State v. Kelly , 2021 Ohio 325 ( 2021 )

[Cite as State v. Kelly, 2021-Ohio-325.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
CLARK COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 2020-CA-8
:
v. : Trial Court Case No. 2019-CR-723
:
TOMMY KELLY, II : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
...........
OPINION
Rendered on the 5th day of February, 2021.
...........
JOHN M. LINTZ, Atty. Reg. No. 0097715, Assistant Prosecuting Attorney, Clark County
Prosecutor’s Office, 50 East Columbia Street, Suite 449, Springfield, Ohio 45502
Attorney for Plaintiff-Appellee
JOHN RUTAN, Atty. Reg. No. 0087019, 336 South High Street, Columbus, Ohio 43215
Attorney for Defendant-Appellant
.............
TUCKER, P.J.
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{¶ 1} Defendant-appellant Tommy Kelly, II appeals from his convictions for
felonious assault and aggravated robbery. For the reasons that follow, the trial court’s
judgment will be affirmed.
I. Facts and Procedural History
{¶ 2} On October 26, 2019, Springfield Police Department Officers Zachary
Chenoweth and his partner Brett Adams were on routine patrol when they responded to
a 9:39 p.m. dispatch regarding a male with gunshot wounds driving near the intersection
of Murray Street and Chestnut Avenue. When they arrived at the intersection, the
officers observed a vehicle matching the description given in the dispatch. A man, later
identified as Cody Bunch, got out of the vehicle and began to walk toward the officers.
Bunch had blood on his jeans and was unsteady on his feet. The officers told Bunch to
sit down. They then cut off his jeans and observed gunshot wounds to his legs. Bunch
told the officers he had been at a gas station when an armed man robbed him.
Springfield Officer David Krauss arrived on the scene and took photographs of Bunch’s
vehicle and his injuries.
{¶ 3} Bunch was transported by ambulance to a local hospital; his vehicle was
towed and impounded as evidence. Officer Krauss followed the ambulance to the
hospital, where he interviewed Bunch. According to Bunch’s statements to Krauss,
Bunch had “just got paid and had a lot of cash in his wallet” when he was robbed. Tr. p.
132. Bunch was at a gas station when a “black male about 5’9” came to the passenger
side door, opened it, and pointed a gun at him, and told him to give him all of his money
* * *.” Id. Bunch did not immediately comply, and the gunman stated, “Give me all your
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f*****g money or I’ll shoot you.” Id. Bunch then grabbed a Taser he kept in his vehicle
and used it on the assailant. During the ensuing struggle, the gunman shot Bunch
multiple times and also struck Bunch on the back of his head with the gun. Bunch was
ultimately able to push the gunman out of the vehicle, at which point he drove away and
called his mother, his brother, and a friend, one of whom called 911. Krauss collected
Bunch’s clothing and cellular telephone as evidence in the case.
{¶ 4} A few days later, Bunch spoke with law enforcement officers again. During
that conversation, he admitted he had met a person, later identified as Kelly, over the
social media platform SnapChat. Bunch stated that, approximately two weeks after their
initial contact, Kelly and he made plans to meet to smoke marijuana and for Bunch to sell
marijuana to Kelly. Bunch stated that Kelly provided him with an address at which to
meet, and that he (Bunch) put the address into his cellular telephone’s mapping system.
Bunch stated that, upon his arrival at the agreed upon meeting place, Kelly entered
Bunch’s automobile with a gun, placed the gun to Bunch’s head, and said, “give me your
s***. I’m robbing you.” Tr. p. 147. Consistent with his first statement, Bunch indicated
that he grabbed the Taser and a struggle ensued, during which Bunch was shot in the
legs and struck in the back of the head with the gun.
{¶ 5} Following an investigation, Kelly was indicted on one count of aggravated
robbery in violation of R.C. 2911.01(A)(1) and one count of felonious assault in violation
of R.C. 2903.11(A)(2). Both counts carried attendant firearm specifications.
{¶ 6} A jury trial was conducted in January 2020, following which the jury found
Kelly guilty on all charges. The trial court sentenced Kelly to terms of ten years in prison
for aggravated robbery and eight years for felonious assault, to be served consecutively,
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for a minimum prison term of 18 years and a maximum prison term of 23 years. Kelly
was also sentenced to a three-year prison term for each firearm specifications, to be
served consecutively to each other and consecutively to the underlying indefinite prison
term.
{¶ 7} This appeal followed.
II. Ineffective Assistance of Counsel
{¶ 8} Kelly’s first assignment of error states as follows:
THE APPELLANT’S TRIAL COUNSEL WAS INEFFECTIVE.
{¶ 9} Kelly complains that he was denied the effective assistance of counsel.
Specifically, he faults trial counsel for failing to (1) file a motion to suppress a pretrial
identification; (2) seek dismissal of certain jurors and to exhaust peremptory challenges;
and (3) seek a judgment of acquittal at the end of the State’s case and the end of the trial.
