State v. Clark , 2014 Ohio 5101 ( 2014 )


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  • [Cite as State v. Clark, 2014-Ohio-5101.]
    IN THE COURT OF APPEALS OF OHIO
    TENTH APPELLATE DISTRICT
    State of Ohio,                                    :
    Plaintiff-Appellee,              :
    No. 14AP-142
    v.                                                :             (C.P.C. No. 12CR-2587)
    Antonio M. Clark,                                 :           (REGULAR CALENDAR)
    Defendant-Appellant.             :
    ___
    D E C I S I O N
    Rendered on November 18, 2014
    ___
    Ron O'Brien, Prosecuting Attorney, and Michael P. Walton,
    for appellee.
    Clark Law Office, and Toki Michelle Clark, for appellant.
    ____
    APPEAL from the Franklin County Court of Common Pleas
    TYACK, J.
    {¶ 1} Antonio M. Clark is appealing from his multiple convictions of felony
    charges following a jury trial. He assigns six errors for our consideration:
    [I.] THE VERDICT OF GUILTY IS NOT SUPPORTED BY
    LEGALLY SUFFICIENT EVIDENCE.
    [II.] THE CONVICTION OF APPELLANT IS AGAINST THE
    MANIFEST WEIGHT OF THE EVIDENCE.
    [III.] THE TRIAL COURT ERRED WHEN IT FAILED TO
    GRANT THE DEFENDANT'S MOTION FOR ACQUITTAL.
    [IV.] JUROR MISCONDUCT IS PRESENT WHERE JURY
    FOREMAN DISTRIBUTES HIS OWN WRITTEN INSTRUC-
    TIONS WITH THREE JURORS PRESENT IN THE
    DELIBERATION ROOM.
    No. 14AP-142                                                                                 2
    [V.] THE RULE OF COMPLETENESS IS VIOLATED IN A
    CRIMINAL CASE WHEN SELECTIVE INFORMATION IS
    INTRODUCED IN A MANNER PLACING EVIDENCE IN A
    FALSE LIGHT.
    [VI.] THE MERGER OF AGGRAVATED ROBBERY, AGGRA-
    VATED BURGLARY, AND KIDNAPPPING IS PERMISSIBLE.
    {¶ 2} There is no serious debate that on March 6, 2011, two Ohio State University
    ("OSU") students were robbed at gunpoint, and the residence of one of the students was
    burglarized. At trial, Clark argued that he was not one of the robbers. One of the robbers,
    Alvin Meeks, testified at trial that Clark was, in fact, part of the group of three who did the
    robbing and burglarizing.
    {¶ 3} One of the items taken was an iPhone with tracking capability. The phone
    was soon tracked to a Waffle House on the east side of Columbus. This led Columbus
    police to encounter Meeks and the gold-colored car he owned.
    {¶ 4} The police followed Meeks and soon realized that he no longer had the
    iPhone. Police then tracked the phone to a nearby golf course and encountered two men
    dressed in black. Upon realizing that police were present, the two men fled. Later, the
    iPhone was found abandoned.
    {¶ 5} Meeks was arrested and, after attempting to exonerate himself with lies,
    reached an agreement with the prosecutor to be debriefed as to the robberies and to
    testify at trial against Antonio Clark.
    {¶ 6} Meeks claimed that he helped rob the students along with Clark and a friend
    of Clark's known as "Fuzz." Meeks claimed that Clark had a .38 caliber handgun and that
    Fuzz had a 9 mm. pistol.
    {¶ 7} After the robbery and burglary, the group went to the Waffle House where
    they encountered the numerous police officers who responded. Meeks claimed that Clark
    said it was "every man for himself" and grabbed the iPhone before fleeing.
    {¶ 8} Based upon Meeks' claims that Clark was involved, police created a photo
    array and presented it to one of the OSU students. The student was 70 to 80 percent
    certain that Clark was one of the robbers.
    No. 14AP-142                                                                                3
    {¶ 9} Based upon Meeks' claims, Clark was indicted. The case proceeded to a jury
    trial twice. No verdicts were reached at the first trial because the first jury could not
    agree.
    {¶ 10} The case was tried a second time, and the second jury found Clark guilty of
    all the charges and specifications in the indictment. Following sentencing, this appeal was
    initiated.
    {¶ 11} The evidence presented at the second trial was sufficient to support the
    conviction.     Meeks' description of what occurred, coupled with the OSU students'
    identification of Clark as one of the robbers, was more than sufficient to support the
    convictions under the legal standard we must apply in addressing the sufficiency of the
    evidence.
    {¶ 12} Sufficiency of the evidence is the legal standard applied to determine
    whether the case should have gone to the jury. State v. Thompkins, 
    78 Ohio St. 3d 380
    ,
    386 (1997). In other words, sufficiency tests the adequacy of the evidence and asks
    whether the evidence introduced at trial is legally sufficient as a matter of law to support a
    verdict. 
    Id. "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
    (1991), paragraph two of the syllabus, following Jackson v. Virginia, 
    443 U.S. 307
    (1979). The verdict will not be disturbed unless the appellate court finds that reasonable
    minds could not reach the conclusion reached by the trier of fact. Jenks at 273. If the
