State v. Williams , 2013 Ohio 5076 ( 2013 )

[Cite as State v. Williams, 2013-Ohio-5076.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
TRUMBULL COUNTY, OHIO
STATE OF OHIO, : OPINION
Plaintiff-Appellee, :
CASE NO. 2012-T-0053
- vs - :
JACQUAVIS KENTRELL WILLIAMS, :
Defendant-Appellant. :
Criminal Appeal from the Trumbull County Court of Common Pleas.
Case No. 2011 CR 00555.
Judgment: Affirmed.
Dennis Watkins, Trumbull County Prosecutor, and LuWayne Annos, Assistant
Prosecutor, Administration Building, Fourth Floor, 160 High Street, N.W., Warren, OH
44481-1092 (For Plaintiff-Appellee).
Michael A. Partlow, 112 South Water Street, Suite C, Kent, OH 44240 (For Defendant-
Appellant).
TIMOTHY P. CANNON, P.J.
{¶1} Appellant, Jacquavis Kentrell Williams, appeals the judgment of conviction
entered by the Trumbull County Court of Common Pleas for felonious assault and
aggravated robbery. The issues to be determined by this court are whether a motion to
suppress statements was properly denied; whether convictions for the foregoing
charges are supported by the manifest weight of the evidence; and whether felonious
assault and aggravated robbery are allied offenses that should merge for sentencing.
For the following reasons, we affirm the judgment of the lower court.
{¶2} On October 18, 2011, the Trumbull County Grand Jury indicted Williams
on one count of felonious assault, a felony of the second degree, in violation of R.C.
2903.11(A)(2) and (D)(1)(a), with a firearm specification pursuant to R.C. 2941.145; and
one count of aggravated robbery, a felony of the first degree, in violation of R.C.
2911.01(A)(1) and (C), with a firearm specification pursuant to R.C. 2941.145.
{¶3} On December 2, 2011, Williams filed a motion to suppress statements,
asserting that statements he made at the Warren Police Department, including private
conversations, were improperly recorded by a hidden surveillance device. A
suppression hearing was held on February 17, 2012, where the following facts were
adduced through testimony.
{¶4} Detective Wayne Mackey, of the Warren Police Department, indicated he
was the lead investigator assigned to a shooting and robbery that occurred on April 12,
2011, at the North End Market in Warren, Ohio. During the investigation, a DNA sample
was taken from a drink bottle the victim said had been brought to the counter by the
shooter during the robbery. The initial investigation, however, yielded no suspects.
{¶5} Four months after the robbery, the Warren police received a report from
the Ohio Bureau of Criminal Identification and Investigation (“BCI”) on August 15, 2011,
regarding a “hit,” i.e. a match, with DNA from the Combined DNA Index System
(“CODIS”), a database that includes DNA records of convicted felons. The BCI report
indicated that DNA from a major and a minor contributor had been recovered from the
drink bottle found at the scene. The victim was identified as the major contributor. The
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minor contributor was most probably Williams, whom the report concluded could not be
excluded as the source of the sample by a ratio of one in 5,807 unrelated persons.
{¶6} On August 17, 2011, a warrant was issued for Williams’ arrest. Later that
evening, Williams turned himself in at the Warren Police Department. Detective Mackey
testified that at this point, Williams was in custody and was not free to leave.
{¶7} Detective Mackey met with Williams and his mother in a secure waiting
area at the station to conduct an interview. Williams did not request a lawyer but
wanted his mother present during the interview. Detective Mackey then escorted
Williams and his mother to an interview room in a secure and non-public area of the
police station.
{¶8} The interview room contained a desk and a couple of chairs. There were
no windows or mirrors. Essentially, there was nothing in the room that would lead any
person to believe there was any way to view into the room, or anything that would have
been recognized as a recording or monitoring device. There was no sign indicating that
recording might be taking place. Detective Mackey testified there was a video and
audio recording device hidden in the thermostat and that the rooms are monitored for
safety purposes. He further testified that Williams was familiar with the interview room,
as he had previously been interviewed therein by other detectives regarding another
matter. No evidence in the record indicates that Williams’ familiarity with the room
included knowledge of the hidden recording device.
{¶9} Detective Mackey left Williams and his mother alone in the room with the
door closed while he went to retrieve a Miranda waiver form and case file. Detective
Mackey turned on the recording device just after leaving the room, which recorded a
conversation between Williams and his mother. Detective Mackey testified that
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Williams and his mother did not indicate they wanted to talk alone, request privacy, or
ask not to be recorded.
{¶10} While alone with his mother, Williams admitted to being at the North End
Market on the day of the incident. He assured her he was innocent and claimed he had
frequented the store even after the shooting. Williams insisted he was being
“railroaded.”
{¶11} The recording then shows Detective Mackey, after he re-entered the
room, reading Williams his constitutional rights. Detective Mackey testified that Williams
indicated he understood the rights and initialed each line on the form. Williams did not
request an attorney and agreed to give the detective a statement. Williams stated he
did not know or remember if he had been in the store on the exact date the victim was
shot and robbed. Williams told Detective Mackey that he was a regular customer at the
store, where he usually purchased the same chips, drink, and a Black and Mild cigar.
Williams denied shooting the victim.
{¶12} Following the suppression hearing, both sides submitted briefs in support
of their positions. On March 12, 2012, the trial court issued a judgment entry denying
Williams’ motion to suppress. The court held there was no reasonable expectation of
privacy regarding the conversations held in the interview room.
{¶13} A jury trial commenced on March 12, 2012. The following testimony and
evidence were presented.
{¶14} Mohammad Darwish testified that he and his wife, Itaf Darwish, own the
North End Market, a neighborhood store, and know most of their customers. Darwish
testified that a six-foot tall, 180-pound African-American man with a tattoo on his neck,
whom he did not know, walked through the front door of his store on April 12, 2011, at
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approximately 11:30 a.m. The man passed by Nicholas Phelps, a long-time customer,
as Phelps was exiting the store.
