State v. Simpson

[Cite as State v. Simpson, 2011-Ohio-4955.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 96154
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
DORIAN SIMPSON
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-523690
BEFORE: S. Gallagher, P.J., Keough, J., and E. Gallagher, J.
RELEASED AND JOURNALIZED: September 29, 2011
ATTORNEY FOR APPELLANT
Donald R. Murphy
12800 Shaker Blvd.
Shaker Heights, Ohio 44120
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
BY: Ma’rion D. Horhn
Steven E. Gall
Assistant Prosecuting Attorneys
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
SEAN C. GALLAGHER, P.J.:
{¶ 1} Appellant, Dorian Simpson, appeals his conviction in the Cuyahoga County
Court of Common Pleas for aggravated murder, murder, aggravated robbery, and
receiving stolen property, all with one- and three-year firearm specifications. For the
reasons stated herein, we affirm.
{¶ 2} The charges in this case arose from incidents that occurred on
November 29, 2008, which included the murder of Johnnie Boyd. Appellant, who was
16 years old at the time of the offenses, was charged as a juvenile and was bound over to
the court of common pleas to be tried as an adult. He pled not guilty to the indicted
charges and waived a jury trial.
{¶ 3} At the bench trial, testimony was presented concerning the events that
transpired. On the evening of the murder, Jerry Brown, Dennis Hutcherson, and
appellant were riding around on bikes and were looking for a car to steal. They came
across a red Dodge Caravan. Appellant “peeled the window,” Brown “peeled the
column,” and they started the vehicle. The trio picked up Dominick Kilgore, and the
four men drove around looking for another car to steal. With appellant driving the van,
the group went to an apartment complex located at 5111 Hector Avenue in Cleveland.
The victim was working as a security guard at the apartment complex.
{¶ 4} The four men spotted the victim’s 1985 Cutlass with prominent rims in the
parking lot. After discovering they could not peel the column, the group went to obtain a
gun. The plan was to rob the victim and to take his keys for the vehicle. When they
returned to the apartment complex, the victim approached the van to inquire about their
presence on the property. The group indicated they were waiting for somebody. The
victim returned to the building and began talking with Peter Bush, an armed security
officer, who was visiting a friend at the apartment complex.
{¶ 5} The victim returned to the parking lot, and appellant pulled the van up to
the victim. As the victim started to run, Kilgore opened the side door and fired three
shots at the victim. The third shot struck the victim in the head, killing him.
{¶ 6} Kilgore and Brown exited the van, obtained the victim’s keys, and drove off
in the victim’s car. Appellant and Hutcherson left the scene in the van. After
discovering they could not take the rims off the car without a special tool, they parked the
car in an abandoned garage. It was then stolen from the garage by other individuals.
{¶ 7} Police detectives were able to discover the identity of the four individuals
involved in the murder. Appellant turned himself in to the police and was accompanied
by his father. He gave a verbal and a written statement, with his father present.
Appellant admitted the following: helping to open the window to the stolen van; joyriding
and looking for another car to steal; driving to pick up the gun and to the crime scene;
knowing Kilgore was going to rob the victim for his keys; pulling out in front of the
victim; knowing the victim was shot in the head and his keys were obtained; and driving
away in the van after the victim was shot.
{¶ 8} The trial court found appellant guilty of murder (R.C. 2903.02), aggravated
murder (R.C. 2903.01(B)), aggravated robbery (R.C. 2911.01(A)(1)), and receiving stolen
property (R.C. 2913.51(A)), all with one- and three-year firearm specifications. The
court sentenced appellant to life in prison with the possibility of parole after 25 years,
plus three mandatory years for the firearm specification.
{¶ 9} Appellant filed this appeal, raising four assignments of error for our review.
His first assignment of error provides as follows: “A single trial court judge lacked
jurisdiction and erred by accepting appellant’s waiver of the three-judge panel and as a
result lacked jurisdiction to hear the trial and render a verdict and sentence to aggravated
murder.”
{¶ 10} Appellant argues that his case should have been heard and decided by a
three-judge panel and that this requirement could not be waived. We find no merit to
this argument.
{¶ 11} R.C. 2945.06, the statute providing for trial by a three-judge panel, is
limited to trials where “the accused is charged with an offense punishable with death.”
Where the accused is charged with an offense that contains no circumstances or
specifications that would subject him to the death penalty, the three-judge panel
requirements of R.C. 2945.06 are inapplicable. State ex rel. Henry v. McMonagle, 87
Ohio St.3d 543, 544, 2000-Ohio-477, 721 N.E.2d 1051; State v. Porterfield, Trumbull
App. No. 2008-T-0002, 2008-Ohio-5948, ¶ 20; State v. West, Lorain App. No.
