State v. Robinson

[Cite as State v. Robinson, 2013-Ohio-4375.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 99290
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
ROBERT ROBINSON
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED IN PART, REVERSED IN PART,
AND REMANDED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-560218
BEFORE: Boyle, P.J., Blackmon, J., and McCormack, J.
RELEASED AND JOURNALIZED: October 3, 2013
ATTORNEYS FOR APPELLANT
Robert L. Tobik
Cuyahoga County Public Defender
Cullen Sweeney
Assistant Public Defender
310 Lakeside Avenue
Suite 200
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
Brent C. Kirvel
Assistant County Prosecutor
9th Floor, Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
MARY J. BOYLE, P.J.:
{¶1} Defendant-appellant, Robert Robinson, appeals his conviction and sentence.
Finding some merit to the appeal, we affirm the convictions but vacate Robinson’s
sentence and remand for a new sentencing hearing.
Procedural History and Facts
{¶2} Robinson and codefendant Jeremy Logan were charged in a ten-count
indictment: aggravated murder and two counts of murder involving one victim (Counts
1-3), six counts of felonious assault involving six different named victims (Counts 4-9),
and discharging a firearm on or near prohibited premises (Count 10). All counts included
one-, three-, and five-year firearm specifications.
{¶3} Robinson pleaded not guilty to the charges, and the state voluntarily
dismissed the aggravated murder charge prior to trial. The matter proceeded to a jury
trial. The charges arose out of the fatal shooting of Dena’Jua Delaney (“Bubbles”) on
February 22, 2012, around 3:15 in the afternoon. The incident took place on Garfield
Road (a.k.a. “The One Way”), a one-way residential street in East Cleveland, stemming
from two competing groups of people squaring off to fight.
{¶4} At trial, the state presented 25 witnesses, including 17 eyewitnesses, each
who offered slightly varied accounts of the events in question. We summarize the
following pertinent facts from the evidence presented at trial.
{¶5} The night before the fatal shooting, on February 21, 2012, Russell Stokes
and Latima Brown got into a heated altercation after a night of hanging out and drinking at
Latima and Bubbles’s East Cleveland apartment. Russell ultimately left the apartment
after threatening Latima. At the time, Russell was “staying” nearby at his aunt’s house on
The One Way.
{¶6} The next day, Russell called his best friend, S.P., 1 who was Robinson’s
girlfriend at the time, and told her to “beat up” Latima. Consequently, S.P., along with her
sister and two friends, D.B. and B.D., went over to The One Way to fight Latima.
{¶7} According to Latima, she received a call the next day from Russell, telling
her to go outside, where she encountered three females coming down The One Way to meet
her. Although witnesses offered various accounts of the fight that ensued, Latima returned
to her apartment after the fight with apparent injuries, including a “bloody face,” and was
upset. This prompted Bubbles to call many of her family and friends, asking them to meet
on The One Way “to fight.”
{¶8} According to Latima, approximately 15 people — nine females and six
males — congregated outside of her and Bubbles’s apartment building in response to
Bubbles’s calls. Other witnesses estimated approximately 20 to 30 people gathered. The
group ranged in ages from late teens to early 20s.
{¶9} Amongst the calls Bubbles made, Russell received one. He testified that
Bubbles stated “you all jump my best friend” and now “you just signed your death
certificate.”
S.P., age 16 at the time of trial, testified that she has known Robinson, age
1
19, since she was 13 years old. We further note that the names of all of the juvenile witnesses
who testified at trial are abbreviated in this opinion.
{¶10} Russell, in turn, called S.P. According to S.P., she got a call, “saying that
they was trying to jump Russell, they outside trying to jump Russell and stuff. And then I
called — my boyfriend” — Robinson. S.P. told Robinson, “come get me, they’re about to
jump my best friend Russell.” Robinson, who drove a two-door gold Saturn, picked up
codefendant, Jeremy Logan, S.P., and her two friends, D.B. and B.D., and drove to The
One Way. According to Logan, Robinson called and asked him to accompany him to The
One Way “because he didn’t want to be up there by himself in a fight.”
{¶11} When Robinson arrived on The One Way, a mob quickly convened near
Robinson’s car, which had stopped near Russell’s aunt’s house. According to Russell, he
ran back inside his aunt’s house once he realized that they were “outnumbered.”
According to S.P., she jumped out of the car, and a heated altercation ensued. D.B. and
B.D. never left the car. Ultimately, when all five occupants were seated in the car,
Devere Ealom, a friend of Bubbles, ran up to the front seat passenger side of the vehicle
and punched Logan in the face. The eyewitnesses’ accounts of what happened next,
including the fatal shooting of Bubbles, conflict.
{¶12} According to the majority of the eyewitnesses present, after Logan was
punched, the car moved slightly forward, allowing Logan to position himself on the door
jamb and hang his upper body outside the car while he fired several shots above the car
toward the crowd of people behind the car on Garfield Road. The witnesses characterized
this as the first round of shots. Following Logan’s firing of his gun, Robinson fired his
gun out his window and toward “the back of the car.” This was characterized as the
second round of shots. Several witnesses testified that Bubbles was standing after the
first round of shooting but not after the driver (Robinson) shot his gun. After Bubbles fell
to the ground, Robinson drove off.
{¶13} According to Bubbles’s friends and family, no one from the crowd ever fired
any shots at the car until after Bubbles had already fallen down. Instead, these witnesses
testified that someone from the crowd fired what sounded like a shotgun following the
screaming that Bubbles was down. Even Russell Stokes — Robinson’s girlfriend’s best
friend — testified that first there were shots fired from the car, a couple of people hit the
ground, the car took off, and then someone from the crowd “got to busting [shooting]”
toward the car while the car was moving away. The same shooter then apparently spotted
Russell in the window, “[h]e shoot toward the house, shot in the corner of the window, the
room that we was in.”
{¶14} Conversely, Robinson (through his statement to the police) and Logan
(through his testimony at trial) stated that someone from the crowd was shooting at their
car. According to B.D. and D.B., also passengers in Robinson’s car, there were gunshots
at the car. D.B. testified, however, that the first shots came from the “boys in the front
seat” — Robinson and Logan. S.P. never mentioned any shooting directed at the car.
According to her, Logan fired at least four or five shots toward the crowd of people. She
further testified that after they pulled away from The One Way, Logan said, “Ah, I shot
someone. I’m going to break my phone. What am I going to do?”
{¶15} East Cleveland police responded to the call of gunshots and victim down.
East Cleveland police detective Reginald Holcomb testified that, through initial interviews
at the scene, the police quickly learned that Jeremy Logan was a passenger in the car and
had fired his gun into the crowd. They further recovered Logan’s gun, a Rossie .38
Special revolver, based on an anonymous tip called into the station, which Logan
acknowledged as being his gun after being called in by the police. Robinson, likewise,
turned himself into the police and ultimately admitted to firing a single shot “out the
window towards the back of [his] car.” According to Robinson’s statement, someone
from the crowd fired a single round first, then Logan fired his gun, and then someone from
the crowd fired another one or two shots. At that point, Logan told Robinson that “his
gun was messing up” so Robinson fired a single shot and then they drove away. Based on
Robinson’s admission, the police also recovered Robinson’s gun, a .38 caliber Smith &
Wesson revolver.
