State v. Smith , 2011 Ohio 3051 ( 2011 )

[Cite as State v. Smith, 2011-Ohio-3051.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 95243
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
DUANE SMITH
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED IN PART AND VACATED
IN PART
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-532637
BEFORE: Sweeney, P.J., Rocco, J., and E. Gallagher, J.
RELEASED AND JOURNALIZED: June 23, 2011
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ATTORNEY FOR APPELLANT
Paul Mancino, Jr., Esq.
75 Public Square, Suite 1016
Cleveland, Ohio 44113-2098
ATTORNEYS FOR APPELLEE
William D. Mason, Esq.
Cuyahoga County Prosecutor
By: Vincent I. Pacetti, Esq.
Andrew J. Santoli, Esq.
Asst. County Prosecutors
Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
JAMES J. SWEENEY, P.J.:
{¶ 1} Defendant-appellant, Duane Smith, was charged in a twenty-two count
indictment for an incident that occurred during a residential poker game on October 26,
2009. Following a bench trial, defendant was found guilty of multiple offenses relating to
each victim, including aggravated burglary, aggravated robbery, kidnapping, theft, having
weapons while under disability, and various specifications. For the reasons that follow, we
vacate defendant’s convictions on the repeat violent offenders specifications and affirm his
convictions and sentence in all other respects.
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{¶ 2} Thomas Gross testified that he attended a poker game at Matt Shultz’s Lake
Road residence in Cuyahoga County, Ohio on October 26, 2009. Also present were five
other men identified as: Charlie, Chris, Simon, Khai, and Jonathan Powell. He had played
poker with Powell before. That evening, Gross observed Powell spending a lot of time on
his cell phone, sending text messages. Gross also noticed that Powell had exited and
returned to the apartment about four or five times that night.
{¶ 3} Gross had purchased approximately $200.00 worth of poker chips and was
“up about 300” in the game. After Powell went out to smoke, there was a knock on the
apartment door. Chris answered it, and Powell was thrown into the apartment and
followed by two African American men with guns. One entered and ordered the men to
take off their pants, which were placed into garbage bags. That man was shorter and
stockier than the other who remained in the doorway. Gross did not get a good look at the
men and could not identify them. Gross attempted to throw his cell phone, keys, and
money underneath a nearby desk. At that point, the gunman stuck a gun in his face and
Gross noticed he had a beard. The gun appeared to be a semiautomatic, machine gun that
closely resembled a Mack 10. Gross was familiar with guns and believed the weapon was
a real firearm. After gathering the victims’ belongings, the gunman ushered the men into
the 4’9” wide kitchen area where he sprayed them with pepper spray. The gunmen left
and, within ten minutes, the victims called the police on a cell phone. Gross was
suspicious of Powell but did not initially mention this to the police. Gross testified that
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the men stole just under $2,000.00 in cash from him along with his iPhone, his car keys,
and his pants, belt, and wallet.
{¶ 4} Matthew Shultz testified that he hosted a poker game in his efficiency
apartment on the night of October 26, 2009. He operated as the bank whereby he would
exchange the players’ money for chips and hold the money in his front pocket. He was
wearing khaki pants and a red button-up shirt that night. The players that night were Tom
Gross, Khai, Charlie, Chris, Simon, and Jonathan Powell. He met Powell about three
years prior when they played in games at Nautica. Powell had attended other poker
games at Shultz’s house before October 26, 2009. Shultz said Powell was acting out of
character that night and was not playing in his typical fashion. Powell was also texting on
his phone the whole time and took several smoking breaks. Shultz described Powell as
disengaged and drinking several beers. The last time Powell left, he was gone for thirty
minutes and, when he returned, the men were robbed.
{¶ 5} There was a knock on the door, Chris opened it and Powell came “flying in
the door, like someone pushed him,” and two other people with a machine gun were
behind him. The first man went right to Shultz and demanded the money, which he gave
him. The men ordered the poker players to get on the floor, take off their pants and empty
their pockets. The man held the gun to Shultz’s head. The man had a hood on but Shultz
said he got a good look at his face. Shultz made an in-court identification of defendant as
the man who robbed him at gunpoint. He was one hundred percent certain.
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{¶ 6} Shultz complied with the orders of the gunmen. The other man stayed
mostly in the doorway. They collected cell phones, clothes, and money. Then, they took
the poker players into the kitchen one by one and sprayed them with an orange substance.
He heard a foot pattern and his door close. They waited about 30 seconds and the victims
dispersed from the kitchen and called police.
{¶ 7} Shultz recalled looking around the room during the robbery and noticed
Powell acting odd; he was the only one that was excessively convulsing and crying.
Everyone else was calm and doing what they were told. Shultz felt Powell’s reaction
looked fake. Shultz did not get a good look at the second gunman, except to notice that
he was taller, slender, and had a handgun. Police arrived within thirty minutes and, at that
time, Shultz related his suspicions about Powell.
{¶ 8} Det. Lynch contacted Shultz a few days later and obtained his statement.
