State v. Baker , 2014 Ohio 3163 ( 2014 )

[Cite as State v. Baker, 2014-Ohio-3163.]
IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO
STATE OF OHIO :
Plaintiff-Appellee : C.A. CASE NO. 25828
v. : T.C. NO. 11 CR 4317/2
LARRY BAKER : FINAL ENTRY
Defendant-Appellant :
:
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OPINION
Rendered on the 18th day of July , 2014.
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ANDREW T. FRENCH, Atty. Reg. No. 0069384, Assistant Prosecuting Attorney, 301 W.
Third Street, 5th Floor, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee
ELIZABETH C. SCOTT, Atty. Reg. No. 0076045, 120 W. Second Street, Suite 603,
Dayton, Ohio 45402
Attorney for Defendant-Appellant
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FROELICH, P.J.
{¶ 1} Larry Baker was found guilty by a jury in the Montgomery County
Court of Common Pleas of four counts of murder, one count of aggravated robbery, and one
count of felonious assault, each with a firearm specification. After merger of some of the
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counts, Baker was sentenced to two consecutive terms of 15 years to life on each of two
counts of murder, and to three additional years on each of two firearm specifications, to be
served consecutively to each other and to the sentence for the murders; the aggregate prison
term was 36 years to life. Baker appeals, raising three assignments of error.
{¶ 2} For the following reasons, the judgment of the trial court will be affirmed.
{¶ 3} All of the offenses relate to a robbery and shooting at the Cash and Go pawn
shop on December 22, 2011. Baker and two accomplices, Darren Taylor and Anthony
Dewayne McClain, were alleged to have driven to the pawn shop from Detroit that morning
and to have robbed the shop and shot its employee, Ilya Golub. Golub returned fire, striking
McClain, but the three alleged perpetrators managed to flee and returned to Detroit. Golub
and McClain died from their gunshot wounds.
{¶ 4} Baker was later charged with four counts of murder (two as a proximate
result of aggravated robbery, and two as a proximate result of felonious assault), two counts
of aggravated robbery with a deadly weapon, and two counts of felonious assault with a
deadly weapon. Each count included a firearm specification. Baker was tried by a jury on
June 2013, and was convicted on all counts.1 The four counts of which Golub was the
victim (two counts each of murder, aggravated robbery, and felonious assault) were merged,
and the two counts of murder related to McClain were merged. As discussed above, Baker
was sentenced to an aggregate term of 36 years to life.
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Taylor was charged with the same offenses, as well as having weapons
while under disability; he was also convicted on all counts. We affirmed the
convictions in State v. Taylor, 2d Dist. Montgomery No. 25764, 2014-Ohio-2550.
[Cite as State v. Baker, 2014-Ohio-3163.]
{¶ 5} Baker raises three assignments of error on appeal. His first two assignments
challenge the weight and sufficiency of the evidence, and we will address them together.
{¶ 6} An argument based on the sufficiency of the evidence challenges whether
the State has presented adequate evidence on each element of the offense to allow the case to
go to the jury or to sustain the verdict as a matter of law. State v. Thompkins, 78 Ohio St.3d
380, 386, 678 N.E.2d 541 (1997). Under a sufficiency analysis, an appellate court does not
make any determinations regarding the credibility of witnesses. State v. Goff, 82 Ohio St.3d
123, 139, 694 N.E.2d 916 (1998), citing State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d
212 (1967), paragraph one of the syllabus. “An appellate court’s function when reviewing
the sufficiency of the evidence to support a criminal conviction is to examine the evidence
admitted at trial to determine whether such evidence, if believed, would convince the
average mind of the defendant’s guilt beyond a reasonable doubt. The relevant inquiry is
whether, after viewing the evidence in a light most favorable to the prosecution, any rational
trier of fact could have found the essential elements of the crime proven beyond a reasonable
doubt.” State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the
syllabus.
{¶ 7} In contrast, when reviewing an argument challenging the weight of the
evidence, “‘[t]he court, reviewing the entire record, weighs the evidence and all reasonable
inferences, considers the credibility of witnesses and determines whether in resolving
conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage
of justice that the conviction must be reversed and a new trial ordered. The discretionary
power to grant a new trial should be exercised only in the exceptional case in which
evidence weighs heavily against the conviction.’” Thompkins at 387, quoting State v.
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Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).
{¶ 8} Where an appellate court determines that a conviction is not against the
manifest weight of the evidence, the conviction is necessarily based on legally sufficient
evidence. State v. Million, 2d Dist. Montgomery No. 24744, 2012-Ohio-1774, ¶ 23; State
v. Combs, 2d Dist. Montgomery No. 19853, 2004-Ohio-2419, ¶ 12.
{¶ 9} The State established the following facts at trial.