{¶16} Immediately following the shooting, the police recovered a bullet from the
windowsill of the upstairs residence at 1826 Garfield Road. They also recovered a bullet
fragment from a .32 caliber discovered in the front yard of 1824 Garfield Road. The
fragment and bullet were later determined to both be .32 calibers. According to Andrew
Chappell, a forensic scientist qualified “in the area of firearms comparison and ballistics
comparison,” the fragment and bullet recovered from the residence could not have been
shot out of either one of the firearms recovered from Robinson and Logan because their
revolvers were .38 caliber.
{¶17} The police, however, recovered a .38 Special/.357 Magnum caliber bullet
found near the victim. According to Chappell, he “was able to eliminate the Rossie
revolver as being the gun that fired the bullet based on a difference in class
characteristics.” With respect to Robinson’s gun, the Smith & Wesson pistol, “it was
found to have the same class characteristics; however, the first bullet didn’t have sufficient
individual characteristics” to conclusively say that it was fired from Robinson’s gun.
Chappell explained that the lack of “sufficient individual characteristics” could be
attributed to a variety of causes, including the bullet passing through bone.
{¶18} The state additionally offered the testimony of deputy medical examiner Dr.
Andrea McCollom, who testified that the victim died from a gunshot wound of the face
with skull and brain injuries. According to Dr. McCollom, the victim’s entrance wound
was “lateral to the right eye” and there was a “two and a half by three and a half inch area
of stippling of the right face, including the upper eyelid.” She further identified an exit
wound of the bullet out of the victim’s scalp. Dr. McCollom testified that the victim
suffered a deadly injury that ordinarily would cause a person to lose consciousness
immediately. On cross-examination, Dr. McCollom explained that the injury inflicted to
the victim would cause someone to fall. She further indicated that the angle of the bullet
was “slightly downward” and that the existence of stippling was indicative of an
“intermediate range gunshot wound.” Specifically, she explained that the range “is up to
about three feet.”
{¶19} After the presentation of the state’s case, Robinson moved for an acquittal of
all the charges under Crim.R. 29. The trial court granted it with respect to one of the
felonious assault counts (Count 9).
{¶20} As part of the jury instructions, the trial court instructed the jury on aiding
and abetting with respect to the state’s alternative theory that Robinson aided and abetted
Logan in the commission of the crimes.
{¶21} The jury ultimately acquitted Robinson of the murder count contained in
Count 3, a violation of R.C. 2903.02(A), but found him guilty of felony murder, a
violation of R.C. 2903.02(B), as contained in Count 2. The jury further found Robinson
guilty of five counts of felonious assault, violations of R.C. 2903.11(A)(2) (Counts 4-8),
and one count of discharging a firearm on or near prohibited premises, a violation of R.C.
2923.162(A)(3) (Count 10). The jury found Robinson guilty of the one- and three-year
firearm specifications related to these counts, but not guilty of the five-year firearm
specifications attendant to those counts.
{¶22} The trial court ultimately imposed a sentence of life imprisonment with the
possibility of parole after 21 years: 15 to life for felony murder (Count 2), two years on
each of the felonious assault convictions (Counts 4-9), three years for discharging the
firearm on or near a prohibited place (Count 10), and a single three-year firearm
specification, with the base offenses running concurrently except for the three-year
sentence on Count 10.
{¶23} Robinson now appeals, raising 15 assignments of error. These assignments
of error are set forth in the attached appendix.
Sufficiency of the Evidence
{¶24} In his first three assignments of error, Robinson argues that the state’s
evidence against him was insufficient to sustain the convictions.
{¶25} When an appellate court reviews a record upon a sufficiency challenge, “‘the
relevant inquiry is whether, after viewing the evidence in a light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the crime
proven beyond a reasonable doubt.’” State v. Leonard, 104 Ohio St.3d 54,
2004-Ohio-6235, 818 N.E.2d 229, ¶ 77, quoting State v. Jenks, 61 Ohio St.3d 259, 574
N.E.2d 492 (1991), paragraph two of the syllabus.
{¶26} Robinson was convicted of one count of felony murder, five counts of
felonious assault, and one count of first-degree felony of discharging a firearm on or near
prohibited premises. We will address each offense in turn.
Felony Murder
{¶27} To survive a Crim.R. 29 motion for acquittal, the state had to present
sufficient evidence on the elements of felony murder, such that the trier of fact could find
Robinson guilty of the offense beyond a reasonable doubt. The elements are defined as
follows:
{¶28} Under R.C. 2903.02(B), felony murder, “[n]o person shall cause the death of
another as a proximate result of the offender’s committing or attempting to commit an
offense of violence that is a felony of the first or second degree.”
{¶29} The underlying felony giving rise to the felony murder was felonious assault
against Bubbles. Thus, to support the count of felony murder, the state had to present
sufficient evidence that Robinson caused the death of Bubbles as a proximate result of his
felonious assault against her.
{¶30} Under R.C. 2903.11(A)(2), felonious assault, “[n]o person shall knowingly *
* * [c]ause or attempt to cause physical harm to another * * * by means of a deadly
weapon or dangerous ordnance.”
{¶31} Robinson argues that the state’s evidence is deficient in two respects: (1) that
it failed to present legally sufficient evidence that he shot Bubbles and caused her physical
harm, and (2) that it failed to prove that he acted “knowingly.” We find no merit to
Robinson’s sufficiency challenge. Indeed, Robinson acknowledges that several
eyewitnesses testified that they saw Bubbles “go down” after Robinson fired his gun.
And these witnesses testified that there was no shooting from the crowd directed toward
the car or anywhere else until after Bubbles went down.
{¶32} For example, Paul Small, who lives on Garfield Road — and was not a party
to either group that congregated on Garfield Road for the fight — testified that he watched
from his window and observed “the car speeded off, dude [front seat passenger] got up out
of the car and shot twice.” Small explained that the car “was rolling slow * * *; [s]low
enough for him to shoot. He shot twice and the gun got jammed.” Small further testified
that the two shots were followed by another shot from the driver’s side and that following
the driver’s shot, Bubbles dropped to the ground. According to Small, someone from the
crowd — not the car — started to shoot at his neighbor’s house after Bubbles went down.
{¶33} Similar to Small’s testimony, Antonio Delaney, Bubbles’s brother, testified
that after the driver (Robinson) started firing his gun, “that’s when Bubbles had dropped.”
And several other witnesses — at least four other eyewitnesses from Bubbles’s group —
echoed this testimony, testifying that they saw Bubbles lying on the ground after the driver
started shooting. Although they specifically did not see Bubbles fall at the exact moment,
they identified the driver (Robinson) as the only shooter before Bubbles fell.
{¶34} Further, through forensic scientist Andrew Chappell’s testimony, the state
established that the bullet recovered from Bubbles had the “same class characteristics” of
Robinson’s firearm, a Smith & Wesson .38 revolver. In other words, the bullet that killed
Bubbles was capable of being fired from the type of firearm used by Robinson.