Shultz provided Det. Lynch with two phone numbers for Powell. Shultz was shown two
photo arrays and identified defendant as the man who held him at gunpoint. Shultz was
one hundred percent certain of this identification. However, Shultz was unable to identify
anyone from the second photo array, which included a photograph of Stanley Smith, the
other alleged gunman. Shultz remained in close contact with Det. Lynch throughout the
course of the investigation.
{¶ 9} Chris Foertch testified that he was also present at the October 26, 2009 poker
game at Shultz’s residence. He opened the door when Powell was shoved inside by two
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men. Foertch was unable to identify either of the assailants. His testimony was similar
to the other eyewitness, indicating the men were told to get on the floor, take off their
pants, which were collected in trash bags. The men were placed in the kitchen and
sprayed with mace. Foertch lost between $600.00 to $800.00 that night.
{¶ 10} Charlie Ha was present at the October 26, 2009 Shultz’s poker game. He
indicated that he had previously been robbed at a poker game in Solon and was, for that
reason, concerned for his safety. Ha asked Shultz to identify people before buzzing them
into the apartment. Ha stated that Shultz also removed his address from the public
website for safety purposes; which made the game’s location known only to the players.
Ha was unable to identify the two robbers that followed Powell into the apartment. Ha
brought approximately $1200.00 to the game, which was stolen.
{¶ 11} Reba Smith was charged as a co-defendant in this case and is defendant’s
cousin. She testified that defendant participated in the October 26, 2009 robbery at
Shultz’s apartment, along with Powell and another cousin, Stanley Smith. Powell and
Reba had dated in the past. Reba maintained that Powell had asked her to help him get a
television from the westside of Cleveland. She drove Powell’s SUV and he entered the
apartment. Later, her cousins, Stanley and defendant, pulled into the parking lot in a
white car. At this point, they spoke with Powell and then both got into the SUV. She
claims this is when she found out that the men planned to rob people inside the apartment.
She waited inside the car and exchanged text messages with Powell who identified the
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man in the red shirt as the person with the money. Eventually, Powell sent a text telling
her to send defendant and Stanley inside. She saw them go inside and come out with
garbage bags shortly after. Reba did not see any weapons during the entire incident.
They drove back to Stanley’s “baby mama’s” house and Powell met them there later.
Reba believed that defendant threw out one of the garbage bags on their way home. The
men divided up the money and she received $200.00. Reba testified that she did discuss
the incident with her family. Police arrested her on December 23, 2009 and she
cooperated with police, gave a statement, and pled guilty to some of the charges against
her. As part of her plea agreement, Reba had to testify against defendant in this case.
{¶ 12} Powell testified that he met defendant and Stanley Smith through his
ex-girlfriend Reba Smith. Although Reba and Powell were no longer dating on October
26, 2009, he continued to remain friends with her. Powell said that on the “spur of the
moment” plans were made to rob a poker game he was attending on the night of October
26, 2009. According to him, Reba knew about the robbery plan all along. He said Reba
drove defendant and Stanley Smith in his SUV to the westside, while he drove separately
in Reba’s white car. They used two cars because they needed a getaway vehicle. He went
inside as they waited in the parking lot watching movies in his SUV until he told them to
come inside. Powell confirmed that he took several smoking breaks during the course of
the evening. Reba kept sending him text messages urging him to hurry up because she had
to pick up her son. Powell went outside and they decided defendant and Stanley would
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follow him inside. Defendant and Stanley had guns, which he claimed they brought.
Powell’s shirt was ripped to make it look like he had been roughed up. He knocked on
the door and when Chris opened it, he was thrown inside. He tried to make it look like he
was not involved and mostly kept his head down. They had trash bags to collect
everyone’s pants, cell phones, keys, and money. Powell was surprised when they sprayed
them with mace because he was not aware of this part of the plan. Powell said he gave a
brief statement to police and did not think anyone suspected him. He became concerned
when Shultz called police and the story was aired by the media. There was also a concern
that defendant had told his girlfriend about the robbery and that she was threatening to call
Crime Stoppers, which is documented by text messages exchanged between Reba and
Powell. When Reba was arrested, she called Powell who was reluctant to discuss it with
her for fear she was working with police to apprehend him. Eventually, Powell turned
himself in, pled guilty to certain charges, and provided a statement to police. Powell’s
plea agreement also required him to testify against defendant.
{¶ 13} Det. Lynch was assigned to investigate this case on October 27, 2009. He
remained in close contact with Shultz, who provided him with Powell’s cell phone
numbers. Det. Lynch subpoenaed the phone records and received a series of documents
reflecting text messages sent by Powell’s phones during the time in question. Both
Powell and Reba confirmed the accuracy of the text messages sent between them that are
reflected in those records. Lynch issued arrest warrants for Reba and Powell and arrested
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Reba in December of 2009. She indicated that defendant and Stanley Smith participated
in the robbery, which lead to arrest warrants being issued for them. Det. Lynch
interviewed defendant in January of 2010 and advised defendant of his constitutional
rights. First, defendant denied any involvement but after he was advised that Shultz had
identified him, defendant changed his statement. Det. Lynch testified that defendant
instructed him not to record his statement in any way. Defendant also refused to implicate
his cousin and referred to the other individual as “Dude.” According to Det. Lynch,
defendant admitted that he participated in the robbery along with Reba and Powell. The
only difference between defendant’s version and Powell’s version was that defendant
claimed that Powell had supplied the guns. Later, Det. Lynch recorded notes of
defendant’s statement on a Scene Magazine while he was having dinner. The next day,
Lynch used the notes to prepare his supplemental report.
