State v. Bandy , 2017 Ohio 5593 ( 2017 )

[Cite as State v. Bandy, 2017-Ohio-5593.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-160402
TRIAL NO. B-1502211
Plaintiff-Appellee, :
O P I N I O N.
vs. :
DEANDRE BANDY, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: June 30, 2017
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Scott M. Heenan,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Raymond T. Faller, Hamilton County Public Defender, David Hoffmann and Joshua
Thompson, Assistant Public Defenders, for Defendant-Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS
C UNNINGHAM , Judge.
{¶1} After a jury trial, defendant-appellant Deandre Bandy was convicted
of the aggravated murder and aggravated robbery of Justin Madaris, and the
aggravated robbery of Daniel Steward. He now appeals. For the reasons that follow,
we affirm.
I. Background Facts and Procedure
{¶2} Bandy and an unknown accomplice attempted to rob Madaris and his
brother Steward at Ziegler Park, also known as Peaslee Park, in the early evening on
April 24, 2015. Bandy and his accomplice were both brandishing guns. Madaris
reacted by pushing the accomplice, causing him to drop his gun before running off.
Madaris then tussled with Bandy before ascending the fence on the southern portion
of the park. Bandy shot Madaris in his right torso as Madaris was escaping over the
fence. Madaris collapsed in the parking lot of a bar on the other side of the fence,
and died from his gunshot wound.
{¶3} After shooting Madaris, Bandy turned his gun on Steward. But before
escaping, Steward used the gun dropped by Bandy’s accomplice to shoot at Bandy,
striking him at least once in the back. Assisted by his accomplice, Bandy walked to
Sycamore Street, where he collapsed on a sidewalk in front of passers-by who had
called 911 upon hearing the shots fired. Emergency personnel transported Bandy to
University Hospital, where he was successfully treated.
{¶4} While at the hospital, Bandy told officers seeking information about
the shooting that he had been robbed and shot by masked assailants at the park.
Bandy also told the police that he had not fired a gun. Bandy provided a similar
account of the night’s events about six hours after the shooting when he was
interviewed at the police station and had been advised of his Miranda rights.
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Bandy’s statements conflicted with the statements of multiple eyewitnesses who saw
Bandy fire a gun, and were not consistent with the positive result of a gunshot
residue (“GSR”) test performed on Bandy’s hands at the hospital.
{¶5} Bandy was later indicted for aggravated murder, in violation of R.C.
2903.01(B), murder, in violation of R.C. 2903.02(B), and two counts of aggravated
robbery, in violation of R.C. 2911.01(A)(1), all with firearm specifications. Bandy’s
first attorney filed a motion to suppress Bandy’s pretrial statements. After substitute
counsel had been appointed, Bandy raised the affirmative defense of self-defense,
claiming that he had been the victim of an aggravated robbery, and his counsel
effectively withdrew the motion to suppress.
{¶6} At trial, Bandy testified that Madaris and Steward had robbed him
and shot at him, and he had returned fire in self-defense, striking Madaris. He
completely denied the allegations of the aggravated-robbery charges. The trial court
instructed the jury that, among other things, they were to consider Bandy’s claim of
self-defense with respect to the aggravated murder and murder charges only, as
Bandy was completely denying the aggravated-robbery allegations.
{¶7} The jury rejected Bandy’s defenses and found him guilty of one count
of aggravated murder, one count of murder, and two counts of aggravated robbery,
all with firearm specifications. During sentencing, the trial court merged the murder
into the aggravated murder and some of the firearm specifications, and imposed life
without parole for the aggravated murder, eleven years for each aggravated robbery,
plus three years for the firearm specification associated with each count, all to be
served consecutively. Ultimately, the court sentenced Bandy to an aggregate term of
life without parole plus 31 years.
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{¶8} In this appeal, Bandy raises the following five assignments of error:
(1) his convictions were not supported by sufficient evidence and were against the
manifest weight of the evidence; (2) the trial court erred by overruling his Crim.R.
29(A) motion for an acquittal with respect to the aggravated robbery of Steward; (3)
the trial court erred by imposing multiple sentences on allied offenses of similar
import that were committed neither separately nor with a separate animus; (4) the
trial court committed plain error by failing to instruct the jury to apply the defense of
self- defense to all counts; and (5) trial counsel was ineffective for withdrawing the
motion to suppress.
II. Analysis
A. Sufficiency and Weight-of-the-Evidence Claims
{¶9} Bandy’s first two assignments of error challenge the sufficiency and
quality of the evidence adduced at trial. To address these assignments of error, we
provide a detailed account of this evidence.
