State v. Coleman ( 2016 )

[Cite as State v. Coleman, 2016-Ohio-297.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 102966
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
DEMETRIUS E. COLEMAN
DEFENDANT-APPELLANT
JUDGMENT:
CONVICTIONS AFFIRMED; SENTENCE VACATED; REMANDED
FOR RESENTENCING
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-14-590438-B
BEFORE: S. Gallagher, J., Kilbane, P.J., and McCormack, J.
RELEASED AND JOURNALIZED: January 28, 2016
ATTORNEY FOR APPELLANT
Christopher M. Kelley
75 Public Square
Suite 700
Cleveland, OH 44113
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
By: Melissa Riley
Assistant Prosecuting Attorney
Justice Center - 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
SEAN C. GALLAGHER, J.:
{¶1} Appellant Demetrius E. Coleman appeals his convictions and sentence.
Upon review, we affirm Coleman’s convictions, but vacate his sentence and remand for
resentencing.
{¶2} Coleman was charged under a three-count indictment with aggravated
burglary, in violation of R.C. 2911.11(A)(2), with a one-year firearm specification; grand
theft, in violation of R.C. 2913.02(A)(1), with a one-year firearm specification; and
tampering with evidence, in violation of R.C. 2921.12(A)(1). Two codefendants were
also charged in the case. Coleman entered a plea of not guilty to the charges, and the
case proceeded to a jury trial. Coleman and codefendant Jennifer Shamblin were tried
together.
{¶3} At trial, testimony and evidence were presented as to events that occurred on
October 16, 2014. The state presented testimony from several police officers involved in
the matter.
{¶4} According to the testimony presented, the victim, Officer Kevin Berry, a
Cleveland police officer, went to work in the morning, but returned home around 1:15
p.m. to pick up something he had forgotten. He was in a patrol car. When he arrived at
his house, he found a vehicle parked in his driveway with the engine running.
Codefendant Shamblin was in the driver’s seat. When Berry asked Shamblin what she
was doing there, she responded that she was there to “pick up her nephew.” Berry
became suspicious. He took the keys from Shamblin and went up his driveway to check
the house.
{¶5} Berry discovered a window was broken and saw a television set lying in the
backyard. He then returned to Shamblin’s vehicle, handcuffed her to the steering wheel,
called for backup, and went to check inside his house. He noticed the basement light had
been turned on. Berry announced his presence and yelled “come out with your hands
up.” Berry glanced toward his kitchen and noticed various items were scattered around
the floor. After making several announcements for any suspects to come out with their
hands up, Berry retreated from the home because he knew he had a weapon in the home
and was concerned for his safety.
{¶6} After backup assistance arrived, the police checked the house. Several
items, including a revolver, ammunition, and a ballistic vest, were missing. Nobody was
found inside, and a search of the neighborhood for suspects commenced. A short time
later, Coleman was spotted running from the end of the street. He was then caught and
apprehended. Cuts were observed on his hands. Coleman indicated his phone was in
Shamblin’s vehicle.
{¶7} Berry asked Coleman for the location of his missing gun. After asking for a
favor, Coleman directed the officers to the location of Berry’s gun and other belongings,
which was behind a garage that was about a quarter mile from Berry’s home.
{¶8} Codefendant Shamblin also testified in the matter. She testified that
Coleman was unknown to her prior to the date of this incident. She stated she was
contacted by a friend and asked to give Coleman a ride. Shamblin picked up Coleman in
front of a Kmart at 1:09 p.m. As she was driving, Coleman told her to turn down a
nearby side street and directed her to a driveway. Shamblin testified that Coleman told
her he would be right back and went to the back of the house. Officer Berry then
knocked on the vehicle’s window.
{¶9} Shamblin conceded that Coleman left his cell phone in the vehicle. She also
testified that the vehicle was an SUV that belonged to a friend whose house she was at
prior to picking up Coleman. She stated that she left her vehicle, which was a Chrysler,
at her friend’s house, and taken the SUV, which had more room in the back.