{¶15} According to Darwish, the man brought a bag of chips and a bottle of blue
Guzzler drink to the counter and asked for a Black and Mild cigar. Darwish turned
around to get the cigar and placed it on the counter. Without warning, the man shot
Darwish and then ordered Darwish to give him money. Darwish gave him cash from the
lottery ticket register. The man demanded more. Darwish tried to access a second
cash drawer but, due to his injuries, was unable to do so. Instead, Darwish retrieved
more cash from the store office.
{¶16} The assailant then headed out of the store and into the parking lot.
Darwish saw his wife drive up, went to the door, and warned her to leave. In the
meantime, the assailant left heading toward Arlington Street.
{¶17} Itaf testified that when she arrived at the store, her husband was
screaming at her to leave, and she saw a man running away from the store. She
followed the perpetrator in her car but lost him.
{¶18} Darwish was hospitalized for approximately one week. The bullet
shattered his hand and tore through his stomach. He initially told Detective Mackey that
he could identify the shooter if given the opportunity to see him again, but the police
came up with few leads and had no suspect for several months.
{¶19} Lindsey Nelsen-Rausch, a forensic scientist at BCI, testified that, during
the course of the investigation, she took a touch DNA sample from the drink bottle
submitted to BCI by the Warren Police Department. Pursuant to Detective Mackey’s
testimony, this DNA was ultimately matched with DNA in the CODIS system, which
belonged to Williams.
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{¶20} Brenda Gerardi of BCI testified that the DNA profile found on the bottle
was a “mixture,” including both “major” and “minor” contributors. The major contributor
to the DNA sample was Darwish. The minor DNA contributor matched Williams,
insomuch as Williams could not be excluded as a source of the sample by a ratio of one
in 5,807 unrelated individuals. Based on the DNA evidence, a warrant was issued for
Williams’ arrest.
{¶21} Dawn Limpert of BCI testified that she compared partial fingerprints found
on the drink bottle with fingerprints from Williams and found that he was not the source
of the prints. She did not match any individuals to the fingerprints on the drink bottle.
{¶22} Approximately four months after the incident, Detective Mackey presented
Darwish and Phelps with photo arrays that included a picture of Williams. Both men
were unable to identify Williams.
{¶23} The video recording of the interview made after Williams surrendered to
the police was played at the suppression hearing and for the jury. This included his
statement to his mother that he was at the store on the date of the incident but was
innocent. When Detective Mackey returned, however, Williams stated he could not
remember when he had been in the store. As was testified to at the suppression
hearing, Williams stated that, on the occasions when he did go to the store, he always
purchased chips, a drink, and a Black and Mild cigar.
{¶24} Following the trial, the jury found Williams guilty on both counts, including
the firearm specifications.
{¶25} A sentencing hearing was held on May 16, 2012. At the hearing, Williams’
counsel argued that aggravated robbery and felonious assault should be merged. The
court found there was a separate animus for the shooting and the robbery and, thus,
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were two separate crimes for the purpose of sentencing. The trial court concluded that
the victim did not need to be shot to carry out the robbery, and there was “a malice
separate from theft with a deadly weapon” involved in the shooting incident.
{¶26} The trial court sentenced Williams to a term of seven years in prison for
felonious assault, seven years for aggravated robbery, and three years each for the
firearm specifications, all to be served consecutively, for a total prison term of 20 years.
{¶27} Williams timely appealed and raises the following assignments of error:
[1.] The trial court erred, as a matter of law, by denying the
appellant’s motion to suppress statements made by the appellant
during a conversation with his mother which occurred in a room at
the Warren Police Department.
[2.] The appellant’s convictions are against the manifest weight of
the evidence.
[3.] The trial court erred, as a matter of law, by sentencing the
appellant for both the crimes of aggravated robbery and felonious
assault, along with the related gun specifications.
{¶28} In his first assignment of error, Williams argues the trial court erred by
failing to suppress the conversation he had alone with his mother in the police station
interview room. Williams asserts that he was entitled to an expectation of privacy and
that the surreptitious recording of the conversation between Williams and his mother
violated Williams’ rights under the Fourth Amendment to the United States Constitution.
{¶29} “The trial court acts as trier of fact at a suppression hearing and must
weigh the evidence and judge the credibility of the witnesses.” (Citation omitted.) State
v. Ferry, 11th Dist. Lake No. 2007-L-217, 2008-Ohio-2616, ¶11. “[T]he trial court is best
able to decide facts and evaluate the credibility of witnesses.” (Citation omitted.) State
v. Wagner, 11th Dist. Portage No. 2010-P-0014, 2011-Ohio-772, ¶12. “The court of
appeals is bound to accept factual determinations of the trial court made during the
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suppression hearing so long as they are supported by competent and credible
evidence.” State v. Hines, 11th Dist. Lake No. 2004-L-066, 2005-Ohio-4208, ¶14.
“Once the appellate court accepts the trial court’s factual determinations, the appellate
court conducts a de novo review of the trial court’s application of the law to these facts.”
(Citations omitted.) Ferry at ¶11.
{¶30} Under general Fourth Amendment principles, a communication cannot be
intercepted if there is an actual and justifiable expectation of privacy from the
government. State v. Buzzard, 112 Ohio St.3d 451, 2007-Ohio-373, ¶13. The Fourth
Amendment protects an individual’s subjective expectation of privacy when the
expectation is reasonable. Id. at ¶14, citing Rakas v. Illinois, 439 U.S. 128, 143 (1978).
A fact-intensive, totality-of-the-circumstances inquiry is required in order to determine
whether a specific place qualifies as “a place where there is a reasonable expectation of
privacy.” Savoy v. United States, 604 F.3d 929, 937 (6th Cir.2010).
{¶31} An intensive inquiry into the facts is necessary to determine whether a
reasonable expectation of privacy exists in a certain place under certain circumstances.