{¶10} The state’s evidence. Steward testified that on the day of the shooting,
he met his half-brother Madaris at Zeigler Park around 5 p.m. Madaris had a fresh
bag of marijuana, which he was selling and sharing with Steward. The park was
crowded, and Steward’s infant son and mother were there, too. At around 7 p.m.,
when it was still daylight, he and Madaris were sitting on a stone wall on the
perimeter of the west side of the basketball courts, closer to the southern end of the
basketball courts and Neons bar, which was located in a building on 12th Street and
offered parking on the eastside of the building. The fence separated the basketball
courts from Grear Alley and Neons’ parking lot.
{¶11} According to Steward, as children played on the basketball courts, he
and Madaris took pictures of his baby, whom they had dressed with their flashy
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jewelry. Steward was holding the baby and Madaris was videotaping the baby with
Steward’s phone. The video recording, which was admitted into evidence, showed
Steward wearing a black hoodie with large white lettering on the front and sleeves.
{¶12} The recording ended abruptly when Madaris dropped the phone,
causing the screen to break. At that point, Steward looked up and saw Bandy and an
accomplice, who was wearing teal clothing, running towards them brandishing
revolvers. Startled, Steward dropped the baby. Steward heard Bandy exclaim, “You
all know what this is,” and told his accomplice “to get that shit up,” referring to the
jewelry on the baby.
{¶13} Steward said that when Bandy’s accomplice reached for the brothers’
jewelry, Madaris pushed him, and the accomplice dropped his gun before running
away. Madaris then began “tussling” with Bandy over his gun. When Bandy “slipped
out,” Madaris ran away from him towards a damaged portion of the fence on the
southern side of the basketball courts near Neons. Bandy then shot at Madaris two
times, striking him once, which caused Madaris to scream. Steward described Bandy
as slowly walking and holding the gun with his arm extended when he shot at
Madaris as Madaris tried to flee.
{¶14} Steward said that Bandy then turned his gun on him, as he stood on
the western edge of the courts. In response, Steward used the gun he had recovered
from the ground to shoot at Bandy, striking Bandy at least once. After firing all the
bullets, Steward dropped the gun and ran off the court with his baby in a westerly
direction towards Main Street, while Bandy exited from the other side of the court
and headed in the opposite direction towards Sycamore Street. Steward thought
Bandy’s gun was black, but he was sure that the gun he fired was silver.
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{¶15} Several other eyewitnesses to the shooting testified for the state.
Augustus Denton stated that, on the night of the shooting, he was playing dominos in
the gazebo on the northern side of the park. Before the shooting, he had seen his
friend Madaris with Steward sitting on the western wall of the basketball courts with
a baby. At around 7 p.m., he saw Madaris struggling with a man near the wall.
Madaris then broke away and began to ascend the fence that separated the basketball
courts from Neons. Denton then saw someone shoot at Madaris. He claimed that he
heard more than three gunshots fired.
{¶16} After hearing the gunshots, Denton went to get his car, which was
parked north of the park, so that he could assist Madaris. On his way, he noticed a
black male on the ground near the eastern gate to the basketball courts, and another
black male assisting him. Denton then drove to Neons, where he found Madaris
lying in the parking lot struggling to stay alive and surrounded by “a lot of people.”
{¶17} Katie Beck and Michelle O’Brien were among those standing in the
parking lot of Neons around 7 p.m. waiting to participate in a 30th birthday party
celebration that was to take place aboard a “pedal wagon” temporarily parked in the
lot. Beck had just been dropped off by her husband, and was going to greet her
friends standing by the pedal wagon, when she heard gunshots coming from the
basketball courts at the park. She then saw a man walking towards Neons and firing
a silver gun before ducking for safety behind a four-door white car next to the pedal
wagon.
{¶18} Beck testified that when she heard gunfire, she had also seen a man
climbing over the fence from the basketball courts. After the gunfire stopped, she
saw that man run by her and collapse in Neons’ parking lot, where her nurse friends
tended to him. She did not see a gun in his hand or around him. Although she could
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not identify the shooter, she was sure that he was not the person lying in Neons’
parking lot with a gunshot wound, and that the shooter had not been holding a baby.
{¶19} O’Brien testified that she had just exited from Neons and had walked
out to greet the pedal wagon driver in the parking lot when she heard popping noises
from the basketball courts that she was facing. Before she dropped to the ground,
she noticed a young African American male wearing a black hoodie shoot once from
a “very shiny revolver” aimed in the direction of Main Street. She described the
shooter as “walking very purposefully” across the court as he shot and prepared to
shoot again. She stated that she could not see anyone except for the shooter, but
indicated that her viewpoint was blocked by a tree and a wall.
{¶20} After the gunfire stopped, she got up and saw the shooter run east and
out of the basketball court area. She saw a gunshot victim lying on the ground in
Neons’ parking lot.
{¶21} Katie Beck’s husband Lenny Beck (“Lenny”) also testified. He stated
that he was driving north on Sycamore Street near 12th Street after leaving his wife
in Neons’ parking lot. He heard “several pops,” and when he looked to his left as he
passed an alley he saw a “young, darker-complected African-American man” on the
basketball courts holding a silver gun. The shooter was briskly walking in the
direction of Neons, “like with a purpose,” and shooting in that southerly direction.
