State v. Trowbridge ( 2013 )

[Cite as State v. Trowbridge, 2013-Ohio-1749.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO : APPEAL NO. C-110541
TRIAL NO. B-1101843
Plaintiff-Appellee, :
vs. :
O P I N I O N.
SHANNON TROWBRIDGE, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: May 1, 2013
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Rachel Lipman
Curran, Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Roger W. Kirk, for Defendant-Appellant.
Please note: this case has been removed from the accelerated calendar.
OHIO FIRST DISTRICT COURT OF APPEALS
CUNNINGHAM, Judge.
{¶1} Shannon Trowbridge appeals the judgment of the Hamilton County
Court of Common Pleas convicting her on one count of aggravated robbery, with a
firearm specification, and one count of having a weapon while under a disability, and
sentencing her to an aggregate term of 15 years in prison. For the reasons that
follow, we affirm the trial court’s judgment.
I. Background Facts and Procedure
{¶2} On January 26, 2011, the BP gas station market on Harrison Avenue in
Cincinnati was robbed. Eyewitnesses described the suspect as a woman with a mole
or spot on her face, wearing a loose fitting yellow hoodie, white shoes, and blue
pants, and holding what appeared to be a gun under a tan jacket drapped across her
arm. The robbery and the robber’s image were captured on the store’s surveillance
camera, but the woman’s facial features were not clearly visable.
{¶3} Linda Cox, the assistant manager of the store, was working the cash
register when the robber ordered her to give all the money inside and threatened “to
blow her head off” if she screamed or made a wrong move. Another employee,
Jasmine Kendrick, was on the telephone after just finishing her shift. When the
robber saw her, she told Kendrick to “hang up the phone before I blow your head
off.” Both Cox and Kendrick recalled that the robber said that she had “just got[ten]
out of Marysville for doing the same thing” and that she would shoot them without
hesitation. And both were able to see most of the robber’s face at a close range.
{¶4} Christopher Keairns, a customer, walked into the BP market as the
robbery was taking place. According to Keairns, the robber, who had money in one
hand and what appeared to be a gun in the other, turned to him before backing out of
the store. She said, “If anyone follows me out the door, I’m going to shoot this place
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OHIO FIRST DISTRICT COURT OF APPEALS
up.” Keairns also saw the robber’s face at a close range, although it was partially
obstructed by the hood of her sweatshirt.
{¶5} After the robber left the store with $413 from the cash register,
Kendrick called 911, and Cox pushed the store’s panic buttons. Officer Lewis Arnold
responded to the robbery and received descriptions of the suspect from Cox,
Kendrick, and Keairns. Arnold discovered clothing matching the eyewitnesses’
descriptions of the suspect’s attire in a nearby building, and collected the clothing as
evidence.
{¶6} Cincinnati Police Specialist Les Mendes was assigned to the case.
Based on Cox’s and Kendrick’s statements that the robber claimed to have been
recently released from “Marysville,” Mendes requested a list of any former inmates at
the Ohio Reformatory for Women located in Marysville, Ohio, who had recently been
released to the area of the robbery. The Adult Parole Authority provided Mendes
with only one name—Shannon Trowbridge. When Mendes ran Trowbridge’s
information through his database, he learned that her physical characteristics,
including a mole or mark on her face, matched the descriptions provided by Cox,
Kendrick, and Keairns, and that Trowbridge lived near the BP market that had been
robbed.
{¶7} Cox, Kendrick, and Keairns all identified Trowbridge as the robber in a
pretrial photographic lineup administered by a blind administrator. But none of the
DNA tested from the items of clothing recovered near the scene of the crime matched
Trowbridge’s DNA.
{¶8} The grand jury returned an indictment charging Trowbridge with
aggravated robbery, robbery, and having weapons while under a disability. The
matter proceded to a jury trial.
{¶9} At trial, the state presented the surveillance video of the robbery, still
photographs derived from the video of the offense, and the testimony of the three
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OHIO FIRST DISTRICT COURT OF APPEALS
eyewitnesses who had viewed the robber at a close range inside the BP market. Cox,
Kendrick, and Keairns each unequivocally identified Trowbridge as the robber and
testified that they had identified her in a pretrial photographic lineup. They further
testified that Trowbridge had threatened to harm them with what appeared to be a
gun covered up by a jacket. Cox and Kendrick also testified, without objection, that
the robber had bolstered her threats by telling them that she had just been released
from “Marysville” for doing the “same thing.”