{¶ 14} Det. Lynch confirmed that he was present for the entire trial and that the
evidence was inconsistent with respect to the amount of money involved. He also
indicated that he was unable to follow up with one of the victims, Khai.
{¶ 15} Although identified as victims in multiple counts of the indictment, Khai and
Simon did not testify at defendant’s trial.
{¶ 16} The trial court granted defendant’s motion for acquittal in part and dismissed
counts 4, 5, 10, 11, 16, and 17.
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{¶ 17} The defense presented the testimony of defendant’s grandmother, his
mother, and himself. Defendant’s grandmother testified that Reba came to her house to
discuss the incident. Defendant’s mother said that defendant was with her at home by
9:00 p.m. on October 26, 2009 and was there when she woke up around 11:00 a.m. the
next day. However, she said she fell asleep watching wrestling and did not know what
defendant was doing while she was asleep.
{¶ 18} Defendant testified that he went with Reba to the westside apartment
complex the evening of October 26, 2009. He said that she wanted him to help her get a
television. According to defendant, they waited in the parking lot for Powell but then
defendant had Reba drive him home around 9:00 p.m. Defendant insisted that he left the
location three hours before the robbery occurred. It was defendant’s testimony that Reba
was lying because she was in love with, and afraid of, Powell. Defendant believes that
Powell was also lying and implicated him in the robbery because there was a dispute
between them as a result of defendant’s cousin, Alecia, taking Powell’s money in an
unrelated incident. Defendant also testified that Det. Lynch was lying and had fabricated
evidence. Specifically, defendant denied making any statement or admissions to Det.
Lynch.
{¶ 19} The court found defendant guilty of all remaining charges and specifications
and merged the allied offenses of similar import. The State elected to pursue sentencing
on counts 1, 2, 3, 6, 7, and 20 for which the court imposed an aggregate sentence of
eighteen years. Defendant appeals assigning multiple errors for our review, which will be
discussed together where appropriate for ease of discussion.
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{¶ 20} Also, because this matter proceeded to a bench trial, with respect to each
assignment of error we must presume that the trial judge disregarded any improper
testimony. Columbus v. Guthmann (1963), 175 Ohio St. 282, 194 N.E.2d 143, paragraph
three of the syllabus.
{¶ 21} “I. Defendant was denied due process of law and fair trial when the court
permitted Det. Thomas Lynch to testify as to the truth and veracity of witnesses.”
{¶ 22} Defendant relies on case law that holds it is improper for a witness to vouch
for the credibility of another witness. State v. Young, Cuyahoga App. No. 79243,
2002-Ohio-2744 (holding that it was plain error when a detective testified that a witness
was “telling the truth.”)
{¶ 23} Defendant believes the following testimony from Det. Lynch attests to the
truth of what Powell had told him and invaded the province of the jury:
{¶ 24} “Q. Okay. Did you later get a statement from Jonathan Powell?
{¶ 25} “A. Yes. About two weeks ago on May the 5th I took an audio statement
from Mr. Powell.
{¶ 26} “Q. And in regard in that statement, what did Mr. Powell tell you about the
robbery?
{¶ 27} “A. Mr. Powell basically told me the same thing that Duane Smith told me
with the only difference being that he didn’t set the robbery up. It was kind of an agreed
thing. Interviewing Mr. Smith he told me that Mr. Powell had furnished them with the
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weapons. Mr. Powell said that was absolutely not true, that they had the weapons. He
didn’t know much about guns but he basically corroborated what Duane Smith had already
told me.”
{¶ 28} Defendant did not object to this testimony and, therefore, has waived all but
plain error.
{¶ 29} Det. Lynch did not vouch for the credibility of any witness. He testified that
two people provided similar statements to him. To say that one statement corroborated
another is not to say that either was true but rather that one agreed with the other, that they
were consistent. Det. Lynch did not testify that either Powell or defendant was telling the
truth; nor did he give his opinion as to the veracity of their respective statements.
Defendant’s testimony in which he denied making any statement to Det. Lynch created a
conflict in the evidence, that being between the credibility of Det. Lynch’s testimony
versus defendant’s testimony concerning his alleged statement, or lack thereof. Resolving
the conflict among the witnesses’ testimony was a matter appropriately left to the trier of
fact. This assignment of error is overruled.
{¶ 30} “II. Defendant was denied his right to present a defense.”
{¶ 31} Defendant complains that he was not able to thoroughly examine the
potential bias of Powell with respect to an alleged dispute he had with defendant’s family.
Defendant also maintains that he was improperly prohibited from eliciting testimony from
his grandmother about what Reba allegedly told her. Finally, defendant believes that he
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was unable to fully elaborate on the details of Powell’s alleged dispute with his cousin,
Alecia Smith. Defendant argues that these instances precluded him from presenting
evidence of Powell’s alleged bias and prejudice against him.