He was not able to see who the shooter was aiming at, but he confirmed that the
shooter was not holding a baby.
{¶22} Lenny stated that after witnessing the shooting, he looped around the
block and returned to Neons, where he saw an African-American man lying in the
parking lot of Neons, tended to by his wife’s friends. He did not notice a gun near
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this man, and he was sure that man was not the shooter whom he had earlier
observed on the basketball courts.
{¶23} Lenny’s testimony was similar to that of Patrick Reynolds-Berry, who
was walking down Sycamore Street with his wife on their way to a Reds baseball
game at around 7 p.m. after parking their car on 13th Street. Like Lenny, Reynolds-
Berry looked west towards the basketball courts at the park after hearing gunshots.
He described the shooter as walking south, “like with a purpose, with his arm raised,
shooting forward.” He observed the muzzle flash of the gun one time. He believed
he had heard at least three shots total, but he also described the events occurring as
“almost instantaneous[ly].” He and his wife ran forward and ducked behind a
building, where his wife initiated her call to 911.
{¶24} He said that when he and his wife moved past the building and
reached Grear Alley, the shooter was no more than ten feet away and walking
towards the alley with a gun in his hand. He and his wife backed up. The shooter
then took the alley to the sidewalk on Sycamore Street and collapsed in front of Joe’s
Diner, a restaurant. Reynolds-Berry unequivocally identified Bandy as the shooter
that he had seen that evening.
{¶25} Reynolds-Berry also testified that he had seen a man wearing a teal
hoodie walking on the basketball courts with Bandy and also walking with Bandy to
Sycamore Street. That person hung around Bandy until the police and paramedics
arrived, when he walked off. While Bandy lay on the ground wounded, Reynolds-
Berry heard him ask the man in teal clothing to “call [his] mom.”
{¶26} Similarly, Allison Reynolds-Berry (“Allison”) testified that after
hearing “loud noises,” she looked to the basketball courts and saw two men walking
and shooting in a southerly direction, and that those same two men later walked
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down Grear Alley towards them before one collapsed in front of Joe’s Diner on
Sycamore Street. She recalled that one man was wearing a “dark color,” such as
black or navy blue, and the other was wearing a “blue” hoodie, and that the one in the
darker color was injured and was leaning on the other as they walked down the alley.
She observed, like her husband, that the two seemed like friends and that the injured
one had asked the other man to “call [his] mom.”
{¶27} Allison confirmed that she had called 911, and the recording of her
call was admitted into evidence. During the call, she described both the shooters and
the path she was observing them take to Sycamore Street, where Bandy collapsed.
{¶28} Dr. Jennifer Scott, the deputy coroner who performed Madaris’
autopsy, testified that Madaris died of a gunshot wound to his torso. The bullet
entered the right side of his body from a gun “perpendicular” to his body, traveled
across his body, and never exited.
{¶29} Based on Madaris’ injury, Dr. Scott believed that he survived for a few
minutes and he could have been mobile during those few minutes. The results of a
toxicology screen indicated that Madaris had a small amount of alcohol and some
marijuana in his blood, and an inventory of items found on Madaris included two
bags containing a green leafy substance. The coroner’s report indicated that Madaris
measured about six feet in length, weighed 240 pounds, and that he had been
wearing a black hooded sweatshirt when he was shot.
{¶30} The investigating officers also testified. Criminalist Patrick Moran
responded to the crime scene and indicated that he had not located any weapons,
bullets, or spent casings on the scene. But he had discovered a bullet hole in a vehicle
parked in Grear Alley between the basketball courts and Neons’ parking lot.
Criminalist Moran also recovered a pair of glasses on the stone wall on the western
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OHIO FIRST DISTRICT COURT OF APPEALS
part of the basketball courts where Steward testified that he and Madaris had been
located before they were attacked. DNA found on the glasses matched that of
Madaris. Further, Criminalist Moran authenticated a photograph of the black,
hooded sweatshirt with a bullet hole that Bandy was wearing when admitted to the
hospital, and a photograph of Bandy’s Ohio identification card that indicated his
height of five feet ten inches and weight of 156 pounds.
{¶31} Specialist Ryan Jones and Detective Sandy Sieving both spoke with
Bandy after he was taken to University Hospital for treatment of a gunshot wound to
his lower back. Specialist Jones testified that he was working an off-duty detail at
University Hospital in the emergency room when Bandy was brought in as a shooting
victim. After Bandy received his preliminary medical treatment, Specialist Jones
quickly asked him basic questions about how he received his injury. Bandy told him
that he had been playing basketball with another individual from the neighborhood
when three masked individuals, one brandishing a silver gun, attempted to rob him.
Bandy said he ran away but was shot and collapsed on the next block. Specialist
Jones stated that he shared this information with the Cincinnati police, and
Detective Sieving was sent to the hospital to perform a follow-up interview with
Bandy.