{¶10} Mendes testified about the investigation that led him to Trowbridge,
including Cox’s and Kendrick’s statements that the robber claimed to have been
recently released from the Marysville reformatory. He conceded that Trowbridge’s
DNA was not found on any of the clothing that the police recovered near the scene,
but he explained that he could not conclude that she had not worn them based on
that fact. He arrived at this conclusion after taking into account that Trowbridge had
worn the items for a short time on a cold day and that the surveillance video
demontrated that the clothing was loose fitting.
{¶11} After the state presented its last witness, but before it had offered its
exhibits into evidence, Trowbridge prematurely moved under Crim.R. 29(A) for an
acquittal on all charges. The court began to rule on the motion and asked the state
whether the parties had entered into a stipulation concerning the weapons-under-a-
disability offense. The prosecutor informed the court that Trowbridge had stipulated
that she had been convicted of burglary in 2008. The trial court then denied the
Crim.R. 29 motion and admitted the state’s exhibits into evidence, including a
certified copy of Trowbridge’s 2008 judgment of convicton for burglary in violation
of R.C. 2911.12(A)(2). The state then rested. Trowbridge offered into evidence
several exhibits that she had used in cross-examining the state’s witnesses and then
rested.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶12} The jury ultimately found Trowbridge guilty of all offenses. The trial
court sentenced Trowbridge to ten years for the aggravated robbery offense, three
years for the accompanying firearm specification, and two years for the weapons-
under-a-disability offense. The court merged the robbery offense into the
aggravated-robbery offense. The sentences were to be served consecutively, for an
aggregate term of 15 years.
II. Plain Error—Hearsay and Evidence of other Bad Acts
{¶13} In her first assignment of error, Trowbridge argues that the trial court
erred by repeatedly allowing testimony from Cox, Kendrick, and Officer Mendes that
she had previously been imprisoned in Marysville for another crime.1 Trowbridge
generally argues that this testimony was inadmissible under the rules of evidence
because it was hearsay, that it was inadmissible under the rules of evidence and R.C.
2945.59 because it constituted evidence of prior bad acts, and that it was
inadmissible under the rules of evidence because the probative value of the evidence
was substantially outweighed by the danger that the jury would base its finding of
guilt on the forbidden inference.
{¶14} Trowbridge concedes that trial counsel failed to object to any of this
testimony, thus we apply a plain-error analysis. State v. Lewis, 1st Dist. Nos. C-
050989 and C-060010, 2007-Ohio-1485, ¶ 39, citing Evid.R. 103(A)(1) and (D) and
Crim.R. 52(B). The Ohio Supreme Court has set forth the standard for noticing plain
error:
First, there must be an error, i.e., a deviation from the legal rule. * *
* Second, the error must be plain. To be ‘plain’ * * * an error must be
an ‘obvious’ defect in the trial proceedings. * * * Third, the error
must have affected ‘substantial rights.’ We have interpreted this
1 Trowbridge also claims that Officer Mendes testified about “[her] probation officer,” but the
record does not support this claim.
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OHIO FIRST DISTRICT COURT OF APPEALS
aspect of the rule to mean that the trial court’s error must have
affected the outcome of the trial.
State v. Payne, 114 Ohio St.3d 502, 2007-Ohio-4642, 873 N.E.2d 306, ¶ 16, quoting
State v. Barnes, 94 Ohio St.3d 21, 27, 759 N.E.2d 1240 (2002).
A. Hearsay
{¶15} “Hearsay” is defined as “a statement, other than one made by the
declarant while testifying at the trial or hearing, offered in evidence to prove the
truth of the matter asserted.” Evid.R. 801(C).
{¶16} In this case, Cox and Kendrick both identified Trowbridge as the
person who stated in their presence that she had been previously incarcerated in
Marysville for a similar act. Although this testimony was offered in part to show the
impact of the robber’s statement on Cox and Kendrick, i.e., why they feared she
would shoot them, the state also offered the statement in evidence for its truth—that
the robber had recently been released from the Marysville reformatory. Despite this
use, we conclude that Cox’s and Kendrick’s testimony was not hearsay.
{¶17} The rules of evidence provide that a statement is not hearsay if the
statement “is offered against a party” and it is “the party’s own statement.” Evid.R.
801(D)(2)(a). Here Trowbridge was a party-defendant, and the testimony was
offered against her at trial. Thus Cox’s and Kendrick’s testimony concerning the
statement that they unequivocally attributed to Trowbridge qualified as the
admission of a party opponent as defined in Evid.R. 801(D)(2)(a). See State v.
