State v. Randle , 104 N.E.3d 202 ( 2018 )

[Cite as State v. Randle, 2018-Ohio-207.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
MARION COUNTY
STATE OF OHIO,
CASE NO. 9-17-08
PLAINTIFF-APPELLEE,
v.
KOREY RANDLE, OPINION
DEFENDANT-APPELLANT.
STATE OF OHIO,
CASE NO. 9-17-09
PLAINTIFF-APPELLEE,
v.
KOREY RANDLE, OPINION
DEFENDANT-APPELLANT.
Appeal from Marion County Common Pleas Court
Trial Court No. 14-CR-0444 and 16-CR-0596
Judgments Affirmed
Date of Decision: January 22, 2018
APPEARANCES:
Nathan D. Witkin for Appellant
Kevin P. Collins for Appellee
Case Nos 9-17-08 and 9-17-09
WILLAMOWSKI, P.J.
{¶1} Defendant-appellant Korey T. Randle (“Randle”) appeals the
judgments of the Marion County Court of Common Pleas, alleging (1) that the
offenses of aggravated robbery and kidnapping should have merged at sentencing;
(2) that the State violated ethical duties in the prosecution of this case; (3) that the
trial court erred by overruling his motion for a mistrial after the prosecution
requested a recess to “bolster” a State witness’s testimony; and (4) that the jury
returned a verdict against the manifest weight of the evidence. For the reasons set
forth below, the judgments of the lower court are affirmed.
Facts and Procedural History
{¶2} At 7:00 in the morning on July 22, 2017, Matthew Thomas (“Thomas”)
left work and returned to his home on Cherry Street in Marion, Ohio. Trial Tr. 315.
At roughly 10:00 that morning, Randle came to Thomas’s house for a visit. Id. at
317. According to Thomas, he and Randle, at some point that morning, decided to
commit a robbery. Id. at 322. They got in Thomas’s car—which was a maroon
Chrysler PT Cruiser with flames decaled on the front—and drove to Randle’s house.
Id. at 322, 354. Thomas testified that they picked up jumpsuits at Randle’s house
and then drove to Al’s Country Market. Id. at 322, 324.
{¶3} Once they arrived at Al’s Country Market, Thomas parked in the lot in
front of the store. Id. at 324. Thomas testified that he got out of the car and walked
into the front door of the store while Randle walked around the back of the store.
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Id. at 325. When Thomas entered the store, no one was behind the counter. Id. at
148, 326-327. Thomas testified that he then saw Randle walk around the corner
with an employee of Al’s Country Market—who was Paulette Bullion
(“Bullion”)—walking in front of him at knife point. Id. at 326-327.
{¶4} Thomas testified that he and Randle yelled orders to Bullion. Id. at 327.
Bullion testified that, at this point, the two men ordered her to put the money from
the register into a bag. Id. at 174. Once Bullion had emptied the contents of the
cash register and the lottery box into a plastic bag, Thomas told Bullion to go to the
back of the store. Id. at 349. Randle, holding his knife, walked Bullion to the back
of the store where he directed Bullion to go into a closet. Id. at 352. Thomas and
Randle then pushed a table and chair in front of the door. Id. at 352. After the table
was secured in front of the door, Thomas grabbed Bullion’s purse off of the table,
and Randle and Thomas exited the store. Id. at 352-353. Shortly after Thomas and
Randle left, a customer entered the store. Id. at 152. Bullion, from inside the closet,
called out to the customer, who let Bullion out of the closet. Id. Bullion then called
the police. Id.
{¶5} Thomas testified that he and Randle then drove out of the parking lot of
Al’s Country Market and went to the house of Iris Rogers (“Rogers”), who was
Randle’s cousin. Id. at 327, 426. At Rogers’s house, Randle gave Thomas his half
of the money that they had stolen from Al’s Country Market. Id. at 332. Thomas
stated that he spent this money on cocaine at Rogers’s house. Id. at 332. From this
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location, Thomas began driving back to his house on Cherry Street. Id. at 334. Law
enforcement had, by this time, identified the maroon PT Cruiser that Thomas drove
to Al’s Country Market as belonging to Thomas and were searching for Thomas.
