State v. Gosha

[Cite as State v. Gosha, 2011-Ohio-2278.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 95290
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
KEVIN SHAWN GOSHA
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-525493
BEFORE: Kilbane, A.J., Stewart, J., and Boyle, J.
RELEASED AND JOURNALIZED: May 12, 2011
ATTORNEY FOR APPELLANT
David L. Doughten
The Brownhoist Building
4403 St. Clair Avenue
Cleveland, Ohio 44103
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
Scott Zarzycki
Steven N. Szelagiewicz
Assistant County Prosecutors
The Justice Center - 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
MARY EILEEN KILBANE, A.J.:
{¶ 1} Defendant-appellant, Kevin Shawn Gosha, appeals from his convictions for
aggravated robbery and tampering with evidence. For the reasons set forth below, we affirm.
{¶ 2} On June 18, 2009, defendant and codefendant, Arthur Smith (Smith), were
indicted in connection with the shooting death of Darnell Mongo (Mongo). Count 1 charged
defendant with aggravated murder by prior calculation and design. Count 2 charged him
with aggravated murder in the course of an aggravated robbery. These counts also set forth
felony murder specifications, one- and three-year firearm specifications, notice of prior
conviction for a 2003 aggravated robbery conviction, and repeat violent offender
specifications. Count 3 charged him with aggravated robbery with one- and three-year
firearm specifications, notice of prior conviction, and repeat violent offender specifications.
Count 4 charged him with tampering with evidence with one- and three-year firearm
specifications. Count 6 charged him with having a weapon while under disability.
1
{¶ 3} Smith subsequently pled guilty to voluntary manslaughter and having a weapon
while under disability.
{¶ 4} Defendant pled not guilty. On January 11, 2010, the State moved to dismiss
the felony murder specifications for Counts 1 and 2, thus eliminating the death penalty as a
potential sentence. On May 3, 2010, defendant waived his right to a jury trial on the charges
of tampering with evidence, having a weapon while under disability, notice of prior
conviction, and repeat violent offender specifications on Counts 1 through 3.
{¶ 5} Jury trial on the aggravated murder charges and the charge of aggravated
robbery commenced on May 6, 2010. The jury subsequently acquitted defendant of
aggravated murder and the lesser included offense of murder, under Counts 1 and 2. The
1
Count 5 charged Smith with having a weapon while under disability, but did
not set forth any charges against Gosha.
jury found defendant guilty of aggravated robbery, but not guilty of the firearm specifications
as alleged in Count 3. Thereafter, the trial court found defendant guilty of the notice of prior
conviction and dismissed the repeat violent offender specification for this count, guilty of
tampering with evidence under Count 4, and not guilty of having a weapon while under
disability under Count 6. The trial court then sentenced defendant to ten years of
imprisonment on the aggravated robbery conviction, a consecutive term of four years of
imprisonment on the conviction for having a weapon while under disability, and five years of
mandatory postrelease control.
{¶ 6} The State presented testimony from Robert Smith, Terrell Bilal, Terrance Bilal,
Special Agent Daniel Winterich (Agent Winterich) of the Ohio Bureau of Criminal
Identification and Investigation (BCI), East Cleveland Police Sergeant John Bechtel (Sergeant
Bechtel), codefendant Smith, Creola Rice, Trace Evidence Specialist Curtiss Jones, Michelle
Smith (Michelle), Coroner Frank Miller, East Cleveland Police Detective Scott Gardner
(Detective Gardner), Cuyahoga County Clerk of Courts Administrative Officer Brent Bartel,
and Donald Andree of the Cuyahoga County Sheriff’s Identification Unit.
{¶ 7} Robert Smith testified that he lives on Northfield Avenue near Chapman
Avenue in East Cleveland. During the early morning hours of May 21, 2009, he went to the
area of Northfield and Potomac Avenues, a short distance from his home, in order to make a
drug buy. He then heard an argument taking place in the middle of the street on Northfield
Avenue, at the adjacent corner. After that, he heard a gunshot. A couple of minutes later,
he saw a van proceeding down Northfield Avenue and collide into a concrete overpass. He
then heard more gunshots, so he hid in nearby bushes.
{¶ 8} After a few moments he heard more people on the scene. He approached the
van and observed Terrell Bilal (Terrell) and Terrance Bilal (Terrance) attempting to help the
driver.
{¶ 9} Terrell testified that he lives in an apartment near the intersection of Elderwood
and Northfield Avenues in East Cleveland. With regard to the instant matter, Terrell testified
that he was in his apartment when he heard three or four gunshots. Terrell looked out his
window and saw a tall man walking. This man walked to a nearby “whitish/bluish” car.