{¶10} The trial court denied Coleman’s Crim.R. 29 motion for acquittal. The jury
returned a verdict of guilty of aggravated burglary, grand theft, and tampering with
evidence. The jury found appellant not guilty of the firearm specification under Count 1,
but guilty of the one-year firearm specification under Count 2. The court ordered
consecutive sentences for Counts 1 and 2, and a concurrent sentence for Count 3, and
imposed a total aggregate prison term of 12 years.
{¶11} Coleman timely filed this appeal. He raises three assignments of error for
our review. Under his first assignment of error, Coleman claims the trial court erred in
denying his Crim.R. 29 motion for acquittal because there was insufficient evidence to
support his conviction for aggravated burglary.
{¶12} A motion for judgment of acquittal under Crim.R. 29(A) requires a court to
consider if the evidence is insufficient to sustain a conviction. “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.
{¶13} Coleman was convicted of aggravated burglary under R.C. 2911.11(A)(2),
which provides:
No person, by force, stealth, or deception, shall trespass in an
occupied structure * * * when another person other than an accomplice of
the offender is present, with purpose to commit in the structure * * * any
criminal offense, if * * * [t]he offender has a deadly weapon or dangerous
ordinance on or about the offender’s person or under the offender’s control.
{¶14} Coleman argues that there was insufficient evidence to support his
conviction for aggravated burglary. More specifically, he claims the state failed to
produce sufficient evidence that anyone was “present or likely to be present” at the time
of the offense. We recognize that Coleman relies upon a former version of the statute
and that the current version requires that “another person other than an accomplice of the
offender is present[.]”
{¶15} It has been held that “the element: ‘while another person is present’ in R.C.
2911.11(A) is sufficiently established if the state demonstrates the presence of the person
inside the structure is associated in time with the entry, or the entry and the presence of
the person inside are part of one continuous occurrence.” State v. Ramirez, 12th Dist.
Clermont No. CA2004-06-046, 2005-Ohio-2662, ¶ 26.
{¶16} The evidence in this case was sufficient to establish that Berry arrived at his
home, which was an occupied structure, while the burglary was in progress. When Berry
arrived, a vehicle was in the driveway with the engine still running. Shamblin testified
that Coleman had gone to the back of the house, that he left his cell phone in the vehicle,
that he stated he would be right back, that it had been only a couple of minutes, and that
she was waiting for Coleman. Upon walking up the driveway, Berry observed his
television lying on the back lawn and noticed a broken window. After handcuffing
Shamblin to the steering wheel and calling for backup, he entered the home and
announced his presence. He observed a light on in the basement and belongings
scattered on the kitchen floor. He retreated to wait for backup because of a concern for
his safety because he kept a loaded gun in the home. The state produced sufficient
evidence that Berry was present at the time of the offense.
{¶17} Viewing the evidence in a light most favorable to the state, we find that any
rational trier of fact could have found the essential elements of aggravated burglary were
proven beyond a reasonable doubt. Coleman’s first assignment of error is overruled.
{¶18} Under his second assignment of error, Coleman claims that his convictions
were against the manifest weight of the evidence. Coleman argues that there was not
enough time to commit the crimes and that there was no physical evidence against him.
{¶19} When reviewing a claim challenging the manifest weight of the evidence,
the court, reviewing the entire record, must weigh the evidence and all reasonable
inferences, consider the credibility of witnesses, and determine whether, in resolving
conflicts in the evidence, the trier of fact clearly lost its way and created such a manifest
miscarriage of justice that the conviction must be reversed and a new trial ordered. State
v. Thompkins, 78 Ohio St. 3d 380, 387, 1997-Ohio-52, 678 N.E.2d 541. Reversing a
conviction as being against the manifest weight of the evidence should be reserved for
only the exceptional case in which the evidence weighs heavily against the conviction.