{¶ 10} When a convicted defendant alleges he has been denied the effective
assistance of counsel, he must demonstrate counsel's performance was so deficient that
counsel was not functioning as the counsel guaranteed under the Sixth Amendment to
the United States Constitution, and that counsel's errors prejudiced him so as to deprive
him of a reliable result. Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80
L. Ed. 2d 674 (1984); State v. Bradley, 42 Ohio St. 3d 136, 538 N.E.2d 373 (1989). In
assessing counsel's performance, “an objective review of counsel's performance must be
conducted in light of professional norms prevailing when the representation took place.”
State v. Herring, 142 Ohio St. 3d 165, 2014-Ohio-5228, 28 N.E.3d 1217, ¶ 68, citing Bobby
v. Van Hook, 558 U.S. 4, 7, 130 S. Ct. 13, 175 L. Ed. 2d 255 (2009); Strickland at 688.
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“Under the deficient-performance prong, the court should ‘indulge a strong presumption
that counsel's conduct falls within the wide range of reasonable professional assistance.’ ”
Herring at ¶ 68, quoting Strickland at 689. “Hindsight is not permitted to distort the
assessment of what was reasonable in light of counsel's perspective at the time, and a
debatable decision concerning trial strategy cannot form the basis of a finding of
ineffective assistance of counsel.” (Citation omitted). State v. Jordan, 2d Dist.
Montgomery No. 27208, 2017-Ohio-7342, ¶ 21.
{¶ 11} Kelly first asserts that counsel should have sought suppression of the out-
of-court identification made by Bunch. He argues the identification was not reliable
because the photographic array was suggestive. Specifically, he notes that five of the
six photographs depicted the individual’s head and shoulders, while, in contrast, his
photograph depicted only his head. He thus claims he looked “like a player in the video
game NBA jams with a big head.”1
{¶ 12} A pretrial identification derived from inappropriately suggestive procedures
which cause a likelihood of misidentification violates a defendant's right to due process.
Neil v. Biggers, 409 U.S. 188, 198, 93 S. Ct. 375, 34 L. Ed. 2d 401 (1972). Courts apply
a two-step test to determine the admissibility of a challenged identification: (1) the
defendant must demonstrate that the identification procedure was unnecessarily
suggestive; and (2) if the defendant meets this burden, the court must consider whether
the procedure, under the totality of the circumstances, was so unduly suggestive that it
1
Attached to the State’s appellate brief is a picture purportedly depicting a scene from
the video game referenced by Kelly. The State asserts the picture is attached as an
exhibit in order to “provide a glimpse of the exaggerated heads used” in the game. As
the State is aware, this document is not part of the record, and thus is not properly before
us.
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created a likelihood of irreparable mistaken identification. State v. Wills, 120 Ohio
App.3d 320, 324, 697 N.E.2d 1072 (8th Dist.1997), citing Manson v. Brathwaite, 432 U.S.
98, 114, 97 S. Ct. 2243, 53 L. Ed. 2d 140 (1977), and State v. Garner, 74 Ohio St. 3d 49,
61, 656 N.E.2d 623 (1995).
{¶ 13} R.C. 2933.83 governs the administration of photographic lineups and is
aimed at preventing the use of unnecessarily suggestive procedures. The statute
requires specific procedures for conducting photographic lineups. For example, the
statute provides for the use of a person who does not know the suspect's identity (a “blind
administrator”) to present the photo array to a witness, and the administrator must inform
the witness that the suspect may, or may not, be in the lineup. R.C. 2933.83(A) and R.C.
2933.83(B)(5).
{¶ 14} This court has held that a “computerized method of creating photospreads
avoids most potential unfairness and almost any claim that the lineup was suggestive.”
State v. Beckham, 2d Dist. Montgomery No. 19544, 2003-Ohio-3837, ¶ 12, citing State v.
Beddow, 2d Dist. Montgomery Nos. 16197 & 16198, 1998 WL 126876, *2 (Mar. 20,
1998).2 Moreover, “[a] defendant in a lineup need not be surrounded by people nearly
identical in appearance.” State v. Davis, 76 Ohio St. 3d 107, 112, 666 N.E.2d 1099
(1996).
{¶ 15} Kelly does not claim the police failed to comply with R.C. 2933.83. Instead,
his argument hinges upon the fact that his head appeared larger than the heads of the
other individuals presented in the array. The photo array is before us and we have
2
In this case, there was competent, credible and unrebutted evidence that the officer
who compiled the photo array did so using a computerized method.
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examined it. 3 The array contains six color photographs of men. Kelly’s head does
appear slightly larger than the others in the array, but all six men otherwise appear similar.
They appear to be of approximately the same age with the same hair color, similar short
haircuts and similar complexions.
{¶ 16} From our review of the record and the photo array, we cannot say that the
minor difference in Kelly’s photo was unnecessarily suggestive. Therefore, we reject
Kelly’s claim that trial counsel was ineffective for not seeking suppression of the
identification.
{¶ 17} Kelly next claims counsel should have excluded four jurors from the jury.
He also contends counsel was deficient because she failed to use all available
peremptory challenges. For the reasons set forth in Part III, below, which discusses the
contested jurors, we find this argument lacks merit.
