State v. Shabazz

[Cite as State v. Shabazz, 2011-Ohio-2919.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
Nos. 95567 and 95588
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
KAREEM A. SHABAZZ
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case Nos. CR-533075 and CR-528852
BEFORE: S. Gallagher, J., Blackmon, P.J., and Rocco, J.
RELEASED AND JOURNALIZED: June 16, 2011
ATTORNEY FOR APPELLANT
Thomas A. Rein
Leader Building, Suite 940
526 Superior Avenue
Cleveland, Ohio 44114
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
BY: Jeffrey S. Schnatter
Assistant Prosecuting Attorney
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
SEAN C. GALLAGHER, J.:
{ ¶ 1} Appellant Kareem Shabazz appeals his convictions and sentences
in two underlying criminal cases that are consolidated for review, Cuyahoga
County Common Pleas Case Nos. CR-528852 and CR-533075. For the
reasons stated herein, we affirm both cases.
{ ¶ 2} Appellant was indicted in CR-528852 on September 25, 2009, on
seven counts of kidnapping, seven counts of aggravated robbery, one count of
felonious assault, all with one- and three-year firearm specifications and a
forfeiture clause, and one count of having a weapon under disability with a
forfeiture clause. This case arose from incidents that occurred on March 17
and 18, 2009.
{ ¶ 3} Appellant was indicted in CR-533075 on January 29, 2009, on one
count of attempted murder, two counts of felonious assault, two counts of
aggravated robbery, all with one- and three-year firearm specifications, and
one count of having a weapon while under disability. This case arose from
an incident that occurred on April 16, 2009.
{ ¶ 4} The trial court granted the state’s motion to consolidate the cases
for trial and subsequently denied appellant’s objection to the joinder of cases.
At trial, testimony and evidence were presented concerning the incidents that
occurred in March and April 2009.
{ ¶ 5} The first incident occurred at a Speedway store in Maple Heights
on March 17, 2009. On that date, Samantha Malinowski was working as a
sales clerk. Around 10:00 p.m., she heard a customer say, “Oh, God,” and
observed someone pointing a gun at the customer and saying, “get back.”
She testified that a man, whom she identified as appellant, asked for all the
money out of her register, told her to open a second register, pointed the gun
at her head, and threatened her. He also told Malinowski to open a safe, but
she told him she was not able to open it. Another robber was in the store,
and two customers were present. About $150 was stolen, along with Black &
Milds and other items worth almost $400.
{ ¶ 6} Malinowski identified the gun that was used and testified to
video surveillance of the incident. She indicated that appellant was wearing
a hoodie, he had a baseball cap on, and he had a bandanna wrapped around
his face. She was able to look him straight in the eyes. The second robber
had on a black hoodie and a pair of jeans.
{ ¶ 7} Jessie McAlpine was the customer who was told to get back in the
store. She corroborated Malinowski’s account of the robbery. She
described the man who pointed the gun as being 5’8” tall, on the slim side,
and wearing a black hoodie and blue jeans with a scarf over his face.
{ ¶ 8} Jerome Nolan was the other customer in the store. He heard
someone at the door telling a woman to back up and then telling him, “if you
turn around, I’ll blow your brains out.” At one point, Nolan looked over and
saw a tall and slender man with a mask across his face who was holding a
gun. Nolan identified the gun in court. He heard the man telling the clerk
to open the registers and threatening her. Nolan also heard a second person
in the store behind him. When the assailants left the store, Nolan observed
them jump into a car and pull off.
{ ¶ 9} The police arrived a few minutes after the assailants left. Maple
Heights Officer Paul Hobart was one of the responding officers. He took
statements from Malinowski and the two customers. Maple Heights
Detective Jeff Canter prepared a photo lineup depicting six individuals, one of
whom was the police suspect. The photo lineup was presented to
Malinowski, who identified person number three, which was the picture of
appellant, as one of the robbers. Det. Canter took a buccal swab sample from
appellant and sent it to the Ohio Bureau of Criminal Identification (“BCI”) for
analysis.