{¶ 10} On Thursday, December 22, 2011, Baker, Taylor, and McClain had cell
phone conversations in the early morning hours and departed together from Detroit in
Taylor’s green and tan Pontiac Astro van. They drove to the Dayton area and parked a short
distance from the Cash and Go pawn shop on Salem Avenue. Ilya Golub opened the shop
at 9:00 a.m, and Taylor entered the shop. Baker and McClain entered the establishment
about five minutes after Taylor; Baker carried a backpack. Video surveillance tapes showed
that, after Baker and Taylor walked up and down the aisles of the shop, the men converged
near the counter and confronted Golub. Taylor shot Golub several times at close range.
Golub managed to return fire as the men were leaving the shop, striking McClain.
{¶ 11} The three men ran to the van, turned it around on a side street, and drove on
Salem Avenue toward Interstate 75. A man who had been eating breakfast at a restaurant
across the street from the pawn shop saw the three men run from the shop and enter the
green Astro van, but he was unsure which man was driving. He ran to his car and followed
the van until it entered the highway. He then returned to the pawn shop and gave the van’s
Michigan license plate number to sheriff’s deputies, who had arrived at the scene. Several
witnesses testified that a silver gun was on the ground in the pawn shop parking lot.
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{¶ 12} Another employee of the pawn shop testified that he had arrived for work a
few minutes late on December 22, 2011, and found the door “busted” (the glass had been
shot out) and Golub on the floor behind the counter with a gun in his hand; Golub was not
moving. The employee testified that Golub was known to carry a gun in the store and that
the store kept large amounts of cash in a safe to facilitate loans. No testimony was offered
about what, if anything, was taken from the pawn shop.
{¶ 13} The deputies broadcast a description of the van; they also recovered the
revolver from the parking lot and spent casings from in and around the pawn shop and from
the exterior of the building across the street. They discovered that the van was registered to
Taylor.
{¶ 14} Sherri Webb, a cousin of Taylor and an emergency medical technician in
Michigan, testified that she received a series of phone calls from Taylor on December 22,
2011, beginning at approximately 10:00 a.m. Taylor stated that his friend had been shot,
and Webb provided Taylor with instructions on performing CPR and information about the
locations of hospitals along Interstate 75 in Ohio and Michigan along the route to Detroit.
Taylor later told Webb that he “dumped Wayne” (McClain) on Kirby Street in Detroit.
Webb testified that Kirby was not far from I-75. Webb contacted the police in an effort to
save McClain (although she did not know his identity at the time).
{¶ 15} At approximately 1:10 p.m. on December 22, 2011, McClain’s body was
found in an alley near 609 East Kirby Street in Detroit, with bullet wounds in the elbow and
upper back.
{¶ 16} Fatimah Muhammad, one of Taylor’s girlfriends, testified that Taylor came
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to her house around 3:00 p.m. on December 22, and entered through the back door, which
was unusual. Her garage was about 15 feet from the back door. She testified that Taylor
was very upset when he came in, and was crying, but that he did not stay long. He was
picked up by someone in a red SUV, and went to an appointment with his parole officer.
She never saw him or the red SUV again. She later learned that the red SUV belonged to
Baker.
{¶ 17} By the afternoon of December 22, the Montgomery County Sheriff’s Office
was working with a cellular service provider to obtain information about the real-time
location of two phones associated with Taylor. The sheriff’s department asked the
Southfield, Michigan, police department to set up surveillance on Taylor, and it informed the
Southfield police that Taylor might be at a certain address. The Southfield police
recognized this address as a parole office and responded to that address while Taylor was
still in the building. While Taylor was being arrested at the parole office, his cell phones
received several incoming calls from “Larry.”
{¶ 18} On December 23, 2011, Montgomery County Sheriff’s Office detectives,
working in conjunction with the Michigan State Police, used cell phone records to identify a
connection between Taylor and “Larry” (Baker), and they obtained a photograph of Baker.
When this photograph was compared with the video from the pawn shop robbery, Baker was
identified as a suspect, and a search warrant was obtained for his home on Santa Rosa Drive
in Detroit. McClain’s wallet was found under a mattress in the home, but Baker’s location
was unknown at that time. A warrant was issued and he was arrested at his home in
February 2012.
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{¶ 19} Also on December 23, Taylor’s van was found parked inside the garage at
Muhammad’s home. An atlas, cleaning supplies, rags, and a lottery ticket were found in the
van. Muhammad, who did not store a car in her garage, testified that she had been unaware
that Taylor’s van was parked in her garage until the police arrived. A large red stain was
present on the second row of seats inside the van, some of which appeared to have been
bleached. Muhammad testified that she had ridden in the van on Wednesday, December 21,
and the cleaning supplies, the blood stain, and the lottery ticket had not been in the van at
that time.