{¶35} Contrary to Robinson’s assertion, construing this evidence in a light most
favorable to the state, only one reasonable inference can be drawn: Robinson shot
Bubbles. To the extent that Robinson argues that this inference is not reasonable based
on other evidence contradicting it, such an argument amounts to an attack of the weight of
the evidence, which we will address separately under our manifest weight analysis.
{¶36} Next, Robinson argues that the state failed to prove that he acted
“knowingly.” He contends that the evidence only established that he acted “recklessly.”
We disagree.
{¶37} “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.” R.C. 2901.22(B).
{¶38} It is common knowledge that a firearm is an inherently dangerous
instrumentality, use of which is reasonably likely to produce serious injury or death. State
v. Widner, 69 Ohio St.2d 257, 270, 431 N.E.2d 1025 (1982). This court has consistently
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. 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; 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). Notably, “[e]ven firing a weapon randomly at victims
arguably within range of the shooter is sufficient to demonstrate actual intent to cause
physical harm.” Ivory at ¶ 6, citing State v. Phillips, 75 Ohio App.3d 785, 600 N.E.2d
825 (2d Dist.1991); State v. Owens, 112 Ohio App.3d 334, 678 N.E.2d 956 (11th
Dist.1996).
{¶39} Here, Robinson admitted to shooting his gun into the crowd of people.
Further, the majority of the eyewitnesses who testified indicated that Robinson fired his
gun several times into the crowd and that Bubbles “went down” after Robinson fired.
The state presented, through both direct and circumstantial evidence, that Robinson fired
his gun out of his car toward Bubbles.
{¶40} As for Robinson’s claim that his conduct was merely “reckless” because the
crowd had already dispersed, we find his claim unsupported by the record. Based on the
collective testimony of the eyewitnesses, a crowd of at least 15 to 20 people was
congregated behind Robinson’s car when he fired his gun into the crowd. While the
scene was definitely chaotic, we cannot say that the evidence established that the crowd
had dispersed. To the contrary, one witness testified that she was standing behind the car
“in shock” when Robinson started firing toward the crowd. Accordingly, we find that
there was sufficient evidence that Robinson acted “knowingly” rather than “recklessly” in
firing his gun.
{¶41} Having found that the state presented sufficient evidence to support the
single count of felony murder, we overrule Robinson’s first assignment of error.
Separate Five Felonious Assault Counts
{¶42} In his second assignment of error, Robinson argues that the state failed to
present sufficient evidence to support the five felonious assaults with respect to Darylisa
Crenshaw, Latima Brown, Kayla Moorer, Devin Delaney, and Antonio Delaney. He
argues that the state failed to establish that any of these alleged victims were almost shot
by Robinson or were otherwise “in the line of fire.” Without evidence that they were “in
the line of fire,” Robinson contends that the convictions cannot stand. In support of this
argument, Robinson relies on the Ohio Supreme Court’s decision in State v. Mills, 62 Ohio
St.3d 357, 582 N.E.2d 972 (1992). Mills, however, is distinguishable from this case.
{¶43} In Mills, the defendant had been accused of committing several felonious
assaults during the commission of a bank robbery. The Supreme Court vacated one of
those counts against a teller who was standing off to the side of the line of fire and behind
a teller counter. In distinguishing the Mills case from those felonious assaults involving
firing into a crowd, this court explained:
The key factual distinction between Mills and this case is the proximity of
the shooter to the victim and how that proximity demonstrates an intent to hit
a desired target. If a shooter fires a shot at a target standing within
point-blank range, it can be inferred that the shooter intends to hit that target
to the exclusion of other targets within the periphery. When, as here, the
targets are considerably farther away, and aiming is made more difficult
because the shooter is in a moving vehicle, it can reasonably be inferred that
the shooter is intending to shoot within a much wider target range. Hence,
anyone standing within that wider target range can be an intended target,
regardless of whether the shooter hits the mark. Of course, the greater the
range and difficulty of the shot, the less likely it may be that a bullet will hit
its intended target. But that fact alone does not overcome an intent to hit a
target — it simply makes a successful shot that much more unlikely.
Ivory, 8th Dist. Cuyahoga No. 83170, 2004-Ohio-2968, ¶ 8.
{¶44} We find the reasoning of Ivory applicable in this case. We further note that
the state’s prosecution of the felonious assault counts was not limited to Robinson’s
conduct only. The charges against Robinson were also prosecuted under an aiding and
abetting theory, namely, that Robinson was an accomplice to Logan’s firing of his gun into
the crowd. With that in mind, we turn to whether the state presented sufficient evidence
that Logan or Robinson committed a felonious assault against each of the five named
victims. After a careful review of the evidence, and construing the evidence in a light
most favorably to the state, we find sufficient evidence to support the convictions.
{¶45} The record reveals that chaos erupted amongst a crowd of approximately 20
people in the street immediately after Logan started shooting. In turn, most of the crowd
began to run toward Euclid Avenue to avoid being hit from the shots fired by Logan and
Robinson. The state offered both direct and circumstantial evidence establishing that both
Logan and Robinson shot their firearms back into the crowd — Logan’s in the direction
straight back toward Euclid Avenue, and Robinson’s in the direction closer to the tree
lawn where Bubbles fell. All five victims were behind the car and in the crowd that was
fired upon.
{¶46} Given the chaotic scene and the numerous shots fired, we find this testimony
sufficient to establish that Robinson either as the principal offender or as an aider or
abetter “knowingly * * * attempt[ed] to cause physical harm to another * * * by means of a
deadly weapon or dangerous ordnance.” R.C. 2903.11(A)(2).
{¶47} According, we overrule the second assignment of error.
Discharging a Firearm on or Near Prohibited Premises
{¶48} Robinson was convicted of the first-degree felony of discharging a firearm
on or near prohibited premises in violation of R.C. 2923.162(A)(3) and (C)(4). The state
therefore was required to prove that (1) Robinson discharged a firearm upon or over a
public road or highway; and (2) the discharge of the firearm “caused serious physical harm
to any person.” Id. The indictment named Bubbles as the victim.
{¶49} Although Robinson concedes that he shot his firearm from a vehicle upon a
public road, he argues that the state failed to prove that his shot hit Bubbles to elevate the
crime to a first-degree felony. He raises the same arguments that we have already rejected
under his sufficiency challenge to the felony murder count. Accordingly, we overrule the
third assignment of error.
Manifest Weight of the Evidence
{¶50} In his fourth assignment of error, Robinson argues that all his convictions are
against the manifest weight of the evidence. We disagree.
{¶51} In contrast to a sufficiency argument, a manifest weight challenge questions
whether the state met its burden of persuasion. State v. Bowden, 8th Dist. Cuyahoga No.
