State v. Gilcrease , 2020 Ohio 487 ( 2020 )

[Cite as State v. Gilcrease, 2020-Ohio-487.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 108148
v. :
RODERICK GILCREASE, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED IN PART, VACATED IN PART,
AND REMANDED
RELEASED AND JOURNALIZED: February 13, 2020
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-17-620782-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Brian D. Kraft, Assistant Prosecuting
Attorney, for appellee.
The Law Offices of Eric L. Foster, and Eric L. Foster, for
appellant.
MICHELLE J. SHEEHAN, J.:
Defendant-appellant Roderick Gilcrease appeals from the trial
court’s judgment of conviction and sentence entered by the Cuyahoga County Court
of Common Pleas following a bench trial in which he was found guilty of two counts
of improperly discharging into habitation, three counts of discharge of a firearm on
or near prohibited premises, one count of tampering with evidence, and two counts
of carrying a concealed weapon. After a thorough review of the record, we find the
trial court did not err in denying Gilcrease’s motion for a mistrial, Counts 1 through
4 were supported by sufficient evidence, Gilcrease’s convictions for Counts 1 through
4 and Count 19 were not against the manifest weight of the evidence, and the trial
court’s imposition of a consecutive sentence was supported by the record. We
therefore affirm Gilcrease’s convictions and the trial court’s imposition of
consecutive sentences. Because we find, however, that the trial court failed to
sentence Gilcrease in open court on Count 13, carrying a concealed weapon, we
vacate the sentence imposed on this count alone and remand for the limited purpose
of resentencing on Count 13.
I. Procedural History
On October 10, 2017, Gilcrease was charged in a 20-count
indictment, arising from four separate incidents on three different dates. The
charges pertaining to an incident on May 14, 2017, involve two “house shootings”
and include: Count 1 — improperly discharging into habitation in violation of R.C.
2923.161(A)(1) (victim, Orvis Alexander); Count 2 — discharge of firearm on or near
prohibited premises in violation of R.C. 2923.162(A)(3); Count 3 — improperly
discharging into habitation in violation of R.C. 2923.161(A)(1) (victim, Sondi
Robinson); and Count 4 — discharge of firearm on or near prohibited premises in
violation of R.C. 2923.162(A)(3). Counts 1, 2, and 4 include one- and three-year
firearm specifications.
The charges pertaining to an incident on or about June 2, 2017,
involve a shooting at a gas station and include: Counts 5 through 10 — felonious
assault in violation of R.C. 2903.11(A)(2) (different victims for each count); Count
11 — discharge of firearm on or near prohibited premises in violation of
R.C. 2923.162(A)(3); Count 12 — tampering with evidence in violation of
R.C. 2921.12(A)(1); and Count 13 — carrying a concealed weapon in violation of
R.C. 2923.12(A)(2). Counts 5 through 10 include one- and three-year firearm
specifications.
The charges pertaining to an incident on June 26, 2017, occurring on
a public roadway, include: Count 14 — aggravated murder in violation of
R.C. 2903.01(A) (victim, Dominique Robinson); Count 15 — murder in violation of
R.C. 2903.02(B) (victim, Dominique Robinson); Count 16 — felonious assault in
violation of R.C. 2903.11(A)(1) (victim, Dominique Robinson); Count 17 — felonious
assault in violation of R.C. 2903.11(A)(2) (victim, Dominique Robinson); Count 18
— felonious assault in violation of R.C. 2903.11(A)(2) (victim, Raheem Overby);
Count 19 — discharge of a firearm on or near prohibited premises in violation of R.C.
2923.162(A)(3); and Count 20 — carrying a concealed weapon in violation of R.C.
2923.12(A)(2). Counts 14 through 19 include one-, three-, and five-year firearm
specifications.
Having waived his right to a jury trial, this matter proceeded to a
bench trial on October 22, 2018. At the close of the state’s evidence, the court
granted Gilcrease’s Crim.R. 29 motion for dismissal regarding Counts 5 through 11
and Count 14, and the state moved the court to dismiss the five-year firearm
specification in Count 19. The court then found Gilcrease guilty on Counts 1 through
4, 12, 13, 19, and 20. The court found Gilcrease not guilty on Counts 15 through 18.
On January 15, 2019, the court imposed the following prison
sentence: Count 1 — 8 years on the underlying offense and 3 years on the firearm
specification; Count 2 — 3 years on the underlying offense and 3 years on the firearm
specification; Count 3 — 7 years; Count 4 — 3 years on the underlying offense and 3
years on the firearm specification; Count 12 — 15 months; Count 13 — 15 months;
Count 19 — 10 years on the underlying offense and 3 years on the firearm
specification; and Count 20 — 15 months. The court merged the firearm
specifications in Counts 1 and 2 and ordered them to be served concurrently. The
court also ordered the firearm specifications in Counts 4 and 19 to be served
consecutively to each other and consecutive to the firearm specifications in Counts 1
and 2, for a total prison term of 9 years on the specifications.1 The court then
ordered the sentences on the underlying offenses in Counts 2 and 4 to be served
consecutively and the sentences on the underlying offenses in Counts 1, 3, 12, 13, 19,
1 This sentence reflects what was stated in the trial court’s sentencing entry.
Because we find error with respect to the sentence imposed on Count 13, we will address
this sentence in the final assignment of error in which we address the trial court’s
sentence.
and 20, to be served concurrently to each other but consecutive to the sentences in
Counts 2 and 4, for a total prison term of 16 years on the underlying offenses.
Gilcrease’s aggregate prison term is 25 years.
Gilcrease now appeals, raising four assignments of error:
(1) the trial court erred by denying Defendant’s motion for a mistrial;
(2) the trial court erred by rendering guilty verdicts on Counts One,
Two, Three, and Four, as they are not sustained by sufficient evidence;
(3) the trial court erred by rendering guilty verdicts on Counts One,
Two, Three, Four, and Nineteen, as they are against the manifest
weight of the evidence; and
(4) the trial court erred by imposing consecutive sentences where they
are not supported by the record.
II. Evidence at Trial
Sondi Robinson
Sondi Robinson testified that in May 2017 she lived on Maud
Avenue in Cleveland, Ohio, with her son, Dominique Robinson (“Dominique”).