{¶ 20} The lottery ticket found in the van was purchased on December 22, 2011, at
1:04 p.m. The ticket led the Michigan State Police to a lottery terminal at a CVS in Detroit,
four to five blocks from Kirby Street. Surveillance videos from the CVS at the relevant time
showed two men drive into the parking lot in a 1995 Pontiac minivan matching the
description of the van involved in the pawn shop robbery; surveillance video inside the store
also showed Baker, dressed in the same clothing as in the pawn shop video, purchasing a
lottery ticket. The other man stayed in the van, which remained in the CVS parking lot
while Baker was in the store.
{¶ 21} Montgomery County Sheriff’s Office Detective Patrick O’Connell testified
that he had tracked the activities and location of the cell phone towers off of which Taylor’s,
McClain’s and Baker’s cell phones had “pinged” the morning of December 22, 2011. He
documented that the men had exchanged phone calls during the night and that, beginning
shortly after 4:40 a.m., the coordinates of their travel had generally followed a path from
Southfield, Michigan to Santa Rosa Avenue in Detroit (Baker’s residence), south along I-75
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to Toledo and on to Dayton, where there was a ping 1/4 mile from the pawn shop, and then
north again along I-75 to Detroit and a location near Kirby (where McClain’s body was
dumped), to the area of Muhammad’s house, and then to the parole office.
{¶ 22} An inmate who spent some time in the same pod with Baker at the
Montgomery County Jail testified that, in talking about why he was in jail, Baker had
described “[being] on a roll” from Detroit when he committed a robbery involving a
shoot-out. According to the fellow inmate, Baker claimed that he had only been driving the
car and that the “other two dudes” did the shooting.
{¶ 23} DNA linked to McClain and Baker was found on the gun in the pawn store
parking lot. DNA evidence found on the steering wheel and driver’s door of the Astro van
belonged to Taylor. The blood on the second seat of the van belonged to McClain.
{¶ 24} The forensic pathologist who conducted the autopsy of McClain testified
that, based on his injuries, McClain could have run a short distance after he was shot. He
also testified that McClain would likely have survived the “tension pneumothorax” that
killed him, if he had received treatment.
{¶ 25} Baker did not call any witnesses at trial. His attorney did not deny that
Baker had made the trip from Detroit to Dayton with his friends or that he had been present
at the robbery and shooting; the defense asserted that Baker had been a mere bystander
during the robbery and had not known that the other men intended to rob the pawn shop.
{¶ 26} The jury was instructed on complicity and aiding and abetting, as well as the
principal offenses with which Baker was charged. It was further instructed that “[t]he mere
presence of an accused at the scene of the crime and the fact that he was acquainted with the
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perpetrator is not sufficient proof in and of itself that he was an aider or abettor.” It was
also correctly instructed that it could rely on direct and/or circumstantial evidence, and that it
could infer facts from other facts that had been proven by the evidence.
{¶ 27} The record contains substantial competent, credible evidence upon which the
jury could have reasonably concluded that Baker conspired with, assisted or encouraged
Taylor and McClain in the robbery of the pawn shop. If Baker was involved with the
robbery in any of these ways, it makes no difference who held or fired the gun(s) used in the
offense; he would be equally guilty of robbery and murder. See R.C. 2923.03; State v.
Letts, 2d Dist. Montgomery No. 15681, 2001 WL 699537, * 4 (June 22, 2001); State v.
Cochran, 3rd Dist. Marion No. 9-81-30, 1982 WL 6795, * 5 (May 19, 1982).
{¶ 28} As stated above, the credibility of witnesses and the weight to be given the
evidence are primarily for the trier of fact; the jury is free to believe all, part, or none of the
testimony of each witness who appears before it. It is also permitted to draw reasonable
inferences from the evidence presented. The jury chose to believe the State’s version of the
facts. Baker’s conviction was supported by sufficient evidence, and we cannot say that the
jury clearly lost its way and created such a manifest miscarriage of justice that the conviction
must be reversed.
{¶ 29} The first and second assignments of error are overruled.
{¶ 30} In his third assignment of error, Baker asserts that he was denied the
effective assistance of counsel because 1) counsel lacked basic knowledge regarding the
motion to suppress; 2) counsel had ineffective communication with the jury and discussed
incorrect standards with the jury, and 3) counsel “frustrated the trial court” throughout the
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proceedings.