Id. When Thomas drove onto Cherry Street, the police saw his vehicle and
apprehended him. Id. Thomas did not cooperate with the sheriff’s office in this
investigation. Id. at 338. He did cooperate with the prosecutor’s office after a plea
agreement had been negotiated. Id. at 378. At this point, Thomas implicated Randle
in the offenses that were committed in Al’s Country Market. Id.
{¶6} Randle was indicted on November 17, 2016. Doc. 1. Randle’s trial
began on February 2, 2017. Trial Tr. 1. At trial, Bullion testified about the incident.
Id. at 147. On cross examination, she testified about the statement that she gave to
the police. Id. at 178, 180. The Defense questioned her about a statement she made
that indicated that one of the perpetrators sounded as though they had a foreign
accent. Id. at 180. However, at trial, she explained that the accent sounded like an
attempt by the perpetrator to disguise his voice. Id. She also stated that the
perpetrator sounded clearer as he continued to speak. Id.
{¶7} At the beginning of Thomas’s direct examination, the prosecutor asked
Thomas whether he committed the robbery with another person. Id. at 310. In
response, Thomas said, “I need a minute.” Id. At this point, the prosecutor asked
the trial judge for a brief recess and said, “I don’t want to coach him.” Id. The trial
court ordered a recess of ten minutes over the objection of the Defense. Id. at 311.
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After the ten-minute recess, the Defense made a motion for a mistrial, arguing that
the jury may have been compromised by this “prejudicial occurrence” and that
Thomas should have been prepared to testify prior to coming to court on the day of
trial. Id. at 311. In response the prosecutor said,
Your Honor, I don’t think it’s unusual for an accomplice witness
to get cold feet. He’s worried about his health and safety. He’s
worried about the health and safety of his family. I just reminded
him that—what he’s supposed to be doing here today. He needed
to gird his loins for a moment. He’s prepared to testify. I don’t
think a mistrial is necessary. I think that would be the strictest
sanction. I don’t know that the jury has been compromised at all.
Id. at 312. The trial court then overruled the Defense’s motion for a mistrial. Id.
{¶8} Thomas then testified as to why he was “reluctant to testify.” Id. at 314.
Thomas explained that, while he was in the county jail, another inmate was attacked.
Id. Thomas identified the person who had perpetrated this attack. Id. at 314-315.
Ten months after Thomas testified in that case, he was called a “snitch” by another
inmate who struck him in the face with “a lock in a sock.” Id. at 315-316. The force
of this blow caused scarring to his face and broke his jaw. Id. at 315. As the result
of this prior incident, Thomas expressed concern at trial that he would be labeled a
“snitch” and would be attacked again. Id. at 316.
{¶9} On cross examination, the Defense discussed several false statements
that Thomas had made to the grand jury. Id. at 398-407. Thomas admitted that he
lied to the grand jury about his involvement in these crimes. Id. at 401. On redirect,
he testified, however, that he did not lie to the grand jury about Randle’s
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involvement in these crimes. Id. at 410, 424. He also pointed to the fact that his
statements about Randle’s involvement before the grand jury were consistent with
his statements before the trial court. Id. The Defense also questioned Thomas about
his three prior convictions, several false statements he made to the police, his
reluctance to testify at trial about Randle’s involvement, and the terms of his plea
agreement. Id. 385, 386, 394, 409-410.
{¶10} The State also called several witnesses who connected Randle and
Thomas to each other on the day of the incident. Kyle J. Hopkins was one of
Thomas’s neighbors and testified that he saw Randle and Thomas together on the
morning of July 22, 2016. Id. at 445. Angelo Flores then testified that he saw
Randle on Cherry Street shortly after Thomas was arrested and that he gave Randle
a ride back to Randle’s house. Id. at 439, 442. Rogers testified that Randle and
Thomas were at her house on July 22, 2016. Id. at 427. The prosecution also
introduced a recording of a phone call that Thomas made from jail in which he
speaks of being with Randle on July 22, 2016. Id. at 361. The prosecution also
called Peggy Romine (“Romine”), who works at the County Corrections Center, to
authenticate documents that showed Randle deposited funds into Thomas’s
commissary account while Thomas was in jail. Id. at 272-273.
