State v. Carver

[Cite as State v. Carver, 2016-Ohio-4735.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
PORTAGE COUNTY, OHIO
STATE OF OHIO, : OPINION
Plaintiff-Appellee, :
CASE NO. 2015-P-0074
- vs - :
MICHAEL A. CARVER, JR., :
Defendant-Appellant. :
Criminal Appeal from the Portage County Court of Common Pleas, Case No. 2012 CR
0395.
Judgment: Affirmed.
Victor V. Vigluicci, Portage County Prosecutor, and Pamela J. Holder, Assistant
Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266 (For Plaintiff-Appellee).
Gregory A. Price, 159 South Main Street, Suite 910, Akron, OH 44308 (For
Defendant-Appellant).
COLLEEN MARY O’TOOLE, J.
{¶1} Michael A. Carver, Jr., appeals from the judgment entry of the Portage
County Court of Common Pleas, sentencing him to ten years imprisonment for
aggravated robbery. Mr. Carver contends his conviction is against the manifest weight
of the evidence. Finding no error, we affirm.
{¶2} This is Mr. Carver’s second appeal in this case. See, e.g., State v.
Carver, 11th Dist. Portage No. 2013-P-0074, 2014-Ohio-5767 (“Carver I”). Mr. Carver
was indicted on two counts of aggravated robbery for a robbery occurring April 7, 2012,
at a Circle K store in Kent, Ohio. Id. at ¶2-4. He was convicted on both counts. Id. at
¶14. He appealed, challenging both the manifest weight and the sufficiency of the
evidence. Id. at ¶14, 21. We found the convictions were not against the manifest
weight of the evidence. Id. at ¶19. However, we remanded, since the trial court had
found the counts to be allied offenses of similar import, and the state had never elected
on which count to proceed. Id. at ¶22-24. Mr. Carver sought to appeal to the Supreme
Court of Ohio, which denied leave. State v. Carver, 143 Ohio St.3d 1418, 2015-Ohio-
2911. On remand, the state chose to proceed on count one. By a judgment entry filed
October 7, 2015, the trial court again sentenced Mr. Carver to ten years imprisonment.
{¶3} Mr. Carver timely noticed this appeal, assigning a single error: “The trial
court’s decision to find the accused guilty of aggravated robbery is against the manifest
weight of the evidence.”
{¶4} We note this assignment of error tracks the first assignment of error made
in Carver I. Regarding it, we held, at ¶4-19:
{¶5} “April 7, 2012, Deborah Bartels and Paige Chadima were working the third
shift at the Circle K store on North Mantua Street in Kent, Ohio. About 3:30 a.m., Ms.
Bartels was behind the counter, while Ms. Chadima restocked the cooler in the back of
the store. A man dressed in a red Ohio State University hoodie, with the hood pulled
down over his face, and a baseball cap, entered the store, holding a knife. He quickly
went behind the counter, telling Ms. Bartels not to do anything stupid, then seized Ms.
Bartels' and Ms. Chadima’s cell phones, which were on the counter, and fled. Ms.
Chadima spotted the man behind the counter, but panicked when Ms. Bartels screamed
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for help, and ran back to the cooler to hide. Ms. Chadima did not testify she saw the
knife. Ms. Bartels called the police from the store phone. At trial, she identified a knife
recovered by the police from Mr. Carver’s former fiancée as being similar to that used
by the robber, having serrations at the base of the blade, with the rest of the blade being
smooth. She also identified a red hoodie introduced into evidence as being similar to
that worn by the robber.
{¶6} “Ms. Bartels was shown two photo arrays April 7, 2012. She could not
identify anyone in the first array as the robber. She picked out a photo from the second
array, stating she was 70% sure it was the robber. The photo was not of Mr. Carver. A
few days later, police showed Ms. Bartels a third photo array, including a photo of Mr.
Carver. She picked the subject of a different photo as the suspect, stating she was 90%
sure on that occasion.
{¶7} “Officer Martin Gilliland, a K-9 handler with the City of Kent Police
Department, was first on the scene. Officer Gilliland briefly spoke with the two clerks,
then had Ms. Bartels call the store manager, so he could view the security video.
Officer Gilliland tried to track the suspect with his dog, which briefly lighted on a scent.
However, the dog lost the scent near Burns Court, an alley near the Circle K.