{¶32} Detective Sieving testified that she spoke with Bandy less than an
hour after he had been brought to the hospital, when he was still in the triage area of
the emergency room. At that time, she believed he was a victim, but pursuant to
standard protocol for gunshot victims, she swabbed his hands for gunshot residue.
Later, those swabs were determined to contain gunshot residue.
{¶33} In Bandy’s interview with Detective Sieving, which was recorded and
played for the jury, he gave a more detailed account of the robbery and shooting. He
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claimed that he had gone to the park to play basketball after having a fight with his
girlfriend, who was upset that he would not give her money, and that he was robbed
by two, not three, armed masked assailants, one of whom shot him. He
unequivocally denied shooting a gun, but he did claim to grab at one of the guns
before running away.
{¶34} Detective David Gregory was the state’s final witness. He testified that
he had interviewed several eyewitnesses in his Criminal Investigation Section (“CIS”)
office shortly after the shooting, but not Steward, whom he did not interview until
April 29th. Based on these early interviews, he began to believe that Bandy was the
individual that Patrick and Allison Reynolds-Berry had seen walking down Grear
Alley with a gun. Because of this, he had Bandy brought to his office for an interview
upon his release from the hospital, which was about six hours after the shooting
incident.
{¶35} Detective Gregory stated that after Bandy waived his Miranda rights,
he interviewed him. A recording of the ensuing interview was admitted into evidence
and played for the jury.
{¶36} During the interview, Bandy maintained that he had been robbed by
two masked men, one of whom shot him. For the first time he mentioned that he
had been assisted by a stranger wearing a blue shirt. Bandy again denied shooting a
gun. Officer Gregory explained that eyewitnesses had seen him shooting at Madaris,
and that Madaris had died. Officer Gregory then asked Bandy if someone had been
shooting at him and he had fired back. Bandy repeatedly denied that scenario, at one
point stating, “[t]hat ain’t how it went, bro.”
{¶37} On cross-examination, Officer Gregory admitted that the police did
not recover much physical evidence from the crime scene. He also acknowledged
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OHIO FIRST DISTRICT COURT OF APPEALS
that during the initial interviews, the police had obtained a statement from the pedal
wagon driver indicating that the person who fired the shots was the same person who
had traversed the fence into Neons’ parking lot. But Officer Gregory explained that
he had discounted this statement because the driver had been busy at the time of the
shooting collecting money from the pedal wagon patrons, with his back towards the
basketball courts.
{¶38} The defense’s evidence. After the state rested, Bandy testified in his
own defense. He began and ended his testimony by acknowledging that he had not
been truthful when he gave his prior statements to the police. He explained that
when he spoke to the police, he was not thinking clearly due to his injury and
treatment, and he was scared that Steward and his friends in the neighborhood
would harm him and his family.
{¶39} Bandy stated to the jury, as he had to the police, that on the day of the
shooting he and his girlfriend had fought over money. But in his testimony he added
the claim that after the fight, he was looking to purchase some marijuana to calm
him down. While looking for marijuana, he saw an acquaintance named Jonathan,
whom he knew as “John-John.” John-John told him he knew a dealer, but he could
not call him on his malfunctioning phone. Because John-John’s phone was allegedly
not working, and Bandy’s phone was not charged, the two ended up at a battery store
at the intersection of Walnut and Liberty Streets. Outside the store, John-John
introduced Bandy to a dealer named “Ratchet,” who pulled up in a grey Grand Prix
with a passenger named Jada. Bandy told Ratchet that he wanted to purchase an
ounce of “Loud” and showed him the money to purchase it at the price of $275 an
ounce. Ratchet told him to meet him down at “Peaslee Park,” which is also known as
Zeigler Park. Although that park was located several block away, in an area that
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Bandy felt was not safe, Bandy agreed to the meeting, and Ratchet assured him that
he “r[a]n[] the block down there.”
{¶40} Bandy claimed that as he headed down to the park with John-John,
he stopped at his girlfriend’s apartment under the ruse of using the restroom, but for
the purpose of getting his gun in case he needed it. When he locked the apartment
door, he placed his money in his left pocket as John-John stood watching him. As
they neared the park, John-John slowed down and had a conversation on his
allegedly malfunctioning phone while Bandy marched forward to get the marijuana.
{¶41} According to Bandy, when he entered the basketball courts, he did not
see anyone but a boy named Junior, who was his cousin’s friend. He shot baskets
with Junior on the court closest to Neons until Junior took off running for the exit on
the north side of the courts. Bandy then observed Madaris and Steward approaching
from behind, brandishing guns and wearing black hoodies. Madaris ordered Bandy
to hand over his belt and the money in his “left” pocket. When Madaris momentarily
looked at Ratchet’s Grand Prix, Bandy grabbed the larger Madaris, pushed him, and
took off running. As he was running, Steward shot him. He fell to the ground and
his gun slipped down his pants. But Bandy stood up and Steward shot him again,
striking him in the back and causing him to fall to the ground again.