{¶11} On February 6, 2017, the jury found Randle guilty of aggravated
robbery in violation of R.C. 2911.01(A)(1) and kidnapping in violation of R.C.
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2905.01(A)(2). Doc. 98, 99. Randle filed his timely notice of appeal on March 31,
2017. Doc. 127. On appeal, Randle raises the following four assignments of error:
First Assignment of Error
The offenses of aggravated robbery and kidnapping should have
merged in this matter.
Second Assignment of Error
In this matter, the State violated an ethical duty to reveal that the
indictment in this matter was based on perjured testimony,
demonstrate [sic] that the perjury had been remedied before
proceeding to trial, and reveal [sic] any promises of immunity
regarding such perjury.
Third Assignment of Error
The trial court improperly overruled appellant’s motion for a
mistrial regarding the State’s request for a recess to bolster their
witness’s testimony.
Fourth Assignment of Error
The jury’s decision to convict the appellant was against the
manifest weight of the evidence.
We will consider these assignments of error in the order in which they were
presented in the appellant’s brief.
First Assignment of Error
{¶12} In his first assignment of error, Randle argues that the offenses of
kidnapping and aggravated robbery should have merged upon sentencing because
these acts were committed together and there was “not * * * a point in which one
offense ends and the other offense begins.” Appellant’s Brief, 4. Specifically, the
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Defense argues that the robbery began when the appellant brandished a weapon in
front of the victim and ended when the appellant took the victim’s purse and left the
store. The Defense contends that the appellant ordered the victim into a locked
closet in between the two events that constituted the beginning and end of the
robbery. Thus, he claims that these two offenses should merge because the robbery
had not ended by the time he committed the crime of kidnapping.
Legal Standard
{¶13} “Both R.C. 2941.25 and the Double Jeopardy Clause prohibit multiple
convictions for the same conduct.” State v. Sergent, 148 Ohio St. 3d 94, 2016-Ohio-
2696, 69 N.E.3d 627, ¶ 28, quoting State v. Underwood, 124 Ohio St. 3d 365, 2010-
Ohio-1, 922 N.E.2d 923, ¶ 27. R.C. 2941.25 reads:
(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.
(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.
R.C. 2941.25(A), (B).
{¶14} Under Ohio law, if a defendant is charged with allied offenses—which
are multiple crimes committed with the same conduct—the “trial court is required
to merge [these offenses] at sentencing.” Sergent at ¶ 28, quoting Underwood at ¶
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27. To determine “whether two offenses are…subject to merger under R.C.
2941.25, the conduct of the accused must be considered.” State v. Ruff, 143 Ohio
St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, ¶ 16, quoting State v. Johnson, 128 Ohio
St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061, syllabus.
However, multiple convictions are permitted ‘if we answer
affirmatively to just one of the following three questions: (1) Were
the offenses dissimilar in import or significance? (2) Were they
committed separate? And (3) Were they committed with a
separate animus or motivation?’
(Citations omitted.) State v. Howton, 3d Dist. Allen No. 1-16-35, 2017-Ohio-4349,
¶ 14, quoting State v. Bailey, 1st Dist. Hamilton No. C-140129, 2015-Ohio-2997,
¶76, citing Ruff at paragraph three of the syllabus.
{¶15} “If the offenses are committed with the same conduct but with a
separate animus, multiple convictions can be sustained.” State v. Brentlinger, 2017-
Ohio-2588, --- N.E.3d ---, ¶ 28 (3d Dist.), citing State v. Hadding, 3d Dist. Auglaize
No. 2-12-14, 2013-Ohio-643, ¶ 14. “The Supreme Court of Ohio has defined
animus as “purpose, or more properly, immediate motive.” Brentlinger at ¶ 28,
quoting State v. Logan, 60 Ohio St. 2d 126, 131, 397 N.E.2d 1345 (1979). “Whether
offenses are allied offenses of similar import is a question of law that this court
reviews de novo.” State v. Potts, 3d Dist. Hancock No. 5-16-03, 2016-Ohio-5555,
¶ 93, citing State v. Stall, 3d Dist. Crawford No. 3-10-12, 2011-Ohio-5733, ¶ 36.