{ ¶ 10} The second incident occurred the next day, March 18, 2009, at a
Convenient Food Mart in Maple Heights. Mohammad Raja, the night shift
manager, testified to a robbery that occurred around 10:34 p.m. He was
working with a woman named Julia Jacobs, who was working at the register
that night. Two of their acquaintances, Thomas Hamlet and Jason Zoul,
were also present. Raja was in the back of the store when he heard
screaming. Jason told him two men were in the store with guns, and when
Raja looked back, he saw a man pointing a gun. Raja ran outside the
building with Thomas and Jason and called 911. He then saw two men run
out of the store and heard one of them fire a shot at Jason. Raja watched the
assailants run across the street and jump over a fence. He indicated that
both were wearing heavy blue jackets, hoodies, and bandannas. He testified
to video surveillance of the incident, which depicted the men robbing the
store. One of the men had a pair of gloves on and was pointing a gun at
Jacobs. The items taken included 30 packs of Black and Milds, a couple
hundred dollars’ worth of lottery tickets, and about $80 in change.
{ ¶ 11} Jacobs testified she was working at the Convenient Food Mart at
the time of the robbery. She stated two black men with guns entered the
store. She indicated the men were “smaller build” and were wearing
bandannas over their faces, dark sunglasses, and flannel shirts. One of the
men came behind the counter, pointed a gun at Jacobs’s head, and told her to
open the registers or he would “blow her brains out.” He told her to open the
safe, but she could not. The men grabbed lottery tickets and other items and
then took off.
{ ¶ 12} Jason Zoul testified that he witnessed the robbery. He saw a
man carrying a gun enter the store. The man was wearing a black hoodie
and had a bandanna masking the bottom of his face. He indicated the gun
was a semiautomatic handgun, maybe a .40 caliber, and he identified the gun
in court. He heard the man say, “give me the money,” or something to that
effect. He also noticed a second man had entered the store. Jason was able
to get to the back of the store; he told Raja what was happening; and he was
able to run out the back door and call the police. He observed the two males
exit the store and informed the dispatcher of the direction they headed. The
male with the gun fired a shot at Jason, but he was not hit. Jason observed
the male running down Corden Avenue and carrying a bag.
{ ¶ 13} Maple Heights Lieutenant Todd Hansen responded to a dispatch
of an armed robbery at the Convenient Food Mart. Officer Alexander Casey
also responded to the scene. A canine unit was called, and the police went
looking in the direction the suspects had fled. Among the items recovered
were a black semiautomatic gun, a black hooded sweatshirt, two pairs of
gloves, a single bandanna and two other bandannas that were tied together,
and a bag containing lottery tickets, money, and cigarillos stolen from the
store. The evidence was found in an area two or three blocks from the store.
{ ¶ 14} Jonathon Gardner is a forensic scientist and firearms examiner
with the BCI. He test-fired the gun that was recovered. He indicated that
the gun was a .380 automatic caliber, High Point brand pistol and that it was
operable.
{ ¶ 15} Heather Bizub is employed by the BCI as a forensic scientist in
the biology DNA section. She tested evidence submitted in connection with
the robbery of the Convenient Food Mart and Speedway stores. She
testified the gun had a mixture of DNA of three people, at least one of whom
was a male. She could not conclude whether or not appellant was one of the
sources of DNA. She made the same determination as to the black pair of
gloves.
{ ¶ 16} The DNA on one of the bandannas and the hooded sweatshirt was
a mixture with at least one source being male. Appellant was excluded from
being a possible source of DNA on these items.
{ ¶ 17} On the other two bandannas, Bizub found a mixture of DNA with
the major profile being consistent with appellant. The DNA profile would
appear once in 11,660,000,000,000,000,000 people. No DNA was found
during the initial testing of the gray gloves, but upon retesting, a partial DNA
profile was obtained that was consistent with contributions from appellant
and at least one other person.
{ ¶ 18} Maple Heights Detective Allen Henderson investigated the
Convenient Food Mart and Speedway robberies. He reviewed the
surveillance videos and noted commonalities between the two robberies. He
stated the gun was unique and it was obvious the same gun was used in both
robberies. He noted the suspects wore similar disguises, including dark
bandannas over the lower portion of their faces and gloves. In both cases,
the suspect put the gun to the head of the clerk, threatened the clerk, and
used the same method to commit the crimes. When appellant was arrested,
a Los Angeles Dodgers baseball cap was discovered in his car. A black
hooded jacket was found during the search of an apartment where appellant
had been staying. These items resembled those depicted in the video of the
Speedway robbery.