{¶42} Bandy testified that he then grabbed his gun, which had fallen outside
his pants, and fired two shots in the direction of Madaris and Steward, who were
both shooting at him. Bandy was adamant that he fired his gun only after he had
been shot, and that he had been lying on the ground at the time.
{¶43} Bandy claimed that after he fired his gun, Madaris and Steward split
up. Madaris ran over to the fence near Neons, and Steward ran north after picking up
a baby, while he crawled to an opening in the fence on the east side of the courts and
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pulled himself up by grabbing a fence pole. He said that he fell again and was
crawling in the alley next to the courts when a man wearing a dark blue sweater with
a small White Castle logo agreed to help him out of the alley for money. With this
man’s assistance, he made it to the sidewalk in front of Joe’s Diner on Sycamore
Street, dumping his gun in the dumpster behind the restaurant along the way. He
then asked a random couple walking down the street, whom he identified in court as
the Reynolds-Berrys, to call the police.
{¶44} According to Bandy, the man wearing the White Castle logo sweater
indicated that he had warrants and then left, but only after Bandy gave him his
mother’s phone number and asked him to call her. An ambulance then arrived and
took him to University Hospital.
{¶45} On cross-examination, Bandy was asked about his prior inconsistent
statements to the police. He acknowledged that while he had been given medication,
he “knew everything that [he] was saying” when speaking with the police, but
maintained that he lied to protect the identity of his shooters because he was afraid.
1. Sufficiency of the Evidence
{¶46} On review of the sufficiency of the evidence to support a criminal
conviction, the relevant question is whether, after viewing the evidence in the light
most favorable to the prosecution, any rational trier of fact could have found the
essential elements of the offense beyond a reasonable doubt. State v. Jenks, 61 Ohio
St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus, following Jackson
v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979). Our inquiry
addresses the sufficiency of the state’s evidence on each element to support the
convictions, and not the strength of Bandy’s evidence to support his affirmative
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defense of self-defense. See State v. Hancock, 108 Ohio St. 3d 57, 2006-Ohio-160,
840 N.E.2d 1032, ¶ 38.
{¶47} When determining whether the trial court erred by denying a Crim.R.
29(A) motion for an acquittal, we apply a standard of review similar to our
sufficiency of the evidence inquiry. A court should not grant a motion to acquit “if
the evidence is such that reasonable minds can reach different conclusions as to
whether each material element of a crime has been proved beyond a reasonable
doubt.” See State v. Bridgeman, 55 Ohio St. 2d 261, 381 N.E.2d 184 (1978), syllabus,
cited in State v. Myles, 1st Dist. Hamilton No. C-050810, 2007-Ohio-3307, ¶ 49.
{¶48} Aggravated Murder. Bandy was convicted of aggravated murder, in
violation of R.C. 2903.01(B), which provides in relevant part that “[n]o person shall
purposely cause the death of another * * * while committing or attempting to
commit, or while fleeing immediately after committing or attempting to commit * * *
aggravated robbery.”
{¶49} First, Bandy argues that the evidence was not sufficient to establish
that he shot Madaris and that he did so purposefully. But the state offered sufficient
evidence, if believed, to support beyond a reasonable doubt each element of the
offense.
{¶50} Steward’s testimony alone was sufficient to establish the essential
elements of aggravated murder. And Steward’s testimony was corroborated in part
by testimony from the other eyewitnesses who also claimed that Bandy was standing
and aiming at his target, who was located in the southwest corner of the basketball
courts. Moreover, Bandy admitted that he had purposely shot Madaris, but claimed
justification by reason of self-defense. Therefore, we reject Bandy’s argument that
the evidence was not sufficient to support his aggravated-murder conviction.
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{¶51} Aggravated Robbery. Bandy was also convicted on two counts of
aggravated robbery, in violation of R.C. 2911.01(A)(1), one count pertaining to
Madaris and the other to Steward. The relevant language of the aggravated-robbery
statute provides that “[n]o person, in attempting or committing a theft offense * * *
or in fleeing immediately after the attempt or offense, shall do any of the following:
(1) Have 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.”
{¶52} According to Bandy, the state failed to establish that the robbers had
attempted to take any property from Steward while brandishing a weapon. He
argues that Bandy’s words and conduct were directed only to Madaris—the brother
who had been selling drugs that day—as demonstrated by the fact that only Madaris
had reacted by physically contesting the robbery.
{¶53} We are not persuaded by Bandy’s argument. The state’s evidence
showed that Bandy and his accomplice approached both Madaris and Steward with
guns drawn, Bandy announced that it was a robbery, and Bandy’s accomplice
reached for the brothers’ jewelry, which Steward’s baby had been wearing.