Given a certain set of facts, a legitimate expectation of privacy may exist though a
person is under arrest and in an interrogation room. We do not believe that one can
never have a reasonable expectation of privacy in a police interrogation room.
{¶32} The majority of cases conclude there is no reasonable expectation of
privacy in conversations that occur in police stations, including interrogation rooms.
See, e.g., State v. Strohl, 587 N.W.2d 675, 682 (Neb.1999) (“[t]he greater weight of
authority * * * has consistently * * * upheld the admission of monitored conversations in
police stations”); Belmer v. Commonwealth, 553 S.E.2d 123, 128 (Va.App.2001)
(“[g]enerally, the federal courts continue to find a suspect has no reasonable
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expectation of privacy in areas controlled by the police”). However, these cases
continue to make a fact-intensive inquiry into whether a reasonable expectation of
privacy existed. There are important factual distinctions between these cases and the
case at issue.
{¶33} Other courts have found a reasonable expectation of privacy in a police
interrogation room under facts similar to those presented here. See, e.g., State v.
Calhoun, 479 So.2d 241, 244-245 (Fla.App.1985) (where there was a hidden camera
and a Mirandized defendant was left alone to converse with his brother in an
interrogation room pursuant to the defendant’s request to speak privately with his
brother, the conversation was not admissible); State v. Howard, 728 A.2d 1178, 1184
(Del.1998) (because there was no evidence that the defendant was told of the
possibility of monitoring or that the defendant could see the camera, the defendant’s
expectation of privacy was reasonable).
{¶34} The state of Ohio argues that no reasonable expectation of privacy existed
when appellant was left alone with his mother in the interview room; it relies mainly on
two cases, both of which are distinguishable. First, the Seventh District has held that a
defendant in custody did not have a reasonable expectation of privacy in a police
interrogation room containing a two-way mirror. State v. Clemons, 7th Dist. Belmont
No. 10 BE 7, 2011-Ohio-1177, ¶74-76. The Clemons court placed great weight on the
presence of the two-way mirror in distinguishing it from other cases where it was
determined that a reasonable expectation of privacy did exist. Furthermore, the
Clemons court noted that the defendant had whispered the incriminating statements,
indicating he was aware someone might be listening. Id. at 70. In this case, there was
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no two-way mirror or anything else to indicate the possibility of monitoring. Further,
neither appellant nor his mother whispered during the conversation.
{¶35} Second, in Belmer v. Commonwealth, 553 S.E.2d 123 (Va.App.2001), the
Virginia Court of Appeals addressed the surreptitious monitoring of a conversation
between the defendant and his mother that occurred in the police station’s interview
room. The Belmer court emphasized that (1) the detective never stated the defendant
could speak freely; (2) the defendant knew he was the subject of an armed robbery
investigation; and (3) the defendant “had no reason to believe this interrogation room
was a ‘sanctuary for private discussions.’” Id. at 129. The Belmer court held that, under
the circumstances, no reasonable expectation of privacy existed: the room contained a
two-way mirror, the conversation was whispered, and signs were posted that indicated
the interview rooms were being monitored. Id. at 125. The defendant did not see the
signs, but his mother and her boyfriend walked past them. Id. In the present case,
there was no two-way mirror, no signs posted, and no whispering by appellant or his
mother. Thus, in Belmer, there are facts to support the holding that the defendant had
no reasonable expectation of privacy—facts that are not present here.
{¶36} The state of Ohio further takes the position that this case is similar to
those related to the recording of conversations in police cars, where it is well-
established that a detainee has no reasonable expectation of privacy under the Fourth
Amendment. See State v. Ingram, 9th Dist. Medina No. 10CA0022-M, 2010-Ohio-3546,
¶17; State v. Blackwell, 8th Dist. Cuyahoga No. 87278, 2006-Ohio-4890, ¶33-35; State
v. Skidmore, 12th Dist. Warren No. CA99-12-137, 2000 Ohio App. LEXIS 3535, *16
(Aug. 7, 2000).
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{¶37} The Seventh District has commented on the similarity between a police
interview room and the back of a police car, stating, “there is really nothing to
distinguish a police interrogation room from conversations in the back of a police car.”
Clemons, supra, at ¶75. We disagree. Police cars are typically equipped with visible
cameras or other recording devices. Therefore, an expectation of privacy in the back of
a police car is not reasonable as a matter of course.
{¶38} The problem in this case is that the interrogation room contained no
indicia that the activity could be monitored or recorded. Except for the table and chairs,
it was an empty room, with no windows or other means of viewing into the room. The
only other discernible object in the room was a thermostat. It is not reasonable to
suggest that most people would expect a thermostat to be a video and audio recording
and monitoring device. If the police truly believe that no reasonable person would have
an expectation of privacy in such a room, the recording equipment should not need to
be disguised.
{¶39} The reasons given for hiding a recording device in a thermostat are
unconvincing. It is disingenuous to assert that the reason for the recording device is to
protect against escape, suicide attempts, or the passing of contraband between
persons. These goals are readily accomplished with visible equipment. Indeed, if the
purpose is to discourage nefarious conduct within interview rooms, a visible camera
would be more valuable because its presence would deter such conduct. Hidden
recording devices are quite obviously intended to secretively gather evidence for use in
criminal prosecutions.
{¶40} The interview room used in this case is actually designed and arranged to
suggest activity in the room is not being recorded. As a result, a reasonable person,
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regardless of his status, would have an expectation that he is not being monitored.
Thus, the statements should have been suppressed.
{¶41} However, that does not end the inquiry. If Williams was not prejudiced by
the admission of the statement, the error is harmless. Constitutional errors in the
admission of evidence are non-prejudicial when harmless beyond a reasonable doubt.
Chapman v. California, 386 U.S. 18, 24 (1967). Constitutional error in the admission of
evidence is harmless beyond a reasonable doubt when “the remaining evidence,
standing alone, constitutes overwhelming proof of the defendant’s guilt.” State v.