{¶ 18} Finally, Kelly contends counsel was deficient for failing to make a Crim.R.
29 motion for acquittal.
{¶ 19} This court has previously stated, “[b]ecause, when faced with a Crim.R. 29
motion for acquittal, a trial court must view the evidence in a light most favorable to the
state, ‘[f]ailure to move for an acquittal under Crim.R. 29 is not ineffective assistance of
counsel where the evidence in the State's case demonstrates that reasonable minds can
reach different conclusions as to whether the elements of the charged offense[s] have
been proved beyond a reasonable doubt, and that such a motion would have been
fruitless.’ ” State v. Winn, 173 Ohio App. 3d 202, 2007-Ohio-4327, 877 N.E.2d 1020, ¶ 13
(2d Dist.), affirmed in 121 Ohio St. 3d 413, 2009-Ohio-1059, 905 N.E.2d 154 (2009), citing
3
According to the record, the pictures were part of the Ohio Driver’s Licensing system.
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State v. Poindexter, 2d Dist. Montgomery No. 21036, 2007-Ohio-3461, ¶ 29. Accord
State v. McKinley, 10th Dist. Franklin No. 02AP-371, 2002-Ohio-7197, ¶ 39. As stated
in Part VI, below, the State offered sufficient evidence to prove the elements of each
charged offense.
{¶ 20} Kelly has failed to demonstrate that counsel’s representation was deficient.
Therefore, the first assignment of error is overruled.
III. Fair and Impartial Jury
{¶ 21} The second assignment of error asserted by Kelly states:
THE APPELLANT’S 6TH AMENDMENT RIGHT TO [A] FAIR AND
IMPARTIAL JURY WAS VIOLATED.
{¶ 22} Kelly contends he was denied a fair trial because four jurors were biased.
He also contends the trial court did not permit defense counsel to utilize all available
peremptory challenges.
{¶ 23} The right to be tried by a fair and impartial jury is a fundamental element of
our criminal justice system. The Sixth Amendment to the United States Constitution,
which applies to the states under the Fourteenth Amendment, provides that in all criminal
prosecutions the accused has the right to trial by an impartial jury. State v. D.H., 169
Ohio App. 3d 798, 2006-Ohio-6953, 865 N.E.2d 90, ¶ 49 (10th Dist.) Additionally, Article
I, Section 10 of the Ohio Constitution provides that a criminal defendant is entitled to trial
by an impartial jury.
{¶ 24} Kelly asserts that Juror Number 3 should have been excluded from the
panel because the juror stated he/she “knew the prosecutor.” Tr. p. 25. When asked
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which prosecutor the juror knew, the juror stated, “Marshall.” Id. As the prosecutor
began to ask another question, Juror Number 3 stated, “[o]r a private attorney.” Id.
{¶ 25} From a reading of this exchange, it appears the juror knew an attorney
named Marshall, that the juror initially identified this attorney as a prosecutor, but then,
almost immediately, modified the description to an attorney in private practice.4 No such
attorney appeared in the case, nor was such an attorney alleged to be involved with the
case. The juror also affirmed that this acquaintance would have no bearing on his/her
ability to be fair and impartial. We find no basis to conclude that this juror was biased
against Kelly or that Kelly suffered any prejudice stemming from the juror’s inclusion on
the jury.
{¶ 26} Kelly next complains that Juror Number 5 “works for the sheriff’s office.”
He cites State v. Kirkbride, 5th Dist. Muskingum No. C.T. 93-15, 1994 WL 167938 (Apr.
1, 1994), for the proposition that a juror’s working relationship with the police requires that
juror’s exclusion from the panel.
{¶ 27} In Kirkbride, a sergeant with the Ohio State Highway Patrol (OSHP) was
called as a potential juror. During voir dire, it was determined the sergeant had worked
at the Zanesville post of the OSHP for 20 years, and during this time he had worked
closely with local law enforcement, including the deputy sheriffs identified as State’s
witnesses for trial. Id. at *4. The defense sought to remove the sergeant for cause
alleging that his voir dire responses indicated actual bias. Id. However, the trial court
denied the request. On appeal, the Fifth District reversed the conviction, concluding that
4
Again, the State makes reference to facts not in the record before us by stating that
there is no prosecutor named Marshall employed in the Clark County Prosecutor’s Office.
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the trial court erred in denying the request to remove for cause. Id. at *6.
{¶ 28} In this case, the juror indicated he/she was employed by the Montgomery
County Sheriff’s Department as a “jail population manager.” Tr. p. 43. The juror was
questioned by both the prosecutor and defense counsel. There was no evidence that
the juror was acquainted with any Springfield or Clark County law enforcement officers,
let alone any of the officers involved in or designated as State’s witnesses in this case.
Indeed, there was nothing in this record to indicate whether the juror was a law
enforcement officer or a civilian employee or whether the juror worked closely with any
law enforcement officers. In any event, the juror asserted his/her ability to be a fair and
impartial juror and denied any bias arising by reason of employment. Based upon this
record, we cannot conclude that the trial court erred in permitting Juror Number 5 to be a
member of the jury.