Leonard, 104 Ohio St.3d 54, 2004-Ohio-6235, 818 N.E.2d 229, ¶ 112 (“[a]
defendant’s own out-of-court statements, offered against him at trial, are not
hearsay”); State v. Williams, 10th Dist. No. 03AP-287, 2003-Ohio-6663, ¶ 17.
Therefore, Cox’s and Kendrick’s testimony concerning Trowbridge’s statement was
not hearsay, and it was not inadmissible on hearsay grounds.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶18} Officer Mendes’s testimony, however, involved Cox’s and Kendrick’s
statements to him that the robber indicated she had recently “ ‘got[ten] out of
Marysville for [doing] the same thing.’ ” This testimony would be hearsay if it were
offered to prove the truth of the matter asserted. But Officer Mendes’s testimony
was offered to explain his course of investigation; i.e., why he sought information
about former inmates at the reformatory in Marysville who had been recently
released to the area of the robbery and how he came to suspect Trowbridge. “Where
statements are offered to explain an officer’s conduct while investigating a crime,
such statements are not hearsay.” State v. Blevins, 36 Ohio App.3d 147, 149, 521
N.E.2d 1105 (10th Dist.1987), citing State v. Thomas, 61 Ohio St.2d 223, 232, 400
N.E.2d 401 (1980). Our review demonstrates that Officer Mendes’s testimony was
admissible for this purpose. Id. at 149-150.
B. Other-Act Evidence
{¶19} Trowbridge also argues that the admission of this testimony violated
Evid.R. 404(B) and the related statute R.C. 2945.59, as well as Evid.R. 403(A).
{¶20} “Evidence of other crimes, wrongs, or acts is not admissible to prove
the character of a person in order to show action in conformity therewith. It may,
however, be admissible for other purposes, such as proof of motive, opportunity,
intent, preparation, plan, knowledge, identity, or absence of mistake or accident.”
Evid.R. 404(B); see R.C. 2945.59. Though offered for an admissible purpose, the
evidence must be excluded if the trial court determines that the probative value of
the evidence is substantially outweighed by the danger of unfair prejudice, the
confusion of the issues, or misleading the jury. Evid.R. 403(A).
{¶21} The state argues that these statements were admitted for proper
purposes under Evid.R. 404(B). We agree. The testimony was admissible to prove
Trowbridge’s identity and intent and to establish the “threat” element of the
underlying theft offense and the firearm specification.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶22} Here Kendrick and Cox testified that the robber told them that she had
just been released from “Marysville.” Detective Mendes testified that his
investigation revealed that Trowbridge had been recently released from the
Reformatory for Women located in Marysville, Ohio, and that she was the only
inmate recently released to the area of the robbery. Because Trowbridge’s admission
that she had recently been released from “Marysville” furthered the state’s
identification of Trowbridge as the BP market robber, the evidence was admissible
for this limited purpose.
{¶23} Additionally, Kendrick and Cox testified that the robber’s claim to a
prior criminal history heightened their fear that she would have shot them had they
not cooperated with the robbery. Thus, the evidence tended to show Trowbridge’s
intent and the “threat” element of the offenses, and it was admissible for these
limited purposes. See Evid.R. 404(B); R.C. 2945.59; State v. Wilson, 8th Dist. No.
92148, 2010-Ohio-550.
{¶24} Trowbridge’s argument that the testimony was prejudicial and should
have been excluded under Evid.R. 403(A) is equally untenable. This rule provides
for the exclusion of relevant evidence when its probative value is substantially
outweighed by the danger of “unfair” prejudice, of confusion of the issues, or of
misleading the jury. Generally, “unfairly prejudicial” evidence appeals to the jurors’
emotions rather than to their intellect. See State v. Crotts, 104 Ohio St.3d 43, 437,
2004-Ohio-6550, 820 N.E.2d 302, ¶ 24.
{¶25} Trowbridge, by failing to object below, deprived the trial court of the
opportunity to make the subjective determination of whether the challenged
evidence was unfairly prejudicial. See id. at ¶ 25. And although we do not doubt
that this testimony prejudiced Trowbridge, we cannot say that it did so unfairly. The
state did not use this evidence to appeal to the jurors’ emotions, but to bolster its
identification evidence, which was diminished by the results of the DNA testing, and
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OHIO FIRST DISTRICT COURT OF APPEALS
to demonstrate Trowbridge’s intent to use the firearm, even though she had
concealed it under a jacket during the robbery. Therefore, we conclude that the
probative value was not substantially outweighed by the danger of unfair prejudice.