Ms. Robinson testified that on the evening of May 14, 2017, someone shot at her
house. She explained that she was getting a drink from her refrigerator when she
heard glass popping and then she heard gunshots. She stated that she heard
gunshots “across the front of my porch * * * coming through the window, through a
dresser into the living room, [and] through the front door into the kitchen.”
Ms. Robinson observed damage caused by bullets to several parts of her home,
including the front porch, window, living room dresser, and front door to her
kitchen. Her son was not at home at the time of the shooting but she phoned him
and told him what happened. Ms. Robinson phoned the police.
Ms. Robinson also testified regarding how she learned that her son
Dominique had been killed one month after the shooting into her home, in June
2017. She received a phone call from her son’s friend on the evening of June 26,
2017, advising her that she should get to the hospital. Ms. Robinson ultimately
learned that her son had died.
Officer McGreer
Cleveland police officer Eric McGreer was on patrol with his partner
when he received a call from dispatch concerning shots fired into a residence on
Maud Avenue. Officer McGreer observed empty bullet casings in the front of the
house and inside the house, as well as two bullet fragments inside the home. He
ultimately collected a total of 12 casings, including six .40 caliber casings and six
9 mm casings, from the front yard of the house, the sidewalk, and the street. The
casings did not appear to be weathered or damaged. The officer then submitted the
casings as evidence.
Orvis Alexander
Orvis Alexander testified that in May 2017 she lived on Simon
Avenue in Cleveland, Ohio. She lived near Maud Avenue, where Ms. Robinson lived.
Ms. Alexander testified that she knew Ms. Robinson from the neighborhood.
Ms. Alexander testified that on the evening of May 14, 2017, she
returned home very late and discovered that her house had been “shot up.” She
observed several bullet holes throughout the house, including the front porch
banister, a window, and the side of the house. Some of the damage was observed
from within the home, including bullet holes in the living room wall. Ms. Alexander
also phoned the police.
Officer Gaviria
Cleveland police officer Anglly Gaviria responded to the scene of
shots fired into a habitation on Simon Avenue on May 14, 2017. She observed
several bullet holes “going from the front of the house * * * all the way to the rear
where the kitchen was [located].” Upon investigation, the officer recovered 31 bullet
casings located on the street in front of the house, which included fourteen .40
caliber casings and seventeen 9 mm casings, and submitted them as evidence.
Latasha Minter
Latasha Minter knew Dominique and his mother from the
neighborhood. She testified that she used to stay a couple of houses away from his
house on Maud Avenue. Minter also knew Gilcrease “through [her] sister.” She
testified that she had “more than a friendship” with Gilcrease approximately ten
years ago.
Minter testified concerning the incident that occurred at the Sunoco
gas station on June 2, 2017, into the following day. She testified that she was driving
her sister’s car that night and Gilcrease was with her. Avantay Martin, the
defendant’s cousin, drove separately. They all drove to the Sunoco so that Martin
could purchase something from the convenience store. Both Martin and Minter
parked their vehicles at the pumps. Martin asked Minter if she wanted anything
from inside, Minter gave him some money for gum and pop, and Martin went inside
the store. Shortly thereafter, Martin returned to Minter’s car and handed Minter the
items he purchased for her. Minter testified that when she bent down to set her pop
and gum in the cup holder, she heard several gunshots and glass breaking, and she
knew they were “getting shot.” She stated that she did not know from which
direction the shots were coming because she had her head down. Minter testified
that she did not see anyone, including Gilcrease, fire a weapon, but after the
gunshots ceased, she saw that Gilcrease was bleeding. The police and EMS arrived,
and Gilcrease was transported to the hospital.
Minter also testified concerning the events that transpired on
June 26, 2017. Earlier in the evening, Minter, Minter’s sister, Natanya Thompson,
Gilcrease, and Gilcrease’s cousins, Martin and Jameel, were hanging out at Martin’s
house, talking, smoking, and drinking. In the course of the evening, the group left
Martin’s house numerous times, at least once to purchase marijuana from a friend
and once to purchase snacks for Martin’s son.
After Martin purchased snacks for his son, Thompson drove Martin
and his son back to their house and dropped them off for the night. Minter,
Thompson, and Gilcrease then left Martin’s house for the last time that evening.
Minter stated that Thompson was going to drive Gilcrease and Minter home.
Gilcrease was seated in the backseat of Thompson’s car, behind the driver, and
Minter was seated in the middle seat next to Gilcrease.
Minter testified that they were driving eastbound on St. Clair,
toward Martin Luther King Boulevard (“MLK”), when they noticed another vehicle
following closely behind them. They eventually proceeded to drive down MLK.
When they stopped, the other car pulled up next to Thompson. Minter recognized
the two people in the car as her brother’s friends — Dominique, the front seat
passenger, and Dominique’s friend, Raheem Overby (“Raheem”), the driver. Once
Minter recognized the two people in the car, she “sat back and kept playing on [her]
phone” while her sister spoke with the people in the other car. Minter testified that
“the next thing I remember [is] hearing gunshots” coming from her left where
Gilcrease was seated. She remembered “three or four” shots. She stated that just
before the shooting, Gilcrease had asked her to hold his drink. Minter stated that
although she had seen Gilcrease with a gun earlier in the day, she did not see him
with a gun at that moment in the car. After the shooting, the two cars pulled off in
different directions. Minter later learned that Dominique had been killed.
Natanya Thompson
Natanya Thompson, Minter’s sister, had known the victim,
Dominique, from the neighborhood since 2006 and was friends with him at the time
of his death. Thompson testified that the victim’s mother, Sondi Robinson, is related
to one of her brothers. Thompson has known Gilcrease from the neighborhood since
2007.
Thompson testified concerning the events of June 26, 2017. She
stated that she, Minter, Gilcrease, and Avantay were talking and drinking at
Avantay’s house for a couple of hours. After driving to the gas station and back with
Avantay, Thompson dropped Avantay off at his home and then proceeded to go
home. Thompson stated that Gilcrease was sitting behind her in the vehicle and her
sister, Minter, was seated next to Gilcrease.