{¶8} “Sergeant James Campbell of the Kent State University Police also
responded to the crime scene. While driving down Burns Court, he spotted a red OSU
hoodie, and reported the fact. Officer James Ennemoser, another K-9 handler with the
City of Kent Police Department, quickly arrived, but his dog could not pick up any scent.
Officer Ennemoser took possession of the red hoodie, turning it over to Officer Gilliland.
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{¶9} “Bradley Barkhurst is a forensic analyst with the Ohio Organized Crime
Investigations Commission, part of the Ohio Attorney General’s office. He specializes in
working with audio and visual evidence, and was employed in this investigation to
enhance the images and audio from the Circle K surveillance video. He had little
success. Mr. Carver has a tattoo of barbed wire on his right wrist, and wears a bracelet
there. The suspect in the surveillance video had some marking on his right wrist, and a
bracelet, but Mr. Barkhurst refused to testify they were the same as Mr. Carver’s. He
testified the hoodie in evidence, and the one depicted in the surveillance video, were
similar, but admitted there appeared to be differences.
{¶10} “Catherine Dotts was Mr. Carver’s fiancée at the time of the robbery. The
couple lived with a woman named Twyla in Barberton, Ohio. Ms. Dotts kept all of her
personal possessions in a duffel bag. Among those possessions were a red OSU
hoodie, and a knife, she had inherited from her father, who died in late 2011. The duffel
bag disappeared about April 2 or 3, 2012, shortly before the robbery. Ms. Dotts testified
at trial the red hoodie placed in evidence was hers: she could recognize it because a
draw string was missing, and the lettering damaged from washing.
{¶11} “Ms. Dotts testified that Mr. Carver gave her his backpack, filled with his
personal belongings, just before his arrest on or about April 10, 2012. In his backpack,
she was surprised to find her father’s knife, which had gone missing with her duffel bag.
Eventually, she gave the knife to police. This was the knife introduced into evidence at
trial as the weapon used by the robber.
{¶12} “The surveillance video from the Circle K showed the robber wearing black
Air Jordan tennis shoes. Ms. Dotts testified she gave Mr. Carver a pair shortly before
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the robbery. Further, the video revealed, and the clerk Deborah Bartels testified, the
robber had a trimmed goatee. Ms. Dotts testified Mr. Carver always wore a well-
trimmed goatee, but shaved it just before his arrest. Ms. Dotts also testified Mr. Carver
was in the habit of obtaining cell phones, and selling them at a store in Ravenna, Ohio.
{¶13} “Ms. Dotts also testified Mr. Carver always wore a black baseball cap.
The robber’s cap was tan. The parties stipulated Mr. Carver also wore a grey baseball
cap.
{¶14} “Brenda Gerardi is a supervisor in the DNA unit of the Ohio Bureau of
Criminal Identification and Investigation (‘BCI’). Before reaching this position in
September 2012, she spent 16 years as a forensic scientist in the BCI’s forensic biology
DNA section. She analyzed the hoodie recovered near the Circle K the night of the
robbery. She testified she found a mixture of DNA on the hoodie, and that Mr. Carver
could not be excluded as a contributor to the DNA found. She testified there was DNA
from at least one other individual on the hoodie, consistent with Catherine Dotts’ DNA.
She concluded the DNA mixture would only match one in every 2,650,000 unrelated
individuals. She further testified there was ‘extraneous’ DNA on the hoodie, possibly
contributed by a third individual.
{¶15} “The jury commenced deliberations June 26, 2013, returning verdicts of
guilty on each count June 27, 2013. Sentencing hearing was held July 29, 2013; the
trial court filed its judgment entry of sentence August 5, 2013, merging the two counts
for sentencing purposes. This appeal timely ensued, Mr. Carver assigning two errors.
The first reads: ‘The trial court’s decision to find the accused guilty of aggravated
robbery is against the manifest weight of the evidence.’ In support of this assignment of
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error, Mr. Carver points to the fact that neither of the store clerks could identify him as
the man who robbed the Circle K and that Deborah Bartels picked photos of different
men as the perpetrators out of the various photo arrays presented her. He notes that
Ms. Dotts could not identify the robber as being him from the surveillance video, nor
could Mr. Barkhurst, the state’s visual and audio expert.