{¶26} In conclusion, because the challenged testimony related to
Trowbridge’s prior imprisonment in “Marysville” for doing the “same thing” was
admissible, Trowbridge has failed to demonstrate plain error. Accordingly, we
overrule the first assignment of error.
III. Identifiable Jail Clothing
{¶27} In her second assignment of error, Trowbridge contends that the trial
court prejudiced her right to a fair trial when it failed to honor her request to be tried
in civilian clothing during the trial and did not delay the start of the trial for her to
obtain civilian clothing.
{¶28} The United States Supreme Court has recognized that a defendant’s
right to a fair trial may be infringed by appearing before a jury in jail clothing.
Estelle v. Williams, 425 U.S. 501, 504, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976). But the
court declined to create a strict rule requiring the reversal of all convictions in which
the defendant appeared before the jury in prison clothing because it recognized that
a defendant may purposely elect to stand trial in jail clothing as a trial strategy to
elicit sympathy. See id. at 507-508. As a result, to demonstrate a constitutional
violation, the defendant must demonstrate that she was “compel[led] * * * to stand
trial before a jury while dressed in identifiable prison clothing.” Id. at 512. See also
State v. Miller, 1st Dist. No. C-010542, 2002-Ohio-3296, ¶ 9, citing State v. Dorsey,
8th Dist. No. 72177, 1998 Ohio App. LEXIS 1727 (Apr. 23, 1998).
{¶29} Although Trowbridge argues on appeal that the trial court “failed to
honor her request to be tried in civilian clothes,” an argument suggesting
compulsion, the factual basis for her argument is not demonstrated in the record.
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OHIO FIRST DISTRICT COURT OF APPEALS
Trowbridge simply did not ask to be tried in civilian clothes or object to her
wardrobe.
{¶30} The record demonstrates that after voir dire and the jury’s exit from
the courtroom, the trial court sua sponte raised the issue of Trowbridge’s attire. The
following discussion then transpired:
{¶31} Prosecutor: Okay. I just wanted to put on the record * * * that the
defendant, you know, chose to wear the jail clothing she has on now, and * * * that’s
what she wanted to wear today, and proceed to trial.
{¶32} Trowbridge: I didn’t—really I didn’t know—I mean.
{¶33} Court: Well, do you have any clothing available, ma’am?
{¶34} Trowbridge: I mean, yeah. My family could have brought me some,
but it just didn’t cross my mind.
{¶35} Court: All right. Well, maybe you can contact them tonight.
{¶36} The court then made reference to the five months that Trowbridge had
been in jail, and told Trowbridge to contact her family over the evening if she wished
to do so. She then replied, “I don’t think I can do it.”
{¶37} When the jury returned to the courtroom, the judge instructed the
jurors that they were not to make any inference of guilt from the fact that Trowbridge
was wearing jailhouse clothing. The issue of Trowbridge’s clothing was not raised
again.
{¶38} The defendant’s failure “to make an objection to the court as to being
tried in such clothes, for whatever reason, is sufficient to negate the presence of
compulsion necessary to establish a constitutional violation.” Estelle, 425 U.S. at
512-513, 96 S.Ct. 1691, 48 L.Ed.2d 126; see State v. Gandy, 1st Dist. No. C-050804,
2006-Ohio-6282, ¶ 5; State v. Menser, 1st Dist. No. C-050615, 2006-Ohio-6286, ¶
15; Miller, 1st Dist. No. C-010543, 2002-Ohio-3296, at ¶ 9.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶39} In this case, Trowbridge, who was represented by counsel, did not
object to proceeding to trial in jail clothing after the trial court raised the issue of her
clothing. Moreover, Trowbridge made no effort to obtain street clothes and
indicated that she would not make an effort. We can only conclude from these facts
that her appearance before the jury in prison clothing was not compelled by the
court. See Dorsey, 8th Dist. No. 72177, 1998 Ohio App. LEXIS 1727 (finding no
compulsion to stand trial in prison clothing where the court sua sponte inquired
about the defendant’s clothing and the defendant failed to communicate a desire to
be tried in civilian clothing). Therefore, Trowbridge has failed to demonstrate a
denial of her right to a fair trial. Accordingly, we overrule the second assignment of
error.