{¶ 32} In the bench trial, evidence was elicited that alleged defendant’s cousin,
Alecia Smith, had taken money from Powell, that Powell was upset and that defendant
became involved in resolving the dispute. Several witnesses, including defendant,
testified about the details of this incident. In fact, defendant went into great detail about
this episode. Eventually, the trial court requested defense counsel to re-direct the
testimony to the events of October 26, 2009. At that point, defense counsel explained that
the purpose of the testimony surrounding the Alecia Smith incident was to illustrate “why
Powell would say [defendant] was one of his accomplices. He had a motive to lie.” The
trial court indicated that the defense had established there was a dispute and the court
understood the nature of the dispute. With that, the defense agreed to move on to other
testimony. The trial court did not abuse its discretion concerning the admission of
evidence of Powell’s potential bias or prejudice concerning the Alecia Smith incident; nor
was defendant denied an opportunity to present a defense with regard to it.
{¶ 33} The trial court precluded the defense from questioning Jean Smith about the
contents of a conversation she allegedly had with Reba. The defense argued that the
testimony was admissible to impeach Reba who they believed had testified she did not
discuss the incident with her grandmother, Jean Smith. Reba’s testimony is somewhat
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unclear as to whether she had discussions about the case with her grandmother, Jean
Smith. Assuming Reba did deny having a conversation with Jean Smith, the trial court
allowed the defense to elicit testimony from Jean Smith that Reba did, which served the
purpose of impeaching any statement made by Reba to the contrary. While defendant
contends that the trial court erred by excluding the contents of the conversation in that it
was allegedly probative of Reba’s truthfulness, we cannot say the trial court erred by
excluding it because that portion of Jean Smith’s testimony is not a part of, or otherwise
described, in the record.
{¶ 34} This assignment of error is overruled.
{¶ 35} “III. Defendant was denied effective assistance of counsel.”
{¶ 36} To establish his claim of ineffective assistance of counsel, defendant must
show that (1) the performance of defense counsel was seriously flawed and deficient; and
(2) the result of appellant’s trial or legal proceeding would have been different had defense
counsel provided proper representation. Strickland v. Washington (1984), 466 U.S. 668,
104 S.Ct. 2052, 80 L.Ed.2d 674; State v. Brooks (1986), 25 Ohio St.3d 144, 495 N.E.2d
407.
{¶ 37} Defendant premises his ineffective assistance of counsel claim on the
following: (1) a motion to suppress identification was not filed; (2) a motion to suppress
oral statements was not filed; (3) counsel did not request a continuance due to late
discovery; (4) counsel did not attempt to exclude evidence of defendant’s prior
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convictions; and (5) counsel was allegedly not prepared for trial. For the reasons
discussed below, the record does not support defendant’s allegations of ineffective
assistance of counsel.
{¶ 38} Failing to file a motion to suppress does not constitute ineffective assistance
of counsel, per se. State v. Drummond, 111 Ohio St.3d 14, 2006-Ohio-5084, 854 N.E.2d
1038, ¶208; see, also, State v. Weatherspoon, Cuyahoga App. No. 89996,
2008-Ohio-2345; State v. Hamilton, Cuyahoga App. No. 90141, 2008-Ohio-455. Rather,
to establish ineffective assistance of counsel for failure to file a motion to suppress, a
defendant must prove that there was a basis to suppress the evidence in question.
Weatherspoon, supra.
{¶ 39} Defendant contends a motion to suppress was warranted because he believes
there was an issue as to whether defendant had been properly advised of his constitutional
rights before he made the oral statements. However, Det. Lynch clearly testified as
follows, “I told him why I was there, advised him of his Constitutional Rights, which he
stated he understood and asked him if he wanted to speak to me regarding this incident.”
(Emphasis added.) There is no indication in the record that defendant was not properly
advised of his rights. Further, defendant testified that he did not make any oral statements
to Det. Lynch and that essentially Det. Lynch had fabricated that part of his testimony.
Whether or not the oral statements were made is a matter of factual credibility but it does
not serve as a basis for suppressing the statement. To the extent defendant complains that
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Det. Lynch did not record his statement, Det. Lynch testified that he did not do so because
defendant would not allow it. It was not ineffective assistance of counsel to not pursue a
motion to suppress defendant’s statements. In a related attack on his counsel’s
performance, defendant asserts his counsel was deficient for not seeking a continuance due
to the late production of Det. Lynch’s handwritten notes.
{¶ 40} According to Det. Lynch, defendant did not allow him to take
contemporaneous notes, which is why he wrote them down later on a Scene Magazine
during his dinner-lunch break. Det. Lynch then put his notes into a supplemental report
that was provided to the defense prior to trial. The handwritten notes were used by the
State in rebuttal to address defendant’s testimony that alleged Det. Lynch fabricated the
oral statement. They were not used during the detective’s direct examination and the
State indicated it had not intended to use the notes at trial. Nonetheless, Crim.R. 16(B)(1)
requires that “[u]pon receipt of a written demand for discovery by the defendant, and
except as provided in division (C), (D), (E), (F), or (J) of this rule, the prosecuting attorney
shall provide copies or photographs, or permit counsel for the defendant to copy or
photograph, the following items related to the particular case indictment, information, or
complaint, and which are material to the preparation of a defense, or are intended for use
by the prosecuting attorney as evidence at the trial, or were obtained from or belong to the
defendant, within the possession of, or reasonably available to the state, subject to the
provisions of this rule:
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{¶ 41} “(1) Any written or recorded statement by the defendant or a co-defendant,
including police summaries of such statements, and including grand jury testimony by
either the defendant or co-defendant * * *.”