Legal Analysis
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{¶16} In this case, the offenses of robbery and kidnapping were each
committed with a separate animus.1 The crime of robbery often involves the crime
of kidnapping. State v. Jenkins, 15 Ohio St. 3d 164, 198, 473 N.E.2d 264 (1984), fn.
29. As Randle was leading Bullion towards the front of the store at knife point, he
was kidnapping her for the purpose of facilitating a robbery. At this point, the two
offenses were committed pursuant to the same animus: Randle’s intent to perpetrate
a robbery motivated him to commit the offense of kidnapping. However, after
Bullion had emptied the contents of the cash register and the lottery box into the
bag, Randle ordered Bullion into the back room where he locked her in a closet.
{¶17} While walking Bullion to the front of the store at knife point was
incidental to the crime of robbery, walking her to the back of the store at knife point
and then locking her in a closet was not a part of facilitating the robbery. The
offense that was committed when Randle locked Bullion in a closet was not
necessary to further the robbery and was not incidental to the commission of the
robbery. Rather, this separate series of actions was undertaken for the purpose of
facilitating Randle’s escape. His intent to commit a robbery was no longer what
animated his actions. At the time the robbery was completed, his “immediate
1
Under Ruff, “offenses do not merge unless they involve (1) the ‘same conduct,’ (2) a ‘similar import,’ and
(3) a single ‘animus.’” Ruff at ¶ 38. Thus, the Defense’s argument fails if any one of these three factors is
absent in this case. Since we find that the facts of this case clearly demonstrate that the offense of kidnapping
was committed with a separate animus from the offense of robbery, we will limit our analysis to determining
whether these offenses had separate motivations, and we will not analyze the facts of this case to determine
whether the other two factors are present.
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motive” changed: he was now motivated by a desire to evade apprehension.
Locking Bullion in a closet prevented her from notifying the authorities and gave
him more time to escape. Since a different animus motivated each of these offenses,
the crime of kidnapping in violation of R.C. 2905.01(A)(2) was committed in
addition to the crime of robbery. These crimes are not, therefore, allied offenses
subject to merger. For these reasons, Randle’s first assignment of error is overruled.
Second Assignment of Error
{¶18} In his second assignment of error, Randle argues that the State violated
several ethical duties while prosecuting this case. First, the Defense alleges that
the State used testimony that contained perjury to secure an indictment against the
appellant. Second, the Defense claims that the State did not disclose the fact that
the grand jury heard testimony that contained perjury, which, according to the
Defense, was evidence that was favorable to the defendant under Brady v.
Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1972). Third, the
Defense suggests that the State may have granted immunity to one of the key
witnesses against Randle without disclosing this fact. We will address each of these
arguments in turn.
Legal Standard for the Perjury Issue
{¶19} R.C. 2921.11 defines the offense of perjury and reads, in its relevant
part, as follows:
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(A) No person, in any official proceeding, shall knowingly make a
false statement under oath or affirmation, or knowingly swear or
affirm the truth of a false statement previously made, when either
statement is material.
(B) A falsification is material, regardless of its admissibility in
evidence, if it can affect the course or outcome of the proceeding.
It is no defense to a charge under this section that the offender
mistakenly believed a falsification to be immaterial.
“Based upon the plain language of R.C. 2929.11(B), a false statement is material if
it can affect the outcome of a proceeding. R.C. 2929.11(B) does not require that the
outcome actually be affected.” (Emphasis sic.) State v. Douglas, 3d Dist. Marion
No. 9-05-24, 2005-Ohio-6304, ¶ 14.
Legal Analysis for the Perjury Issue
{¶20} Randle’s first argument alleges that the prosecution based its
indictment on perjured testimony from Thomas. While the Defense cross examined
Thomas, defense counsel introduced the false statements that Thomas made to the
grand jury. Further, Thomas admitted at trial that he had lied to the grand jury in
making these statements. However, these false statements did not constitute perjury
as these were not material statements. See State v. Widmer, 12th Dist. Warren No.