Williams, 6 Ohio St.3d 281 (1983), paragraph six of the syllabus. Admission of a
statement in violation of the defendant’s constitutional rights is harmless beyond a
reasonable doubt when it is duplicative of other admissible testimony. See State v.
Jenkins, 11th Dist. Lake No. 2003-L-173, 2005-Ohio-3092, ¶38.
{¶42} Even if the trial court suppressed the statements Williams argues should
have been excluded, the remaining evidence provided overwhelming proof of Williams’
guilt. The conversation was limited to Williams’ statements that he had been in the
store on the date of the shooting but did not shoot Darwish, and his description of items
that he usually purchases when he is in the store. Williams later told Detective Mackey
that he did not shoot Darwish but indicated he was not sure whether he had been in the
store on the day Darwish was shot. The item description was also later provided to
Detective Mackey during the course of the formal interview and, therefore, was already
properly before the jury. Furthermore, Williams argues in his brief that “it was
uncontroverted that the Appellant was in the store on the morning of the incident” to
support the argument that his DNA could have been on the bottle without warranting a
finding that he was the perpetrator of the crime. Therefore, Williams’ statement to his
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mother that he had been in the store that day was actually beneficial in light of the DNA
evidence adduced at trial, as it established a justification for his DNA being present on
the bottle found at the scene.
{¶43} Thus, although Williams’ statements should have been suppressed, their
admission was harmless beyond a reasonable doubt. Therefore, his first assignment of
error is without merit.
{¶44} In his second assignment of error, Williams argues his convictions were
against the manifest weight of the evidence because the DNA evidence was weak and
the witnesses were unable to identify him in the photo array.
{¶45} Generally, the weight to be given to the evidence and the credibility of the
witnesses is for the trier of fact to determine. State v. Thomas, 70 Ohio St.2d 79,
(1982), syllabus. When reviewing a manifest weight challenge, however, the appellate
court sits as the “thirteenth juror.” (Citation omitted.) State v. Thompkins, 78 Ohio St.3d
380, 387 (1997). The reviewing court must consider all the evidence in the record,
reasonable inferences, and the credibility of the witnesses to determine whether, “in
resolving conflicts in the evidence, the jury clearly lost its way and created such a
manifest miscarriage of justice that the conviction must be reversed and a new trial
ordered. The discretionary power to grant a new trial should be exercised only in the
exceptional case in which the evidence weighs heavily against the conviction.” (Citation
omitted.) Id.{¶46} The jury did not clearly lose its way in finding Williams guilty of aggravated
robbery and felonious assault. It was uncontested that Darwish was shot and robbed.
The only contested issue was the identity of the perpetrator. The evidence showed that
Darwish was able to provide a description of the shooter that was similar to Williams.
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Darwish explained that the man was a similar height and weight and had a tattoo on his
neck. Although Darwish and the other witness, Phelps, were not able to pick Williams
out of the photo array, the testimony of his general description could still be considered
by the jury and weighed in favor of the state’s case. The witnesses’ estimation of the
perpetrator’s height and weight vary slightly. There was some question about certain
minor changes in the witnesses’ description of the perpetrator regarding whether he had
light or dark skin. We emphasize, however, that credibility of witnesses is an issue to
be determined by the finder of fact. Thompkins at 387. The witnesses described an
African-American male, between 5’9 and 6’0, 180-200 pounds, with a tattoo on his neck.
That description, including the tattoo, is consistent with Williams’ appearance, and the
jury could properly consider it along with the other evidence against him.
{¶47} Williams also admitted to Detective Mackey that, when he had been in the
store in the past, he usually purchased the same items: chips, drink, and Black and Mild
cigars. These were the same items brought to the counter or requested by the
perpetrator. Touch DNA from a minor contributor recovered from the Guzzler drink
bottle brought to the counter matched Williams’ DNA. He could not be excluded as a
source of the sample by a ratio of one in 5,807 unrelated individuals. While this
evidence does not eliminate all other individuals as possible DNA matches, the DNA
match is not meaningless. There is no requirement that evidence of DNA be a perfect
match to be submitted at trial.
{¶48} We cannot say the jury lost its way. The state is not required to prove its
case beyond all doubt. The DNA evidence, the description, and the information about
the items Williams usually purchased provided a basis upon which the jury could find
beyond a reasonable doubt that Williams was guilty of shooting and robbing Darwish.
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{¶49} Williams’ convictions were not against the manifest weight of the
evidence. Thus, his second assignment of error is without merit.
{¶50} In his third assignment of error, Williams argues that the trial court erred in
sentencing him for both aggravated robbery and felonious assault, along with the
related gun specifications, as they were committed with the same animus and should
have merged.
{¶51} The Ohio Supreme Court has clarified that in reviewing a trial court’s R.C.
2941.25 merger determination, we apply a de novo standard of review. State v.
Williams, 134 Ohio St.3d 482, 2012-Ohio-5699, ¶28. However, we note that the trial
court conducted an extended analysis based on the facts adduced at trial.
{¶52} “R.C. 2941.25 codifies the protections of the Double Jeopardy Clause of
the Fifth Amendment to the United States Constitution and Section 10, Article I of the
Ohio Constitution” prohibiting multiple punishments for the same offense. State v.
Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, ¶23. It provides 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.” R.C. 2941.25(A). However, “[w]here
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,” separate convictions and
punishments are proper. R.C. 2941.25(B).
{¶53} To determine whether two offenses are allied offenses of similar import
subject to merger, we consider the conduct of the accused. State v. Johnson, 128 Ohio
15St.3d 153, 2010-Ohio-6314, syllabus. The Ohio Supreme Court has described the
application of R.C. 2941.25 to specific conduct as follows:
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.
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,
¶ 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.
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.
Johnson at ¶48-51.