{¶ 42} Det. Lynch’s obvious purpose in making the notations on the Scene
Magazine was to record defendant’s statement and, therefore, to the extent the notes were
reasonably available to the state, they should have been provided to the defense prior to
trial. However, from the record we glean that the notes were incorporated into Det.
Lynch’s supplemental report that was provided to the defense prior to trial and defendant
does not contend there are any inconsistencies between them. The court specifically
inquired as to whether the defense had the information prior to trial, which defense
counsel confirmed receipt of it approximately one week before trial. The defense was
aware of the alleged statement before trial. The notes produced during trial were offered
to rebut defendant’s accusations that Det. Lynch had lied about the oral statement by
corroborating Det. Lynch’s prior testimony with notes he made on a periodical bearing the
date of the alleged statement. There is no indication of any inconsistencies between the
notes and the report that incorporated them. To the extent a discovery violation
occurred, the court did inquire into the circumstances and there was no reason to delay the
bench trial with a continuance in this case.
{¶ 43} With respect to the admission of Shultz’s pretrial identification of defendant
as a gunman, counsel was not ineffective when he did not pursue a motion to suppress it.
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First, defendant’s reliance to the procedures set forth in R.C. 2933.83 is misplaced as those
provisions were not in effect when the police presented Shultz with the photo array.
{¶ 44} A court is not required to suppress an identification of a suspect unless the
confrontation was unnecessarily suggestive of the suspect’s guilt and the identification
was unreliable under all the circumstances. In re Henderson, Cuyahoga App. No. 79716,
2002-Ohio-483. Even if the pretrial identification procedure was impermissibly
suggestive, an in-court identification is permissible if the State establishes by clear and
convincing evidence that the witness had a reliable, independent basis for the
identification based on prior independent observations made at the scene of the crime.
State v. Tate, Cuyahoga App. No. 81577, 2003-Ohio-1835, citing In re Henderson,
Cuyahoga App. No. 79716, 2002-Ohio-483. No due process violation will be found where
an identification does not stem from an impermissibly suggestive confrontation but is
instead the result of observations at the time of the crime. Id. In determining whether an
identification is reliable, a court must consider (1) the witness’s opportunity to view the
suspect at the time of the incident, (2) the witness’s degree of attention, (3) the accuracy of
the witness’s prior description, (4) the witness’s certainty when identifying the suspect at
the time of the confrontation, and (5) the length of time elapsed between the crime and the
identification. State v. Waddy (1992), 63 Ohio St.3d 424, 439, 588 N.E.2d 819.
{¶ 45} In this case, Shultz was positive of his identification of defendant as the
person who held a gun to him. He saw his face and was certain. According to the
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record, the detective told him to look at an array which may or may not include the
suspect. Similarly, the detective presented Shultz with a second array that contained a
photo of co-defendant Stanley Smith, who was the alleged accomplice that stood in the
doorway and whom Shultz said he did not see as clearly. From these two arrays, Shultz
only identified defendant. He did not identify anyone from the second array.
{¶ 46} The cases that defendant relies on are distinguishable from the facts here
with respect to the victim’s ability to view the suspect. In this case, Shultz testified that
defendant stood over him with a gun in his apartment where a poker game had been in
progress. He had an unobstructed view, saw the gunman’s face, and was positive of his
identification. The fact that defendant does not match the height and weight description
supplied by Shultz was explained. Shultz stated that he could not be sure of the height
due to his position on the floor.
{¶ 47} There appears nothing “unduly suggestive” about defendant’s photograph.
Defendant’s photo does not stand out from the other photos that are contained in the array
that all have similar facial characteristics. The differences among the photographs in the
subject array are minor and do not make one photograph more suggestive than any of the
other photographs. There is no reason to conclude that the victim identified defendant’s
photo due to such subtleties. Shultz’s testimony illustrates his ample opportunity to view
the suspect and he did not waiver in his certainty. The reliability of Shultz’s identification
is further buttressed by the fact that Shultz did not identify the co-defendant who appeared
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in a contemporaneous array. Based on this record, defendant’s trial counsel was not
ineffective in failing to file a motion to suppress the pretrial identification of defendant.
Accordingly, defendant was not denied effective assistance of counsel on this basis.
{¶ 48} Defendant also maintains that his prior convictions were admitted in error.
Defendant stipulated to his prior felony conviction in 1996. When defendant took the
stand, he stated he was on probation for a “misdemeanor.” Defendant has failed to
establish that the admission of either conviction amounted to ineffective assistance of
counsel. He has not established a reasonable probability that the outcome of the trial
would have been any different if the evidence of his convictions were excluded.