{¶ 29} Kelly next asserts that Juror Number 6 should have been excused from jury
service because he/she wanted the defendant to take the stand so that his side of the
story could be heard and evaluated. After being informed that the defendant had a
constitutional right not to testify, and that the court would instruct the jury that the
defendant’s failure to testify could not be considered, the juror indicated he/she would be
able to follow that instruction and would not penalize Kelly if he did not testify. On this
record, we have no reason to conclude the juror was not truthful or was not capable of
complying with the court’s instructions.
{¶ 30} Finally, Kelly contends it was error to permit Juror Number 7 to remain on
the jury. Kelly claims the record demonstrated the juror was “trying to hide a very
important detail,” because he/she did not reveal that he/she “was on a trial before as a
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juror] with the presiding prosecutor” until that information was elicited by a question from
the prosecutor. We find no merit to the claim that the juror attempted to hide his/her
previous jury service. Upon being asked if she/he had been excused from a jury in the
past, the juror immediately answered affirmatively. Further, from our reading of the
entire voir dire, we cannot discern any other point where the juror was asked a question
that would have caused the juror to reveal his/her past jury service.
{¶ 31} We note that defense counsel did not seek to excuse any of these jurors for
cause or to exercise a peremptory challenge against them. We also note the record
does not support Kelly’s claim that counsel was prevented from exercising a peremptory
challenge against these specific jurors, and we cannot conclude that the trial court
prevented defense counsel from using a peremptory challenge as to any of the jurors.
{¶ 32} Because Kelly has not shown that any of the challenged jurors exhibited
bias toward him or caused prejudice to him by their inclusion on the jury, we conclude
there is no merit to this assignment of error. Accordingly, the second assignment of error
is overruled.
IV. Trial Court’s Failure to Grant a Mistrial
{¶ 33} Kelly’s third assignment of error states:
THE TRIAL COURT ERRED BY NOT GRANTING A MISTRIAL AFTER
THE STATE[’]S OPENING REMARKS.
{¶ 34} Kelly asserts that the prosecutor made a remark during the opening
statement that was so prejudicial a mistrial was required. Specifically, he objects to the
following statement: “And 741 Sherman Avenue, to confirm that photo ID, is known in
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police records as the address that Tommy Kelly, II, the defendant before you, lives at.
That address is associated with him – [.]” Tr. p. 106. Defense counsel objected to the
statement and requested a mistrial, arguing that the statement created the impression
that Kelly had prior involvement with the police. The trial court then gave the following
limiting instruction:
Just because the police may have information about where a person lives,
doesn’t mean that person has ever committed a crime, or been a suspect
in any other crime, or been in any trouble whatsoever. So you’re not to
speculate on that issue.
{¶ 35} We review the trial court’s decision whether to grant a mistrial under an
abuse of discretion standard. State v. Gunnell, 2d Dist. Clark No. 09-CA-0013, 2010-
Ohio-4415, ¶ 54. Generally, an abuse of discretion occurs when a decision is grossly
unsound, unreasonable, illegal, or unsupported by the evidence. State v. Nichols, 195
Ohio App. 3d 323, 2011-Ohio-4671, 959 N.E.2d 1082, ¶ 16 (2d Dist.). A decision is
unreasonable if there is no sound reasoning process that would support the decision.
State v. Jones, 2d Dist. Montgomery Nos. 25315 & 25316, 2013-Ohio-1925, ¶ 32; State
v. LeGrant, 2d Dist. Miami No. 2013-CA-44, 2014-Ohio-5803, ¶ 7.
{¶ 36} We begin by noting that the record to which the State was referring appears
to have been a jail intake form related to a prior juvenile case involving Kelly. The
reference at issue was inappropriate. However, juries are presumed to follow the trial
court's instructions. State v. Jones, 90 Ohio St. 3d 403, 414, 739 N.E.2d 300 (2000).
The trial court instructed the jury not to consider the statement made by the prosecutor
and also appropriately instructed the jurors that opening statements are not evidence.
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See Peffer v. Cleveland Clinic Found., 8th Dist. Cuyahoga No. 94356, 2011-Ohio-450,
¶ 27.
{¶ 37} We cannot conclude that the trial court’s response to the situation – the
limiting instruction – constituted an abuse of discretion.
{¶ 38} The third assignment of error is overruled.
V. Extraction Report Admission
{¶ 39} The fourth assignment of error provides:
THE TRIAL COURT ABUSED ITS DISCRETION AND COMMITTED
PREJUDICIAL ERROR IN ADMITTING PART OF THE CCSO
EXTRACTION REPORT.
{¶ 40} Kelly contends that the trial court erred by admitting a report generated by
the Clark County Sheriff’s Office.
{¶ 41} Relevant to Kelly’s argument, the record shows that the State presented the
testimony of Springfield Police Department Detective Dan DeWine, who was assigned to
investigate the shooting. DeWine spoke to Bunch, who admitted he was in Springfield
to meet someone to smoke marijuana. Bunch also admitted the shooting did not occur
at a gas station, but instead took place near where the police found him. When asked if
Bunch could identify the shooter, Bunch provided DeWine with the name “TK Kels” as the
person with whom he had texted on SnapChat and with whom he was supposed to meet
in order to sell and smoke marijuana. Tr. p. 221. DeWine testified that even though the
police were unable to find a SnapChat account for “TK Kels,” they eventually were able
to otherwise associate that name with Kelly. DeWine testified that Kelly’s address was
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less than a block from where police initially made contact with Bunch.