{¶54} When viewing this evidence in the light most favorable to the state,
we conclude that a reasonable juror could have found that Bandy was announcing his
intent to rob both brothers of their property, including, but not limited to, Steward’s
diamond bracelet that his baby had been wearing.
2. Weight of the Evidence
{¶55} Next Bandy argues that his convictions were against the manifest
weight of the evidence. When considering a manifest-weight claim, we review the
entire record, weigh the evidence and all reasonable inferences, and consider the
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credibility of witnesses. See State v. Thompkins, 78 Ohio St. 3d 380, 387, 678 N.E.2d
541 (1997). The question in reviewing such a claim is whether in resolving conflicts
in the evidence, and in rejecting Bandy’s defenses, the jury clearly lost its way and
created such a manifest miscarriage of justice that the conviction must be reversed.
See State v. Martin, 20 Ohio App. 3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). Our
discretionary power to grant a new trial should be exercised only in the exceptional
case in which the evidence weighs heavily against the conviction. Id.
{¶56} Bandy’s manifest-weight argument centers around his contention that
Steward’s testimony was not credible, and that the testimony from the bystander
eyewitnesses supported his claim of self-defense. To establish self-defense, a
defendant must prove, by a preponderance of the evidence, that (1) he was not at
fault in creating the situation giving rise to the affray; (2) he had a bona fide belief
that he was in imminent danger of death or great bodily harm and that his only
means of escape from such danger was in the use of such force; and (3) he must not
have violated any duty to retreat or avoid the danger. See State v. Robbins, 58 Ohio
St.2d 74, 388 N.E.2d 755 (1979), paragraph two of the syllabus.
{¶57} Bandy contends that Steward’s testimony was not credible because it
conflicted at times with that of the other eyewitnesses. For instance, Steward
testified that Bandy had fired first and had only fired two shots, but some of the
bystanders testified that they had already heard gunshots before looking towards
Bandy and observing him shooting two times. Also, Steward testified that Bandy’s
gun was black, and the gun he had recovered from the ground to shoot Bandy was
silver. Some bystanders testified that the shooter they saw had a silver gun.
{¶58} We cannot say, however, that this seemingly conflicting testimony
rendered Steward’s testimony that Bandy was the aggressor and had fired first
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incredible. The bystander witnesses indicted that the events unraveled
“instantaneous[ly],” and Steward indicated that he had been focused on his baby and
escaping when Bandy began firing at Madaris.
{¶59} Importantly, the state presented significant evidence that
corroborated Steward’s testimony about the robbery and murder. This included the
evidence that supported Steward’s claim that he and Madaris had been at the wall on
the west side of the basketball courts, where the police found Madaris’ glasses, and
had been making a video of his son when Bandy and his accomplice ran up on them.
{¶60} Conversely, Bandy’s self-defense theory fell flat at trial. Bandy’s
testimony conflicted with the testimony from several eyewitnesses who saw Bandy
fire at Madaris while standing and walking towards his target. This testimony
undermined Bandy’s self-defense theory that he had fired while injured and lying on
the ground and only after he had been shot. The coroner’s testimony concerning the
location of Madaris’ wound on his torso and the path of the fatal bullet also rendered
incredible Bandy’s testimony that he had shot at Madaris while lying on the ground.
Further, although they were asked, none of the eyewitnesses who testified for the
state claimed to see anyone wearing a sweater with a White Castle logo at the scene.
{¶61} Bandy also contends that his self-defense theory was more credible
because, upon his closer review of the video recording of Steward holding his baby, it
appears that an individual other than Madaris was helping Steward place the jewelry
on the baby. This, he claims, resulted in an unlikely situation of him and an
accomplice robbing a group that outnumbered them. Although we agree with Bandy
that the video may depict the hand or hands of another individual assisting Steward,
an issue not explored at trial, our assessment of the footage indicates only that it
depicts the hand or hands of a child helping Steward place the jewelry on the baby.
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OHIO FIRST DISTRICT COURT OF APPEALS
This is consistent with Steward’s testimony that many children were playing at the
park, and Bandy’s own testimony that a boy he referred to as Junior was on the
basketball court at the time of the incident. Ultimately, we are not persuaded by
Bandy’s newest argument.
{¶62} We are mindful that the weight to be given the evidence and the
credibility of witnesses are primarily for the trial of fact, State v. DeHass, 10 Ohio
St.2d 230, 227 N.E.2d 212 (1967), paragraph one of the syllabus, and that the jury, as
the trier of fact, may believe all, part, or none of the testimony of each witness
appearing before it. See State v. Swiger, 5 Ohio St. 2d 151, 156, 214 N.E.2d 417
(1966). When we weigh the conflicting evidence against the ample corroborating
evidence in this case, we determine that the jury did not clearly lose its way and
create a manifest miscarriage of justice. See Thompkins, 78 Ohio St. 3d at 387, 678
N.E.2d 541; Martin, 20 Ohio App. 3d at 175, 485 N.E.2d 717.