{¶ 49} Evid.R. 609(B) provides:
{¶ 50} “Evidence of a conviction under this rule is not admissible if a period of
more than ten years has elapsed since the date of the conviction or of the release of the
witness from the confinement, or the termination of community control sanctions,
post-release control, or probation, shock probation, parole, or shock parole imposed for
that conviction, whichever is the later date, unless the court determines, in the interests of
justice, that the probative value of the conviction supported by specific facts and
circumstances substantially outweighs its prejudicial effect. However, evidence of a
conviction more than ten years old as calculated herein, is not admissible unless the
proponent gives to the adverse party sufficient advance written notice of intent to use such
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evidence to provide the adverse party with a fair opportunity to contest the use of such
evidence.” (Emphasis added.)
{¶ 51} Defendant testified that he served seven years for his 1996 felony conviction
resulting in a release date sometime in 2003. Accordingly, his conviction was not
inadmissible in this bench trial that took place in 2011. Evid.R. 609(B); see, also, State v.
Carter, Cuyahoga App. No. 84816, 2005-Ohio-2179. Moreover, convictions over ten
years are still admissible under certain circumstances. Id. Defendant, therefore, has not
established ineffective assistance of counsel based on his attorney’s decision not to object
to the admission of his 1996 conviction.
{¶ 52} The judge who placed defendant on community control for his misdemeanor
offense, was the same judge that conducted the bench trial and is presumed to have
disregarded any improper evidence. Guthmann, 175 Ohio St. 282, paragraph three of the
syllabus.
{¶ 53} Defendant’s final basis in support of this assigned error, is that his attorney
was not prepared for trial. Here, defendant reiterates the foregoing alleged deficiencies
and adds: (a) that his attorney failed to call Gary Larkins as a witness; (b) that his attorney
did not visit him enough in jail; and (c) should have obtained an expert on identification.
Although defendant claimed he was with Gary Larkins rather than speaking with
defendant in the afternoon prior to the robbery, there is no evidence in the record that Gary
Larkins would have corroborated defendant’s story. Secondly, defense counsel stated that
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he did visit defendant in jail. Finally, this court has found that trial counsel is not
ineffective when he or she chooses not to pursue the appointment of an expert witness on
identification. State v. Witherspoon, Cuyahoga App. No. 94475, 2011-Ohio-704, ¶ 40-41,
quoting, State v. Hayes, Cuyahoga App. No. 93785, 2010-Ohio-5234. Here, we do not
find that trial counsel’s performance was deficient in this regard particularly considering
Shultz’s certainty in his identification and the fact that this matter was tried to the bench
rather than a jury.
{¶ 54} The third assignment of error is overruled.
{¶ 55} “IV. Defendant was denied due process of law when he was
disproportionately sentenced to an eighteen (18) year sentence when a co-defendant,
Stanley Smith, after a trial was sentenced to ten (10) years for more convictions.”
{¶ 56} “V. Defendant was subjected to unconstitutional multiple convictions when
the court acknowledged that various counts would merge.”
{¶ 57} “VI. Defendant was denied due process of law when the court relied on its
own personal knowledge at sentencing.”
{¶ 58} “VII. Defendant was denied due process of law when he was sentenced to a
consecutive sentence without any findings.”
{¶ 59} “VIII. Defendant was subjected to unconstitutional multiple punishments
when the court failed to merge the various aggravated robbery counts of the indictment.”
23
{¶ 60} “IX. Defendant was subjected to unconstitutional multiple punishments
when he was convicted and sentenced for aggravated burglary and aggravated robbery.”
{¶ 61} All of these assigned errors challenge defendant’s convictions and sentence
and will be addressed together.
{¶ 62} The Ohio Supreme Court set forth the standard for reviewing felony
sentencing in State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124. See,
also, State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470. Appellate courts
must apply a two-step approach when analyzing alleged error in a trial court’s sentencing.
“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.
{¶ 63} Following briefing, this case was remanded to the trial court to correct the
sentencing entry. On remand, the trial court complied and by journal entry dated February
4, 2011, indicated that defendant had been found guilty of aggravated burglary with
firearm specifications, notice of prior conviction, repeat violent offender specification as
charged in count 1; guilty of aggravated robbery with the same specifications as charged in
counts 2, 3, 6, and 7; guilty of kidnapping with the same specifications as charged in
counts 8, 9, 12, and 13; guilty of theft, aggravated theft as charged in counts 14, 15, 18,
and 19; and guilty of having weapons while under disability as charged in count 20.
24
Defendant was acquitted of counts 4, 5, 10, 11, 16, and 17. The State elected to pursue
sentencing on counts 1, 2, 3, 6, 7 and 20 and all other convictions were found to be allied
offenses of similar import and merged as follows: counts 8 and 14 merged with count 2;
counts 9 and 15 merged with count 3; counts 12 and 18 merged with count 6; counts 13
and 19 merged with count 7. The court imposed a single three year term for the firearm
specifications that were all merged for sentencing purposes, which was to run prior to and
consecutive to ten years on the base charge in each of counts 1, 2, 3, 6, and 7, all of which
run concurrently to each other. Defendant also received a consecutive five year prison
term for count 20. In total, defendant received an eighteen year sentence. The trial
court did not impose any enhanced penalty despite the finding of guilt on the repeat violent
specifications.