{¶ 42} DeWine also testified that he asked Bunch if he knew where the shooting
took place. Bunch indicated the address could be found in his cellular telephone.
DeWine then asked Clark County Sheriff’s Office detective Brian Melchi to search
Bunch’s cell phone to determine whether 741 Sherman Avenue, which was determined
to be the address of Kelly’s apartment building, was stored in Bunch’s telephone.
{¶ 43} Melchi testified that he had specialized training in downloading the content
of cellular telephones. He ran a program on Bunch’s telephone and searched for
address and location history stored on the telephone for October 26, 2019. From that,
Melchi printed a three-page report which indicated, in part, that the phone’s mapping
service showed a timestamp of 9:15 p.m. on October 26, 2019 along with Kelly’s address.
Melchi testified that he could not determine whether Bunch had actually been at that
address or whether the address had merely been inputted into the telephone for an
address search. Melchi’s report was introduced into evidence and marked as State’s
Exhibit 34.
{¶ 44} Defense counsel opposed the introduction of the exhibit, arguing that it was
not the full text of the actual report and that Melchi had not been able to testify whether
the telephone was actually at that address. The trial court overruled the objection on the
basis that counsel’s argument implicated the weight to be given to the evidence rather
than its admissibility.
{¶ 45} Because “a trial court exercises discretion in its decision to exclude or admit
evidence, [the] standard of review on appeal is whether the trial court committed an abuse
of discretion that amounted to prejudicial error.” State v. Cassel, 2016-Ohio-3479, 66
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N.E.3d 318, ¶ 13 (2d Dist.).
{¶ 46} On appeal, Kelly contends the court abused its discretion in admitting the
report. Specifically, he complains “only a part of the report [was] produced” at trial. He
further argues the report was prejudicial because (1) Bunch had other addresses and
locations in the telephone for the same day, (2) the name given by Bunch for the
SnapChat account was never linked to Kelly, and (3) the report did not include the “alleged
text” sent from Bunch to Kelly announcing his arrival.
{¶ 47} It appears that trial counsel believed the program used by Melchi should
have generated all the addresses located in Bunch’s cellular telephone. But Melchi
testified that the search was limited to Kelly’s address, but that the location printout page,
which became part of the report, contained other addresses which appeared on the
location printout page.
{¶ 48} Further, Melchi testified that the report submitted into evidence was the full
report he generated. He testified that it contained the location printout page and a
standard two-page summary with the Sheriff’s Office logo, the case number for the
agency requesting the download, and “basic information about the serial number and
things of the phone.” Tr. p. 203
{¶ 49} The record supported a finding that Exhibit 34 contained Melchi’s entire
report and research product. The search performed by Melchi did not include a search
for any SnapChat messages, and Melchi did not determine whether Kelly had a SnapChat
account. Thus, we conclude that the record did not support Kelly’s claim that the report
contained more information than was submitted at trial. On this record, it cannot be
concluded that the trial court abused its discretion by admitting the report into evidence.
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{¶ 50} The fourth assignment of error is overruled.
VI. Sufficiency and Manifest Weight of the Evidence
{¶ 51} Kelly’s fifth and sixth assignments of error state as follows:
THERE WAS INSUFFICIENT EVIDENCE TO SUPPORT APPELLANT[’]S
CONVICTION FOR ALL COUNTS.
APPELLANT[’]S CONVICTION FOR COUNT 1 AND COUNT 2 WAS
AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
{¶ 52} Kelly contends the State did not present evidence sufficient to support his
convictions, and that the convictions were against the weight of the evidence.
{¶ 53} “A sufficiency of the evidence argument disputes whether the State has
presented adequate evidence on each element of the offense to allow the case to go to
the jury or sustain the verdict as a matter of law.” State v. Wilson, 2d Dist. Montgomery
No. 22581, 2009-Ohio-525, ¶ 10, citing State v. Thompkins, 78 Ohio St. 3d 380, 678
N.E.2d 541 (1997). In such situations, we apply the test from State v. Jenks, 61 Ohio
St.3d 259, 574 N.E.2d 492 (1991), which states:
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.
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(Citation omitted). Id. at paragraph two of the syllabus.
{¶ 54} In contrast, “[a] weight of the evidence argument challenges the believability
of the evidence and asks which of the competing inferences suggested by the evidence
is more believable or persuasive.” (Citation omitted.) Wilson at ¶ 12. In this situation, a
“ ‘court review[s] 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.’ ” Thompkins at 387, quoting State v. Martin, 20
Ohio App. 3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). Accord State v. Drummond, 111
Ohio St. 3d 14, 2006-Ohio-5084, 854 N.E.2d 1038, ¶ 193. “The fact that the evidence is
subject to different interpretations does not render the conviction against the manifest
weight of the evidence.” State v. Adams, 2d Dist. Greene Nos. 2013-CA-61, 2013-CA-
62, 2014-Ohio-3432, ¶ 24, citing Wilson at ¶ 14.