{ ¶ 19} The third incident occurred in the area of East 139th Street and
Thornhurst in Garfield Heights on April 16, 2009. Anthony Steele was
visiting his grandmother and left her house around 10:45 p.m. As he was
walking, two men approached him. One of the men pulled out a gun and
shot Steele in his left leg. Steele turned to run and was shot again. Steele
testified that the man who shot him was slimmer than he was and
approximately 5’9” to 5’11” tall. After the gunman threatened to kill Steele,
he handed the men his wallet and cell phone, and the men took off running.
Steele saw a dark-colored Dodge Magnum pull up and do a U-turn in the
street. Steele was losing a lot of blood and blacked out on the porch of a
house. An ambulance arrived, and he was taken to the hospital.
{ ¶ 20} Lakeeka Vason lives in the vicinity of the shooting. She heard a
“pop” and looked out her window. She saw a man with a gun standing over
the victim. She watched the man shoot the victim a second time before he
took off running. She indicated the shooter was not over six feet tall, was
thin built, and appeared to be an African-American. He had on dark clothes
and had something on his head. The next day she noticed a bullet hole in
her house and a bullet on her porch.
{ ¶ 21} Garfield Heights Sergeant David Bailey responded to the
shooting. He found the victim lying face down on the sidewalk with a “pretty
good pool of blood.” The victim came in and out of consciousness. He told
Sgt. Bailey that he had been shot and robbed.
{ ¶ 22} Garfield Heights Officer Michael Danzey collected evidence at the
scene. Among the items he recovered were .9 millimeter shell casings.
{ ¶ 23} David Merritt testified as part of a plea agreement he made in
another case. He stated that he was with appellant and Derrell Shabazz at
the time of the shooting and that they were driving in a dark blue Magnum
through a residential neighborhood in Garfield Heights. He stated the car
stopped and appellant jumped out and went up the street. He saw that
appellant had a gun and fired two shots. Appellant ran back to the car and
jumped in with “bloody money in his hand.” Merritt also testified there was
another time he was in a car with appellant. They passed a gas station, and
appellant stated he had robbed it. Merritt previously testified against
appellant in regard to the robbery of a Dollar General store. He had received
threats about testifying in the instant case.
{ ¶ 24} Derrell Shabazz is the appellant’s nephew. He testified he did
not know about the April 16th robbery. He stated he was in Atlanta for a
week in April but did not know the exact dates. He provided the police with
documents. However, Det. Henderson was only able to verify that Derrell
was in Atlanta April 19, 20, and 21, 2009, and he was not able to corroborate
Derrell’s presence in Atlanta on April 16, 2009. Derrell admitted he owned a
green Dodge Magnum at that time. Derrell stated he received a text from
appellant on April 20th saying he had just hit a “five grand lick.” Derrell
admitted he had been intimidated by members of appellant’s family for
providing testimony in a past trial against appellant. During a recorded
phone call between Derrell and appellant from county jail, appellant
responded to Derrell that “you can’t fabricate that much.”
{ ¶ 25} Appellant testified on his own behalf. He denied any
involvement in the robberies and claimed the items containing DNA did not
belong to him. He stated he was in Dayton with his family on March 17 and
18, 2009.
{ ¶ 26} During trial, the state dismissed three of the kidnapping counts
(Counts 7, 10, and 14) and two of the aggravated robbery counts (Counts 11
and 15) in CR-528852. The court granted a Crim.R. 29 motion on three of
the aggravated robbery counts (Counts 2, 4, and 8) in that case. The jury
returned a verdict of guilty on the remaining charges with the attendant gun
specifications in CR-528852 (Counts 1, 3, 5, 6, 9, 12, 13, and 16). At
sentencing, the trial court merged Counts 5 and 6 (kidnapping and felonious
assault) and Counts 12 and 13 (kidnapping and felonious assault). The trial
court imposed an aggregate prison sentence of 55 years.
{ ¶ 27} The jury returned a verdict of not guilty of attempted murder
(Count 1) and guilty on all other charges and specifications (Counts 2 through
6) in CR-533075. At sentencing, the trial court merged Counts 2 and 3 (both
felonious assault) and Counts 4 and 5 (both aggravated robbery). The court
sentenced appellant to a total prison term of 26 years. The trial court
ordered the sentence in each case to run consecutive to the other.