92266, 2009-Ohio-3598, ¶ 12. When reviewing a claim challenging the manifest weight
of the evidence, “the appellate court sits as a ‘thirteenth juror’ and disagrees with the
factfinder’s resolution of the conflicting testimony.” State v. Thompkins, 78 Ohio St.3d
380, 387, 678 N.E.2d 541 (1997). After reviewing the entire record, the reviewing court
must
weigh the evidence and all reasonable inferences, consider the credibility of
witnesses, and determine whether, in resolving conflicts in the evidence, the
trier of fact clearly lost its way and created such a manifest miscarriage of
justice that the conviction must be reversed and a new trial ordered.
Id.Felony Murder
{¶52} In arguing that his conviction for felony murder is against the manifest
weight of the evidence, Robinson relies principally on the same argument that he raised in
his first assignment of error, namely, that the eyewitness testimony linking him to the
murder is not credible because the physical evidence excludes him. Specifically,
Robinson points to the testimony of the deputy medical examiner, Dr. McCollom, who
stated that Bubbles had “stippling” on her face, which is indicative that the shooter was
within three feet from her. Robinson contends that this testimony excludes him as the
shooter “because he shot from his car which was on the east side of a one-way street near
1826 Garfield Road, whereas [Bubbles] was shot on the west side of the street on a grassy
area along the sidewalk and adjacent to the fence opposite 1818 Garfield.” He further
argues that most eyewitnesses testified that Bubbles was running away from the car; thus,
if he had shot her from his car, the entrance wound would have been in the back of her
head, not her face.
{¶53} While we acknowledge that Robinson raises a compelling argument that
Bubbles may have been killed by someone from her own group during crossfire, we still
cannot say that the jury “lost its way” in this case.
{¶54} First, although we agree that the record evidences Bubbles’s location at the
time of her fall from the fatal shooting, the evidence does not conclusively establish
Robinson’s exact location at the time that he fired his gun. Whereas Robinson contends
that his shot would have been fired at least 80 feet south and 20 feet west from Bubbles,
other testimony at trial established that Bubbles was much closer to Robinson’s car. For
example, Antonio Delaney testified that Bubbles was approximately 15 feet from the car.
Additionally, although there was testimony that Bubbles was running away from the car
after the first shots were fired, we note that Bubbles was shot “lateral to her right eye.”
Despite running away, Bubbles could have been shot if she had turned her head to look
back after the pause in the first set of shots. Finally, we must emphasize that, aside from
some of the occupants in Robinson’s car, almost all of the eyewitnesses either testified
that there was no shooting from the crowd toward the car or that the only shooting from
the crowd occurred after Bubbles had fallen down. Notably, even Russell Stokes, who was
not a party to Bubbles’s group, testified to this fact. We find these facts to be important
when considering the weight of Dr. McCollom’s testimony.
{¶55} Even assuming that Bubbles was not within three feet of Robinson when he
fired his gun outside his car window, we still cannot say that a manifest miscarriage of
justice has occurred. Indeed, Robinson’s manifest weight of the evidence challenge is
premised on the notion that Dr. McCollom’s testimony regarding the existence of stippling
and the corresponding distance of the shooter was infallible. The jury, however, was free
to disbelieve Dr. McCollom’s testimony. Further, Robinson’s argument ignores the very
function of the jury, namely, to resolve conflicts in the evidence. The jury heard from
several witnesses whose testimony could reasonably be construed to mean one thing:
Robinson shot and killed Bubbles.
{¶56} It is well settled that the credibility of the witnesses and the weight to be
given to their testimony are matters for the trier of facts primarily to resolve. State v.
DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967). As the Second District has
explained:
[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 Ohio App. LEXIS 3709 (Aug. 22,
1997).
{¶57} Moreover, we find Robinson’s challenge to his felony murder conviction
flawed for another reason: the jury didn’t have to believe that Robinson’s shot actually
killed Bubbles to convict him of the felony murder count. Under Ohio’s felony-murder
doctrine, “a defendant may be held criminally liable for the unintended death that results
from the commission of a first or second degree felony.” State v. Tuggle, 6th Dist. Lucas
No. L-09-1313, 2010-Ohio-4162, ¶ 101. In State v. Dixon, 2d Dist. Montgomery No.
18582, 2002 Ohio App. LEXIS 472 (Feb. 8, 2002) (abrogation recognized on other
grounds), the court explained that under the “proximate cause theory” of felony murder:
[I]t is irrelevant whether the killer was the defendant, an accomplice, or
some third party such as the victim of the underlying felony or a police
officer. Neither does the guilt or innocence of the person killed matter. A
defendant can be held criminally responsible for the killing regardless of the
identity of the person killed or the identity of the person whose act directly
caused the death, so long as the death is the “proximate result” of
defendant’s conduct in committing the underlying felony offense; that is, a
direct, natural, reasonably foreseeable consequence, as opposed to an
extraordinary or surprising consequence, when viewed in the light of
ordinary experience.
Dixon at *14-15, citing State v. Chambers, 53 Ohio App.2d 266, 269, 373 N.E.2d 393 (9th
Dist.1977). See State v. Bumgardner, 2d Dist. Greene No. 97-CA-103, 1998 Ohio App.
LEXIS 3856 (Aug. 21, 1998); and State v. Lovelace, 137 Ohio App.3d 206, 738 N.E.2d
418 (1st Dist.1999).
{¶58} Here, the testimony offered at trial established at a minimum that Robinson
fired his gun toward Bubbles. Even if his bullet missed Bubbles, this does not protect him
from criminal liability. We find that it is foreseeable that someone in a crowd, gathered
for a fight, will shoot back if first fired upon. See State v. Abdi, 4th Dist. Athens No.
09CA35, 2011-Ohio-3550. Notably, “even intervening criminal conduct does not prevent
an offender’s actions from being the proximate cause so long as that intervening conduct
was foreseeable.” Id. at ¶ 76, citing Lovelace at 219 (holding that police officer’s
criminal conduct during a high-speed chase, which directly caused a motorist’s death, was
foreseeable, and therefore, defendant could be held criminally liable for proximately
causing the motorist’s death). Thus, we find that the conviction must stand because (1)
the weight of the evidence establishes that Robinson committed a felonious assault against
Bubbles, even if it was an attempt to inflict serious physical harm by virtue of shooting in
her direction, and (2) his felonious assault proximately caused her death, even if it was
through the crossfire retaliating back.
Felonious Assault Counts
{¶59} Robinson argues that his felonious assault convictions are against the
manifest weight of the evidence for the same reasons raised in his sufficiency challenge.
Given that there is no evidence contradicting the testimony of the victims supporting the
five counts, we find his argument has no merit and overrule it.
Discharging a Firearm on or Near Prohibited Premises
{¶60} Relying on the same reasons he raised in his manifest weight challenge of his
felony murder conviction, Robinson argues that his conviction of first degree discharging a
firearm on or near prohibited premises cannot stand. He claims that the jury’s acquittal of
the “drive-by-shooting” firearm specification evidences that it “lost its way” in deciding
this count.