    court determines that the evidence is insufficient as a matter of law, a judgment of
    acquittal must be entered for the defendant. See Thompkins at 387.
    {¶ 13} The first assignment of error is overruled.
    {¶ 14} For a Crim.R. 29 motion for a judgment of acquittal to be sustained, the
    evidence must have been insufficient to convict. As noted earlier, the evidence was more
    than sufficient to convict. Therefore, the trial court was correct to overrule the motion for
    judgment of acquittal.
    {¶ 15} The third assignment of error is overruled.
    No. 14AP-142                                                                               4
    {¶ 16} The standard for assessing the weight of the evidence is different from the
    standard for assessing the sufficiency.
    {¶ 17} As this court has previously stated, "[w]hile the jury may take note of the
    inconsistencies and resolve or discount them accordingly, see [State v.] DeHass [10 Ohio
    St.2d 230 (1967)], such inconsistencies do not render defendant's conviction against the
    manifest weight or sufficiency of the evidence." State v. Nivens, 10th Dist. No. 95APA09-
    1236 (May 28, 1996). It was within the province of the jury to make the credibility
    decisions in this case. See State v. Lakes 
    120 Ohio App. 213
    , 217 (4th Dist.1964) ("It is the
    province of the jury to determine where the truth probably lies from conflicting
    statements, not only of different witnesses but by the same witness.").
    {¶ 18} See State v. Harris, 
    73 Ohio App. 3d 57
    , 63 (10th Dist.1991), (even though
    there was reason to doubt the credibility of the prosecution's chief witness, he was not so
    unbelievable as to render verdict against the manifest weight).
    {¶ 19} We are not in a position to weigh the evidence in the way the second jury
    did, especially the testimony of Alvin Meeks. We did not see the live testimony. We can
    only review transcripts and exhibits. This case does not present one of the rare occasions
    where we can find the jury's verdicts were against the manifest weight of the evidence
    because the weight of the evidence totally rests on the credibility of Alvin Meeks.
    {¶ 20} The second assignment of error is overruled.
    {¶ 21} The fourth assignment of error discusses the way the trial court handled an
    instance of what could be considered jury misconduct.
    {¶ 22} The foreman of the jury brought documents into the room where the jury
    deliberations were to be conducted. The documents were viewed by the trial court as
    "completely innocuous." The documents contained information about how to conduct an
    effective meeting. The focus included insights on how to allow each juror to present his or
    her point of view on the evidence presented. Clark's trial counsel indicated to the court
    that the trial counsel viewed the situation to be non-problematic. Given this opinion
    expressed by trial counsel, plain error had to exist for us to overturn the conviction. We
    cannot find that plain error is present.
    No. 14AP-142                                                                               5
    {¶ 23} To constitute plain error, the error must be obvious on the record, palpable,
    and fundamental such that it should have been apparent to the trial court without
    objection. See State v. Tichon, 
    102 Ohio App. 3d 758
    , 767 (9th Dist.1995). Moreover,
    plain error does not exist unless the appellant establishes that the outcome of the trial
    clearly would have been different but for the trial court's allegedly improper actions. State
    v. Waddell, 
    75 Ohio St. 3d 163
    , 166 (1996). Notice of plain error is to be taken with utmost
    caution, under exceptional circumstances and only to prevent a manifest miscarriage of
    justice. State v. Phillips, 
    74 Ohio St. 3d 72
    , 83 (1995); State v. Ospina, 
    81 Ohio App. 3d 644
    , 647 (10th Dist.1992).
    {¶ 24} We overrule the fourth assignment of error.
    {¶ 25} The fifth assignment of error addresses the appropriate interpretation of
    Evid.R. 106, which reads:
    When a writing or recorded statement or part thereof is
    introduced by a party, an adverse party may require the
    introduction at that time of any other part or any other
    writing or recorded statement     which    is   otherwise
    admissible and which ought in fairness to be considered
    contemporaneously with it.
    {¶ 26} Clark was interviewed by the police on two occasions. The State of Ohio
    wanted the jury to hear the second interview. Counsel for Clark wanted the jury to also
    hear the first interview. The State resisted, arguing that the interview was not "otherwise
    admissible" and, therefore, not something to be placed before the jury.
    {¶ 27} As noted in the State's brief, Evid.R. 106 addresses only the timing of when
    admissible evidence is presented ("to be considered contemporaneously"), not the
    admissibility per se. Clark's first interview with the police was clearly an exculpatory