{¶63} Accordingly, we overrule the first and second assignments of error.
B. Allied-Offenses Claim
{¶64} In his third assignment of error, Bandy argues that the trial court
violated R.C. 2941.25 by imposing multiple sentences on allied offenses of similar
import. Specifically, he contends that the aggravated-murder and aggravated-
robbery convictions related to Madaris should have merged because they were of a
similar import and were not committed separately or with a separate animus.
{¶65} Under R.C. 2941.25, the merger of allied offenses occurs when the
conduct of the defendant can be construed to constitute two or more allied offenses
of a similar import, and this conduct shows that the offenses were not committed
separately or with a separate animus. State v. Sanders, 1st Dist. Hamilton Nos. C-
140579 and C-140580, 2015-Ohio-5232, ¶ 46. When reviewing the defendant’s
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OHIO FIRST DISTRICT COURT OF APPEALS
claim that there are allied offenses of similar import that merge into a single
conviction under R.C. 2941.25, the trial court and the reviewing court on appeal
must first take into account the conduct of the defendant. In other
words, how were the offenses committed? If any of the following is
true, the offenses cannot merge and the defendant may be convicted
and sentenced for multiple offenses: (1) the offenses are dissimilar in
import or significance—in other words, each offense caused separate,
identifiable harm, (2) the offenses were committed separately, or (3)
the offenses were committed with separate animus or motivation.
State v. Ruff, 143 Ohio St. 3d 114, 2015-Ohio-995, 34 N.E.3d 892, ¶ 25.
{¶66} This court reviews the trial court’s R.C. 2941.25 determination de
novo. State v. Williams, 134 Ohio St. 3d 482, 2012-Ohio-5699, 983 N.E.2d 1245, ¶ 1.
Here, Bandy did not object at the sentencing hearing to the imposition of multiple
sentences for these offenses. He has therefore forfeited this issue absent a showing
of plain error. See State v. Underwood, 124 Ohio St. 3d 365, 2010-Ohio-1, 922
N.E.2d 923, ¶ 31; see also Crim.R. 52(B).
{¶67} We begin and end our analysis by examining whether the offenses
were committed with a separate animus. See State v. Bailey, 1st Dist. Hamilton No.
C-140129, 2015-Ohio-2997, ¶ 83 (noting that a reviewing court may end its Ruff-test
analysis upon an affirmative response to any of the three questions). As we
explained when discussing the sufficiency of the evidence to support the aggravated-
murder conviction under R.C. 2903.01(B)(1), the requisite purpose to kill was amply
supported in the record. This purpose to kill was separate from the immediate
motive of robbing Madaris and Steward, the animus involved in the aggravated
robbery of Madaris.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶68} Because Bandy’s conduct with respect to the aggravated murder
demonstrated a purpose—a specific intent—to kill while, or in the course of,
committing an aggravated robbery, the aggravated-murder offense was committed
with a separate animus from the aggravated-robbery offense, and thus was
separately punishable under R.C. 2941.25(B). See Ruff, 143 Ohio St. 3d 114, 2015-
Ohio-995, 34 N.E.3d 892, at paragraph three of the syllabus. See also Sanders, 1st
Dist. Hamilton Nos. C-140579 and C-140580, 2015-Ohio-5232, at ¶ 51. Accordingly,
we overrule the third assignment of error.
C. Claim of Plain Error in Instructing the Jury
{¶69} In his fourth assignment of error, Bandy argues that the trial court
committed plain error under Crim.R. 52(B) when it instructed the jury that the
defense of self-defense did not apply to the aggravated-robbery charges.
{¶70} A party claiming plain error under Crim.R. 52(B) must show (1) that
an error occurred, (2) that the error was obvious, and (3) that the error affected the
outcome of the trial. See State v. Barnes, 94 Ohio St. 3d 21, 27, 759 N.E.2d 1240
(2002). “Notice of plain error under Crim.R. 52(B) is to be taken with the utmost
caution, under exceptional circumstances and only to prevent a manifest miscarriage
of justice.” State v. Long, 53 Ohio St. 2d 91, 372 N.E.2d 804 (1978), paragraph three
of the syllabus.
{¶71} Trial courts must give all jury instructions that are relevant and
necessary for the jury to properly weigh the evidence and perform its duty as the fact
finder. State v. Comen, 50 Ohio St. 3d 206, 553 N.E.2d 640 (1990), paragraph two of
the syllabus. Here, the trial court instructed the jury that “regarding the allegations
in Count 1 and 2 (aggravated murder and murder), the defendant claims to have
acted in self defense.” The court then gave an instruction on self-defense that Bandy
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OHIO FIRST DISTRICT COURT OF APPEALS
does not challenge. The court subsequently stated, “As noted above, the affirmative
defense of self defense applies to Counts 1 and/or 2. The defendant simply denies
the allegations in Counts 3 and 4.” Bandy did not object to this instruction or request
an additional instruction.