{¶54} Because it is possible to commit felonious assault and aggravated robbery
by the same conduct, the issue here turns on whether the two crimes were committed
with the same act and a single state of mind. If they were, merger would be
appropriate. However, the trial court did not err when it failed to merge the two offenses
and correctly sentenced appellant separately for felonious assault and aggravated
robbery. R.C. 2941.25(B).
{¶55} The testimony of Darwish established that Williams asked for a cigar,
Darwish turned to retrieve the cigar, and upon turning back around, was immediately
shot by Williams. Following the shot, Williams then asked Darwish to give him the
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money. Darwish handed him money from the register, and Williams demanded more
money, which Darwish gave him. The shooting occurred before the request for money,
and there was no evidence that Darwish failed to comply with any orders made by
Williams.
{¶56} The testimony showed that the shooting was not necessary to carry out
the robbery. There is no evidence to support a conclusion that Williams needed to fire
the shot to gain compliance. Instead, he could have used the weapon as a threat to
complete the robbery.
{¶57} As the trial court noted:
[T]here was not a single act with a single state of mind
demonstrated by the actions of the defendant. The Defendant shot
the storekeeper before he demanded the money while he was
threatening the storekeeper with a firearm. The storekeeper gave
the defendant no reason to shoot him and was cooperating at all
times. The aggravated robbery could have been easily
accomplished by means of the threat with a deadly weapon. Not
only was the shooting of the storekeeper unnecessary to
accomplish the robbery, it demonstrated malice separate from the
theft with a deadly weapon, to harm with a deadly weapon. The
bottom line is that there were two (2) acts committed with two
different states of mind * * *.
{¶58} Shooting the victim resulted in serious and significant harm. Threatening
the victim would not have had nearly the same impact. Accepting the position posed by
appellant would result in no separate consequence for shooting the victim, as opposed
to just threatening and robbing him.
{¶59} Several districts have held that using greater force than necessary to
complete an aggravated robbery also indicates a separate animus. See State v.
Shields, 1st Dist. Hamilton No. C-100362, 2011-Ohio-1912, ¶19 (by physically attacking
the victim, the defendant “subjected the [victim] to a substantially graver harm than if he
17
had merely displayed, brandished, indicated his possession of, or threatened to use” the
weapon in the robbery, which constituted a separate crime); State v. Ruby, 6th Dist.
Sandusky No. S-10-028, 2011-Ohio-4864, ¶61 (a separate animus existed as to the
assault, since it was unnecessary to commit the theft offense and to establish physical
control over the victims); State v. Diggle, 3rd Dist. Auglaize No. 2-11-19, 2012-Ohio-
1583, ¶18 (“a defendant’s excessive use of force is an indication of a separate
animus”). Similarly, if one offense is complete before the other begins, the offenses are
considered separately for sentencing. See State v. Dewitt, 2d Dist. Montgomery No.
24437, 2012-Ohio-635, ¶33.
{¶60} The shooting constituted a greater use of force than necessary to
accomplish the robbery. As the assault did not further or aid in the commission of the
robbery, it was a separate act with a separate animus. See Shields, supra, at ¶19 (“this
assault was so unnecessary for the robbery itself that it demonstrated a significance
independent of that robbery”). Furthermore, the felonious assault was completed the
moment the gun was fired. As this occurred before any demand for money, the
felonious assault was complete before the robbery began.
{¶61} Williams cites State v. Darnell, 5th Dist. Delaware No. 10 CAA 10 0083,
2011-Ohio-3647, in support of his claim that the two offenses were committed with the
same animus. In Darnell, the court held that the defendant caused “harm to the victim
with the butcher knife while demanding money” and that the assault and robbery were
committed with a single animus. That case is distinguishable, insomuch as the victim
could not recall exactly when the assault occurred, and the court noted the assault took
place “while [the defendant was] demanding money.” In the present matter, it is clear
that the shooting occurred prior to the act of robbery.
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{¶62} The third assignment of error is without merit.
{¶63} For the foregoing reasons, the judgment of the Trumbull County Court of
Common Pleas is affirmed.
DIANE V. GRENDELL, J., concurs in part and concurs in judgment only in part, with a
Concurring Opinion;
COLLEEN MARY O’TOOLE, J., concurs in part and dissents in part, with a
Concurring/Dissenting Opinion.
____________________
DIANE V. GRENDELL, J., concurs in part and concurs in judgment only in part, with a
Concurring Opinion.
{¶64} I concur in the judgment and opinion of this court with respect to the
second and third assignments of error.
{¶65} With respect to the first assignment of error, however, I concur in
judgment only. Under this assignment, the majority holds that, although Williams was
entitled to a reasonable expectation of privacy in the police interview room, the
admission of his statements made during a conversation with his mother was harmless
error and reversal is not warranted. While I agree that reversal is improper, this
conclusion is due to the fact that Williams did not have a reasonable expectation of
privacy and the statements he made during the conversation were correctly admitted by
the trial court.
{¶66} As noted by the majority, the greater weight of the authority on this issue
holds that a defendant does not have a reasonable expectation of privacy in police
stations and interrogation rooms. See, e.g., State v. Strohl, 587 N.W.2d 675, 682
(Neb.1999); Belmer v. Virginia, 553 S.E.2d 123, 128 (Va.App.2001). Many cases reach
19
this conclusion, while considering the nature of police interrogation rooms. For
example, in Mai v. Horel, N.D.Cal. No. C 05-5272 MMC, 2009 U.S. Dist. Lexis 19322
(Feb. 26, 2009), the court held that, similar to a jail, an individual in a police
interrogation room has no reasonable expectation of privacy, since, like a jail, the room
“shares none of the attributes of privacy of a home, an automobile, an office, or a hotel
room.” Id. at 7. See Michigan v. Moy, Mich.App. No. 277548, 2008 Mich. App. LEXIS
2182, 4-5 (Nov. 13, 2008) (“[w]e do not believe that society is prepared to accept as
reasonable defendant’s subjective belief that he could sit in a police station interview
room and utter statements without the possibility of being overheard by the police, at
least in the absence of any evidence of police conduct intended to give defendant the
impression that the room would be private”); Belmer at 128-129 (the police station’s
interview room is “a room designed for the disclosure, not the hiding, of information”).