Thompson testified that she was driving eastbound on St. Clair, and
when she turned right onto MLK, she noticed a car traveling closely behind her. She
proceeded to take a right onto Wade Park Avenue when the car that was behind her
pulled up next to her. She saw through her window, which was rolled down, that
Dominique and Raheem were in the other car. She knew Raheem from the
neighborhood, and they were friends. Thompson stated that she was initially
nervous when she noticed a car following her, but when she saw Dominique and
Raheem in the car, she was “okay.” She testified that when she looked at the other
car, Dominique was “cheesy smiling” and said, “hey.” She said, “hey,” and then
began to “pull off” when she heard gunshots. Thompson stated that she did not
know how many shots were fired, but there was more than one shot. Nor did she
know from which direction the shots were coming because she ducked down in her
seat. At some point, her sister told her to drive away.
When she lifted her head back up, the other vehicle was gone.
Thompson stated that she was concerned someone had been shot. Later in the
evening, after the shooting, she phoned Dominique to see what happened and he
did not answer his phone. She later learned that Dominique died as a result of the
shooting that night. She eventually spoke with the police about the incident and told
Dominique’s mother what had transpired that evening and who was in the car with
her.
Thompson further testified that the gunshots were so loud her ears
were ringing. When the police officers interviewed her, she indicated that some of
the gunshots came from behind her. She recalled being “in shock” when Gilcrease
apologized to her. Finally, Thompson testified that she discovered one bullet hole
in her car from that night, and she concealed it with a sticker.
Raheem Overby
Raheem Overby testified that he was driving Dominique to the
hospital on the evening of June 26, 2017, so that Dominique could visit his sick child.
He testified that he pulled up to a red light at MLK and Wade Park when he heard
gunshots: “I heard the first one, pow. The window bust and so I duck and take off.
And after that I heard three more. Like I heard the trunk get hit. I heard about three
more shots, like pow pow pow, pow and we was fleeing.” Raheem testified that the
gunshots came from their right side.
As Raheem was driving away, Dominique grabbed his hand. At this
point, Raheem guessed that Dominique had been shot. Raheem denied that he had
been following another vehicle. Raheem further testified that although Dominique
had a gun that evening because he “always” carries a gun, Raheem was “pretty sure”
Dominique did not fire his weapon that evening. Raheem drove Dominique to the
hospital.
Officer Morris
Cleveland police officer Samuel Morris was working the night shift
on June 26, 2017, when he was dispatched to the Cleveland Clinic for a male who
had been shot. Officer Morris testified that when he arrived on the scene, he
observed a vehicle with gunshots to the passenger side of the vehicle as well as the
trunk. He learned that a firearm was recovered from the vehicle prior to his arrival,
and he secured the firearm in his patrol car. The officer observed that the firearm
was jammed.
Officer Morris learned that Raheem, who was on the scene when the
officer arrived, was the driver of the vehicle containing the bullet holes. The officer
interviewed Raheem and then transported him to the police station for questioning.
Detective Reese
Cleveland police detective Aaron Reese responded to the gas station
shooting on June 3, 2017. The detective learned that a male had been shot and had
been transported to the hospital by the time the detective arrived on the scene. The
male was identified as Gilcrease.
Detective Reese observed the vehicle containing bullet holes on the
scene and found the vehicle had “several rounds [that] were shot into.” Additionally,
the inside of the vehicle had significant damage from bullets. The detective observed
several spent shell casings in the vehicle’s interior, which caused him to believe that
someone was shooting from inside the vehicle.
Detective Reese obtained video surveillance from the gas station.
The detective testified as to what the video depicted:
I saw that Gilcrease was a passenger in a vehicle that was shot into
and he ultimately was shot. And I watched him get out of the vehicle
and shoot all over the place, many different directions. I watched him
go into the gas station where he was bleeding significantly. He made
a phone call. And then I watched as one of his friends arrived on [the]
scene. Gilcrease went outside and handed his gun off to his friend, I
assume the person he called, before he approached the police.
Detective Reese testified that he also discovered multiple .40 caliber
shell casings on the scene, near the entrance and the exit of the gas station, in
addition to the casings discovered in the car’s interior. He interviewed witnesses on
the scene and ordered the vehicle towed. Finally, Detective Reese submitted the
video and the shell casings into evidence. Ultimately, the evidence submitted from
this scene included five .40 caliber casings recovered from the ground and nine .40
caliber casings recovered from the vehicle’s interior.
Detective Clemens
Cleveland police detective Todd Clemens was working in the crime
scene unit when he responded to the city’s impound facility on June 3, 2017.
Detective Clemens processed the vehicle that was involved in the shooting at the gas
station that evening.
He testified concerning the vehicle’s damage caused by bullets,
including defects in the windshield, the driver’s side rear window, and the rear
window. The detective recovered nine .40 caliber shell casings from the car’s
interior, which he submitted as evidence. He testified that eight of the nine casings
were found in the passenger side of the vehicle. Finally, Detective Clemens testified
that based upon the location of the casings, he believed that the weapon was fired
from inside the vehicle.
Detective Peoples
Cleveland police detective Mark Peoples was working in the crime
scene unit when he responded to a felonious assault shooting at the Sunoco gas
station on June 3, 2017. Detective Peoples photographed the scene and collected
evidence. He recovered several spent .40 caliber shell casings.
Detective Peoples also responded to the scene of a homicide at Wade
Park and Ansel Road on June 26, 2017. The officers first responding to the scene
had already secured the scene from pedestrian and vehicle traffic when he arrived.
Detective Peoples proceeded to photograph the scene and collect evidence.
The detective testified concerning spent shell casings that were
discovered in the street. He testified that there were two distinct groups of casings
recovered. The first group contained a cluster of nine .40 caliber casings, which the
detective marked as numbers 1 through 9. This cluster of casings was discovered at
the intersection of Wade Park and Ansel Road. The second cluster of casings
consisted of five .40 caliber casings, numbered 10 through 14. This cluster was
discovered “across the street from the original group of nine.” He also stated this
cluster was on “the other side of the street.” The casings were submitted as evidence.
Detective Peoples also photographed the vehicle that was left at the
Cleveland Clinic and processed the evidence from the vehicle. He testified that the
rear passenger side tire was flat, the passenger side rear window had been “smashed
out,” there were suspected bullet defects to the passenger side of the vehicle, and
there was suspected blood found in the front passenger seat. Detective Peoples also
testified that he recovered a spent 9 mm casing inside the vehicle. Additionally, the
detective stated that another officer had recovered a firearm from inside the vehicle
and that firearm was given to the detective to photograph. Detective Peoples
testified that this firearm contained 15 live rounds that had not been fired, one of
which was located inside the chamber.