{ ¶ 28} Appellant timely filed this appeal. He raises six assignments of
error for our review. His first assignment of error provides as follows:
“Appellant was denied his right to a fair trial * * * when the trial court failed
to order separate trials.”
{ ¶ 29} Under Crim.R. 13, two or more indictments may be tried together
if the offenses could have been joined in a single indictment. Crim.R. 8(A)
allows for the joinder of multiple offenses in the same indictment “if the
offenses charged * * * are of the same or similar character, or are based on
the same act or transaction, or are based on two or more acts or transactions
connected together or constituting parts of a common scheme or plan, or are
part of a course of criminal conduct.” Generally, the law favors joining
multiple offenses in a single trial if the offenses are “of the same or similar
character.” State v. Lott (1990), 51 Ohio St.3d 160, 163, 555 N.E.2d 293.
{ ¶ 30} When joinder is otherwise proper, a defendant may move to sever
under Crim.R. 14 if he can demonstrate prejudice to his rights. “The state
may rebut a defendant’s claim of prejudicial joinder in two ways. First, if in
separate trials the state could introduce evidence of the joined offenses as
‘other acts’ under Evid.R. 404(B), a defendant cannot claim prejudice from the
joinder. Lott, 51 Ohio St.3d at 163, 555 N.E.2d 293. Second, the state can
refute prejudice by showing that ‘evidence of each crime joined at trial is
simple and direct.’ Id.” State v. Fry, 125 Ohio St.3d 163, 926 N.E.2d 1239,
¶ 198. “Under the second method, the ‘joinder’ test, the state is not required
to meet the stricter ‘other acts’ admissibility test, but is merely required to
show that evidence of each crime joined at trial is simple and direct. Thus,
when simple and direct evidence exists, an accused is not prejudiced by
joinder regardless of the nonadmissibility of evidence of these crimes as ‘other
acts’ under Evid.R. 404(B).” (Internal citations omitted.) Lott, 51 Ohio
St.3d at 163. A denial of severance is reviewed for an abuse of discretion.
See Fry, 125 Ohio St.3d 163, at ¶ 197.
{ ¶ 31} In this case, joinder of the cases was proper because the offenses
were of the same or a similar character and were part of the same course of
criminal conduct. Each of the three incidents involved an aggravated
robbery, two of stores and one of an individual, in which a gun was used and
money was stolen. The incidents occurred within a 30-day time period and
occurred within the same general vicinity. Moreover, appellant has failed to
demonstrate prejudice by the joinder. The evidence reflects that three
straight-forward robberies occurred, the evidence involving each incident was
simple and direct, and there is no indication from the record that the jury
confused the evidence. Accordingly, we overrule appellant’s first assignment
of error.
{ ¶ 32} Appellant’s second assignment of error provides as follows: “The
trial court committed reversible error when it failed to give the jury the
accomplice testimony instruction.”
{ ¶ 33} Appellant argues the trial court should have given an accomplice
instruction because of David Merritt’s testimony. Merritt testified he was in
the vehicle with appellant at the time of the robbery and shooting of Anthony
Steele. He also was involved with appellant in a prior case involving a
Dollar General store. He was not indicted as an accomplice, and there is no
complicity charge herein.
{ ¶ 34} Trial courts are not required to give the accomplice instruction
set forth in R.C. 2923.03(D) unless the witness has been indicted as an
accomplice in relation to the defendant’s criminal activity. State v. Jennings,
Franklin App. Nos. 09AP-70 and 09AP-75, 2009-Ohio-6840, ¶ 62-66. The
Ohio Supreme Court has recognized that in order to be an “accomplice” one
must, at the very least, be a person indicted for the crime of complicity.
State v. Perez, 124 Ohio St.3d 122, 2009-Ohio-6179, 920 N.E.2d 104, at ¶ 131.
Because Merritt was not charged with any offense related to crimes in this
case, the trial court did not err in failing to give the accomplice instruction.