{¶ 55} “Although sufficiency and manifest weight are different legal concepts,
manifest weight may subsume sufficiency in conducting the analysis; that is, a finding that
a conviction is supported by the manifest weight of the evidence necessarily includes a
finding of sufficiency.” (Citations omitted.) State v. McCrary, 10th Dist. Franklin No. 10AP-
881, 2011-Ohio-3161, ¶ 11. Accord State v. Winbush, 2017-Ohio-696, 85 N.E.3d 501,
¶ 58 (2d Dist.). As a result, “a determination that a conviction is supported by the weight
of the evidence will also be dispositive of the issue of sufficiency.” (Citations omitted.)
State v. Braxton, 10th Dist. Franklin No. 04AP-725, 2005-Ohio-2198, ¶ 15.
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{¶ 56} Importantly, “[b]ecause the factfinder * * * has the opportunity to see and
hear the witnesses, the cautious exercise of the discretionary power of a court of appeals
to find that a judgment is against the manifest weight of the evidence requires that
substantial deference be extended to the factfinder's determinations of credibility. The
decision whether, and to what extent, to credit the testimony of particular witnesses is
within the peculiar competence of the factfinder, who has seen and heard the witness.”
State v. Lawson, 2d Dist. Montgomery No. 16288, 1997 WL 476684, *4 (Aug. 22, 1997).
{¶ 57} Kelly asserts that his convictions were not against the manifest weight of
the evidence. In support, Kelly argues that Bunch’s testimony was unreliable, given that
he initially lied to the police regarding the location of the incident. He further contends
that the combination of the lack of credible testimony from Bunch, the suggestive
photographic identification array, the lack of DNA found on the Taser, the lack of evidence
of a shooting in front of Kelly’s home, and Kelly’s evidence concerning his whereabouts
during the day of the offense required a conclusion that the jury lost its way in convicting
him.
{¶ 58} We note that, during his testimony, Bunch admitted that he initially was
untruthful with the police regarding where and why the shooting took place. He
explained that he was initially afraid he would get into trouble because he had marijuana
he was attempting to sell. Further, the jury was made aware that there was no forensic
evidence gathered in front of Kelly’s house and that Kelly’s DNA was not found on the
Taser used by Bunch. However, there was evidence that DNA, other than Bunch’s, was
found on the Taser, but the sample was not sufficient for analysis. Thus, the jury was
clearly aware of these issues and still found Bunch’s testimony credible.
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{¶ 59} Regarding the photographic array, as discussed above, we agree with the
trial court’s conclusion that the array was not unduly or unnecessarily suggestive.
{¶ 60} Finally, we note that while Kelly did present testimony from his girlfriend and
other friends which he claimed provided an alibi defense, there was no direct testimony
that he was with any of these individuals at the time of the offenses.
{¶ 61} From our review of the record, we cannot say that the jury clearly lost its
way and created such a manifest miscarriage of justice that the conviction must be
reversed.
{¶ 62} We next address the sufficiency of the evidence. Kelly was convicted of
felonious assault and aggravated robbery. Felonious assault is proscribed by R.C.
2903.11, which states in pertinent part, “[n]o person shall knowingly * * * [c]ause serious
physical harm to another.” R.C. 2903.11(A)(1). Aggravated robbery is prohibited by R.C.
2911.01(A)(1), which states, in pertinent part, “[n]o person, in attempting or committing a
theft offense, as defined in section 2913.01 of the Revised Code, shall * * * [h]ave a deadly
weapon on or about the offender's person or under the offender's control and either
display the weapon, brandish it, indicate that the offender possesses it, or use it.”
{¶ 63} Bunch testified that he and Kelly made plans to meet in order to smoke
marijuana and for Kelly to purchase marijuana from Bunch; Bunch drove to Kelly’s
residence, where Kelly entered Bunch’s vehicle while pointing a gun at Bunch. Bunch
further testified Kelly demanded Bunch’s “s***” and grabbed a package of marijuana that
was in the center console of the vehicle. Bunch testified that he and Kelly then struggled,
during which time Bunch was hit in the head and shot several times in the legs. And
Bunch identified Kelly as his assailant.
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{¶ 64} The jury was free to believe or disbelieve all, part, or none of Bunch’s
testimony. State v. Dewberry, 2d Dist. Montgomery No. 27434, 2020-Ohio-691, ¶ 44.
Bunch’s testimony, if believed, was sufficient to support the convictions.
{¶ 65} We conclude that the State presented evidence sufficient to support the
convictions and that the convictions were not against the manifest weight of the evidence.
Accordingly, the fifth and sixth assignments of error are overruled.
VII. Merger Analysis
{¶ 66} The seventh assignment of error states:
THE TRIAL COURT ERRED IN FAILING TO MERGE APPELLANT[’] [SIC]
SENTENCES.
{¶ 67} Kelly asserts that his convictions for felonious assault and aggravated
robbery should have been merged for purposes of sentencing.