Id. A claim that a jury verdict is against the manifest weight of the evidence involves a
separate and distinct test that is much broader than the test for sufficiency. State v.
Drummond, 111 Ohio St. 3d 14, 2006-Ohio-5084, 854 N.E.2d 1038, ¶ 193.
{¶20} The aggravated burglary statute has already been set forth. R.C.
2913.02(A)(1), theft, provides:
No person, with the purpose to deprive the owner of property * * * shall
knowingly obtain or exert control over * * * the property * * * without the
consent of the owner or person authorized to give consent.
The offense rises to grand theft “if the property stolen is a firearm or dangerous
ordnance.” R.C. 2913.02(B)(4).
{¶21} R.C. 2921.12(A)(1), tampering with evidence, provides:
No person, knowing that an official proceeding or investigation is in
progress, or is about to be or likely to be instituted, shall do any of the
following: (1)Alter, destroy, conceal, or remove any record, document, or
thing, with purpose to impair its value or availability as evidence in such
proceeding or investigation[.]
{¶22} Circumstantial and direct evidence are of equal probative value. Jenks, 61
Ohio St. 3d at 272, 574 N.E.2d 492. Hence, proof of guilt may be made by circumstantial
or direct evidence, or both. See id. at 272-273. “[A]ll that is required of the jury is that
it weigh all of the evidence, direct and circumstantial, against the standard of proof
beyond a reasonable doubt.” Id. at 272. Further, “circumstantial evidence alone is
sufficient to support a conviction; physical evidence is not required.” State v. Jamie, 8th
Dist. Cuyahoga No. 102103, 2015-Ohio-3583, ¶ 39, citing State v. Nicely, 39 Ohio St. 3d
147, 529 N.E.2d 1236 (1988), paragraph two of the syllabus.
{¶23} In this case, the state presented substantial circumstantial evidence to
support the convictions. The evidence reflected that Shamblin picked Coleman up from
Kmart at 1:09 p.m. Shamblin testified that Coleman directed her to the victim’s house,
and that he got out of the car and went to the back of the home. When Berry arrived
home at 1:15 p.m., Shamblin was in a vehicle in the driveway with the engine running.
Berry observed his television in the backyard and a broken window at the back of the
house. A light was on in the basement, and items had been scattered in the home. Berry
announced his presence, but retreated to wait for backup assistance. Shortly after the
police arrived, Coleman was apprehended in the vicinity of the home, and cuts were
observed on his hands. He provided the location of a duffle bag containing the gun and
other items that were stolen from Berry’s home. The bag was hidden behind a garage
about a quarter mile from Berry’s home.
{¶24} Upon our review, we cannot not find that the jury lost its way or that the
verdict is against the manifest weight of the evidence. The second assignment of error is
overruled.
{¶25} Under his third assignment of error, Coleman claims that the trial court
failed to make the requisite findings under R.C. 2929.14(C)(4) for imposing consecutive
sentences.
{¶26} Pursuant to R.C. 2953.08(G)(2), we may modify or vacate a sentence only if
we clearly and convincingly find that the record does not support the mandatory
sentencing findings, or that the sentence is otherwise contrary to law. A sentence is
“contrary to law” if the sentencing court failed to make the findings required to order
consecutive service of sentences under R.C. 2929.14(C)(4). State v. Bonnell, 140 Ohio
St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 37.
{¶27} Under R.C. 2929.14(C)(4), consecutive sentences may be imposed if the
trial court finds that (1) a consecutive sentence is necessary to protect the public from
future crime or to punish the offender, (2) consecutive sentences are not disproportionate
to the seriousness of the offender’s conduct and to the danger the offender poses to the
public, and (3) any one of the following apply:
(1) the offender committed one of more of the multiple offenses while
awaiting trial or sentencing, while under a sanction, or while under
postrelease control for a prior offense;
(2) at least two of the multiple offenses were committed as part of one or
more courses of the conduct, and the harm caused by two or more of the
offenses was so great or unusual that no single prison term for any of the
offenses committed as part of any of the courses of conduct adequately
reflects the seriousness of the offender’s conduct; or
(3) the offender’s history of criminal conduct demonstrates that consecutive
sentences are necessary to protect the public from future crime by the
offender.