Moreover, even if Merritt could be considered an accomplice, we recognize
that his testimony concerning the April 16th incident was corroborated by the
victim and an independent eyewitness, the jury was aware that Merritt had
agreed to testify against the defendant as part of a plea agreement he made
in another case, and the trial court properly instructed the jury on credibility
and witness testimony. Therefore we find no reversible error occurred.
Appellant’s second assignment of error is overruled.
{ ¶ 35} Under appellant’s third and fourth assignments of error, he
challenges his convictions as being against the sufficiency and manifest
weight of the evidence.
{ ¶ 36} When an appellate court reviews a claim of insufficient evidence,
“‘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 (1991), 61 Ohio St.3d 259, 574 N.E.2d 492, paragraph two of
the syllabus. The weight to be given the evidence and the credibility of the
witnesses are primarily for the trier of fact. State v. Tenace, 109 Ohio St.3d
255, 2006-Ohio-2417, 847 N.E.2d 386, ¶ 37.
{ ¶ 37} 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.) Leonard, 104 Ohio St.3d 54, at ¶ 81.
{ ¶ 38} Appellant does not raise any challenges pertaining to the
elements of the crimes, but instead argues there was a lack of physical
evidence linking him to the crimes. He asserts that the culprit wore a
disguise and the witness who identified him only saw his eyes. He further
claims the testimony of Merritt was not credible. He believes the jury
merely wanted to hold someone accountable for the crimes that were
committed.
{ ¶ 39} Upon our review of the record, we find there was ample evidence
linking appellant to the crimes. The victims and eyewitnesses gave similar
physical descriptions of the primary assailant; appellant was identified from a
photo lineup by a victim who looked him straight in the eyes; it appeared the
same gun was used and a similar disguise was worn in the store robberies;
DNA consistent with appellant’s profile was found on items linked to the
store robberies; and items resembling those worn by the assailant were found
at the time of appellant’s arrest. Further, it is evident from the record that
the jury was able to assess Merritt’s credibility. The jury was informed that
Merritt testified as part of a plea agreement and heard testimony concerning
his criminal past. Merritt’s testimony was consistent with the testimony of
other witnesses concerning the April 16th incident. After thoroughly
reviewing the record in this case, as detailed above, we cannot say that
appellant’s convictions were against the sufficiency or manifest weight of the
evidence. Appellant’s third and fourth assignments of error are overruled.
{ ¶ 40} Appellant’s fifth assignment of error challenges his total prison
sentence of 81 years as being excessive and contrary to law, and his sixth
assignment of error challenges the imposition of consecutive sentences
without judicial fact-finding. We find no merit to these arguments.
{ ¶ 41} In State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d
124, the Ohio Supreme Court set forth a two-step procedure for reviewing
felony sentences, as follows: “* * * First, [appellate courts] must examine the
sentencing court’s compliance with all applicable rules and statutes in
imposing the sentence to determine whether the sentence is clearly and
convincingly contrary to law. If this first prong is satisfied, the trial court’s
decision in imposing the term of imprisonment is reviewed under the abuse of
discretion standard.” Id. at ¶ 4.
{ ¶ 42} Appellant was convicted of numerous offenses arising from the
three incidents. The trial court heard arguments from counsel regarding the
sentencing factors, and the sentencing entry reflects that the court considered
all the required factors of the law and found that prison was consistent with
the purpose of R.C. 2929.11. The sentence imposed by the trial court for
each offense was within the permissible statutory range. Appellant provided
no evidence to the trial court of sentences given to similarly situated
offenders. Upon this record, we cannot conclude that his sentence was
contrary to law.
{ ¶ 43} In addition, the record reflects that the trial court merged a
number of related charges and found consecutive sentences were appropriate
in light of each individual who was terrorized by appellant’s criminal
behavior. The trial court was not required to engage in judicial fact-finding
prior to imposing consecutive sentences. State v. Hodge, 128 Ohio St.3d 1,
2010-Ohio-6320, 941 N.E.2d 768, paragraph three of the syllabus. Further,
the court had full discretion to impose a prison sentence within the statutory
range. State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470,
paragraph seven of syllabus. Accordingly, we cannot say that the total term
was excessive or an abuse of its discretion. Appellant’s fifth and sixth
assignments of error are 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, JUDGE
PATRICIA ANN BLACKMON, P.J., and
KENNETH A. ROCCO, J., CONCUR