State v. Lilly

[Cite as State v. Lilly, 2018-Ohio-949.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
: Hon. John W. Wise, P.J.
Plaintiff - Appellee : Hon. Craig R. Baldwin, J.
: Hon. Earle E. Wise, J.
-vs- :
:
SIDNEY D. LILLY : Case No. 2017CA00105
:
Defendant - Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Stark County Court
of Common Pleas, Case No. 2016-
CR-2132-B
JUDGMENT: Affirmed
DATE OF JUDGMENT: March 12, 2018
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JOHN D. FERRERO BERNARD L. HUNT
Prosecuting Attorney 2395 McGinty Rd. N.W.
North Canton, Ohio 44720
By: RONALD MARK CALDWELL
Assistant Prosecuting Attorney
Appellate Section
110 Central Plaza South, Suite 510
Canton, Ohio 44702-1413
Stark County, Case No. 2017CA00105 2
Baldwin, J.
{¶1} Appellant, Sidney Doyle Lilly, III appeals his conviction of one count of
aggravated robbery (R.C. 2911.01(A)(1)) with a firearm specification (R.C. 2941.145),
one count of having weapons while under disability (R.C. 2923.13(A)(3)), one count of
receiving stolen property (R.C. 2913.51(A)), and one count of discharge of a firearm on
or near prohibited premises (R.C. 2923.162(A)(2)) for an aggregate prison term of 16
years. Appellee is the state of Ohio.
STATEMENT OF FACTS AND THE CASE
{¶2} On November 4, 2016, at approximately 9:00 PM, two masked men dressed
in black came into the Thornes IGA store located at 653 South Union Street in Alliance.
One was armed with a sawed-off shotgun, while the other had a chrome snub-nosed
revolver. The man armed with the sawed-off shotgun ordered two store employees and
two customers to drop to the ground. While the man armed with the shotgun kept watch,
the other masked man jumped over the counter and took $44.00 from the cash register,
then both left the store. The Alliance Police Department responded to the scene and
gathered names and statements from the employees and customers.
{¶3} At approximately 11:30 p.m. on the day of the robbery, the Alliance Police
Department received a report of a suicidal man with a gun at 1208 Freedom Avenue, a
short distance from Thornes IGA. Several officers responded to the scene where they
found appellant, apparently intoxicated, on the front porch of the residence. Appellant
was secured, but did not possess a weapon. The officers did locate a silver revolver, on
the ground, about five feet from where the appellant was standing. After speaking with
the witnesses, the officers determined that appellant had been brandishing the weapon
Stark County, Case No. 2017CA00105 3
earlier that evening frightening the persons in the home. Some of the witnesses
persuaded appellant to give them the gun, but he became more agitated so they agreed
to return it if he agreed to leave the residence. The witnesses reported that he left the
home and fired the weapon into the air.
{¶4} The Alliance police department discovered the weapon was loaded and one
chamber contained a spent shell. They also confirmed the weapon was operable, that it
had been reported as stolen, and that appellant had prior convictions for drug offenses
that rendered him under a disability regarding possession of weapons. Appellant was
arrested at that time.
{¶5} Appellant was tested for gunshot residue and the results confirmed he had
fired a weapon recently. Captain Hilles of the Alliance police department spoke to
appellant about the discharge of the gun and appellant initially denied that he had
possession of it. He then admitted that he had been given the gun earlier that day and
that his girlfriend had knocked it from his hand when the police arrived to avoid any conflict
with the officers.
{¶6} Captain Hilles had prior contact with appellant and, based upon that history,
he thought that appellant might have some information regarding the robbery at Thornes
IGA. Appellant initially denied knowledge of the robbery, but when Captain Hilles
suggested that any assistance he provided might be considered in calculating bond for
the weapons charge, appellant said that Rkel Black committed the robbery. Appellant
explained that he was at his mother's residence on Summit Street when Rkel Black
appeared with a sawed-off shotgun that was used in the robbery. Appellant denied
knowing the identity of Black’s accomplice, but stated that Black would tell Captain Hilles.