04CA008554, 2005-Ohio-990, ¶ 36-38.
{¶ 12} Appellant’s reliance on State v. Koger, 151 Ohio App.3d 534,
2003-Ohio-576, 784 N.E.2d 780, is inapposite. In Koger, the juvenile defendant was
charged with aggravated murder and aggravated robbery with accompanying
specifications that would have made him eligible for the death penalty had he been an
adult. Under those circumstances, the court found that even though the death penalty
was not available as a sentencing option, the case was required to be heard by a
three-judge panel, as a jurisdictional matter that could not be waived. Id.{¶ 13} In this case, the charges included only firearm specifications and the
indictment did not specify any aggravating circumstances that could subject appellant to
capital punishment. See R.C. 2929.04(A). Because appellant was not “charged with an
offense punishable by death,” R.C. 2945.06 was inapplicable to the plea proceedings and
appellant did not have to be tried to a three-judge panel. Appellant’s first assignment of
error is overruled.
{¶ 14} Appellant’s second assignment of error provides as follows: “The state
violated appellant’s right to a speedy trial, and trial counsel’s failure to assert that right by
filing a motion to dismiss denied appellant effective assistance of counsel * * *.”
{¶ 15} Appellant claims that his speedy trial rights were violated and that his
counsel was ineffective for failing to seek a dismissal of the action on speedy-trial
grounds.
{¶ 16} “Speedy-trial provisions are mandatory, and, pursuant to R.C. 2945.73(B), a
person not brought to trial within the relevant time constraints ‘shall be discharged,’ and
further criminal proceedings based on the same conduct are barred. R.C. 2945.72(D).”
State v. Sanchez, 110 Ohio St.3d 274, 2006-Ohio-4478, 853 N.E.2d 283, ¶ 7. Pursuant to
R.C. 2945.71(C)(2), a person against whom a charge of felony is pending shall be brought
to trial within 270 days after his arrest. However, under R.C. 2945.71(E), each day the
defendant spends in jail in lieu of bail on the pending charges is counted as three days.
There are a number of events listed under R.C. 2945.72 that may toll the time within
which the defendant must be brought to trial. Further, in the juvenile bindover context,
the Ohio Supreme Court has held that the time for speedy trial commences to run the day
after a juvenile court relinquishes jurisdiction. State v. Bickerstaff (1984), 10 Ohio St.3d
62, 67, 461 N.E.2d 892, citing State ex rel. Williams v. Court of Common Pleas (1975),
42 Ohio St.2d 433, 435, 329 N.E.2d 680.
{¶ 17} In this case, the juvenile court relinquished jurisdiction on April 20, 2009.
Thus, time began to run on April 21, 2009. Because appellant was incarcerated since the
time of his arrest, he was required to be brought to trial within 90 days pursuant to the
triple-count provision. The record reflects a number of tolling events occurred, including
the following, among others.
{¶ 18} On May 8, 2009, and May 13, 2009, appellant filed demands for discovery
and a motion for bill of particulars. Motions filed by the defendant tolls the speedy trial
time under R.C. 2945.72(E) for a “reasonable period” to allow the state an opportunity to
respond and the court an opportunity to rule. Sanchez, 110 Ohio St.3d 274. This court
has found 30 days to be a reasonable time to respond to such requests. State v. Shabazz,
Cuyahoga App. No. 95021, 2011-Ohio-2260, ¶ 26.
{¶ 19} The record reflects that a pretrial scheduled for June 11, 2009, was
continued to June 25, 2009, and a pretrial scheduled for August 5, 2009, was continued to
August 19, 2009, both at the request of the appellant. The August 19, 2009 pretrial then
was continued by the court to September 10, 2009, because of the filing of motions. The
speedy-trial period is tolled by “[t]he period of any continuance granted on the accused’s
own motion, and the period of any reasonable continuance granted other than upon the
accused’s own motion[.]” R.C. 2945.72(H); State v. Baker (1993), 92 Ohio App.3d 516,
530, 636 N.E.2d 363.
{¶ 20} Furthermore, appellant executed written speedy trial waivers on September
17, 2009, March 3, 2010, and June 7, 2010, effectively waiving time until October 1,
2010. The waivers were made in writing and in open court. In light of the tolling
events that had occurred, the initial waiver was made before the speedy trial time had run.
An accused may waive his rights to a speedy trial, provided the waiver is expressed in
writing or made in open court on the record. State v. King, 70 Ohio St.3d 158,
1994-Ohio-412, 637 N.E.2d 903, syllabus.
{¶ 21} Upon our review, we find appellant’s right to a speedy trial was not
violated. Accordingly, appellant’s second assignment of error is overruled.