Detective Shapiro
Cleveland police homicide detective David Shapiro also responded
to the scene of the homicide at Wade Park and Ansel Road on June 26, 2017, where
the crime scene unit had already begun processing the scene. Detective Shapiro
testified that he observed two separate groups of shell casings, all of which were the
same caliber.
The detective further testified that his investigation continued to the
Cleveland Clinic where he observed the vehicle that had been at the shooting on
Wade Park and Ansel Road. He testified that the vehicle had heavy rear end damage,
“obvious defects in the passenger side,” evidence of blood, and broken windows.
James Kooser
James Kooser, a firearms and toolmarks examiner with the
Cuyahoga County Regional Forensic Science Laboratory, testified as a ballistics
expert. Kooser testified that he analyzed all the evidence submitted to him on this
case, which included the spent casings recovered from the incidents at the two
residences, the gas station, and the intersection of Wade Park and Ansel Road. He
further testified that all of the .40 caliber casings he received for examination in this
case were fired by the same unknown Smith & Wesson .40 caliber pistol, including
the casings recovered near the homes on Simon Avenue and Maud Avenue on
May 14; from the ground and from the vehicle’s interior at the Sunoco gas station on
June 3; and from two different locations in the street at the Wade Park/Ansel Road
intersection on June 26. Kooser explained that the firearm is “unknown” because
no firearm was recovered from the scenes or submitted for comparison.
Roderick Gilcrease
Gilcrease testified on his own behalf. He admitted that he possessed
a .40 caliber firearm on June 3 and June 26 but denied having this firearm on
May 14 and denied firing his gun on May 14. Gilcrease also admitted to giving his
firearm to a friend at the gas station following the shooting. Gilcrease testified that
this friend later returned the same firearm.
III. Motion for a Mistrial
In his first assignment of error, Gilcrease contends that the trial
court erred when it denied his motion for a mistrial. In support, he argues that
Detective Reese violated his due process rights when the detective testified on
redirect that Gilcrease asserted his Fifth Amendment right to remain silent.
According to Gilcrease, the state elicited this testimony to imply that Gilcrease’s
assertion of his Fifth Amendment right to remain silent was evidence that Gilcrease
was guilty of the offense charged, and therefore, the court abused its discretion in
denying his motion for a mistrial.
Trial courts enjoy broad discretion in ruling on motions for mistrial.
State v. Iacona, 93 Ohio St. 3d 83, 100, 752 N.E.2d 937 (2001). Absent an abuse of
discretion, a reviewing court will not reverse a trial court’s decision regarding a
motion for a mistrial. State v. Benson, 8th Dist. Cuyahoga No. 87655,
2007-Ohio-830, ¶ 136. An abuse of discretion “connotes more than an error of law
or judgment; it implies that the court’s attitude is unreasonable, arbitrary or
unconscionable.” Blakemore v. Blakemore, 5 Ohio St. 3d 217, 219, 450 N.E.2d 1140
(1983).
A mistrial should not be ordered in a criminal case “merely because
some error or irregularity has occurred, unless the substantial rights of the accused
or the prosecution are adversely affected.” State v. Wilson, 8th Dist. Cuyahoga
No. 92148, 2010-Ohio-550, ¶ 13, citing State v. Reynolds, 49 Ohio App. 3d 27, 33,
550 N.E.2d 490 (2d Dist.1988). Thus, a trial court should declare a mistrial “only
when the ends of justice so require and a fair trial is no longer possible.” State v.
Franklin, 62 Ohio St. 3d 118, 127, 580 N.E.2d 1 (1991), citing Illinois v. Somerville,
410 U.S. 458, 462-463, 93 S. Ct. 1066, 35 L. Ed. 2d 425 (1973). The essential inquiry
on a motion for mistrial therefore is whether the substantial rights of the accused or
the prosecution are adversely or materially affected. Wilson, citing State v. Goerndt,
8th Dist. Cuyahoga No. 88892, 2007-Ohio-4067, ¶ 21.
Here, Detective Reese testified on direct examination regarding his
investigation into the gas station shooting on June 3. He stated that he watched the
surveillance video of the incident, which showed Gilcrease being shot while he was
a passenger in a vehicle. According to the detective, the video also showed Gilcrease
exit the vehicle, “shoot all over the place, many different locations,” enter the gas
station where he placed a phone call, and then exit the gas station and hand off his
gun to a friend before he approached the police. Detective Reese further testified
that by the time he had arrived on the scene, Gilcrease had been transported to the
hospital for treatment of his gunshot wound. He later questioned Gilcrease in the
hospital concerning the incident. The detective stated that Gilcrease was an
uncooperative victim and therefore the detective was not able to obtain any
information from Gilcrease to aid in the detective’s investigation.
On redirect examination, the prosecutor asked Detective Reese if he
would view the surveillance video, speak with witnesses, and ascertain the location
of the casings in order to determine the intention of a shooter, to which the detective
replied in the affirmative. The prosecutor then asked Detective Reese if he learned
anything on June 5 that would have affected his analysis of the shooting, to which
the detective replied, “Yes.” Thereafter, the following discourse, which forms the
basis of the defense’s motion, occurred:
Prosecutor: What was that?
Witness: The video.
Prosecutor: The video. Did you ever — how about anything, any of
Roderick Gilcrease’s own words, did anything that he say come into
your analysis, as well?
Witness: Yes.
Prosecutor: What was that?
Witness: When he plead the Fifth when I asked him if he had —
Prosecutor: Strike that.
Court: I’m not going to strike it. Sorry. I’m not going to strike it.
Prosecutor: I’ll ask a more precise question.
At this point, the prosecutor asked the detective, referring to the
detective’s supplemental report, whether the detective listened to “one of
[Gilcrease’s] call[s] on June 5th.” Detective Reese replied, “I misunderstood you * *
* I listened to his jail calls, several jail calls * * * and I listened to [Gilcrease] explain
what he was going to do when he got out of jail * * * that he was going to get the guys
who did this to him * * * that he was going to ‘f*** one of them N’s up when [he]
get[s] out.’”