{¶61} Unlike the felony murder count, the state had to prove beyond a reasonable
doubt that Robinson’s bullet shot Bubbles. We acknowledge that this is a very close call
given Dr. McCollom’s testimony placing the shooter within three feet of Bubbles and the
fact that no one placed Bubbles within three feet of Robinson. But despite this obvious
conflict, we still cannot say that the jury’s verdict here defies logic and constitutes a
manifest miscarriage of justice. Again, as discussed above, the jury was free to disbelieve
Dr. McCollom. Indeed, the jury heard from several eyewitnesses whose testimony could
be reasonably construed to mean one thing: Robinson shot and killed Bubbles.
{¶62} Accordingly, having found that Robinson’s convictions are not against the
manifest weight of the evidence, we overrule the fourth assignment of error.
Aiding and Abetting Instruction
{¶63} Robinson argues in his fifth assignment of error that the trial court erred in
instructing the jury that it could find him guilty of aiding and abetting Jeremy Logan when
there was no evidence that he aided and abetted Logan’s criminal conduct. Robinson
contends that the state failed to present any evidence that he “provided any assistance or
encouragement to Logan and shared his culpable mental state at the time Logan fired his
gun.”
To support a conviction for complicity by aiding and abetting pursuant to
R.C. 2923.03(A)(2), the evidence must show that the defendant supported,
assisted, encouraged, cooperated with, advised, or incited the principal in the
commission of the crime, and that the defendant shared the criminal intent of
the principal.
State v. Johnson, 93 Ohio St.3d 240, 245-246, 754 N.E.2d 796 (2001). The defendant’s
intent may be inferred from the circumstances surrounding the crime. Id. at 246.
{¶64} Additionally, the defendant’s mere association with the principal offender is
not enough to prove complicity. State v. Mootispaw, 110 Ohio App.3d 566, 570, 674
N.E.2d 1222 (4th Dist.1996). The defendant must have had some level of active
participation by way of providing assistance or encouragement. State v. Nievas, 121 Ohio
App.3d 451, 456, 700 N.E.2d 339 (8th Dist.1997); State v. Sims, 10 Ohio App.3d 56, 58,
460 N.E.2d 672 (8th Dist.1983).
{¶65} Robinson argues that the aiding and abetting instruction was not proper
because the only evidence shows that Robinson provided assistance after Logan fired his
gun, which he contends only evidences proof of an “accessory after the fact.” We
disagree.
{¶66} As recognized by the Ohio Supreme Court in Johnson, the defendant’s
“‘participation in criminal intent may be inferred from presence, companionship and
conduct before and after the offense is committed.’” Id. at 245, quoting State v. Pruett,
28 Ohio App.2d 29, 34, 273 N.E.2d 884 (4th Dist.1971). The evidence at trial revealed
that Logan always carried a gun after having been shot and that Robinson specifically
asked Logan to accompany him to The One Way “because he didn’t want to be up there by
himself in a fight.” The state offered the testimony of Stephanie Robinson, who testified
that she saw the passenger pull out a gun after being punched but that the passenger’s gun
“jammed” and the “driver [got] it to work.”
{¶67} Additionally, Paul Small testified that, immediately after Logan was punched
and prior to Logan firing his gun, the car pulled slightly forward. Similarly, another
witness testified that the car moved slightly forward while the passenger “inched out” his
window before starting to fire. This testimony reveals that Robinson, who was driving
the car, did not drive away; instead, he operated the vehicle in such a manner to allow
Logan to position himself on the car door window prior to Logan firing his gun. This
evidence reveals that Robinson shared in Logan’s criminal intent to fire the firearm out of
the vehicle and that he assisted him in doing so.
{¶68} Based on this collective evidence, we cannot say that the trial court erred in
giving an aiding and abetting instruction. The fifth assignment of error is overruled.
Failure to Grant a Mistrial
{¶69} In his sixth assignment of error, Robinson argues that the trial court erred in
refusing to give a curative and in failing to grant a mistrial after a witness testified that
Robinson was “in prison.” Specifically, Robinson points to the statement made by B.D.,
one of the occupants in Robinson’s car at the time of the shooting. Robinson contends
that B.D.’s statement was so prejudicial because it severely undermined his “attempt to
maintain the presumption of innocence” by exercising his right to be tried in civilian
clothing. In support of this argument, Robinson relies on this court’s decision in State v.
Collins, 8th Dist. Cuyahoga No. 89808, 2008-Ohio-3016. Collins, however, is factually
distinguishable from this case.
{¶70} In Collins, the trial judge, prior to voir dire, admonished the jury with the
following: “Don’t talk to your fellow jurors about how you answered the questionnaire.
Do not talk about the case at all. John and Pinkey and Harvey and Ben, you might see us
at the cafeteria, the defendant is incarcerated, you’re not going to see him in the cafeteria, I
just want you to know that for security purposes * * *.”
{¶71} Defense counsel subsequently moved for a mistrial on the grounds that
Collins had dressed in a suit for the express purpose of not letting the jury know that he
was incarcerated, something that the judge’s comments severely undermined, and that the
trial judge’s comments suggested that Collins was incarcerated because he was a
dangerous person. The trial court denied the motion.
{¶72} On appeal, we held that the trial court abused its discretion in denying the
motion for a mistrial. Id. at ¶ 14. Recognizing the well-established principle that a
defendant who is compelled to stand trial wearing identifiable prison clothing suffers
prejudice that undermines the presumption of innocence, this court found the same
principle was applicable in Collins’s case. Id. at ¶ 16. Since Collins exercised his right
to wear a suit to trial, “the court must not undermine his attempt to maintain the
presumption of innocence as the trial proceeds.” We further found that “the trial court not
only made the initial error of commenting on [Collins’s] incarceration, but he compounded
the problem exponentially by adding that it was for ‘security purposes.’” Id. at ¶ 17.
Finding that such a statement leads to the unavoidable inference that Collins is a
dangerous person, this court held that Collins was entitled to a new trial. Id.
{¶73} This is not a case where the trial judge commented on Robinson’s
incarceration at the time of trial. Instead, the record reveals that B.D., age 17 at the time
of trial, made a fleeting reference to Robinson being “in prison” while answering the
prosecutor’s question regarding the nature of the conversations that she had with Robinson
following the shooting. She responded: “I mean he show no effect. He’s in prison.”
The answer was not responsive to the question asked and clearly not intentionally elicited
by the state.
{¶74} Contrary to Robinson’s assertion, we find a distinct difference from a
comment made by the judge in Collins, 8th Dist. Cuyahoga No. 89808, 2008-Ohio-3016— a person whose position alone carries considerable credibility and weight in the eyes of
a jury — to an unresponsive, fleeting comment made by a teenager. Further, unlike the
facts of Collins, the statement was not further compounded by another prejudicial
statement. Instead, as soon as the statement was made, the trial judge immediately
sustained defense counsel’s objection. While we acknowledge that the trial judge should
have given a curative instruction as requested by defense counsel, we find that the failure
to do so amounts to harmless error. See, e.g., State v. Lytle, 48 Ohio St.2d 391, 358
N.E.2d 623 (1976), paragraph three of the syllabus; State v. Brown, 65 Ohio St.3d 483,
605 N.E.2d 46 (1992) (An error is harmless and not grounds for reversal where there is no
reasonable probability that unlawful testimony contributed to the accused’s conviction.).