{¶67} As the State emphasizes, this case is similar to those involving the
recording of conversations in police cars, where it is well-established that a detainee
has no reasonable expectation of privacy under the Fourth Amendment. Although this
position is rejected by the majority, it is a valid comparison, since, in both cases, a
defendant is in an area controlled by police that is commonly known to utilize equipment
to record or monitor an individual’s activity and statements. See Belmer at 128, citing
United States v. Clark, 22 F.3d 799, 801-802 (8th Cir.1994) (comparing the recording of
conversations in a police car to recording in a police interview room).
{¶68} The foregoing case law warrants a conclusion that there can be no
expectation of privacy in a police interview or interrogation room. A defendant who is in
such a room is aware that he is subject to police monitoring and is generally present to
give a statement or be interviewed. That police would make a record of conversations
20
held in such a room, a place where police attempt to discover the details of a crime,
should not be surprising or unexpected.
{¶69} Such a conclusion is also warranted under the specific facts of this case.
Williams was taken into several different secured areas of the police station which could
not be accessed by the general public, including the interview room. This is the type of
area that would be subject to greater security and more surveillance, as discussed
above. Although there was no visible indication that Williams was being watched, he
should have expected that cameras or other recording devices were present. Williams
also should have known that he lacked privacy based on the fact that he had turned
himself in on an arrest warrant. Detective Mackey testified that Williams was not free to
leave the police station, due to the warrant, Williams had turned himself in, he was in
custody, and was fully aware of these facts. Williams’ statements were subject to
scrutiny and he was not justified in expecting otherwise.
{¶70} Further, Williams never questioned whether he was being recorded or
requested any privacy whatsoever. Williams was not given a false expectation of
privacy or told by police that they would not be listening or that he and his mother were
free to talk by themselves. Compare Colorado v. A.W., 982 P.2d 842, 848-849
(Colo.1999) (the defendant had a reasonable expectation of privacy when he received
assurances from police that they would not be listening in on his conversation with his
father). There was no evidence to justify a finding that Williams had a subjective
expectation of privacy. See Ahmad A. v. Superior Court, 215 Cal.App.3d 528, 535, 263
Cal.Rptr. 747 (1989) (finding no expectation of privacy when the record was lacking
evidence as to the defendant’s subjective belief).
21
{¶71} While the majority cites several cases and distinguishes them by noting
that a two-way mirror existed in those cases, unlike the present matter, it must be
emphasized that many courts have held that there is no expectation of privacy in
general in interrogation rooms, due to the fact that they are located in a police station,
not based on the room’s physical characteristics. The existence of a two-way mirror, or
a lack of one, does not change this general principle or negate the fact that there was
limited evidence to support a determination that Williams believed his conversation was
private. See State v. Owens, 2002 SD 42, 643 N.W.2d 735, ¶ 72 (the defendant “had
no objective or subjective expectation of privacy in the interrogation room of a police
station”); Belmer, 553 S.E.2d at 129 (courts generally find no reasonable expectation of
privacy “for overheard or monitored conversations in police cars, police interview rooms,
or in prisons”) (citation omitted). Although the majority holds that the hidden nature of
the recording devices created an expectation of privacy, this is not consistent with the
foregoing law and the concept that a police station is not a place where individuals have
an objective, reasonable expectation of privacy.
{¶72} For the foregoing reasons, I concur in judgment only as to the first
assignment of error, since Williams did not have a subjective or objective expectation of
privacy in the police interrogation room. I concur in the remaining assignments of error.
____________________
COLLEEN MARY O’TOOLE, J., concurs in part and dissents in part, with a
Concurring/Dissenting Opinion.
{¶73} I concur with the lead opinion that appellant’s first and second
assignments of error should be affirmed. However, I dissent with respect to appellant’s
third assignment of error.
22
{¶74} Regarding appellant’s first assignment, I agree with the lead opinion that
one may have a legitimate expectation of privacy in a police interview or interrogation
room, and that appellant in this case in fact did. Although the statements at issue
between appellant and his mother when they were alone in the room should have been
suppressed, the error, however, was harmless because appellant was not prejudiced by
its admission.
{¶75} Detective Mackey testified at the suppression hearing that the
interrogation rooms at the WPD are “monitored for safety purposes.” However, the
record establishes that not only are the rooms monitored, they are recorded. It is
troubling that police interrogation rooms which are supposed to be “monitored for safety
purposes,” are in fact recording private conversations through means of hidden
cameras, contained inside thermostats and not visible to the naked eye.
{¶76} The record from the suppression hearing further establishes that
appellant, who turned himself in pursuant to an arrest warrant, requested that his
mother be present during the interview. Thus, Detective Mackey escorted appellant and
his mother through a secured area of the WPD and into interview room No. 2. There is
a presumption of privacy in that interrogation room because it contains no two-way
mirror, no window, and no visible camera. That interrogation room also contains a door,
which Detective Mackey closed when he left appellant alone in the room with his
mother. No signs were posted in that room, or anywhere else at the station, indicating
that a recording was taking place. Neither appellant nor his mother gave their
permission to be recorded. Under these facts, appellant had a reasonable and
justifiable expectation of privacy which is protected by the Fourth Amendment. See
State v. Buzzard, 112 Ohio St.3d 451, 2007-Ohio-373, ¶14.
23
{¶77} However, appellant’s limited commentary with his mother did not change
once he was Mirandized and questioned by Detective Mackey. Appellant admitted to
his mother that he was at the North End Market on the day of the incident but claimed
he was innocent. After being Mirandized, appellant also told Detective Mackey that he
was at the North End Market on the day of the incident but claimed he was innocent.