{¶16} “‘“‘(M)anifest weight’ requires a review of the weight of the evidence
presented, not whether the state has offered sufficient evidence on each element of the
offense.
{¶17} “‘“‘In determining whether the verdict was against the manifest weight of
the evidence, (* * *) the court reviewing the entire record, weighs the evidence and all
reasonable inferences, considers the credibility of witnesses and determines whether in
resolving conflicts in the evidence, the jury clearly lost its way and created such a
manifest miscarriage of justice that the conviction must be reversed and a new trial
ordered. (* * *)”’ (Citations omitted.) (* * *)” (Emphasis sic.)
{¶18} “‘A judgment of a trial court should be reversed as being against the
manifest weight of the evidence “‘only in the exceptional case in which the evidence
weighs heavily against the conviction.’” State v. Thompkins, 78 Ohio St. 3d 380, 387, *
* * (* * *) (1997).
{¶19} “‘With respect to the manifest weight of the evidence, we note that the jury
is in the best position to assess the credibility of witnesses. State v. DeHass, 10 Ohio
St.2d 230, * * *, (* * *) paragraph one of the syllabus (1967).’ (Parallel citations omitted.)
State v. Campbell, 11th Dist. Ashtabula No. 2013-A-0047, 2014-Ohio-972, ¶29-32,
quoting State v. Schlee, 11th Dist. Lake No. 93-L-082, 1994 Ohio App. LEXIS 5862,
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*14-15 (Dec. 23, 1994).
{¶20} “The frailties in the state’s evidence pointed out by Mr. Carver exist.
However, he ignores the vital DNA evidence, putting his and Ms. Dotts’ DNA on the red
hoodie found near the crime scene. He ignores the fact Ms. Bartels testified the knife
introduced into evidence looked like the knife used by the robber, and that Ms. Dotts
found that knife in his backpack, and identified it as her father’s knife which had
disappeared. He ignores Ms. Dotts’ identification of the hoodie as belonging to her.
Given this evidence, we cannot find the jury lost its way.” (Parallel citations omitted.)
{¶21} In Hopkins v. Dyer, 104 Ohio St.3d 461, 2004-Ohio-6769, ¶15, the court
stated:
{¶22} “The law of the case is a longstanding doctrine in Ohio jurisprudence.
‘The doctrine provides that the decision of a reviewing court in a case remains the law
of that case on the legal questions involved for all subsequent proceedings in the case
at both the trial and reviewing levels.’ Nolan v. Nolan, 11 Ohio St.3d at 3, * * *. The
doctrine is necessary to ensure consistency of results in a case, to avoid endless
litigation by settling the issues, and to preserve the structure of superior and inferior
courts as designed by the Ohio Constitution. State ex rel. Potain v. Mathews (1979),
59 Ohio St.2d 29, 32, * * *. It is considered a rule of practice, not a binding rule of
substantive law. Hubbard ex rel. Creed v. Sauline (1996), 74 Ohio St.3d 402, 404, * *
*.” (Parallel citations omitted.).
{¶23} Mr. Carver does not point to any reason our decision in Carver I does not
constitute law of the case. We find it to be so.
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{¶24} The assignment of error lacks merit. The judgment of the Portage County
Court of Common Pleas is affirmed.
TIMOTHY P. CANNON, J., concurs,
DIANE V. GRENDELL, J., concurs in judgment only with a Concurring Opinion.
____________________
DIANE V. GRENDELL, J., concurs in judgment only with a Concurring Opinion.
{¶25} I concur in the ultimate judgment of this court. For the reasons stated in
the prior appeal, however, this court should have addressed the merits of Carver’s
arguments as to the second Count of Aggravated Robbery despite the merger of the
second Count into the first Count. See State v. Carver, 11th Dist. Portage No. 2013-P-
0074, 2014-Ohio-5767, ¶ 26-36 (Grendell, J., dissenting in part).
{¶26} I further note that the Ohio Supreme Court has addressed the situation
before this court in which an appellant attempts to argue the merits of his convictions
after the case has been remanded solely for the purpose of merger: “In a remand based
only on an allied-offenses sentencing error, the guilty verdicts underlying a defendant’s
sentences remain the law of the case and are not subject to review.” State v. Wilson,
129 Ohio St.3d 214, 2011-Ohio-2669, 951 N.E.2d 381, ¶ 15.
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