IV. Sufficiency- and Weight-of-the-Evidence Claims
{¶40} In her fourth assignment of error, which we address next, Trowbridge
argues that her convictions for aggravated robbery with a firearm specification and
having weapons under a disability were not supported by sufficient evidence and
were against the manifest weight of the evidence. We disagree.
A. Sufficiency
{¶41} In reviewing a claim that a conviction is not supported by sufficient
evidence, the relevant inquiry 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).
1. Aggravated Robbery with a Three-Year-Firearm Specification
{¶42} Trowbridge was convicted of aggravated robbery in violation of R.C.
2911.01(A)(1). That statute provides, in relevant part, that “[n]o person, in
attempting or committing a theft offense * * * or in fleeing immediately after * * *,
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OHIO FIRST DISTRICT COURT OF APPEALS
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.”
{¶43} Before Trowbridge could be found guilty of the three-year-firearm
specification accompanying the aggravated-robbery conviction, the state had to
prove that Trowbridge “had a firearm on or about [her] person * * * while
committing the offense and displayed the firearm, brandished the firearm, indicated
that [she] possessed the firearm, or used it to facilitate the offense.” R.C. 2941.145.
See R.C. 2929.14(D)(1)(a).
{¶44} The state presented testimony from three eyewitnesses—Cox,
Hendrick, and Keairns—who unequivocally identified Trowbridge as the BP market
robber. These eyewitnesses had seen Trowbridge at close range and were able to see
her face even though she wore a hood. These eyewitnesses further testified that she
had held what appeared to be a firearm in her hand underneath a jacket and that she
had repeatedly threatened to shoot them with it. The video surveillance
corroborated this testimony. Additionally, Trowbridge was the only woman in the
area who had recently been released from the Marysville reformatory, a claim made
by the robber during the robbery. After reviewing this evidence, we conclude that the
state met its burden of proof with respect to the offense of aggravated robbery and
the accompanying firearm specification.
2. Having Weapons Under a Disability
{¶45} R.C. 2923.13(A)(2) establishes the elements that the state must prove
to support a conviction for having weapons under a disability. It provides, in
relevant part, that “unless relieved from disability, * * * no person shall knowingly
acquire, have, carry, or use any firearm * * * if * * * the person * * * has been
convicted of any felony offense of violence.” Evidence of Trowbridge’s requisite
prior conviction was admitted into evidence, and the eyewitnesses’ testimony as well
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OHIO FIRST DISTRICT COURT OF APPEALS
as the surveillance footage demonstrated that Trowbridge had carried a firearm.
Accordingly, we conclude that the evidence was sufficient to prove that Trowbridge
knowingly carried and used a firearm while under a disability.
B. Weight of the Evidence
{¶46} In her argument regarding the manifest weight of the evidence,
Trowbridge attacks the credibility of the eyewitnesses. But the weight to be given the
evidence and the credibility of the witnesses were primarily for the trier of fact. State
v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967), paragraph one of the syllabus.
We find nothing in the record of the proceedings below to suggest that the jury, in
resolving the conflicts in the evidence adduced on the charged offenses, lost its way
or created such a manifest miscarriage of justice as to warrant the reversal of
Trowbridge’s convictions. See State v. Thompkins, 78 Ohio St.3d 380, 387, 678
N.E.2d 541 (1997).
{¶47} Based upon our review of the record, we determine that Trowbridge’s
convictions were supported by sufficient evidence and were not against the manifest
weight of the evidence. Accordingly, we overrule the fourth assignment of error.
V. Ineffective-Assistance-of-Trial-Counsel Claim
{¶48} In her third assignment of error, Trowbridge argues that she was
denied the effective assistance of trial counsel. To succeed on a claim of ineffective
assistance of trial counsel, the defendant must demonstrate that counsel’s
performance fell below an objective standard of reasonable representation and that
she was prejudiced by counsel’s deficient performance. Strickland v. Washington,
466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio St.3d
136, 538 N.E.2d 373 (1989), paragraph two of the syllabus. To establish the
necessary prejudice, the defendant must demonstrate a reasonable probability exists
that the outcome of the proceeding would have been different if not for counsel’s
errors. Bradley at paragraph three of the syllabus.
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{¶49} When reviewing counsel’s performance, we must “indulge a strong
presumption that counsel’s conduct falls within a wide range of reasonable
professional assistance.” Strickland at 690.