{¶78} Thus, based on the facts presented, I agree with the lead opinion that the
failure of the trial court to suppress the statements made between appellant and his
mother in the interrogation room constitutes harmless error as appellant suffered no
prejudice as a result of its admission.
{¶79} Regarding appellant’s second assignment, I concur with the lead opinion’s
finding that appellant’s convictions were not against the manifest weight of the
evidence.
{¶80} With regard to the manifest weight of the evidence, the jury is in the best
position to assess the credibility of witnesses. State v. DeHass, 10 Ohio St.2d 230,
paragraph one of the syllabus (1967).
{¶81} Here, the jury chose to believe the state’s witnesses who collectively
established the following: the North End Market was the subject of a shooting and
robbery on April 12, 2011 at approximately 11:30 a.m.; the store owner, Mr. Darwish,
was working at the time of the incident; a six-foot tall, 180 pound African-American man
with a tattoo on his neck brought a bag of chips and a bottle of Guzzler to the counter
and asked for a Black and Mild cigar; Mr. Darwish turned around to get the cigar and
placed it on the counter; without warning, the man shot Mr. Darwish in the left hand and
stomach; the shooter ordered Mr. Darwish to give him money; the assailant then ran
from the store with cash in hand; detectives secured the crime scene and bagged the
24
chips, Guzzler, and Black and Mild cigar for evidence; the bullet shattered Mr. Darwish’s
hand, tore through his stomach, and he was hospitalized for a week; detectives later
received a CODIS hit from BCI after the outside of the Guzzler bottle was swabbed and
touch DNA was successfully recovered; the major contributor to the DNA sample was
Mr. Darwish and the minor contributor matched appellant; appellant could not be
excluded as a source of the sample by a ratio of one in 5,807 unrelated individuals;
appellant, a six-foot tall, 180 pound African-American man with a tattoo on his neck,
surrendered to authorities; appellant admitted that he was at the North End Market on
the day of the incident and purchased chips, a Guzzler, and a Black and Mild cigar.
{¶82} Thus, appellant matched the physical description of the perpetrator, left
his DNA at the crime scene, admitted to being at the crime scene on the day of the
incident, and admitted to purchasing the same exact items collected by the assailant
seconds before the shooting and robbery. Therefore, based on the evidence presented,
the jury did not clearly lose its way in finding appellant guilty of felonious assault and
aggravated robbery.
{¶83} Regarding appellant’s third assignment, I dissent. With respect to the
aggravated robbery and felonious assault charges, the lead opinion contends that
merger was not warranted and no error was made by the trial court because a separate
animus existed for each of the crimes. Based on the facts presented, I disagree.
{¶84} This writer wishes to expand on the lead opinion’s citations regarding
allied offenses and the judicial doctrine of merger by providing the following
background:
{¶85} Our review of an allied offenses question is de novo. State v. Williams,
134 Ohio St.3d 482, 2012-Ohio-5699, ¶12. “R.C. 2941.25 ‘codifies the protections of
25
the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution
and Section 10, Article I of the Ohio Constitution, which prohibits multiple punishments
for the same offense.’ State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, * * * ¶23.
At the heart of R.C. 2941.25 is the judicial doctrine of merger; merger is ‘the penal
philosophy that a major crime often includes as inherent therein the component
elements of other crimes and that these component elements, in legal effect, are
merged in the major crime.’ State v. Botta, 27 Ohio St.2d 196, 201 * * * (1971).”
(Parallel citations omitted.) Williams at ¶13.
{¶86} R.C. 2941.25 states:
{¶87} “(A) Where 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.
{¶88} “(B) 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.”
{¶89} “R.C. 2941.25(A) clearly provides that there may be only one conviction
for allied offenses of similar import. Because a defendant may be convicted of only one
offense for such conduct, the defendant may be sentenced for only one offense. * * *
[A]llied offenses of similar import are to be merged at sentencing. See State v. Brown,
119 Ohio St.3d 447, 2008-Ohio-4569, * * * ¶43; State v. McGuire (1997), 80 Ohio St.3d
390, 399 * * *. Thus, a trial court is prohibited from imposing individual sentences for
counts that constitute allied offenses of similar import. * * * Both R.C. 2941.25 and the
26
Double Jeopardy Clause prohibit multiple convictions for the same conduct. For this
reason, a trial court is required to merge allied offenses of similar import at sentencing.”
Underwood, supra, at ¶26-27. (Emphasis sic.) (Parallel citations omitted.)
{¶90} “Under Crim.R. 52(B), ‘(p)lain errors or defects affecting substantial rights
may be noticed although they were not brought to the attention of the court.’ * * *
[I]mposition of multiple sentences for allied offenses of similar import is plain error.
State v. Yarbrough, 104 Ohio St.3d 1, 2004-Ohio-6087 * * * ¶96-102.” Underwood,
supra, at ¶31. (Parallel citation omitted.)
{¶91} By way of background, the method employed by courts in determining
whether two crimes constitute allied offenses of similar import has evolved. In State v.
Rance, 85 Ohio St.3d 632 (1999), the Supreme Court of Ohio held that “[u]nder an R.C.
2941.25(A) analysis, the statutorily defined elements of offenses that are claimed to be
of similar import are compared in the abstract.” Id., paragraph one of the syllabus.
(Emphasis sic.) Since its release, Rance has gone through various modifications and
revisions. See State v. Cabrales, 118 Ohio St.3d 54, 2008-Ohio-1625; State v. Brown,
119 Ohio St.3d 447, 2008-Ohio-4569; State v. Winn, 121 Ohio St.3d 413, 2009-Ohio-
1059.
{¶92} The Supreme Court of Ohio revisited the allied offenses analysis again in
2010 and overruled Rance in State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314.
Under the new analysis, which this court later relied upon and embraced in State v.
May, 11th Dist. No. 2010-L-131, 2011-Ohio-5233, “[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.” Johnson, at the syllabus. The Johnson
court provided the new analysis as follows:
27
{¶93} “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.