Stark County, Case No. 2017CA00105 4
{¶7} A confidential informant, later identified as Brianna Benjamin, contacted
Captain Hilles on November 6, 2016 and reported that appellant was involved in the
Thornes IGA robbery with Rkel Black. After receiving that information, Captain Hilles
obtained search warrants for the residences of Rkel Black and appellant. During the
search at Rkel Black's residence the officers found black clothing and a black bandana
matching the description of the clothing of the perpetrators, $33.00 in cash, and a sawed-
off shotgun. The officers also found matching black clothing at appellant’s residence.
{¶8} The Alliance Police Department took appellant’s and Black’s cell phones
during the search and obtained a search warrant to review the messages and data on the
phones. They discovered that both men called and texted each other numerous times
from 2:30 p.m. until 8:33 p.m. on the day of the robbery. The communication between the
two ceased from 8:33 p.m. until 9:44 p.m. and no calls or messages were made from
appellant’s phone during that period. After 9:44 p.m. until midnight, the calls and texts
resumed the pace that existed prior to 8:33 p.m.
{¶9} On the day of the Thornes IGA robbery, Brianna Benjamin was talking,
messaging, and texting with appellant throughout the day. At one point, appellant told
Benjamin that he was going "to hit a lick" later that day, meaning that he was going to rob
a store or a house. Between 9:30 p.m. and 10:00 p.m. that night, appellant met Ms.
Benjamin at the apartment of a friend, X'Arrianna "Pumpkin" Fisher. When Benjamin
arrived, she entered the apartment with appellant and Black. Black was acting “paranoid,
and Benjamin asked him “what was wrong.” Black responded by pulling a shotgun from
inside his pants leg. Appellant then pulled a small gun from the pocket of his hoodie. The
men then explained to Benjamin that they had "hit a lick" that night, but only got $40.00.
Stark County, Case No. 2017CA00105 5
{¶10} Appellant’s mother, Pecorial Lilly, and her friend, Patricia Freeman, claim
that appellant was at his mother's home on the night of the robbery beginning late in the
afternoon and until 11:00 p.m. that night.
{¶11} The grand jury indicted appellant on 5 counts: aggravated robbery (R.C.
2911.01(A)(1)) (with a firearm specification (R.C. 2941.145)), having weapons while
under disability (R.C. 2923.13(A)(3)), receiving stolen property (R.C. 2913.51(A)),
aggravated menacing (R.C. 2903.21(A)), and discharge of a firearm on or near prohibited
premises. (R.C. 2923.162(A)(2)). The case was presented to a jury on May 9, and May
10, 2017.
{¶12} The state dismissed the aggravated menacing charge and the jury
convicted appellant on the remaining counts. Appellant was sentenced to an aggregate
prison term of sixteen years. Appellant filed his notice of appeal on June 22, 2017 and
submitted two assignments of error:
{¶13} I. THE DEFENDANT WAS DENIED HIS RIGHT TO THE EFFECTIVE
ASSISTANCE OF COUNSEL.
{¶14} II. THE TRIAL COURT'S FINDING OF GUILT WAS AGAINST THE
MANIFEST WEIGHT OF THE EVIDENCE PRESENTED, THUS WAS NOT
SUPPORTED BY SUFFICIENT EVIDENCE OF GUILT.
STANDARD OF REVIEW
INEFFECTIVE ASSISTANCE OF COUNSEL
{¶15} To succeed on a claim of ineffectiveness, a defendant must satisfy a two-
prong test. Initially, a defendant must show that trial counsel acted incompetently. See,
Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In
Stark County, Case No. 2017CA00105 6
assessing such claims, "a court must indulge a strong presumption that counsel's conduct
falls within the wide range of reasonable professional assistance; that is, the defendant
must overcome the presumption that, under the circumstances, the challenged action
'might be considered sound trial strategy.'" Id. at 689, citing Michel v. Louisiana, 350 U.S.
91, 101, 76 S.Ct. 158, 100 L.Ed.2d 83 (1955). "There are countless ways to provide
effective assistance in any given case. Even the best criminal defense attorneys would
not defend a particular client in the same way." Strickland, 466 U.S. at 689. The question
is whether counsel acted "outside the wide range of professionally competent
assistance." Id. at 690. Even if a defendant shows that counsel was incompetent, the
defendant must then satisfy the second prong of the Strickland test. Under this "actual
prejudice" prong, the defendant must show that "there is a reasonable probability that,
but for counsel's unprofessional errors, the result of the proceeding would have been
different." Strickland, 466 U.S. at 694.