Following this testimony, the defense moved for a mistrial, arguing
that the prosecutor purposefully elicited improper testimony from the detective. In
response, the prosecutor stated that he was not attempting to elicit improper
testimony from the detective; rather, he was attempting to elicit the detective’s
testimony concerning his review of a jail call between Gilcrease and another
individual on June 5. The prosecutor explained that the conversation between
Detective Reese and Gilcrease occurred either in the evening of June 2 or the early
morning hours of June 3, and the question he posed to the detective specifically
referenced information the detective gleaned on June 5, which was the date
Detective Reese reviewed the jail call.
After hearing from both the defense and the prosecution, the court
denied the motion for a mistrial. In so doing, the court stated that it is never pleased
to hear “that somebody pleading the Fifth is going to change their analysis in the
case” and acknowledged that this type of statement “may ha[ve] an effect” on
laypeople, but “it doesn’t have an effect on me.” The court explained:
I understand what your client’s constitutional rights are. And I
understand that nobody can use that against him. * * * Let me be
honest here. I don’t really care about [the detective’s] analysis of the
case. * * * Nor do you want me to care about the analysis of case,
correct? I’m the fact-finder.
We’re not dealing with a jury. We’re not dealing with 12 laypeople.
This officer is entitled to whatever opinion he wants about the
investigation. And in the end it’s my decision what the facts are, not
his. And I can independently operate.
And I’m fully aware and very protective of everybody’s constitutional
rights, regardless of where they sit in this room. So I don’t think it
[rises] to a mistrial * * *.
The Fifth Amendment to the Constitution of the United States
provides that no person “shall be compelled in any criminal case to be a witness
against himself.” This amendment is made applicable to the states through the Due
Process Clause of the Fourteenth Amendment. Malloy v. Hogan, 378 U.S. 1, 6, 84
S. Ct. 1489, 12 L. Ed. 2d 653 (1964).
Evidence introduced by the state regarding the defendant’s exercise
of his right to remain silent violates the Due Process Clause of both the state and
federal constitutions. State v. McMiller, 8th Dist. Cuyahoga No. 103962,
2016-Ohio-5844, ¶ 43, citing State v. Leach, 102 Ohio St. 3d 135, 2004-Ohio-2147,
807 N.E.2d 335, ¶ 18. “This rule enforces one of the underlying policies of the Fifth
Amendment, which is to avoid having the jury assume that a defendant’s silence
equates with guilt.” McMiller, citing Leach at ¶ 30, citing Murphy v. Waterfront
Comm. of N.Y. Harbor, 378 U.S. 52, 55, 84 S. Ct. 1594, 12 L. Ed. 2d 678 (1964).
In a bench trial, the court is presumed to know and follow the law
unless the record affirmatively demonstrates to the contrary. State v. Kilbane, 8th
Dist. Cuyahoga No. 106753, 2019-Ohio-863, ¶ 15; State v. Willis, 8th Dist. Cuyahoga
No. 90956, 2008-Ohio-6156, ¶ 15 (“[I]n a bench trial, the court is presumed to have
considered only the relevant, material, and competent evidence.”). The United
States Supreme Court has stated that
[i]n bench trials, judges routinely hear inadmissible evidence that
they are presumed to ignore when making decisions. It is equally
routine for them to instruct juries that no adverse inference may be
drawn from a defendant’s failure to testify; surely we must presume
that they follow their own instructions when they are acting as
factfinders.
Harris v. Rivera, 454 U.S. 339, 346, 102 S. Ct. 460, 70 L. Ed. 2d 530 (1981); State v.
Shropshire, 8th Dist. Cuyahoga No. 103808, 2016-Ohio-7224, ¶ 38.
Here, the detective’s improper reference to Gilcrease’s assertion of
his Fifth Amendment right is arguably concerning. Because the matter was tried to
the court, however, we can presume that the detective’s statement did not infect the
court’s decision-making. And the court’s explanation in denying the motion for
mistrial supports this presumption. There is nothing in the record that
demonstrates the court declined to ignore the improper statement.
Furthermore, Gilcrease has not demonstrated that the detective’s
statement deprived him of a fair trial. Indeed, the record demonstrates that the
court granted Gilcrease’s Crim.R. 29 motion for dismissal of the felonious assault
charges in Counts 5 through 10, which stem from the gas station shooting about
which the detective testified, and the aggravated murder charge in Count 14, which
stems from the shooting on June 26. The court also found Gilcrease not guilty on
Counts 15 through 18, which stem from the June 26 shooting.
We therefore find that the trial court did not abuse its discretion in
denying Gilcrease’s motion for mistrial because “the ends of justice” did not “so
require.” Franklin, 62 Ohio St. 3d at 127, 580 N.E.2d 1, citing Somerville, 410 U.S.
at 462-463, 93 S. Ct. 1066, 35 L. Ed. 2d 425. Gilcrease’s first assignment of error is
overruled.
IV. Sufficiency of the Evidence
In his second assignment of error, Gilcrease contends that the state
failed to provide sufficient evidence to support his conviction of improperly
discharging into a habitation (Counts 1 and 3) and discharging a firearm on or near
prohibited premises (Counts 2 and 4) on May 14, 2017. Gilcrease argues that the
evidence was insufficient to show that he was the person who committed the crimes,
and even if the evidence established his identity as the shooter, the state presented
no evidence of Gilcrease’s mental state at the time of the shooting (as it pertains to
Counts 1 and 3).
When assessing a challenge of sufficiency of the evidence, a
reviewing court examines the evidence admitted at trial and determines whether
such evidence, if believed, would convince the average mind of the defendant’s guilt
beyond a reasonable doubt. State v. Jenks, 61 Ohio St. 3d 259, 574 N.E.2d 492
(1991), paragraph two of the syllabus. “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.” Id. A reviewing court is not to assess “whether the state’s
evidence is to be believed, but whether, if believed, the evidence against a defendant
would support a conviction.” State v. Thompkins, 78 Ohio St. 3d 380, 390, 678
N.E.2d 541 (1997).
The elements of an offense may be proven by direct evidence,
circumstantial evidence, or both. See State v. Durr, 58 Ohio St. 3d 86, 568 N.E.2d
674 (1991). Direct evidence exists when “a witness testifies about a matter within
the witness’s personal knowledge such that the trier of fact is not required to draw
an inference from the evidence to the proposition that it is offered to establish.”