{¶75} The sixth assignment of error is overruled.
Prosecutorial Misconduct
{¶76} In his seventh assignment of error, Robinson argues that he was denied his
due process right to a fair trial as a result of prosecutorial misconduct. He argues that the
prosecutor’s statements in his final closing argument were calculated “to improperly
influence the jury with arguments that had absolutely no basis in the evidence.”
{¶77} The standard of review for prosecutorial misconduct is whether the
comments and questions by the prosecution were improper, and, if so, whether they
prejudiced appellant’s substantial rights. State v. Treesh, 90 Ohio St.3d 460, 480, 739
N.E.2d 749 (2001). Prosecutorial misconduct will not provide a basis for reversal unless
the misconduct can be said to have deprived the appellant of a fair trial based on the entire
record. State v. Lott, 51 Ohio St.3d 160, 166, 555 N.E.2d 293 (1990). “The touchstone
of analysis ‘is the fairness of the trial, not the culpability of the prosecutor.’” State v.
Gapen, 104 Ohio St.3d 358, 2004-Ohio-6548, 819 N.E.2d 1047, ¶ 92, quoting Smith v.
Phillips, 455 U.S. 209, 219, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982).
{¶78} There was no objection to the alleged instances of prosecutorial misconduct;
therefore, Robinson has waived all but plain error. State v. Bryan, 101 Ohio St.3d 272,
2004-Ohio-971, 804 N.E.2d 433, ¶ 175; State v. Ballew, 76 Ohio St.3d 244, 254, 667
N.E.2d 369 (1996). The plain error rule is to be invoked only under exceptional
circumstances in order to avoid a manifest miscarriage of justice. State v. Long, 53 Ohio
St.2d 91, 95, 372 N.E.2d 804 (1978). Plain error does not occur unless, but for the error,
the outcome of the trial clearly would have been different. Id. at 97; Crim.R. 52(B).
{¶79} According to Robinson, the most important piece of exculpatory evidence in
this case was the testimony of the medical examiner, Dr. McCollom, indicating that the
victim was shot in the face at close range based on the presence of “stippling.” Robinson
contends that the prosecutor improperly attacked this testimony in closing argument by
misconstruing the evidence and by intentionally confusing the jury as to the testimony of
other experts.
{¶80} Although prosecutors are entitled to considerable latitude in opening and
closing arguments, they must nevertheless avoid insinuations and assertions calculated to
mislead. Lott, 51 Ohio St.3d at 166, 555 N.E.2d 293. “They may not express their
personal beliefs or opinions regarding the guilt of the accused, and they may not allude to
matters not supported by admissible evidence.” Id. The prosecutor is, however,
permitted to fairly comment on the credibility of witnesses based on the witnesses’
testimony at trial. State v. Williams, 8th Dist. Cuyahoga No. 90739, 2012-Ohio-1741, ¶
12, citing State v. Price, 60 Ohio St.2d 136, 140, 398 N.E.2d 772 (1979). Courts must
review the statement within the context of the entire trial. Id.
1. Remarks that Dr. McCollom is not a ballistics expert
{¶81} Robinson first points to the prosecutor’s statements attacking Dr.
McCollom’s qualifications to render an opinion on stippling and corresponding distance of
the shooter, wherein the prosecutor emphasized first that Dr. McCollom is “qualified as an
expert in the area of forensic pathology, not ballistics, okay,” and then later reiterated
again that the “pathologist is not a ballistics expert.” Robinson argues that the
prosecutor’s remarks were improper because there was no evidence that Dr. McCollom
was not qualified to offer her scientific opinion regarding the stippling, and the
prosecutor’s personal opinion of her testimony was improper. We disagree.
{¶82} While it is true that the defense effectively elicited testimony from Dr.
McCollom regarding stippling and the corresponding implication of a close range shooter,
which the prosecutor never tried to contradict or impeach through re-direct of Dr.
McCollom, we do not believe that alone prohibits the prosecutor from commenting on the
credibility of this testimony. Notably, Dr. McCollom was not offered as a ballistics
expert, nor did she hold herself out to be one. The prosecutor’s remarks on this issue
therefore were not improper.
2. Testimony mocking the defense’s argument
{¶83} Robinson further contends that the prosecutor “denigrated its own expert
witness and intentionally misconstrued the defense argument in an attempt to make it
ridiculous.” He complains of the following remarks:
[T]his testimony about the stuff that comes flying out of the end of a gun,
this burned residue and this powder, a couple of dots around her face as if,
you know, the big game changer, there is a real killer out there * * * [and]
shoots Bubbles in the face, one of her friends, somebody must have wanted
to do her in, right? If that’s the defense, that’s a bad defense, really bad.
Another killer.
{¶84} While we find the prosecutor’s remarks to be obnoxious, we cannot say that
it rises to the level of prosecutorial misconduct. The prosecutor was giving his take on
the defense’s theory as stated in the closing argument. And even assuming that such
characterization was improper, we find no basis to believe that these statements affected
the outcome of the trial.
3. Misstating the relevance of other experts’ testimony and mischaracterizing their
testimony
{¶85} Robinson also argues that the prosecutor improperly implied that Dr.
McCollom’s testimony was somehow rendered invalid because Robinson did not ask the
firearms expert any questions to corroborate McCollom’s testimony. Robinson contends
that these statements improperly imply (1) that Andrew Chappell, the firearms expert,
would have contradicted Dr. McCollom's testimony — something that was never
established at trial — and further (2) that the burden somehow rested with the defense to
disprove the state’s case. Robinson specifically points to the following remarks:
But right after [Dr. McCollom], we had a ballistics expert up here and
testifying, right. A guy, [defense counsel] says, is a terrific expert, well
qualified. Well, ask him the question, right? Ask him the question about
the distance of this gunshot residue. Why don’t you.
***
[The defense] want to wrap their arms around [Dr. McCollom] because she
said this bit about fluid distance of gunshot residue and get the ballistics
expert up here, ask Andy [Chappell] some questions. You know, ask Andy
some questions about that. * * *
{¶86} He further points to the prosecutor’s characterization of the testimony of the
trace evidence expert, Martin Lewis, as not being entirely accurate and misleading.
Although Lewis testified on cross-examination that the FBI no longer tests for gunshot
residue at their laboratory, he specifically denied that the decision had anything to do with
the reliability of gunshot residue testing. Relying on Lewis’s testimony in closing
argument, the prosecutor stated this testimony illustrated that “the stuff” Dr. McCollom
testified to “is mushy.” The prosecutor further elaborated: “It’s all the same stuff. It
blasts out, FBI doesn’t use it any more, we know that. It’s just murky. This stuff, it’s
like that [Lewis] testified to.”
{¶87} We find these highlighted comments by the prosecutor to be improper.
There was no evidence that Chappell would have contradicted McCollom’s testimony, and
there is no burden upon the defense to disprove the state’s case. We further agree with
Robinson that the prosecutor’s argument related to the gunshot residue was misleading
because Lewis did not testify that gunshot residue testing was murky or unreliable and
because it mixes two very different types of scientific analysis, namely, gunshot residue
testing versus the forensic significance of stippling.