    statement and, therefore, not admissible hearsay. We cannot say that the trial court
    abused its discretion in refusing the effort of Clark's counsel to place Clark's first
    statement to police before the jury.
    {¶ 28} The fifth assignment of error is overruled.
    {¶ 29} The sixth assignment of error addresses what it usually referred to as
    merger of offenses. In reality, the issue is the interpretation of the multiple-counts
    statute, R.C. 2941.25, which reads:
    No. 14AP-142                                                                               6
    (A) Where the same conduct by defendant can be construed to
    constitute two or more allied offenses of similar import, the
    indictment or information may contain counts for all such
    offenses, but the defendant may be convicted of only one.
    (B) Where the defendant's conduct constitutes two or more
    offenses of dissimilar import, or where his conduct results in
    two or more offenses of the same or similar kind committed
    separately or with a separate animus as to each, the
    indictment or information may contain counts for all such
    offenses, and the defendant may be convicted of all of them.
    {¶ 30} This court has " 'consistently applied the two-part test set forth in [State v.
    Johnson, 
    128 Ohio St. 3d 153
    , 2010-Ohio-6314] plurality opinion when conducting allied-
    offense analysis.' " State v. Phipps, 10th Dist. No. 13AP-640, 2014-Ohio-2905, ¶ 62,
    quoting State v. Damron, 10th Dist. No. 12AP-209, 2012-Ohio-5911, ¶ 11, citing State v.
    Carson, 10th Dist. No. 11AP-809, 2012-Ohio-4501, ¶ 16.             Johnson stands for the
    proposition that "[w]hen determining whether two offenses are allied offenses of similar
    import subject to merger under R.C. 2941.25, the conduct of the accused must be
    considered." 
    Id. at syllabus.
           {¶ 31} Under the two-part Johnson analysis, "we first examine whether the
    offenses are able to be committed with the same conduct." Damron at ¶ 11. If it is
    possible for an offender to commit both offenses with the same conduct, the Johnson test
    then requires the court to determine whether the offenses were, in fact, committed by the
    same conduct. Phipps at ¶ 63. The "same conduct" is " 'a single act, committed with a
    single state of mind.' " Johnson at ¶ 49, quoting State v. Brown, 
    119 Ohio St. 3d 447
    ,
    2008-Ohio-4569, ¶ 50. If the answer to both inquiries is yes, the court must merge the
    offenses as allied offenses of similar import prior to sentencing. Phipps at ¶ 63, citing
    Johnson at ¶ 50. Conversely, the offenses will not merge if the court determines "that the
    commission of one offense will never result in the commission of the other, or if the
    offenses are committed separately, or if the defendant has separate animus for each
    offense." (Emphasis sic.) Johnson at ¶ 51.
    {¶ 32} Applying the statute and the two-part Johnson test, we agree with the
    rulings of the trial court, which merged several of the convictions but not all of them.
    No. 14AP-142                                                                              7
    {¶ 33} The trial court merged Counts 2, 3, and 4 of the indictment. The trial court
    also merged Counts 6, 7, and 8 of the indictment. Counts 2, 3, and 4 of the indictment are
    all robbery charges out of an event and involving a single victim. Counts 6, 7, and 8 of the
    indictment are likewise charges out of a single event and involving a victim.
    {¶ 34} The trial court did not merge the remaining robbery charge with an
    aggravated burglary charge and kidnapping charge with respect to each victim. However,
    the trial court sentenced Clark for kidnapping concurrent with the associated robbery.
    {¶ 35} The trial court did not merge the aggravated burglary charge with the other
    charges. Aggravated robberies were completed before the group of men decided to enter
    the residence of one of the OSU students and began participating in an aggravated
    burglary. The two OSU students were restrained at gunpoint in the house and forced to
    lie facedown on the kitchen floor. More and different property was taken from the house,
    specifically a television and digital camera.
    {¶ 36} The length of time involved in the burglary made merger inappropriate.
    Further, the burglary was not incident to the theft at gunpoint, which occurred outside the
    house. As a result, the trial court could view the robberies and the burglaries as separate
    crimes, not allied offenses of similar import.
    {¶ 37} The sixth assignment of error is overruled.
    {¶ 38} All six assignments of error having been overruled, the judgment of the
    Franklin County Court of Common Pleas is affirmed.
    Judgment affirmed.
    O'GRADY and LUPER SCHUSTER, JJ., concur.
    _______________
    

Document Info

Docket Number: 14AP-142

Citation Numbers: 2014 Ohio 5101

Judges: Tyack

Filed Date: 11/18/2014

Precedential Status: Precedential

Modified Date: 11/18/2014