State v. Cassano, 8th Dist. Cuyahoga No. 97228, 2012-Ohio-4047, ¶ 13.
Circumstantial evidence, on the other hand, is evidence that requires “the drawing
of inferences that are reasonably permitted by the evidence.” Id. See also State v.
Hartman, 8th Dist. Cuyahoga No. 90284, 2008-Ohio-3683, ¶ 37 (“[c]ircumstantial
evidence is the proof of facts by direct evidence from which the trier of fact may infer
or derive by reasoning other facts in accordance with the common experience of
mankind”). Circumstantial and direct evidence are of equal evidentiary value. State
v. Santiago, 8th Dist. Cuyahoga No. 95333, 2011-Ohio-1691, ¶ 12. And in some
cases, circumstantial evidence may be “‘more certain, satisfying and persuasive than
direct evidence.’” State v. Lott, 51 Ohio St. 3d 160, 167, 555 N.E.2d 293 (1990),
quoting Michalic v. Cleveland Tankers, Inc., 364 U.S. 325, 330, 81 S. Ct. 6, 5 L. Ed. 2d
20 (1960).
R.C. 2923.161(A)(1) provides that “[n]o person, without privilege to
do so, shall knowingly * * * [d]ischarge a firearm into an occupied structure that is
a permanent or temporary habitation of any individual.” R.C. 2923.162(A)(3)
provides that “[n]o person shall * * * [d]ischarge a firearm upon or over a public
road or highway.”
R.C. 2901.22(B) provides that a person acts “knowingly, regardless
of his purpose, when he is aware that his conduct will probably cause a certain result
or will probably be of a certain nature. A person has knowledge of circumstances
when he is aware that such circumstances probably exist.” This court has repeatedly
held that “‘shooting a gun in a place where there is risk of injury to one or more
persons supports the inference that the offender acted knowingly.’” State v.
Robinson, 8th Dist. Cuyahoga No. 99290, 2013-Ohio-4375, ¶ 38, quoting State v.
Hunt, 8th Dist. Cuyahoga No. 93080, 2010-Ohio-1419, ¶ 19, citing State v. Brooks,
44 Ohio St. 3d 185, 192, 542 N.E.2d 636 (1989); see also State v. Ivory, 8th Dist.
Cuyahoga No. 83170, 2004-Ohio-2968, ¶ 6; State v. Jordan, 8th Dist. Cuyahoga No.
73364, 1998 Ohio App. LEXIS 5571 (Nov. 25, 1998).
Here, the evidence shows that Gilcrease was in possession of a .40
caliber firearm on June 26, 2017, at the intersection of Wade Park and Ansel Road,
and he discharged 14 rounds from this firearm that ultimately resulted in the death
of Dominique Robinson. Additionally, officers recovered numerous .40 caliber
casings outside of Ms. Robinson’s home on Maud Avenue, where Dominique also
lived, and Ms. Alexander’s nearby home on Simon Avenue. Officers also recovered
multiple .40 caliber casings from the gas station shooting on June 3, 2017. Several
of these casings were located in the vehicle in which Gilcrease was a passenger. The
video surveillance of the gas station shooting shows Gilcrease firing a .4o caliber
firearm and then handing the weapon to another individual before approaching
police officers on the scene. The ballistics expert testified that all of the .40 caliber
casings that were recovered from the shooting at the homes on Maud Avenue and
Simon Avenue, the shooting at the gas station, and the homicide of Dominique
Robinson at Wade Park and Ansel Road were fired from the same Smith & Wesson
.40 caliber pistol. Moreover, the evidence shows that the victim of the Wade Park
and Ansel Road shooting lived at the house on Maud Avenue, and a reasonable trier
of fact could conclude this commonality of victims connected Gilcrease to the
crimes.
Construing this evidence in a light most favorable to the state, we
find the state presented sufficient evidence from which a reasonable factfinder could
infer that Gilcrease was the shooter on May 14, 2017, and he knowingly discharged
a .40 caliber firearm into two residences (Counts 1 and 3), one of which was the
home in which Dominique lived, and discharged the firearm on or near prohibited
premises (Counts 2 and 4).
Gilcrease’s second assignment of error is overruled.
V. Manifest Weight of the Evidence
Gilcrease contends in his third assignment of error that his
convictions were against the manifest weight of the evidence. A manifest weight
challenge questions whether the state has met its burden of persuasion. Thompkins,
78 Ohio St. 3d at 390, 678 N.E.2d 541. This challenge raises a factual issue:
“The 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 the evidence weighs heavily against the
conviction.”
Id. at 387, quoting State v. Martin, 20 Ohio App. 3d 172, 175, 485 N.E.2d 717 (1st
Dist.1983). The use of the word “manifest” in the standard of review “means that
we can only reverse the trier of fact if its decision is very plainly or obviously contrary
to the evidence.” State v. Hernandez, 8th Dist. Cuyahoga No. 106577, 2018-Ohio-
5031, ¶ 20.
Counts 1 through 4
Gilcrease contends in his third assignment of error that his
convictions pertaining to the shootings on Maud Avenue and Simon Avenue were
against the manifest weight of the evidence. Advancing the same argument he
presented in his previous assignment of error, Gilcrease contends that the state
presented no evidence that he was the shooter (in Counts 1 through 4) and no
evidence of his state of mind during the commission of the offenses of May 14, 2017
(in Counts 1 and 3).
We find nothing in the record from which to conclude that the trial
court lost its way in weighing the evidence presented and created a manifest
miscarriage of justice. The shootings at Ms. Robinson’s home on Maud Avenue,
where Dominique resided, and Ms. Alexander’s home on Simon Avenue occurred
on May 14. Officers recovered numerous .40 caliber casings near both homes — in
the front yard, on the sidewalk, and in the street in front of the houses. Weeks later,
on June 2, video surveillance at the Sunoco gas station captured Gilcrease
discharging a .40 caliber firearm. The police recovered several .40 caliber casings
from the gas station, including nine .40 caliber casings from the vehicle in which
Gilcrease was a passenger during the gas station shooting. Another three weeks
later, on June 26, Gilcrease discharged a .40 caliber pistol at the intersection of
Wade Park and Ansel Road, purportedly in self-defense, killing Dominique. The
police recovered fourteen .40 caliber casings from the scene at the intersection. The
ballistics expert testified that the .40 caliber casings recovered from Maud Avenue,
Simon Avenue, the gas station, and the intersection of Wade Park and Ansel Road
were all fired from the same .40 caliber firearm.