{¶88} We, however, cannot say that these comments deprived Robinson of a fair
trial or impacted the outcome of the trial. First, while appellant’s counsel has effectively
highlighted these comments, these comments must be taken in context with the entire
closing argument. These comments were part of a long closing argument where the
prosecutor also repeatedly emphasized the jury to follow the jury instructions, e.g., “Please
don’t take anything I say as the gospel, just use the evidence and instructions, throw
anything I say out the window.” Notably, as stated above, defense counsel did not object
to any of these remarks. When considered in context, we do not believe that any of these
comments would unduly influence the jury in the performance of their job.
{¶89} Second, the trial court specifically instructed the jury that opening statements
and closing arguments of counsel were not evidence, and that the jury was to decide the
case solely on the evidence presented. See State v. Sheffey, 8th Dist. Cuyahoga No.
98944, 2013-Ohio-2463, ¶ 50. We have no basis to conclude that the jury did not follow
this instruction.
{¶90} The seventh assignment of error is overruled.
Ineffective Assistance of Counsel
{¶91} In his eighth assignment of error, Robinson argues that he was denied
effective assistance of counsel because his trial counsel failed to object to the prosecutor’s
improper remarks discussed in the preceding assignment of error.
{¶92} To establish ineffective assistance of counsel, a defendant must show (1)
deficient performance by counsel, i.e., performance falling below an objective standard of
reasonable representation, and (2) prejudice, i.e., a reasonable probability that but for
counsel’s errors, the proceeding’s result would have been different. Strickland v.
Washington, 466 U.S. 668, 687-688, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v.
Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), paragraphs two and three of the
syllabus.
{¶93} Having already found that the improper remarks made by the prosecutor in
closing argument would not have changed the outcome of the trial, we cannot say that
Robinson was prejudiced by his defense counsel’s failure to object.
{¶94} The eighth assignment of error is overruled.
Facebook Photograph
{¶95} In his ninth assignment of error, Robinson argues that the trial court deprived
him of a fair trial by admitting an irrelevant and prejudicial Facebook photograph of
himself and Logan in violation of Evid.R. 402 and 403.
{¶96} Evid.R. 402 provides that “[e]vidence which is not relevant is not
admissible.” Under Evid.R. 403(A), relevant evidence is not admissible “if its probative
value is substantially outweighed by the danger of unfair prejudice[.]” Further, the
admission of irrelevant evidence that substantially prejudices a party requires a new trial.
State v. Yost, 33 Ohio App.3d 173, 514 N.E.2d 940 (12th Dist.1986).
{¶97} We review a trial court’s decision regarding the admission of such evidence
under an abuse of discretion standard. State v. Sage, 31 Ohio St.3d 173, 510 N.E.2d 343(1987), paragraph two of the syllabus.
{¶98} The state offered the Facebook photograph through the testimony of Det.
Reginald Holcomb, who explained that the photograph led to the police’s initial discovery
of the driver’s name, who had previously only been identified as “J.R.” The state argued
for its admission “to show the procedure, what led the detectives to the identity of the
driver.” Robinson contends that the photograph was irrelevant because the photograph
“does not make the existence of a fact of consequence to the action more or less probable.”
Specifically, Robinson points out that he admitted to the police that he was the driver, and
therefore, its significance as part of the police procedure in identifying his name was
irrelevant. We agree.
{¶99} But we find the admission of the photograph to be harmless. Although
Robinson contends that he and Logan look “like thugs,” and the photograph improperly
suggests that he “was the type of person who would engage in criminal activity,” we
disagree. The photograph depicts Logan and Robinson standing together. Logan is
smiling with both his arms up in front of him, and Robinson is looking down with his left
hand up by his face. We simply fail to see any prejudice by the admission of the
photograph.
{¶100} The ninth assignment of error is overruled.
Inconsistent Verdicts
{¶101} Robinson argues in his tenth assignment of error that the jury’s verdict is
inconsistent because it found him guilty of felony murder, felonious assault, and discharge
of a firearm on or near a prohibited place, but not guilty of the five-year firearm
specification attached to these counts. He contends that his due process rights were
violated because the jury delivered inconsistent verdicts within the same count.
{¶102} Generally, “[t]he several counts of an indictment containing more than one
count are not interdependent and an inconsistency in a verdict does not arise out of
inconsistent responses to different counts, but only arises out of inconsistent responses to
the same count.” State v. Lovejoy, 79 Ohio St.3d 440, 683 N.E.2d 1112 (1997), paragraph
one of the syllabus. Robinson argues that based upon the Ohio Supreme Court’s holding
in State v. Evans, 113 Ohio St.3d 100, 2007-Ohio-861, 863 N.E.2d 113, a firearm
specification is considered dependent on the underlying charge, and thus the two should be
considered the same count. This court, however, has consistently rejected this argument.
See, e.g., State v. Williams, 8th Dist. Cuyahoga No. 95796, 2011-Ohio-5483, ¶ 41; State v.
Hardware, 8th Dist. Cuyahoga No. 93639, 2010-Ohio-4346, ¶ 15. Indeed, “a jury’s
general finding of guilty is not invalid where, * * * there is a conviction on the principal
charge * * * and an acquittal on the accompanying firearm specifications.” State v.
Glenn, 1st Dist. Hamilton No. C-090205, 2011-Ohio-829, ¶ 70.
{¶103} Here, the evidence supported the felony murder, felonious assault, and the
discharge of a firearm on or near a prohibited place, the court instructed on the
specifications independently and separately, and the convictions on these counts were not
dependent upon a finding on the specifications. Accordingly, consistent with this court’s
precedent, we overrule the tenth assignment of error.
Felony Murder Merger Doctrine
{¶104} In his eleventh assignment of error, Robinson argues that his conviction for
felony murder should be vacated because it is predicated on the underlying offense of
felonious assault. He claims that permitting felonious assault that causes death to serve as
the predicate for felony murder “effectively eliminates the purposeful murder statute from
the books” and violates the common law felony murder merger doctrine.
{¶105} As recognized by other states, the independent-felony/merger doctrine
requires that the underlying felony be independent of the killing, and therefore precludes
certain particularly dangerous felonies, such as assault with a deadly weapon, from
qualifying as the underlying felony. See State v. Mays, 2d Dist. Montgomery No. 24168,
2012-Ohio-838, ¶ 8 (discussing felony murder merger doctrine as applied in other states).
As the California Supreme Court has explained, the limitation “is premised upon the
concern that it ‘would subvert the legislative intent for a court to apply the felony-murder
rule automatically to elevate all felonious assaults resulting in death to second degree
murder even where the felon does not act with malice.’” People v. Robertson, 34 Cal.4th
156, 170, 95 P.3d 872 (2004), quoting People v. Hansen, 9 Cal.4th 300, 314, 885 P.2d
1022 (1994).