{¶ 68} The Double Jeopardy Clauses of the Fifth Amendment to the United States
Constitution and the Ohio Constitution, Article I, Section 10, protect a defendant against
multiple punishments for the same offense. State v. Martello, 97 Ohio St. 3d 398, 2002-
Ohio-6661, 780 N.E.2d 250, ¶ 7; North Carolina v. Pearce, 395 U.S. 711, 717, 89 S. Ct.
2072, 23 L. Ed. 2d 656 (1969). This constitutional protection is codified at R.C. 2941.25,
which provides:
(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.
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(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.
{¶ 69} In State v. Ruff, 143 Ohio St. 3d 114, 2015-Ohio-995, 34 N.E.3d 892, the
Ohio Supreme Court held that “under R.C. 2941.25(B), a defendant charged with multiple
offenses may be convicted of all the offenses if any one of the following is true: (1) the
conduct constitutes offenses of dissimilar import, (2) the conduct shows that the offenses
were committed separately, or (3) the conduct shows that the offenses were committed
with separate animus.” Id. at ¶ 13. The defendant bears the burden of demonstrating
that he is entitled to merger at sentencing. State v. Mughni, 33 Ohio St. 3d 65, 67, 514
N.E.2d 870 (1987). When reviewing a determination regarding merger, we apply a de
novo standard of review. In re K.P., 1st Dist. Hamilton No. C-180037, 2018-Ohio-4972,
¶ 4, citing State v. Shelton, 1st Dist. Hamilton No. C-170547, 2018-Ohio-3895, ¶ 44; State
v. Williams, 134 Ohio St. 3d 482, 2012-Ohio-5699, 983 N.E.2d 1245, ¶ 1.
{¶ 70} In this case, the trial court simply stated, “I do find * * * there were two
separate offenses here and that they do not merge for purposes of sentencing.”
Sentencing Tr. p. 7. We agree.
{¶ 71} Kelly argues that both crimes occurred simultaneously and that the offense
of felonious assault was committed in furtherance of the robbery. However, from our
review of the record, the evidence demonstrated that Kelly entered the vehicle with his
gun pointed at Bunch and picked up the package of marijuana. At that point, the offense
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of robbery was complete. Thereafter, Kelly committed felonious assault when he struck
Bunch on the back of the head and shot him multiple times. The evidence showed that
the felonious assault did not occur until Bunch pulled out his Taser and tried to stun Kelly.
Thus, the evidence supported the conclusion that the felonious assault had a separate
animus – i.e., to respond to Bunch’s attempted defense — from the robbery which was
already accomplished.
{¶ 72} Additionally, courts have held that the use of greater force than necessary
to accomplish the act of robbery demonstrates a separate animus. See State v. Sutton,
8th Dist. Cuyahoga Nos. 102300 and 102302, 2015-Ohio-4074, ¶ 62; State v. Johnson,
6th Dist. Lucas No. L-16-1282, 2018-Ohio-1657, ¶ 45; In re K.P., 1st Dist. Hamilton Nos.
C-180037, C-180038, and C-180039, 2018-Ohio-4972, ¶ 9.
{¶ 73} We agree with the trial court’s decision denying merger of the two offenses.
Accordingly, the seventh assignment of error is overruled.
VIII. Consecutive Sentence Analysis
{¶ 74} The eighth assignment of error states the following:
THE TRIAL COURT ERRED IN ISSUING CONSECUTIVE SENTENCES.
{¶ 75} Kelly challenges the trial court’s decision to impose consecutive sentences.
{¶ 76} Under R.C. 2929.14(C)(4), a trial court may impose consecutive sentences
if the following findings are made:
If multiple prison terms are imposed on an offender for convictions of
multiple offenses, the court may require the offender to serve the prison
terms consecutively if the court finds that the consecutive service is
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necessary to protect the public from future crime or to punish the offender
and that consecutive sentences are not disproportionate to the seriousness
of the offender's conduct and to the danger the offender poses to the public,
and if the court also finds any of the following:
(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 post-release 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.
{¶ 77} When the R.C. 2929.14(C)(4) findings are made, “an appellate court may
not reverse the trial court's imposition of consecutive sentences unless it first clearly and
convincingly finds that the record does not support the trial court's findings.” State v.
Barnett, 2d Dist. Montgomery No. 27660, 2018-Ohio-4133, ¶ 92, quoting State v.
Withrow, 2d Dist. Clark No. 2015-CA-24, 2016-Ohio-2884, ¶ 38. “This is a very
deferential standard of review, as the question is not whether the trial court had clear and
convincing evidence to support its findings, but rather, whether we clearly and
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convincingly find the record fails to support the trial court's findings.” (Citations omitted.)
State v. Cochran 2d Dist. Clark No. 2016-CA-33, 2017-Ohio-217, ¶ 7.
{¶ 78} Kelly does not claim the court failed to make the requisite findings. Instead,
he appears to argue that the record did not support the imposition of consecutive
sentences because his sentence was longer “than he has lived on this Earth.” We
construe this statement as a claim of disproportionality.