{¶ 64} Defendant’s eighteen year sentence is within the statutory range and is not
contrary to law.
{¶ 65} We now analyze the court’s findings and review the decision for an abuse of
discretion under the second prong of Kalish.
{¶ 66} A felony sentence should be proportionate to the severity of the offense
committed, so as not to “shock the sense of justice in the community.” State v. Chaffin
(1972), 30 Ohio St.2d 13, 17, 282 N.E.2d 46. See, also, R.C. 2929.11(B). A defendant
alleging disproportionality in felony sentencing has the burden of producing evidence to
“indicate that his sentence is directly disproportionate to sentences given to other offenders
25
with similar records who have committed these offenses * * *.” State v. Breeden,
Cuyahoga App. No. 84663, 2005-Ohio-510, ¶81.
{¶ 67} Defendant contends that his sentence was disproportionate and inconsistent
with the sentences imposed on the co-defendants. The applicable analysis in assessing the
proportionality of a sentence is whether the sentence imposed is “consistent with sentences
imposed for similar crimes committed by similar offenders.” R.C. 2929.11(B) (emphasis
added). In State v. Berlingeri, this court addressed a similar proportionality argument
alleging inconsistency of sentences imposed among co-defendants and noted:
{¶ 68} “There is no requirement that co-defendants receive equal sentences. State v.
Wickham, 5th Dist. No. CT2006-0084, 2007-Ohio-1754, ¶29, citing State v. Lloyd, 11th
Dist. No. 2002-L-069, 2003-Ohio-6417, ¶21 and United States v. Frye (C.A.6, 1987), 831
F.2d 664, 667. ‘Each defendant is different and nothing prohibits a trial court from
imposing two different sentences upon individuals convicted of similar crimes.’ Wickham
at ¶29, citing State v. Aguirre, 4th Dist. No. 03CA5, 2003-Ohio-4909, at ¶50. When that
happens, ‘the task of the appellate court is to determine whether the sentence is so unusual
as to be outside the mainstream of local judicial practice. We bear in mind that although
offenses may be similar, there may be distinguishing factors that justify dissimilar
sentences.’ State v. Beasley, 8th Dist. No. 82884, 2004-Ohio-988, ¶24 (internal citation
omitted).”
26
{¶ 69} The difference among the sentence defendant received for his convictions as
opposed to that imposed upon co-defendants Reba Smith and Powell are justified by the
fact that those individuals pled guilty to fewer offenses, admitted to their involvement, and
cooperated with the authorities. Further, defendant does not contend that any of the
co-defendants have a criminal record that is comparable to his own record.
{¶ 70} Instead, defendant contends that his sentence is disproportionate to the one
received by his co-defendant Stanley Smith for the sole reason that Stanley was convicted
of more offenses in this case but received a shorter sentence. Defendant does not provide
any similarities shared by these individuals such as whether or not Stanley was also on
probation at the time of this offense. The court considered defendant’s conduct, including
his involvement in another aggravated robbery incident and his juvenile record before it
imposed the sentence. Although defendant received ten years on the base counts of
aggravated robbery, the sentences are concurrent and therefore defendant did not receive
the maximum, consecutive sentence that was permissible under the law. The court
explained its rationale for the sentence that was imposed. Also, in reviewing the record,
defendant’s involvement in the offense was more extensive as compared to Stanley. For
example, all of the witnesses said defendant entered the apartment, ordered the victims to
floor and held a gun to Shultz and he was also accused of pepper spraying the men in the
kitchen; while at the same time, the other gunman (presumably Stanley Smith) stood in the
doorway. Defendant has not established that the trial court abused its discretion by
27
imposing a greater sentence on him than the other co-defendants. Assignment of error IV
is overruled.
{¶ 71} Defendant also maintains that he was denied due process because the trial
court did not make the statutory findings set forth in R.C. 2929.14(E)(4) and R.C.
2929.41(A), which were excised by State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845
N.E.2d 470. In support of his argument, defendant contends that the United States
Supreme Court’s decision in Oregon v. Ice (2009), 555 U.S. 160, 129 S.Ct. 711, 172
L.Ed.2d 517, revived those portions of the statute and the trial court’s obligation to comply
with them prior to imposing consecutive sentences. The Ohio Supreme Court has rejected
this argument in State v. Hodge, 128 Ohio St.3d 311, 2010-Ohio-6320, 941 N.E.2d 768,
paragraphs one, two, and three of the syllabus (holding that trial court judges are not
obligated to engage in judicial factfinding prior to imposing consecutive sentences unless
the General Assembly enacts new legislation that requires it.) Assignment of error VII is
overruled.
{¶ 72} We do not find that the court abused its discretion by declining to order a
presentence investigation report or considering the fact that defendant was on probation to
the court. The trial court is not obligated to order a pre-sentence investigation report prior
to imposing a prison term. R.C. 2951.03. Defendant has not established that he was
denied a fair sentencing hearing and assignment of error VI is overruled.
28
{¶ 73} Next we address defendant’s contention that he was improperly convicted of
multiple offenses. As set forth at the sentencing hearing and in the court journal entries,
the court determined that count 1 was not an allied offense nor was count 20. As for the
remaining counts, the State elected to pursue sentencing on counts 2, 3, 6, and 7; for which
the trial court imposed sentences. All other convictions were merged as set forth above.