CA2012-02-008, 2013-Ohio-62, ¶ 41, quoting Monroe v. Smith, 197 F. Supp. 2d 753,
762 (E.D.Mich.2001) (holding “the fact ‘that a witness contradicts [himself] or
changes [his] story also does not establish perjury.’”). The grand jury was convened
to determine whether an indictment should be issued against Randle. Thus, in this
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context, a false statement would have had to have been able to affect the decision as
to whether an indictment should be issued against Randle in order to be material.
{¶21} The false statements that Thomas made did not address Randle’s
activities in the matter before the grand jury. Rather, the false statements that
Thomas made to the grand jury addressed his involvement in this crime and
marginalized his role in committing this offense. The statements that Thomas made
to the grand jury about Randle’s criminal activities were consistent with the
statements that he made about Randle at trial. In the absence of these false
statements, the indictment would not have been based on insufficient evidence. See
State v. Cruise, 4th Dist. Washington No. 85-CA-28, 1987 WL 7009, *4 (Feb. 24,
1987),2 citing 2 La Fave Criminal Procedure 312 Sec. 15. Since the grand jury was
considering whether to indict Randle, these particular false statements could not
have had an effect on the outcome of the proceeding because the false statements
did not address Randle’s activities. Compare State v. Wimbush, 5th Dist. Richland
No. 2005CA0024, 2005-Ohio-6436, ¶ 15. Thus, the prosecution did not violate an
ethical duty in this regard as alleged by Randle.
Legal Standard for the Brady Violation Issue
2
In Cruise, the Court held, “No Ohio cases have been cited and we are unaware of any which authorizes
dismissal of an indictment because perjured testimony was presented to the grand jury.” Cruise at *4.
Similarly, in this case, appellant does not cite any Ohio law. Rather, appellant argues that the indictment
should have been dismissed as this is the practice in federal court. Since we have determined that the
indictment was not based upon perjured testimony, we need not address the argument that this Court should
follow the practices of federal courts.
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{¶22} A Brady violation occurs “[w]hen the prosecution withholds material,
exculpatory evidence in a criminal proceeding * * *.” State v. Johnston, 39 Ohio
St.3d 48, 60, 529 N.E.2d 898 (1988). See Brady, supra, at 86-87. Specifically, “the
suppression by the prosecution of evidence favorable to an accused upon request
violates due process where the evidence is material either to guilt or to punishment,
irrespective of the good faith or bad faith of the prosecution.” Brady, supra, at 87.
[I]n determining whether the prosecution improperly suppressed
evidence favorable to an accused, such evidence shall be deemed
material “only if there is a reasonable probability that, had the
evidence been disclosed to the defense, the result of the proceeding
would have been different. A ‘reasonable probability’ is a
probability sufficient to undermine confidence in the outcome.”
Johnston at 61, quoting United States v. Bagley, 473 U.S. 667, 682, 105 S. Ct. 3375,
87 L. Ed. 2d 481 (1985). “The defendant has the burden to prove a Brady violation
rising to the level of a due-process violation.” State v. Pickens, 141 Ohio St. 3d 462,
2014-Ohio-5445, 25 N.E.3d 1023, ¶ 102.
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Legal Analysis for the Brady Violation Issue
{¶23} In his second argument under this assignment of error, Randle alleges
that the prosecution committed a Brady violation by failing to disclose the perjured
statements made by Thomas to the grand jury. The Defense, however, did not carry
the burden of establishing that a due process violation occurred because the Defense
cannot demonstrate that there is a reasonable probability that the outcome would
have been different had the Defense received these statements in a different manner.
See Johnston at 61.