{¶ 31} We review alleged instances of ineffective assistance of trial counsel under
the two prong analysis set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052,
80 L.Ed.2d 674 (1984), and adopted by the Supreme Court of Ohio in State v. Bradley, 42
Ohio St.3d 136, 538 N.E.2d 373 (1989). Pursuant to those cases, trial counsel is entitled to
a strong presumption that his or her conduct falls within the wide range of reasonable
assistance. Strickland, 466 U.S. at 688. To reverse a conviction based on ineffective
assistance of counsel, it must be demonstrated that trial counsel’s conduct fell below an
objective standard of reasonableness and that his or her errors were serious enough to create
a reasonable probability that, but for the errors, the result of the trial would have been
different. Id.{¶ 32} With respect to the motion to suppress, which concerned the search warrant
for Baker’s residence, Baker identifies only one example of counsel’s alleged “lack of basic
knowledge”: a question asked by defense counsel at the suppression hearing of a witness
from the Michigan State Police. Defense counsel asked the witness to describe what
information she had with respect to Baker’s involvement in the robbery and murder before
seeking a search warrant for his home. The State argued that the affidavit in support of the
search warrant was beyond the scope of the issues raised in the motion to suppress and the
“four corners” of the warrant, and its objection to the question was sustained. According to
Baker, this question showed defense counsel’s lack of understanding of the holding in
Franks v. Deleware, 438 U.S. 154, 171, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). Counsel’s
next question, which asked what information the witness had received from Montgomery
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County pertaining to Baker’s involvement in the “incident,” was allowed.
{¶ 33} Counsel’s question did not, on its face, evince a lack of understanding of the
law with respect to search warrants or motions to suppress. Moreover, there is no evidence
in the record to suggest that the facts of this case supported a challenge to the affidavit
underlying the search warrant. As such, there is no basis to conclude that counsel’s failure
to file a more expansive motion to suppress (based on Franks) demonstrated counsel’s
ineffectiveness or met either prong of Strickland.
{¶ 34} Baker also asserts that counsel displayed a lack of knowledge and
“ineffective communication” during jury selection. Although he cites pages of the
transcript, Baker does not otherwise present an argument as to how counsel acted
ineffectively. On one of the cited pages, defense counsel commented to the prospective
jurors about how they would want a defense attorney to provide zealous representation “if
your son was sitting there” as a defendant; the court sustained the State’s objection to the
comment. At another point, defense counsel asked prospective jurors whether they thought
they (the jurors) “should be accountable for the conduct of two other individuals that are not
you” or of whose actions they were unaware. Again, the State’s objection was sustained in
open court. These examples may demonstrate that defense counsel was attempting, during
voir dire, to suggest the defense’s theory of the case (that Baker was an unknowing
bystander to the robbery) and to ensure that prospective jurors would be capable of
separating the acts of an unknowing bystander from criminal conduct of his companions;
they do not demonstrate that defense counsel appeared incompetent to the jury or that he
acted in a manner that prejudiced Baker in the eyes of the potential jurors. The cited pages
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do not demonstrate representation that fell below an objective standard of reasonableness.
{¶ 35} Baker also cites a section of the transcript wherein the parties and the court
were in chambers discussing challenges for cause. After defense counsel stated that he did
not have any challenges for cause that had not already been addressed by the State, the court
raised a question as to Juror # 27, who “said he was 50 yards away when [the robbery]
happened. He was there when the investigation occurred” and “walked up.” The judge
asked, “Does that cause any hair to raise on anybody’s back?” Defense counsel then asked
that Juror # 27 be stricken for cause. Although defense counsel had previously passed on
objections to the juror, the court “let [him] re-open” and challenge the juror for cause. The
court pointed out that neither party had questioned the juror during voir dire on that issue, so
that it would be more clear whether the juror could be “fair and impartial.” The court then
overruled the challenge for cause.
{¶ 36} We agree with the trial court that the record does not establish that there
was any basis to strike Juror # 27. Although defense counsel might have questioned the
juror more extensively about his presence near the scene of the crime and his observations
there, defense counsel could have reasonably concluded that the prospective juror’s
observations after the event were unlikely to have had any bearing on Baker’s guilt. This is
especially true since anything the juror might have seen occurred after the shootings, and
those events were not in dispute. There is no basis to conclude that defense counsel was
ineffective in failing to question Juror # 27 further or in failing to take the initiative to strike
him.
{¶ 37} Finally, Baker contends, without any specific references or allegations of
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prejudice, that trial counsel was ineffective because he was “cantankerous” and “frustrat[ed]
the trial court.” Having thoroughly reviewed the record, we find no support for this
assertion.
{¶ 38} Baker has not demonstrated that he was denied the effective representation
of counsel.
{¶ 39} The third assignment of error is overruled.
{¶ 40} The judgment of the trial court will be affirmed.
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FAIN, J. and WELBAUM, J., concur.
Copies mailed to:
Andrew T. French
Elizabeth C. Scott
Hon. Dennis J. Adkins