{¶106} We understand the criticisms of the felony-murder rule, namely, that it
requires no proof of intent to kill despite imposing liability for murder. We likewise
recognize that other states have sought to minimize its application through the adoption of
the independent-felony/merger doctrine. Ohio, however, has not. As consistently
recognized by Ohio courts, “‘in adopting R.C. 2903.02(B) the General Assembly rejected
the independent felony/merger doctrine.’” Mays at ¶ 10, quoting State v. Cherry, 9th Dist.
Summit No. 20771, 2002-Ohio-3738, ¶ 27; see also State v. Pickett, 1st Dist. Hamilton
No. C-000424, 2001 Ohio App. LEXIS 5549 (Dec. 14, 2001); State v. Hayden, 11th Dist.
Lake No. 99-L-037, 2000 Ohio App. LEXIS 3198 (July 14, 2000). Indeed, “R.C.
2903.02(B) evidences a clear legislative intent to subject those who commit the most
serious felonies to liability for murder, where commission of those felonies results in
death.” Cherry at ¶ 43.
{¶107} Accordingly, because Ohio does not recognize the felony-merger doctrine
and R.C. 2903.02(B) has been repeatedly upheld as constitutional, we find no merit to
Robinson’s eleventh assignment of error and overrule it.
Cumulative Error
{¶108} In his twelfth assignment of error, Robinson argues that he was denied a fair
trial by virtue of the cumulative effect of the errors committed during his trial. We
disagree.
{¶109} Pursuant to the cumulative error doctrine, the existence of multiple errors,
which may not individually require reversal, may violate a defendant’s right to a fair trial.
State v. Madrigal, 87 Ohio St.3d 378, 397, 721 N.E.2d 52 (2000), citing State v. DeMarco,
31 Ohio St.3d 191, 509 N.E.2d 1256 (1987). To find cumulative error, we first must first
find multiple errors committed at trial and determine that there is a reasonable probability
that the outcome below would have been different but for the combination of the harmless
errors. State v. Williams, 8th Dist. Cuyahoga No. 94261, 2011-Ohio-591, ¶ 25.
{¶110} In this case, Robinson received a fair trial, and any errors were harmless or
nonprejudicial, cumulatively as well as individually. Accordingly, we overrule the
twelfth assignment of error.
Allied Offenses
{¶111} In his thirteenth assignment of error, Robinson argues that the trial court
erred by convicting and sentencing him to consecutive sentences on allied offenses of
similar import. He contends that the crimes of felony murder against Bubbles (Count 2)
and discharging a firearm upon or over a public road, causing serious physical harm to
Bubbles (Count 10), are allied offenses and should have merged in this case. We agree.
{¶112} When a defendant’s conduct results in the commission of two or more
“allied” offenses of similar import, that conduct can be charged separately, but the
defendant can be convicted and sentenced for only one offense. R.C. 2941.25(A). In
determining whether offenses merge, we consider the defendant’s conduct. State v.
Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061, ¶ 44. “If the multiple
offenses can be committed by the same conduct, then the court must determine whether
the offenses were committed by the same conduct, i.e., ‘a single act, committed with a
single state of mind.’” Id. at ¶ 49, quoting State v. Brown, 119 Ohio St.3d 447,
2008-Ohio-4569, 895 N.E.2d 149, ¶ 50 (Lanzinger, J., dissenting). If we answer both
questions affirmatively, then the offenses are allied offenses of similar import and will be
merged. Johnson at ¶ 50.
{¶113} The underlying felony supporting Robinson’s felony murder conviction is
felonious assault. This court has recently held that it is possible to commit, by the same
conduct, felonious assault with a deadly weapon and discharge of a firearm on or near
prohibited premises. See State v. Melton, 8th Dist. Cuyahoga No. 97675, 2013-Ohio-257,
¶ 54. Here, the first prong of Johnson is met. As for “whether the offenses were
committed by the same conduct,” we find that they were. These two separate counts
involve a single victim — Bubbles — who suffered a single, fatal gunshot wound fired
by Robinson. Accordingly, we sustain this assignment of error.
{¶114} Based on our resolution of the thirteenth assignment of error, we find
Robinson’s two remaining assignments of error to be moot.
Conclusion
{¶115} In summary, we affirm Robinson’s convictions but vacate the imposition of
consecutive sentences on the felony murder and first degree discharging a firearm on or
near prohibited premises count. Because these are allied offenses of similar import, these
two offenses should have merged. On remand, the state shall elect which charges merge
into the other for sentencing.
It is ordered that a special mandate issue out of this court directing the common
pleas court to carry this judgment into execution. The defendant’s conviction having
been affirmed in part, any bail pending appeal is terminated. Case remanded to the trial
court for execution of sentence.
It is ordered that appellee and appellant share the costs herein taxed.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the
Rules of Appellate Procedure.
MARY J. BOYLE, PRESIDING JUDGE
PATRICIA ANN BLACKMON, J., and
TIM McCORMACK, J., CONCUR
APPENDIX
I. Robert Robinson’s conviction for felony murder is not supported by legally
sufficient evidence as required by state and federal due process.
II. Robert Robinson’s convictions for felonious assault are not supported by
legally sufficient evidence as required by state and federal due process.
III. Robert Robinson’s conviction for the first-degree felony of discharging a
firearm on or near prohibited premises is not supported by legally sufficient evidence as
required by state and federal due process.
IV. Robert Robinson’s convictions are against the manifest weight of the
evidence.
V. The trial court erred in instructing the jury that it could find Robinson guilty of
aiding and abetting Jeremy Logan when there was no evidence that Robinson aided and
abetted Logan’s criminal conduct.
VI. The trial court erred in refusing to give a curative instruction and in failing to
grant a mistrial after a witness testified that Robinson was “in prison.”
VII. Robert Robinson was denied his due process right to a fair trial as a result of
prosecutorial misconduct.
VIII. Robert Robinson was denied effective assistance of counsel in violation of
the sixth and fourteenth amendments to the United States Constitution and Article I,
Section 10, of the Ohio Constitution.
IX. The trial court erred and violated Robert Robinson’s constitutional right to a
fair trial when it admitted an irrelevant and prejudicial photograph.
X. Robert Robinson’s convictions violate due process because they are
inconsistent with the not guilty verdicts within the same counts on the 5-year firearm
specifications.
XI. Robert Robinson’s conviction for felony murder based on the predicate
offense of felonious assault violates the common law felony murder merger doctrine and
Robinson’s rights under the sixth and fourteenth amendments to the United States
Constitution and Section 10, Article 1 of the Ohio Constitution.
XII. The cumulative errors committed in this case deprived Robert Robinson of a
fair trial.
XIII. The trial court erred by convicting and sentencing Robert Robinson to
consecutive sentences on allied offenses of similar import.
XIV. The trial court erred by convicting and sentencing Robert Robinson for a
first-degree felony violation of discharge of firearm on or near prohibited premises when
the verdict form failed to identify the degree of the offense or the aggravating elements as
required by R.C. 2945.75.
XV. The trial court imposed a sentence contrary to law and violated Mr.
Robinson’s right to due process when it ordered consecutive sentences without stating the
requisite statutory findings on the record.