{¶94} “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.’ * * *.
{¶95} “If the answer to both questions is yes, then the offenses are allied
offenses of similar import and will be merged.
{¶96} “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 [a] separate animus for each offense, then,
according to R.C. 2941.25(B), the offenses will not merge.” Id. at ¶48-51. (Citations
omitted.) (Emphasis sic.)
{¶97} This court went on to state in May, supra, at ¶50-51:
{¶98} “‘In departing from the former test, the court developed a new, more
context-based test for analyzing whether two offenses are allied thereby necessitating a
merger. In doing so, the court focused upon the unambiguous language of R.C.
2941.25, requiring the allied-offense analysis to center upon the defendant’s conduct,
rather than the elements of the crimes which are charged as a result of the defendant’s
conduct.’” [State v.] Miller[, 11th Dist. No. 2009-P-0090, 2011-Ohio-1161,] at ¶47, citing
Johnson at ¶48-52.
28
{¶99} “‘The (Johnson) court acknowledged the results of the above analysis will
vary on a case-by-case basis. Hence, while two crimes in one case may merge, the
same crimes in another may not. Given the statutory language, however, this is not a
problem. The court observed that inconsistencies in outcome are both necessary and
permissible “* * * given that the statute instructs courts to examine a defendant’s
conduct - an inherently subjective determination.”’ Miller at ¶52, quoting Johnson at
¶52.
{¶100} In this case, the issue is whether aggravated robbery and felonious
assault are allied offenses of similar import subject to merger for purposes of
sentencing, which we review de novo. Williams, supra, at ¶12.
{¶101} Aggravated robbery, under R.C. 2911.01(A)(1), states in part: “[n]o
person, in attempting or committing a theft offense, as defined in section 2913.01 of the
Revised Code, or in fleeing immediately after the attempt or offense, shall * * * [h]ave a
deadly weapon on or about the offender’s person or under the offender’s control and
either display the weapon, brandish it, indicate that the offender possesses it, or use
it[.]”
{¶102} Felonious assault, under R.C. 2903.11(A)(2), provides in part: “[n]o person
shall knowingly * * * [c]ause or attempt to cause physical harm to another * * * by means
of a deadly weapon or dangerous ordnance.”
{¶103} Applying Johnson, aggravated robbery and felonious assault are allied
offenses of similar import, as it is possible to commit one offense and commit the other
with the same conduct. See State v. Sanders, 8th Dist. No. 97383, 2012-Ohio-3566,
¶23. Again, under R.C. 2941.25, Ohio’s multiple-count statute, if a defendant’s conduct
results in allied offenses of similar import, the defendant may ordinarily be convicted of
29
only one of the offenses. R.C. 2941.25(A). However, if the defendant commits each
offense separately or with a separate animus, then convictions may be entered for both
offenses. R.C. 2941.25(B).
{¶104} Thus, although aggravated robbery and felonious assault are allied
offenses, the specific facts of this case must be reviewed to determine whether
appellant committed the charged offenses separately or with a separate animus so as to
permit multiple punishments. Although the lead opinion finds that the facts do not
support merger, I find the opposite.
{¶105} In this case, the record establishes that appellant evidenced the same
animus in committing these offenses. Looking to the conduct of the accused, this was a
single act with a single state of mind. The test under Johnson is not whether the
elements line up, which is the essence of the Rance analysis. Rather, the test is
whether the crimes were committed by the same conduct and with the same animus. In
this case, they were.
{¶106} At the sentencing hearing, appellant’s counsel argued that the aggravated
robbery and felonious assault charges should merge for purposes of sentencing.
Following a lengthy discussion, the trial court determined that the offenses would not
merge because each was committed with a separate animus. Based on the facts
presented, I agree with defense counsel and disagree with the trial court.
{¶107} Appellant cites to State v. Darnell, 5th Dist. No. 10 CAA 10 0083, 2011-
Ohio-3647, for the proposition that aggravated robbery and felonious assault should
merge. Although the facts in that case are not identical to the facts in our case, they are
similar. In Darnell, the Fifth District found the offenses were committed with the same
30
animus because the defendant approached the victim and demanded money while
brandishing a butcher knife. Id. at ¶84.
{¶108} In this case, the record establishes that appellant evidenced the same
animus in committing these offenses. Looking to the conduct of the accused, this was a
single act with a single state of mind. Appellant, posing as a customer, shot Mr.
Darwish and demanded money from him. Appellant committed the felonious assault to
implement the aggravated robbery. Stated differently, the shooting was part of
appellant’s efforts to obtain the money.
{¶109} The fact that Mr. Darwish was shot just prior to the demand for money is
irrelevant, as the two crimes were not committed with a separate animus. There is
nothing in the record before us that establishes the shooting was anything other than
part and parcel of the robbery. There is no evidence of any occurrence or problem
between appellant and Mr. Darwish before the money demand was made. Rather, the
record reveals that appellant used the gun and shot Mr. Darwish as part of his efforts to
obtain the money.
{¶110} “‘[T]he purpose of R.C. 2941.25 is to prevent shotgun convictions, that is,
multiple findings of guilt and corresponding punishments heaped on a defendant for
closely related offenses arising from the same occurrence.’” State v. Helms, 7th Dist.
No. 08 MA 199, 2012-Ohio-1147, ¶68, quoting Johnson, supra, at ¶43, citing Maumee
v. Geiger, 45 Ohio St.2d 238, 242 (1976).
{¶111} Based on the facts of this case, this writer believes the offenses of
aggravated robbery and felonious assault are allied offenses of similar import, were
committed with the same animus, and should have merged. Therefore, I believe the
trial court erred in stacking those offenses along with the firearm specifications.
31
{¶112} For the foregoing reasons, I agree with the lead opinion that appellant’s
first and second assignments of error should be affirmed. However, unlike the lead
opinion, I believe appellant’s third assignment of error should be reversed and
remanded. Thus, I concur in part and dissent in part.
32