{¶72} Bandy now argues that the court’s instruction was erroneous because
it prevented the jury from considering the facts of his defense presented during his
testimony, “that he was the one who was robbed—not the other way around,” when
considering the aggravated-robbery counts. We do not need to determine whether
there is any merit to this argument, because Bandy does not address how he could
have been prejudiced by the instruction when the jury rejected his self-defense
testimony and found him guilty of purposefully causing Madaris’ death while
committing the aggravated robbery. Under these circumstances, we are confident
that any error by the trial court was not outcome determinative. Thus, we conclude
that Bandy has failed to demonstrate plain error, and we overrule the fourth
assignment of error.
D. Ineffective-Assistance-of-Trial-Counsel Claim
{¶73} In his fifth assignment of error, Bandy argues that he was denied his
right to the effective assistance of trial counsel. A claim of ineffective assistance of
trial counsel is reviewed under the two-part test articulated in Strickland v.
Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). An appellant
must demonstrate that his counsel’s performance fell below an objective standard of
reasonable representation and that he was prejudiced by that performance. Id. at
687. This court does not need to evaluate both prongs of the Strickland test if the
appellant fails to satisfy one prong. Id. at 697.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶74} Because there are many ways for an attorney to provide effective
assistance in a given case, and “the difficulties inherent in making the evaluation [of
trial counsel’s conduct], a court must indulge a strong presumption that counsel’s
conduct falls within the wide range of reasonable professional assistance * * * .” Id.
at 689. Debatable trial tactics and strategies do not constitute a denial of effective
assistance of counsel. State v. Clayton, 62 Ohio St. 2d 45, 49, 402 N.E.2d 1189
(1980).
{¶75} Bandy specifically contends that trial counsel was ineffective for not
pursuing the motion to suppress his statements filed by the original attorney
assigned in the case. Bandy contends the false exculpatory statements that he gave
to Detective Gregory at the station after the Miranda warning, and the similar earlier
statements provided at the hospital to other officers, would have been suppressed
under Missouri v. Seibert, 542 U.S. 600, 124 S. Ct. 2601, 159 L. Ed. 2d 643 (2004),
and State v. Farris, 109 Ohio St. 3d 519, 2006-Ohio-3255, 849 N.E.2d 985.
{¶76} In response to Bandy’s assertions, the state argues that Seibert and
Farris do not apply to demand the suppression of Bandy’s three statements. The
state also asserts that this court can presume that trial counsel’s decision to withdraw
the motion to suppress was a tactical one.
{¶77} We decline to decide whether Bandy has demonstrated that his
statements to the police would have been suppressed under Seibert and Farris. We
also decline to determine whether Bandy has overcome the presumption that trial
counsel’s decision to abandon the suppression issue was a tactical strategy in this
case. We limit our review because it is clear that Bandy cannot meet the prejudice
prong of the Strickland test.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶78} Bandy concedes that in this case the state could have used his false
exculpatory statements, which were inconsistent with his trial testimony, to impeach
that testimony, even if he had prevailed on the motion to suppress. See State v. Hill,
75 Ohio St. 3d 195, 207, 661 N.E.2d 1068 (1996), citing Harris v. New York, 401 U.S.
222, 91 S. Ct. 643, 28 L. Ed. 2d 1 (1971); State v. McMillan, 69 Ohio App. 3d 36, 45,
590 N.E.2d 23 (9th Dist.1990), citing Harris and Oregon v. Haas, 420 U.S. 714, 95
S. Ct. 1215, 43 L. Ed. 2d 570 (1975). Ultimately, the jury would have learned of the
same inconsistent statements that Bandy now claims led to his conviction because he
testified.
{¶79} Thus, Bandy cannot demonstrate the requisite prejudice to support
his claim without also demonstrating, at a minimum, that trial counsel’s decision to
have him testify fell below a reasonable standard, and was not a debatable trial
strategy that fell within the presumption of reasonable performance afforded trial
counsel.
{¶80} On this issue, we conclude that Bandy has not met his burden. The
record does not contain sufficient facts to ascertain whether Bandy took the stand
based upon the advice of trial counsel.
{¶81} In sum, Bandy cannot meet the prejudice prong of Strickland because
there does not exists “a reasonable probability that absent [his attorney’s withdrawal
of the motion to suppress], the factfinder would have had a reasonable doubt
respecting guilt.” Strickland, 466 U.S. at 695, 104 S. Ct. 2052, 80 L. Ed. 2d 674.
Accordingly, we overrule the fifth assignment of error.
III. Conclusion
{¶82} Because we find no merit to Bandy’s five assignments of error, we
affirm the trial court’s judgment.
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OHIO FIRST DISTRICT COURT OF APPEALS
Judgment affirmed.
M OCK , P.J., and M ILLER , J., concur.
Please note:
The court has recorded its own entry this date.
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