R.C. 2929.14(C)(4).
{¶28} A trial court must both make the statutory findings mandated for
consecutive sentences under R.C. 2929.14(C)(4) at the sentencing hearing and
incorporate those findings into its sentencing entry. Bonnell at the syllabus. However,
“a word-for-word recitation of the language of the statute is not required, and as long as
the reviewing court can discern that the trial court engaged in the correct analysis and can
determine that the record contains evidence to support the findings, consecutive sentences
should be upheld.” Id. at ¶ 29.
{¶29} In Bonnell, the Ohio Supreme Court found that it could discern from the
record that certain findings had been made; however, the court found that the trial court
failed to address the proportionality of consecutive sentences. Bonnell, 140 Ohio St. 3d
209, 2014-Ohio-3177, 16 N.E.3d 659, at ¶ 33-34. The court’s analysis was as follows:
We can discern from the trial court’s statement that Bonnell had
“shown very little respect for society and the rules of society” that it found a
need to protect the public from future crime or to punish Bonnell. We also
can conclude that the court found that Bonnell’s “atrocious” record related
to a history of criminal conduct that demonstrated the need for consecutive
sentences to protect the public from future crime. But it never addressed
the proportionality of consecutive sentences to the seriousness of Bonnell’s
conduct and the danger he posed to the public, which in this case involved
an aggregate sentence of eight years and five months in prison for taking
$117 in change from vending machines.
Thus, the court’s description of Bonnell’s criminal record as
atrocious and its notation of his lack of respect for society do not permit us
to conclude that the trial court had made the mandated statutory findings in
accordance with R.C. 2929.14(C)(4).
{¶30} In this case, our review reflects that the trial court made the requisite
findings in its journal entry. Further, the trial court did engage in some analysis on the
record before imposing consecutive sentences. The record reflects that the trial court
recognized that burglary is a “dangerous crime” and that Coleman keeps “doing it over
and over again” and had not “learned anything from the court system.” These statements
could arguably be interpreted to be a finding that consecutive sentences are necessary to
protect the public from future crime, and also reflect upon Coleman’s history of criminal
conduct. However, there is no languagein the record that could be reasonably construed
as satisfying the requirement of R.C. 2929.14(C)(4) that consecutive sentences are not
disproportionate to the seriousness of the offender’s conduct and to the danger the
offender poses to the public. Although this court has found use of the term
“disproportionate” is not required, there must be language from which the court can
discern the finding has been satisifed. See, e.g., State v. Cox, 8th Dist. Cuyahoga No.
102629, 2016-Ohio-20, ¶ 5. Here, such a determination cannot be made from the record.
{¶31} Upon our review, we find the trial court did not satisfy its statutory
obligation for imposing consecutive sentences. Accordingly, we vacate Coleman’s
sentence and remand the case for resentencing for the trial court to consider whether
consecutive sentences are appropriate under R.C. 2929.14(C)(4) and, if so, to make all the
required findings on the record and incorporate those findings in the sentencing journal
entry in accordance with Bonnell. The third assignment of error is sustained.
{¶32} Convictions affirmed; sentence is vacated, and the case is remanded for
resentencing.
It is ordered that appellant and appellee share the costs herein taxed. The
court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common
pleas court to carry this judgment into execution. The defendant’s convictions having
been affirmed, any bail pending appeal is terminated. Case remanded to the trial court
for resentencing.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
SEAN C. GALLAGHER, JUDGE
MARY EILEEN KILBANE, P.J., and
TIM McCORMACK, J., CONCUR