Although the state presented no eyewitness testimony concerning
the shooting on Maud Avenue and Simon Avenue, we do not find that the lack of
this testimony in this case necessitates a determination that this is the exceptional
case in which the evidence weighs heavily against the conviction.
Count 19
Gilcrease also argues that his conviction of the June 26, 2017,
shooting at Wade Park and Ansel Road, in Count 19, was against the weight of the
evidence where the court accepted Gilcrease’s self-defense claim in the shooting of
Dominique but did not find he acted in self-defense in discharging his firearm on or
near the prohibited premises.
In Count 19, Gilcrease was convicted of discharging a firearm on or
over a public roadway in violation of R.C. 2923.162(A)(3). The trial court found self-
defense applicable to this charge yet determined that Gilcrease exceeded the force
necessary to defend himself, stating that “there were a number of casings found
away from the actual site of the two cars in this homicide” and Gilcrease
“continu[ed] to shoot * * * in a place farther than where he needed * * *.”
Gilcrease contends that the trial court properly permitted a claim of
self-defense but argues that the evidence does not support the court’s conclusion
that he exceeded the force necessary to defend himself.
This court has held that R.C. 2923.162(A)(3) is a strict liability
offense. State v. James, 2015-Ohio-4987, 53 N.E.3d 770, ¶ 33 (8th Dist.)
(“R.C. 2923.162(A)(3) is a statute intended to benefit the public good and thus
imposes strict liability”). The law in this district is not settled, however, concerning
whether self-defense is a defense to the strict liability crime of shooting on or over a
public roadway.2 Here, the trial court presumed that the defense is indeed available
to such an offense, yet it determined that under the facts of this case, self-defense is
not available. Because we find the evidence supports the factfinder’s conclusion that
Gilcrease used more force than reasonably necessary in defending himself, we
decline to address the general application of self-defense to the offense of shooting
on or over a public roadway.
2 In State v. Porter, 2016-Ohio-1115, 61 N.E.3d 589 (8th Dist.), this court affirmed
the defendant’s convictions for felonious assault and discharge of a firearm over a public
roadway, finding the trial court’s “arguably incomplete” self-defense instruction did not
amount to plain error. The trial court in Porter declined to rule on whether the crime of
shooting over a public roadway was a strict liability offense and it instructed the jury on
self-defense regarding the felonious assault charges yet refused to instruct the jury on
self-defense concerning the defendant’s charge of shooting over a public roadway. Id. at
¶ 87. On appeal, without addressing the applicability of self-defense to the charge of
shooting over a public roadway, this court found that R.C. 2923.162(A)(3) is a strict
liability offense and therefore the defendant “was not entitled to a default jury instruction
* * * on recklessness.” Id. at ¶ 62. The dissent, however, would find that the trial court
erred in failing to instruct the jury on self-defense on the crime of shooting over a public
roadway, stating that
because self-defense has been recognized as a defense to the strict liability
crime of having a weapon while under disability, it would also be a defense
to the crime of shooting over a roadway. Both crimes are meant to protect
the public from harm, yet courts understand — at least in the case of the
weapon while under disability charge — that a person has the right to defend
himself without incurring criminal charges for the conduct, when self-
defense necessitates the would-be criminal conduct. See [State v. Patton,
106 Ohio App. 3d 736, 739, 667 N.E.2d 57 (1st Dist.1995)]. This is precisely
what the Ninth District meant in [State v.] Henley, 138 Ohio App. 3d 209,
740 N.E.2d 1113 (9th Dist.2000), when it stated that it would be an inane
legal paradox to hold that a person cannot act in self-defense, for fear of
being charged with a crime, when the person’s actions are so “intertwined
with the attack necessitating self-defense.”
Id. at ¶ 93.
In Ohio, self-defense is an affirmative defense and the defendant
bears the burden of establishing by a preponderance of the evidence that he is
entitled to the defense.3 R.C. 2901.05(A); State v. Williford, 49 Ohio St. 3d 247, 249,
551 N.E.2d 1279 (1990); Kilbane, 8th Dist. Cuyahoga No. 106753, 2019-Ohio-863,
at ¶ 12, 13. To establish self-defense through the use of deadly force, a defendant
must demonstrate 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 his only means of escape from such danger was the use of
such force, and (3) he must not have violated any duty to retreat or avoid the danger.
State v. Robbins, 58 Ohio St. 2d 74, 388 N.E.2d 755 (1979), paragraph two of the
syllabus. If the defendant fails to prove any one of these elements, he has failed to
prove he acted in self-defense. State v. Jackson, 22 Ohio St. 3d 281, 284, 490 N.E.2d
893 (1986).
Regarding the amount of force that is permitted, the defendant “is
privileged to use that force that is necessary to repel the attack.” Williford at 249.
Where, however, the amount of force used “is so disproportionate that it shows an
‘unreasonable purpose to injure,’ the defense of self-defense is unavailable.” State
v. Macklin, 8th Dist. Cuyahoga No. 94482, 2011-Ohio-87, ¶ 27, quoting State v.
Speakman, 4th Dist. Pickaway No. 00CA035, 2001-Ohio-2437, 13; State v.
3 We note that the General Assembly amended R.C. 2901.05, effective March 28,
2019, where the statute now places the burden of proof of self-defense on the state. State
v. Bouie, 8th Dist. Cuyahoga No. 108095, 2019-Ohio-4579, ¶ 37, fn.2. This amendment,
however, was not in effect at the time of Gilcrease’s trial.
Hendrickson, 4th Dist. Athens No. 08CA12, 2009-Ohio-4416, ¶ 33, quoting State v.
Nichols, 4th Dist. Scioto No. 01CA2775, 2002-Ohio-415, 3 (“Self-defense * * * is
inappropriate if the force used is ‘so grossly disproportionate as to show revenge or
as [a] criminal purpose.’”).