{¶16} Appellant contends that trial counsel was ineffective for failing to move to
suppress statements he made to the Alliance Police because appellant was intoxicated
and possibly suicidal. Appellant offers no authority to support his contention that the
statements would have been suppressed as a result of his intoxication or emotional state
at the time he spoke with Alliance police, and the record does not contain any evidence
that would suggest police misconduct.
{¶17} Further, Appellant does not describe how the outcome of the case would
have been altered had the trial court prohibited the admission of his statements. During
his conversation with Captain Hilles he denied any participation in the robbery and
implicated Rkel Black and another person he claimed not to know. He stated he was at
Stark County, Case No. 2017CA00105 7
his mother’s when the robbery occurred and made no admissions that could be described
as prejudicial. Appellant does not explain how the exclusion of these statements would
have impacted the outcome of the trial and, after review of the record, we cannot agree
that the failure to seek suppression of the statement was prejudicial. “**** [W]hen a record
reveals no evidence of police threats or promises and the statement itself appears
voluntary and consistent with the evidence, “... [trial counsel] could well ... decide[ ] that
the motion was futile.” Flors, 38 Ohio App.3d at 139, 528 N.E.2d at 956, as cited in State
v. Steel, 3rd Dist. Defiance No. 4-96-29, 1997 WL 661108, *2, State v. Wharf, 86 Ohio
St.3d 375, 1999-Ohio-112, 715 N.E.2d 172 (1999). The record in this case discloses no
evidence of police threat or promise and his statements were not incriminating. We
cannot conclude from the evidence that counsel acted incompetently. “We will not
second-guess the strategic decisions counsel made at trial even though appellate counsel
now argue that they would have defended differently.” State v. Post (1987), 32 Ohio St.3d
380, 388, 513 N.E.2d 754, 762 as cited in State v. Mason, 82 Ohio St.3d 144, 169, 1998-
Ohio-370, 694 N.E.2d 932 (1998).
{¶18} Appellant is also critical of trial counsel’s failure to present the testimony of
X'Arrianna "Pumpkin" Fisher, but he does not provide us insight into the content of that
testimony except to state that she “could have bolstered the Defendant's case and refuted
the time line and testimony established by Breanna Benjamin.” (Appellant’s Brief, p. 4)
The record does reflect that “Pumpkin” did appear at the trial and spoke to defense
counsel regarding her testimony. Appellant’s trial counsel reported to the trial court that
he expected this witness “to say Brianna was never at her house that night” but, “after a
second consultation with her and Mr. Vance, I have decided that we really do not need to
Stark County, Case No. 2017CA00105 8
call Pumpkin.” (Transcript, Vol. No. II, page 291, lines 24-25; page 297, lines 7 through
9). Trial counsel made an informed decision regarding the testimony of Ms. Fisher and,
as we stated above, we will not second-guess the strategic decisions made by trial
counsel even though appellate counsel states he would have taken a different approach.
{¶19} We hold that appellant has failed to demonstrate that trial counsel was
incompetent and has further failed to demonstrate any reasonable probability the
outcome of the trial would have differed had trial counsel taken filed a motion to suppress
his statements.
{¶20} For the foregoing reasons, appellant’s first assignment of error is overruled.
MANIFEST WEIGHT / SUFFICIENCY
{¶21} The legal concepts of sufficiency of the evidence and weight of the evidence
are both quantitatively and qualitatively different. State v. Thompkins, 78 Ohio St.3d 380,
1997–Ohio–52, 678 N.E.2d 541, paragraph two of the syllabus. The standard of review
for a challenge to the sufficiency of the evidence is set forth in State v. Jenks, 61 Ohio
St.3d 259, 574 N.E.2d 492 (1991) at paragraph two of the syllabus, in which the Ohio
Supreme Court held as follows: “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.”
Stark County, Case No. 2017CA00105 9
{¶22} In determining whether a conviction is against the manifest weight of the
evidence, the court of appeals functions as the “thirteenth juror,” and after “reviewing the
entire record, weighs the evidence and all reasonable inferences, considers the credibility
of witnesses and determines whether in resolving conflicts in the evidence, the jury clearly
lost its way and created such a manifest miscarriage of justice that the conviction must
be overturned and a new trial ordered.” State v. Thompkins, supra, 78 Ohio St.3d at 387.