{¶ 22} Appellant’s third assignment of error provides as follows: “The court
failed to hold a hearing and decide a motion to suppress the confession of a juvenile who
was denied his rights to an attorney, to be present during interrogation in violation of his
fifth amendment rights.”
{¶ 23} On May 8, 2009, appellant filed a motion to suppress illegally obtained
evidence. The motion sets forth boilerplate language seeking to suppress evidence
illegally and unconstitutionally obtained by the state. The motion fails to set forth any
factual basis for the suppression of evidence. Insofar as no ruling was entered on the
motion, the failure to rule on a pretrial motion constitutes harmless error unless it
adversely affects the substantial rights of the defendant. State v. Clark (Feb. 1, 1996),
Cuyahoga App. No. 67305; State v. Tolbert (1990), 70 Ohio App.3d 372, 388, 591 N.E.2d
325.
{¶ 24} On appeal, appellant challenges the circumstances surrounding his
confession, which was made without the presence of an attorney.1 No such basis was
asserted in his motion to suppress. Appellant argues that the trial court should have held
a hearing to determine if his statements were unlawfully obtained.
{¶ 25} The Ohio Supreme Court has stated that “in order to require a hearing on a
motion to suppress evidence, the defendant must state the motion’s legal and factual bases
with sufficient particularity to place the prosecutor and court on notice of the issues to be
decided.” State v. Shindler, 70 Ohio St.3d 54, 58, 1994-Ohio-452, 636 N.E.2d 319.
Further, this court has consistently recognized that “[a] motion to suppress may be
overruled without a hearing when the motion consists of nothing but a boilerplate
recitation of all the possible objections to the admission of evidence.” State v. Djuric,
Cuyahoga App. No. 87745, 2007-Ohio-413, ¶ 33, citing State v. Clark (Feb. 1, 1996),
Cuyahoga App. No. 67305, citing Bryan v. Fox (1991), 76 Ohio App.3d 607, 602 N.E.2d
753.
{¶ 26} Because the motion that was filed in this case was devoid of any factual
basis to support the suppression of evidence, the court was permitted to overrule the
1
The record shows that appellant was accompanied by his father. The
statement also reflects Miranda warnings were given.
motion without a hearing and did not prejudice appellant’s rights. See Clark, supra.
Appellant’s third assignment of error is overruled.
{¶ 27} Appellant’s fourth assignment of error provides as follows: “The
conviction against [the defendant] is against the manifest weight of the evidence when
there was no substantial evidence upon which a trier of fact could reasonably conclude
that the elements had been proven beyond a reasonable doubt.”
{¶ 28} In reviewing a claim challenging the manifest weight of the evidence, the
question to be answered is whether “there is substantial evidence upon which a jury could
reasonably conclude that all the elements have been proved beyond a reasonable doubt.
In conducting this review, we must examine the entire record, weigh the evidence and all
reasonable inferences, consider the credibility of the witnesses, and determine whether
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.” (Internal citations and quotations
omitted.) State v. Leonard, 104 Ohio St.3d 54, 2004-Ohio-6235, 818 N.E.2d 229, ¶ 81.
{¶ 29} Appellant challenges the credibility of Brown’s testimony. He further
asserts that although he was in the driver’s seat of the van, he never exited the van and
did not obtain anything of monetary value. He claims the evidence did not show that he
purposely intended to cause the death of the victim.
{¶ 30} Our review of the testimony and evidence in this case reflects that there was
substantial evidence showing that appellant assisted in stealing the van by “peeling the
window”; he and the three other men were looking for another vehicle to steal; he drove
the van and took the group to get the gun; he was aware of the intent to rob the victim and
steal his vehicle; he drove the group back to the crime scene; he drove up to the victim,
upon which the van door was opened and the victim was shot in the head; and he was
aware the victim was shot and his keys were obtained. Insofar as witness credibility has
been questioned, our review reflects the testimony and evidence presented at trial was
largely consistent and corroborative. Additionally, appellant provided a statement to the
police consistent with the testimony provided at trial. Upon this record, we find that the
court could reasonably conclude that all the elements of the crimes, including the
requisite intent, had been proved beyond a reasonable doubt.
{¶ 31} We conclude that the convictions were not against the manifest weight of
the evidence. Appellant’s fourth assignment of error is overruled.
Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common
pleas court to carry this judgment into execution. The defendant’s conviction having
been affirmed, any bail pending appeal is terminated. Case remanded to the trial court
for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
SEAN C. GALLAGHER, PRESIDING JUDGE
KATHLEEN ANN KEOUGH, J., and
EILEEN A. GALLAGHER, J., CONCUR