Here, the evidence shows that two separate clusters of spent casings
were recovered from the intersection of Wade Park and Ansel Road. The first cluster
of nine casings was located at the intersection. Detective Peoples testified that the
second cluster of five casings was discovered “across the street” from the original
group of nine casings. The evidence also shows that the two vehicles involved in the
shooting — one containing Dominique and one containing Gilcrease — sped off in
different directions, and the vehicle in which Dominique was a passenger contained
a bullet hole in its trunk.
In light of the foregoing, we cannot find the trial court lost its way
and created such a manifest miscarriage of justice in concluding that Gilcrease
exceeded the force necessary to repel the initial attack. The factfinder could
reasonably believe that the defendant was initially justified in shooting Dominique
but his actions were no longer justified where he continued shooting at a vehicle that
was purportedly fleeing the scene and was therefore no longer a threat. Thus, self-
defense would not be available to Gilcrease for discharging a firearm over a public
roadway on June 26, 2017. This is not the exceptional case in which the evidence
weighs heavily against Gilcrease’s conviction in Count 19.
Gilcrease’s third assignment of error is overruled in its entirety.
VI. Consecutive Sentences
In his final assignment of error, Gilcrease contends that the court’s
imposition of consecutive sentences was not supported by the record.
We review felony sentences under the standard of review set forth
in R.C. 2953.08(G)(2). State v. Cedeno-Guerrero, 8th Dist. Cuyahoga No. 108097,
2019-Ohio-4580, ¶ 17; State v. Marcum, 146 Ohio St. 3d 516, 2016-Ohio-1002, 59
N.E.3d 1231, ¶ 9. Under R.C. 2953.08(G)(2), an appellate court may increase,
reduce, or otherwise modify a sentence, or vacate a sentence and remand for
resentencing if it “clearly and convincingly finds” that the record does not support
the sentencing court’s findings under R.C. 2929.13(B) or (D), 2929.14(B)(2)(e) or
(C)(4), or 2929.20(I), or the sentence is otherwise contrary to law.
A consecutive sentence may therefore be challenged two ways:
First, the defendant can argue that consecutive sentences are contrary
to law because the court failed to make the necessary findings
required by R.C. 2929.14(C)(4). * * * Second, the defendant can argue
that the record does not support the findings made under R.C.
2929.14(C)(4).
State v. Johnson, 8th Dist. Cuyahoga No. 102449, 2016-Ohio-1536, ¶ 7.
Before imposing consecutive sentences, a trial court must make the
findings mandated by R.C. 2929.14(C)(4). State v. Bonnell, 140 Ohio St. 3d 209,
2014-Ohio-3177, 16 N.E.3d 659, ¶ 37. And the failure to make the findings renders
the imposition of consecutive sentences contrary to law. State v. Gohagan, 8th Dist.
Cuyahoga No. 107948, 2019-Ohio-4070, ¶ 29. In making the consecutive sentence
findings, a trial court is not required to state its reasons for imposing consecutive
sentences, nor is it required to give a verbatim recitation of the language of
R.C. 2929.14(C). Bonnell at ¶ 27, 29. Rather, “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.
R.C. 2929.14(C)(4) provides that the trial court must find that
consecutive sentences are necessary to protect the public from future crime or to
punish the offender, that such sentences would not be disproportionate to the
seriousness of the conduct and to the danger the offender poses to the public, and
that one of the following applies:
(a) The offender committed one or more of the multiple offenses while
the offender was awaiting trial or sentencing, was under a sanction
imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the
Revised Code, or was under postrelease control for a prior offense.
(b) At least two of the multiple offenses were committed as part of one
or more courses of conduct, and the harm caused by two or more of
the multiple offenses so committed 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.
(c) The offender’s history of criminal conduct demonstrates that
consecutive sentences are necessary to protect the public from future
crime by the offender.
Here, Gilcrease concedes that the trial court made the statutorily
mandated findings. He argues, however, that the record does not support the
findings, claiming that the trial court’s only analysis concerning consecutive
sentences is the recitation of the statutory language.
When examining whether the record supports the trial court’s
consecutive sentence findings, support for the court’s findings is not confined to the
trial court’s comments at sentencing but rather may appear anywhere in the record.
State v. Johnson, 2018-Ohio-3670, 119 N.E.3d 914, ¶ 52 (8th Dist.); State v.
Gatewood, 8th Dist. Cuyahoga No. 101271, 2015-Ohio-1288, ¶ 13, citing State v.
Venes, 2013-Ohio-1891, 992 N.E.2d 453, ¶ 20-22 (8th Dist.).
In this case, the record demonstrates that Gilcrease was convicted of
multiple offenses arising from four separate incidents on three different dates in
which Gilcrease fired shots into two homes and over a public roadway. Although the
trial court acknowledged that Gilcrease shot Dominique in self-defense, the court
noted that Gilcrease’s conduct demonstrated a disregard for life and instilled fear in
the public. And the court recognized that the community, particularly the children,
would not be safe from drive-by shootings or street shootings while walking to
school if this type of behavior continued without regard for consequences. The court
also heard from the victims and how the shootings impacted their lives. Finally, the
court noted that Gilcrease was presently “serving time” on another matter.
In light of the above, we cannot “clearly and convincingly” find that
the record does not support consecutive-sentence findings. Gilcrease’s final
assignment of error concerning consecutive sentences is overruled.
We find error, however, with respect to the sentence in Count 13,
carrying a concealed weapon. Although the trial court’s sentencing entry states that
the court imposed a sentence of 15 months on this count, there is no evidence in the
sentencing transcript that the trial court imposed a sentence on this count in open
court. Because the journal entry must reflect what actually occurred at sentencing,
we remand the case for the limited purpose of the trial court imposing sentence on
Count 13. State v. Stafford, 8th Dist. Cuyahoga No. 104276, 2016-Ohio-5635, ¶ 16,
citing State v. Jones, 8th Dist. Cuyahoga No. 94408, 2011-Ohio-453, ¶ 15 (“A
variance between the sentence pronounced in open court and the sentence imposed
by a court’s judgment entry requires a remand for sentencing.”).
Judgment affirmed in part, vacated in part, and remanded.
It is ordered that appellee recover of appellant 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.
A certified copy of this entry shall constitute the mandate pursuant to Rule
27 of the Rules of Appellate Procedure.
MICHELLE J. SHEEHAN, JUDGE
SEAN C. GALLAGHER, P.J., and
FRANK D. CELEBREZZE, JR., J., CONCUR