{¶24} By the time of trial, the Defense had the false statements that Thomas
made to the grand jury in their possession and had time to review these statements
before Thomas testified. See State v. Iacona, 93 Ohio St. 3d 83, 100, 752 N.E.2d
937 (2001), citing State v. Wickline, 50 Ohio St. 3d 114, 116, 552 N.E.2d 913, 917
(1990). Further, the Defense was able to introduce these false statements on cross
examination while Thomas was testifying. Since the Defense had these statements
by the time of trial and introduced them on cross examination, Randle cannot
establish a due process violation in this case because the Defense did not show how
the manner in which the Defense received these statements would have affected the
outcome of the case.
Legal Standard for Alleged Promise of Immunity Issue
{¶25} “App.R. 9(A)(1) limits the record on appeal to ‘[t]he original papers
and exhibits thereto filed in the trial court, the transcript of the proceedings, if any,
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including exhibits, and a certified copy of the docket and journal entries prepared
by the clerk of the trial court * * *.’” State v. White, 3d Dist. Seneca No. 13-14-29,
2015-Ohio-817, ¶ 16, quoting App.R. 9(A)(1). See State v. Snyder, 3d Dist. Seneca
No. 13-12-38, 2013-Ohio-2046, ¶ 16. “Since a reviewing court can only reverse the
judgment of a trial court if it finds error in the proceedings of such court, it follows
that a reviewing court should be limited to what transpired in the trial court as
reflected by the record made of the proceedings.” State v. Ishmail, 54 Ohio St. 2d
402, 405-406, 377 N.E.2d 500, 502 (1978). “A reviewing court cannot add matter
to the record before it, which was not a part of the trial court’s proceedings, and then
decide the appeal on the basis of the new matter.” Id. at syllabus.
Legal Analysis for Alleged Promise of Immunity Issue
{¶26} In this argument, the Defense alleges that the prosecution may have
given Thomas a promise of immunity in exchange for his testimony at trial and
failed to disclose this alleged immunity agreement. However, no evidence in the
record suggests a promise of immunity was extended to Thomas. On direct appeal,
our review of the trial court’s determinations is limited to the contents of the record.
The Defense did not present any information at trial that would substantiate this
claim, making this argument purely speculative.
{¶27} Under this assignment of error, Randle advanced three arguments that
purportedly supported the assertion that the State violated various ethical duties in
this prosecution of this case. However, after examining these three arguments, we
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do not find evidence that the State violated its ethical duties as alleged by appellant.
For this reason, Randle’s second assignment of error is overruled.
Third Assignment of Error
{¶28} In his third assignment of error, Randle asserts that trial court erred by
failing to grant his motion for a mistrial after the State asked for a recess to speak
with one of its witnesses. Randle claims that the State requested this recess “for the
specific purpose of affecting [a] witness’s testimony.” Appellant’s Brief, 8. While
the State explicitly stated that it was not going to coach Thomas, Randle alleges that
the recess “seemed to be aimed at talking to the witness about how he should
testify.” Id. Randle contends that this practice violated his due process rights, his
right to a fair trial, and his right to confrontation.
Legal Standard
{¶29} “The grant or denial of a mistrial lies within the sound discretion of
the trial court. However, a trial court need not declare a mistrial unless ‘the ends of
justice so require and a fair trial is no longer possible.’” State v. Trimble, 122 Ohio
St.3d 297, 2009-Ohio-2961, 911 N.E.2d 242, ¶ 173, quoting State v. Franklin, 62
Ohio St. 3d 118, 127, 580 N.E.2d 1 (1991). Thus, a trial court’s decision to deny a
motion for a mistrial will not be reversed absent an abuse of discretion. State v.
Garner, 74 Ohio St. 3d 49, 59, 656 N.E.2d 623, 634 (1995). “The term ‘abuse of
discretion’ connotes more than an error of law or of judgment; it implies that the
court's attitude is unreasonable, arbitrary or unconscionable.” State v. Ortega, 3d
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Dist. Hancock No. 5-16-17, 2017-Ohio-239, ¶ 10, quoting State v. Adams, 62 Ohio
St.2d 151, 157, 404 N.E.2d 144, 149 (1980). “When applying the abuse of
discretion standard, a reviewing court is not free to merely substitute its judgment
for that of the trial court.” State v. Thompson, 2017-Ohio-792, 85 N.E.3d 1108, ¶
11, quoting In re Jane Doe 1, 57 Ohio St. 3d 135, 138, 566 N.E.2d 1181 (1991).