Reversing a conviction as being against the manifest weight of the evidence and ordering
a new trial should be reserved for only the “exceptional case in which the evidence weighs
heavily against the conviction.” Id.
{¶23} We note the weight to be given to the evidence and the credibility of the
witnesses are issues for the trier of fact. State v. DeHass, 10 Ohio St.2d 230, 237 N.E.2d
212 (1967). The trier of fact “has the best opportunity to view the demeanor, attitude, and
credibility of each witness, something that does not translate well on the written page.”
Davis v. Flickinger, 77 Ohio St.3d 415, 418, 1997–Ohio–260, 674 N.E.2d 1159.
{¶24} We note that appellant does not present an argument that his conviction for
discharge of a firearm (R.C. 2923.162(A)(2)) having a firearm while under a disability
(R.C. 2913.23(A)(3)) or receiving stolen property (R.C. 2913.51(A)) was against the
manifest weight of the evidence, but appears to address only the aggravated robbery with
the firearm specification charge. We have closely reviewed the record and found
sufficient evidence to support the conviction for those charges and we find that those
convictions are neither against the manifest weight of the evidence nor were they
supported by insufficient evidence. To the extent that the appellant’s assignment of error
is interpreted as addressing those charges, we overrule the second assignment of error.
Stark County, Case No. 2017CA00105 10
{¶25} We also overrule the second assignment of error with regard to the
remaining charge, aggravated robbery with a weapons specification. Upon careful review
of the record before us, we find sufficient, credible evidence on each material element of
aggravated robbery with a weapons specification and this evidence, if believed, would
convince the average mind of appellant's guilt beyond a reasonable doubt.
{¶26} The state was obligated to prove the following elements to convict the
appellant:
(A) No person, in attempting or committing a theft offense, as defined in
section 2913.01 of the Revised Code, or in fleeing immediately after the
attempt or offense, shall do any of the following:
(1) Have 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;
R.C. 2911.01(A)(1)]
{¶27} Appellant argues the evidence presented to the jury was insufficient to
establish that he was responsible for the crime, though he does not deny that the crimes
were committed. Therefore, our review of the record focuses upon evidence regarding
the identity of the perpetrator. We find that the testimony and exhibits received by the jury
provided sufficient evidence for the jury to conclude that appellant was the person who
committed the offenses described. The record contains evidence that established that
appellant resided close to the crime scene, that he possessed clothing that matched the
clothing worn by the perpetrators and that he possessed a weapon that matched the
description of one of the weapons used during the robbery. Brianna Benjamin, an
Stark County, Case No. 2017CA00105 11
associate of appellant, testified that he told her before the robbery that he intended to “hit
a lick” or commit a robbery. She talked with him after the crime had occurred and he
admitted that he had committed a robbery but only recovered $40.00, an amount
suspiciously close to the actual amount taken from the store.
{¶28} Appellant contends that the witnesses against him lacked credibility and that
the weight of the evidence is insufficient to support his conviction. We are mindful of the
rule that an appellate court does not substitute its judgment on disputed facts for that of
the trier of fact. State v. Lundy (1987), 41 Ohio App.3d 163, 171. The weight given to the
evidence and the determination of the credibility of the witnesses are within the province
of the jury. State v. Martin (1986), 21 Ohio St.3d 91, 95, aff'd sub nom Martin v. Ohio
(1987), 480 U.S. 228; State v. DeHass (1967), 10 Ohio St.2d 230, paragraph one of the
syllabus. Determinations regarding weight and credibility are within the prerogative of the
jury and we will not substitute our judgment. Having reviewed the testimony contained in
the record, we cannot say that the jury, in resolving conflicts in the evidence, lost its way
and created such a manifest miscarriage of justice to warrant reversal of appellant's
conviction.
{¶29} Appellant’s second assignment of error is overruled.
Stark County, Case No. 2017CA00105 12
{¶30} The decision of the Stark County Court of Common Pleas is hereby
affirmed. Costs assessed to appellant.
By: Baldwin, J.
John Wise, P.J. and
Earle Wise, J. concur.