{¶50} Trowbridge contends that counsel was ineffective because he failed (1)
to object to the admission of other-act testimony and the prosecutor’s use of leading
questions; (2) to properly argue and renew a Crim.R. 29 motion; and (3) to file a
motion to suppress pretrial identification evidence.
{¶51} Trowbridge argues that trial counsel was ineffective for failing to
object to testimony concerning Trowbridge’s admission that she “had just got[ten]
out of Marysville for [doing] the same thing.” But we have already held that this
testimony was admissible for the limited purposes of establishing Trowbridge’s
identity and intent, and the element of threat. Thus, counsel was not deficient for
failing to object to the admission of this testimony. Similarly, we cannot say that trial
counsel was deficient for failing to object to leading questions by the prosecutor. The
trial court has discretion to allow leading questions on direct examination, and the
questioning here was within the bounds of that discretion. See Staff Note to Evid.R.
611(C); State v. D’Ambrosio, 67 Ohio St.3d 185, 190, 616 N.E.2d 909 (1993).
{¶52} Next Trowbridge challenges defense counsel’s performance with
respect to the Crim.R. 29 motion. But any error in counsel’s performance was not
prejudicial where the state presented sufficient evidence of each element of the
offenses.
{¶53} Finally, Trowbridge contends that defense counsel was deficient for
failing to move to suppress the “identification evidence.” We assume that
Trowbridge is referring to the eyewitnesses’ pretrial identification testimony. But
Trowbridge has not presented any grounds for suppression, and counsel’s failure to
file a motion to suppress is not a “per se” deficiency. State v. Madrigal, 87 Ohio
St.3d 378, 389, 721 N.E.2d 52 (2000). Thus, Trowbridge has not demonstrated that
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counsel’s failure to file a motion to suppress was deficient. See State v. Brown, 115
Ohio St.3d 55, 2007-Ohio-4837, 873 N.E.2d 858, ¶ 65 (“[t]o establish ineffective
assistance of counsel for failure to file a motion to suppress, a defendant must prove
that there was a basis to suppress the evidence in question”).
{¶54} In summary, Trowbridge has failed to demonstrate that any deficient
performance by counsel prejudiced her. Accordingly, we overrule the third
assignment of error.
VI. Excessive-Sentence Claim
{¶55} In her final assignment of error, Trowbridge argues that the trial court
imposed an excessive aggregate sentence. The trial court imposed a ten-year term
for the aggravated robbery, a first-degree felony offense, to be served consecutively to
the three-year mandatory term for the accompanying firearm specification, and a
two-year term for the weapons offense, a third-degree felony, for an aggregate
sentence of 15 years of imprisonment.
{¶56} We conduct a two-part review of Trowbridge’s sentence of
imprisonment. See State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d
124. We must first examine the sentencing court’s compliance with all applicable
rules and statutes to determine whether the sentence is clearly and convincingly
contrary to law; if not, we must review the sentence to determine whether the trial
court abused its discretion in imposing it. See State v. Brown, 1st Dist. Nos. C-
100309 and C-100310, 2011-Ohio-1029, ¶ 13, citing Kalish at ¶ 14 and 17.
{¶57} Here the aggregate sentence imposed was not contrary to law. The
terms imposed were within the range provided for the degree of the offenses. See
R.C. 2929.14. And the court was required to impose a three-year term for the
accompanying firearm specification. R.C. 2929.14(B)(1)(a). The trial court was not
obligated to engage in judicial fact-finding before making the sentences for the
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aggravated robbery and the weapons offenses consecutive.2 Brown at ¶ 14, citing
Kalish at ¶ 11. Further, we may presume that the trial court considered the relevant
sentencing statutes, including R.C. 2929.11 and R.C. 2929.12, although it did not
specifically state that it did. Brown at ¶ 14, citing Kalish at fn. 4.
{¶58} Having presided over the jury trial and having ordered a presentence
investigation, the trial court had knowledge of the facts of the offenses, Trowbridge’s
prior conviction, and her arguments in mitigation. On the state of this record, we
cannot say that the trial court imposed an excessive aggregate sentence or that the
trial court acted unreasonably, arbitrarily, or unconscionably in imposing it.
VII. Conclusion
{¶59} The judgment of the trial court is affirmed.
Judgment affirmed.
HILDEBRANDT, P.J., and DINKELACKER, J., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
2 Trowbridge was sentenced before the effective date of 2011 Am.Sub.H.B. No. 86.
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