Legal Analysis
{¶30} In this argument, the appellant asserts that the trial court should have
declared a mistrial after the prosecution requested a recess to speak with Thomas,
alleging that the State coached Thomas during the recess. First, we note that the
trial was an adversarial proceeding in “which the defense counsel was free to
explore upon examination any coaching or preparation of the [S]tate’s witnesses.”
State v. King, 3d Dist. Seneca No. 13-01-20, 2002 WL 479159, *3 (March 29, 2002).
The opposing counsel in the adversary system is not without
weapons to cope with ‘coached’ witnesses. A prosecutor may
cross-examine a defendant as to the extent of any ‘coaching’
during a recess, subject, of course, to the control of the court.
Skillful cross-examination could develop a record which the
prosecutor in closing argument might well exploit by raising
questions as to the defendant’s credibility, if it had developed that
defense counsel had in fact coached the witness as to how to
respond on the remaining direct examination and on cross-
examination.
(Emphasis added.) King at *3-4, quoting Geders v. United States, 425 U.S. 80, 89-
90, 96 S. Ct. 1330, 47 L. Ed. 2d 592 (1976).
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{¶31} Second, the record does not suggest that Thomas was coached during
the recess. See State v. Patterson, 5th Dist. Stark No. 2012CA00098, 2013-Ohio-
1647, ¶ 51-52. On cross examination, the Defense questioned Thomas about the
terms of his plea agreement and his reluctance to testify. Trial Tr. 409-410. In this
process, the Defense questioned Thomas about whether his plea agreement was
discussed during the recess, but the Defense did not ask questions inquiring into
whether Thomas was coached during the recess. Id. For this reason, there is no
evidence in the record that suggests that Thomas was coached during the recess.
While the Defense alleges on appeal that the purpose of the recess was to coach
Thomas, this assertion is speculative as no facts in the record support this claim. On
direct appeal, our review is limited to matters in the record. State v. Martin, 3d Dist.
Putnam No. 12-02-01, 2003-Ohio-735, ¶ 53. We cannot reverse a trial court on the
basis of speculation about matters outside of the record. Id.
{¶32} Third, we note that the trial court is given “control [of] all proceedings
during a criminal trial * * *.” R.C. 2945.03. The trial judge had the discretion to
order a recess to ensure that the trial unfolded in an orderly process. State v.
Heiberger, 6th Dist. Erie No. E-84-54, 1985 WL 7544, *2 (July 19, 1985). We do
not find evidence in the record that suggests the trial court abused this discretion in
ordering the recess or in denying Randle’s motion for a mistrial. For these reasons,
Randle’s third assignment of error is overruled.
Fourth Assignment of Error
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Case Nos 9-17-08 and 9-17-09
{¶33} In his fourth assignment of error, Randle asserts that the verdict in this
case was against the manifest weight of the evidence. In support of this contention,
he points to the testimony of several of the State’s witnesses. Much of this argument
focuses on Thomas’s credibility as a witness and on one alleged inconsistency in
Bullion’s testimony. Based on these “holes” in the State’s case, he argues that his
conviction was against the manifest weight of the evidence and should, therefore,
be reversed.
Legal Standard
{¶34} “In a manifest weight analysis, ‘the appellate court sits as a ‘thirteenth
juror’ * * *.’” State v. Davis, 3d Dist. Seneca No. 13-16-30, 2017-Ohio-2916, ¶ 17,
quoting State v. Thompkins, 78 Ohio St. 3d 380, 387, 678 N.E.2d 541 (1997).
On appeal, courts “must review the entire record, weigh the
evidence and all of the reasonable inferences, consider the
credibility of witnesses, and determine whether in resolving
conflicts in the evidence, the factfinder ‘clearly lost its way and
created such a manifest miscarriage of justice that the conviction
must be reversed and a new trial ordered.’”