{¶ 74} In Johnson, the Ohio Supreme Court established the proper analysis for
determining whether offenses qualify as allied offenses subject to merger pursuant to R.C.
2941.25.
{¶ 75} “In determining whether offenses are allied offenses of similar import under
R.C. 2941.25(A), the question is whether it is possible to commit one offense and commit
the other with the same conduct, not whether it is possible to commit one without
committing the other. * * * If the offenses correspond to such a degree that the conduct of
the defendant constituting commission of one offense constitutes commission of the other,
then the offenses are of similar import.
{¶ 76} “‘If the multiple offenses can be committed by the same conduct, then the
court must determine whether the offenses were committed by the same conduct, i.e., “a
single act, committed with a single state of mind.” Brown, 119 Ohio St.3d 447,
2008-Ohio-4569, 895 N.E.2d 149, at ¶50 (Lanzinger, J., dissenting).
{¶ 77} “If the answer to both questions is yes, then the offenses are allied offenses
of similar import and will be merged.
29
{¶ 78} “Conversely, if the court determines that the commission of one offense will
never result in the commission of the other, or if the offenses are committed separately, or
if the defendant has separate animus for each offense, then, according to R.C. 2941.25(B),
the offenses will not merge.” Id. at ¶48-51.
{¶ 79} Because defendant’s robbery convictions represent offenses he separately
committed against multiple victims, they are not allied offenses of similar import. State v.
Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314. This is not similar to a fact pattern where
an individual fires a gun into a crowd of people, which arguably could create allied
offenses of similar import in the event the offender is charged with multiple counts of
felonious assault for each victim. See State v. Sutton, Cuyahoga App. No. 90172,
2011-Ohio-2249. The evidence presented in this trial established that defendant took
property from each identified victim by a threat of force and, therefore, acted with a
separate animus with respect to each victim. Accordingly, assignments of error V and
VIII are overruled.
{¶ 80} Defendant also contends that his convictions for aggravated burglary and
aggravated robbery are allied offenses that should have been merged. Defendant argues
that the convictions stemmed from a single event. However, once defendant entered the
apartment with an intent to commit a felony inside, the crime of burglary was complete.
When he proceeded to take property from the various individuals inside, while brandishing
a gun, he engaged in separate crimes of robbery. For that reason, these are not allied
30
offenses of similar import and the court did not err by imposing separate sentences for
them. See State v. ONeil, Portage App. No. 2010-P-0041, 2011-Ohio-2202, ¶46-47,
quoting, State v. Frazier (1979), 58 Ohio St.2d 253, 389 N.E.2d 1118; see, also, State v.
Slagle (1992), 65 Ohio St.3d 597, 611 (“aggravated robbery and aggravated burglary are
not allied offenses of similar import where, as here, the offenses are committed separately
* * *.”) Assignment of error IX is overruled.
{¶ 81} “X. Defendant was denied due process of law when the court found
defendant guilty of a repeat violent offender specification.”
{¶ 82} Defendant was charged with repeat violent offender specifications on several
counts pursuant to R.C. 2941.149(A). R.C. 2929.01(C)(C) sets forth the definition of a
repeat violent offender, and includes a prior conviction for an attempted felony offense of
violence if the attempted offense is of the first or second degree.
{¶ 83} One who is found guilty of an RVO specification is subject to an enhanced
penalty beyond the maximum term provided for the base charge. In other words, a RVO
specification in this case subjected defendant to potential additional prison time of up to
another ten years beyond the ten years imposed for base offense, such as aggravated
robbery. R.C. 2929.14(D)(2)(a)(I).
{¶ 84} The parties stipulated to journal entries identified as State’s Exhibits 1 and 2,
which represent a plea journal entry and a sentencing journal entry from defendant’s 1996
conviction. However, there is a clear discrepancy on the face of the exhibits. The plea
31
journal entry reflects that defendant entered a guilty plea to a lesser included offense of
robbery with violence specifications, which was a felony of the second degree. The
sentencing journal entry, however, indicates that defendant had entered a plea to attempted
robbery, which would have constituted a felony of the third degree. If defendant was
convicted of robbery, the evidence would establish the repeat violent offender
specification as defined by R.C. 2929.01(C)(C), but if he was convicted of attempted
robbery it would not. Any error in finding defendant guilty of the RVO specifications
was harmless because the trial court chose not to impose any enhanced penalty for them.
{¶ 85} Nonetheless, the State bears the burden of proving the specifications and, as
a result of the conflicting journal entries, the evidence in the record did not prove that
defendant had a prior conviction that would satisfy the RVO specification. The tenth
assignment of error is sustained to the extent that we vacate the trial court’s finding of
guilt as to the repeat violent offender specifications only but affirm defendant’s
convictions and sentence in all other respects.
It is ordered that appellee and appellant split the 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 convictions having
been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for
execution of sentence.
32
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the
Rules of Appellate Procedure.
JAMES J. SWEENEY, PRESIDING JUDGE
KENNETH A. ROCCO, J., and
EILEEN A. GALLAGHER, J., CONCUR