{¶ 79} In reviewing the record, we note that the court specifically found consecutive
sentences were necessary to protect the public and to punish Kelly, and that consecutive
sentences were not disproportionate to the seriousness of his conduct and the danger he
posed to the public. In addition, the trial court found “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.”
{¶ 80} Since the trial court made the proportionality finding required by R.C.
2929.14(C)(4), we look to whether we can find by clear and convincing evidence that this
finding was not supported by the record. “The R.C. 2929.14(C)(4) proportionality finding
requires the trial court to find ‘that consecutive sentences are not disproportionate to the
seriousness of the offender's conduct and to the danger the offender poses to the public
* * *.’ (Emphasis added.) Thus, the proportionality analysis considers the defendant's
conduct and whether the offender poses a future danger to the public. Given this
linkage, a proportionality analysis “does not occur in a vacuum, but, instead, focuses upon
the defendant's current conduct and whether this conduct, in conjunction with the
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defendant's past conduct, allows a finding that consecutive service is not
disproportionate.” State v. Crim, 2nd Dist. Clark No. 2018-CA-38, 2018-Ohio-4996, ¶ 11.
{¶ 81} Kelly’s criminal conduct includes a juvenile criminal history of robbery and
felonious assault. Further, Kelly was convicted of domestic violence and sentenced to a
term of probation in March 2019. The instant offenses involved extremely violent
conduct which caused significant physical harm to the victim. Though it may not reflect
the sentencing decision we would have made, on this record, we cannot conclude that
the trial court's proportionality finding was clearly and convincingly not supported by the
record.
{¶ 82} The eighth assignment of error is overruled.
IX. Individual Sentence Analysis
{¶ 83} Kelly’s ninth assignment of error states:
THE TRIAL COURT ABUSED ITS DISCRETION IN SENTENCING THE
APPELLANT TO A NEAR MAXIMUM PRISON TERM.
{¶ 84} In his final assignment of error, Kelly asserts the trial court erred by
sentencing him to more than the minimum prison term allowed by statute without making
the findings necessary for imposing a maximum sentence under R.C. 2929.14(C). He
also contends the trial court did not consider the statutory criteria set out in R.C. 2929.11
and R.C. 2929.12.
{¶ 85} “The trial court has full discretion to impose any sentence within the
authorized statutory range, and the court is not required to make any findings or give its
reasons for imposing maximum * * * sentences.” State v. King, 2013-Ohio-2021, 992
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N.E.2d 491, ¶ 45 (2d Dist.). However, a trial court must consider the statutory criteria
that apply to every felony offense, including those set out in R.C. 2929.11 and R.C.
2929.12. State v. Leopard, 194 Ohio App. 3d 500, 2011-Ohio-3864, 957 N.E.2d 55, ¶ 11
(2d Dist.), citing State v. Mathis, 109 Ohio St. 3d 54, 2006-Ohio-855, 846 N.E.2d 1, ¶ 38.
{¶ 86} On December 18, 2020, the Ohio Supreme Court decided State v. Jones,
Slip Opinion No. 2020-Ohio-6729, __ N.E.3d __. The Supreme Court noted that R.C.
2953.08(G)(2)(a) allows “appellate courts to modify or vacate a sentence if it clearly and
convincingly finds that ‘the record does not support the sentencing court’s findings under’
certain specified statutory provisions. But R.C. 2929.11 and R.C. 2929.12 are not
among the statutory provisions listed in R.C. 2953.08(G)(2)(a).” Jones at ¶ 28, quoting
R.C. 2953.08(G)(2)(a). From this, the Supreme Court concluded that R.C.
2953.08(G)(2)(a) does not provide a basis to modify or vacate a sentence because it is
not supported under R.C. 2929.11 and R.C. 2929.12. Id. at ¶ 29.
{¶ 87} The Jones decision also noted that R.C. 2953.08(G)(2)(b) permits an
appellate court to modify or vacate a sentence if it is “otherwise contrary to law.” Id. at ¶
32, quoting R.C. 2953.08(G)(2)(b). But the Supreme Court ruled that an appellate court
may not vacate or modify a sentence based upon the conclusion the sentence is contrary
to law because it “is not supported under R.C. 2929.11 and R.C. 2929.12.” Id. at ¶ 39.
{¶ 88} The sentencing hearing record reveals the trial court’s consideration of R.C.
2929.11 and R.C. 2929.12. Given this and the Jones ruling, there is no basis for this
court to modify or vacate Kelly’s sentence upon a conclusion that the sentence was not
supported by the R.C. 2929.11 purposes of felony sentencing or the R.C. 2929.12
sentencing factors.
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{¶ 89} Since the trial court’s sentence on each count was within the statutory range
and the record reflects the trial court’s consideration of R.C. 2929.11 and R.C. 2929.12,
Kelly’s ninth assignment of error is overruled.
X. Conclusion
{¶ 90} All of Kelly’s assignments of error being overruled, the judgment of the trial
court is affirmed.
.............
DONOVAN, J. and HALL, J., concur.
Copies sent to:
John M. Lintz
John Rutan
Hon. Douglas M. Rastatter