¶31} Although Johnson does not set forth a test supported by a four-justice majority, all
of the justices agree that the conduct of the accused must be examined. Id. at the syllabus.
Examining the defendant’s conduct allows a court to determine whether it is possible to commit
both offenses by the same conduct. Id. at ¶48. If both offenses can be committed by the same
conduct, then a court must determine “whether the offenses were committed by the same
conduct, i.e., ‘a single act, committed with a single state of mind.’” Id. at ¶49, quoting Brown,
119 Ohio St.3d 447, 2008-Ohio-4569, at ¶50 (Lanzinger, J., dissenting). “If the answer to both
questions is yes, then the offenses are allied offenses of similar import and will be merged.” Id.
at ¶50. We believe this approach is consistent with Chief Justice Brown’s opinion, joined by
Justices Pfeiffer and Lundberg Stratton, and Justice O’Donnell’s concurrence in which Justice
Lundberg Stratton also joined.
{¶32} The decision in Johnson does not appear under the circumstances of Reives-Bey’s
conduct to alter the outcome in this case. This is so because the issue in this case is not whether,
in applying Johnson and examining Reives-Bey’s conduct, robbery and grand theft can be
committed by the same conduct, they can. To commit both offenses by the same conduct, a
defendant need only successfully commit a robbery in which the goods stolen are of a certain
15
type, such as a motor vehicle, or are valued at $5,000 or more but less than $100,000. R.C.
2913.02(B). Instead, the issue under the particular facts of this case is whether, under R.C.
2941.25(B), Reives-Bey committed the robbery of Rodaz and Guersom separately or with a
separate animus. See State v. Reyna (1985), 24 Ohio App.3d 79, 82 (a defendant completed
burglary and robbery offenses when he left the victim’s home; he then proceeded to enter the
garage and steal the victim’s vehicle, thus completing a separate offense).
{¶33} Contrary to Reives-Bey’s request, we must remand the matter to the trial court for
a determination as to whether he committed robbery and grand theft separately or with a separate
animus. Johnson at ¶49-50. If the trial court determines that the crimes were committed
separately or with a separate animus, Reives-Bey may be convicted of each. Brown at ¶17.
Accordingly, we reverse and remand this matter to the trial court for a determination as to
whether Reives-Bey committed the offenses separately or with a separate animus.
ASSIGNMENT OF ERROR VI
“THE TRIAL COURT ABUSED ITS DISCRETION IN IMPOSING THE
MAXIMUM PRISON TERMS.”
{¶34} In his sixth assignment of error, Reives-Bey contends that the trial court abused
its discretion in imposing the maximum prison terms. We conclude that this assignment of error
is not ripe for our review.
{¶35} If, upon remand, the trial court concludes that Reives-Bey’s convictions for
robbery and grand theft are allied offenses of similar import and should be merged, then the trial
court must resentence him. State v. Vitt, 9th Dist. No. 10CA0016-M, 2011-Ohio-1448, at ¶9-10.
Accordingly, the issue of maximum prison terms is not ripe for review.
16
III.
{¶36} Reives-Bey’s first, second, third, and fourth assignments of error are overruled.
Reives-Bey’s fifth assignment of error is sustained. We decline to address his sixth assignment
of error. The judgment of the Summit County Court of Common Pleas is affirmed in part,
reversed in part, and the matter is remanded to the trial court for further proceedings consistent
with this opinion.
Judgment affirmed in part,
reversed in part,
and cause remanded.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(E). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to both parties equally.
CARLA MOORE
FOR THE COURT
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DICKINSON, P. J.
BELFANCE, J.
CONCUR
APPEARANCES:
TODD M. CONNELL, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant
Prosecuting Attorney, for Appellee.