Brentlinger, supra, at ¶ 36, quoting Thompkins at 387. “A reviewing court must,
however, allow the trier of fact appropriate discretion on matters relating to the
weight of the evidence and the credibility of the witnesses.” State v. Sullivan, 3d
Dist. Hancock No. 5-17-09, 2017-Ohio-8937, ¶ 38, quoting State v. Coleman, 3d
Dist. Allen No. 1-13-53, 2014-Ohio-5320, 2014 WL 6725795, ¶ 7. “Only in
exceptional cases, where the evidence ‘weighs heavily against the conviction,’
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Case Nos 9-17-08 and 9-17-09
should an appellate court overturn the trial court's judgment.” State v. Haller, 2012-
Ohio-5233, 982 N.E.2d 111, ¶ 9, quoting State v. Hunter, 131 Ohio St. 3d 67, 2011-
Ohio-6524, 960 N.E.2d 955, ¶ 119.
Legal Analysis
{¶35} The State, at trial, introduced a security camera recording that showed
two men robbing Al’s Country Market and kidnapping Bullion. Ex. 1. The State
also called Bullion to testify about the robbery and the kidnapping. Trial Tr. 149-
167. Thomas’s testimony, however, is what identified Randle as one of the two men
who perpetrated the offenses in the store. Id. at 322, 325. Thomas’s testimony also
provided evidence that substantiated each of the essential elements of aggravated
robbery and kidnapping. Id. at 322-323, 327, 349-351. Several other witnesses
were able to connect Randle to Thomas on the day of the incident and were, thus,
able to corroborate aspects of Thomas’s account. Hopkins testified that he saw
Randle and Thomas together before the incident at Al’s Country Market. Id. at 445.
Flores testified that he saw Randle on the day of the incident at the location on
Cherry Street where Thomas was arrested. Id. at 438, 442. Rogers testified that
Randle and Thomas were at her house on the day of the incident, which
corresponded to Thomas’s account of what transpired on July 22, 2016. Id. at 427.
Finally, Romine testified that Randle deposited funds into Thomas’s commissary
account while Thomas was in jail. Id. at 271-272.
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Case Nos 9-17-08 and 9-17-09
{¶36} The Defense, while cross examining Thomas, introduced the false
statements that Thomas had made to the grand jury. Id. at 398-407. These
statements showed that Thomas’s description of his involvement in this crime at
trial and his description of his involvement in this crime to the grand jury were
inconsistent. Id. Thomas admitted that he had lied to the grand jury and to the
police immediately after his arrest. Id. at 338, 368. Further, Thomas also admitted
that he had a conviction for domestic violence, a conviction for possession of heroin,
and a conviction for obstruction of justice. Id. at 383. Finally, the Defense
questioned Thomas about his reluctance to testify and the terms of his plea
agreement. Id. at 386-394, 409-410. Similarly, the Defense, while cross examining
Bullion, questioned her about whether one of the perpetrators had a foreign accent.
Id. at 180. In response, Bullion explained that she told the police that the man
sounded as though he was trying to disguise his voice with an accent and that he got
easier to understand as he spoke. Id. at 178, 180.
{¶37} After reviewing all of the evidence in the record, we do not find that
that the verdict was against the manifest weight of the evidence. The jurors, as the
finders of fact in this case, could have reasonably found that Thomas’s testimony
provided an accurate account of Randle’s actions on July 22, 2016. Similarly, the
jurors could have accepted the explanation that Bullion provided for the alleged
contradiction between her statement to the police and her testimony at trial. After
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Case Nos 9-17-08 and 9-17-09
examining the record, we do not find evidence in the record that the jury lost its
way. For these reasons, Randle’s fourth assignment of error is overruled.
Conclusion
{¶38} This Court has found no error prejudicial to the appellant in the
particulars assigned and argued in appellate case number 9-17-08. In appellate case
9-17-09, Randle was sentenced for violation of the terms of his community control
due to the conviction in appellate case 9-17-08. As his assignments of error in
appellate case 9-17-08 have been overruled, the trial court did not err in revoking
his community control in appellate case number 9-17-09. For these reasons, the
judgments of the Marion County Court of Common Pleas are affirmed.
Judgments Affirmed
SHAW and PRESTON, J.J., concur.
/hls
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