Terrell went outside to check on his younger brother, Terrance, then walked over to Northfield
Avenue, where he observed a van that had crashed into the side of an overpass, on the side of
oncoming traffic. Terrell instructed Terrance to call the police.
{¶ 10} Terrell looked inside the van and attempted to open the front passenger door.
The door would not open so he reached into the partially opened window and opened the door
from the inside. The driver’s upper body was slumped in the front passenger seat, and the
rest of his body was behind the wheel in the driver’s seat. Terrance entered the side door of
the van. The men began to speak to the driver, later identified as Mongo, but he was
unresponsive and shaking. Blood was coming through the seat and running through to the
back of the van, but the men could not determine the location of his injuries.
{¶ 11} Terrell took the driver’s cell phone and called the last number that had been
dialed. A female answered, and Terrell told her that the man who was in the van was hurt.
Robert Smith and another unidentified man arrived, followed by the female Terrell had called
on the cell phone.
{¶ 12} Terrance testified that he lives in the apartment next door to Terrell near the
intersection of Elderwood and Northfield Avenues. Terrance stated that he heard gunshots,
the screech of tires, and the sound of a vehicle crashing. After the crash, he heard three more
gunshots.
{¶ 13} Terrance looked out his window and observed a tall, skinny guy walking away
from a nearby van. According to Terrance, the man stood in the middle of the intersection of
Northfield and Elderwood Avenues. Terrance called out to the man in the street to see if the
man was okay, but the man did not respond. A car pulled over toward the man and he
entered the vehicle. He and the driver of this vehicle stayed there for a short time. They
looked over at Terrance, and then turned around and proceeded on Elderwood Avenue. They
then dropped the tall, skinny man off at a parked vehicle.
{¶ 14} Terrell reached the van first and instructed Terrance to call the police. They
then got into the van to check on the driver. Another neighbor whose nickname is “Dirty”
arrived to help. The driver of the van was incoherent, and blood was pooling on the floor.
{¶ 15} On cross-examination, Terrance admitted that he has been convicted of
felonious assault and abduction.
{¶ 16} Agent Winterich testified that he processed a green GMC van, the crime scene
in this matter. The driver’s side door would not open because of the damage sustained in the
crash, there were two bullet holes in the front windshield near the driver’s side, and there was
a rust hole in a portion of the floor board. The interior of the van had extensive blood stains,
and a large volume of blood was pooled toward the back of the van and also seeped outside.
Lawn equipment and tools were in the back of the van.
{¶ 17} According to Agent Winterich, one bullet hole was found on the windshield just
above the wiper, and the other bullet hole was in the area where the windshield meets the
hood. Agent Winterich determined that the shots were fired at 86 degrees and 88.3 degrees,
or were, essentially, straight on shots at the driver. One of the bullets fragmented after it
struck the frame of the car, and the other became lodged in insulation behind the instrument
panel. Neither bullet, therefore, struck Mongo.
{¶ 18} Agent Winterich also observed a receipt for allergy medicine purchased at CVS
on May 21, 2009, at 1:26 a.m. He obtained latent fingerprints from inside the van but there
was not enough ridge detail to conduct an analysis.
{¶ 19} On cross-examination, Agent Winterich stated that he could not determine
whether the shooter was inside or outside the van, but he denied telling officers on the scene
that the fatal shot was fired into the van from the front of the vehicle.
{¶ 20} Sergeant Bechtel testified that he responded to the call for police assistance.
Although the initial call to the police indicated that the driver had been involved in a motor
vehicle accident, the officers at the scene determined that the driver had been shot. Sergeant
Bechtel helped remove the man from the van and place him on a gurney. The man struggled
to get off of the gurney but was uncommunicative.
{¶ 21} Sergeant Bechtel and other officers observed a bullet hole at the base of the
windshield. About 500 feet away from the scene of the crash, the officers observed a puddle
of blood and a blood trail leading back toward the underpass where the van had crashed. The
officers photographed the blood stains, but they did not do blood typing.
{¶ 22} Codefendant Smith testified that he pled guilty to charges of involuntary
manslaughter and having a weapon while under disability in connection with this matter.
2
The record indicates that Smith actually pled guilty to voluntary
2
manslaughter and having a weapon while under disability. See State v. Smith,
Cuyahoga Common Pleas Case No. CR-525493-B.
He was given a sentence of 15 years of imprisonment, and as part of his plea agreement, he
was required to testify against defendant.
{¶ 23} Smith testified that he and defendant were friends and that they often used crack
cocaine together. On May 20, 2009, Smith got a room at McCall’s Motor Inn and he,
defendant, Smith’s girlfriend (Michelle), and another woman named Rochelle went there to
drink and use drugs. Defendant later left this party and, during the early morning hours of
May 21, 2009, Smith asked defendant to pick him up and take him to purchase a wholesale
quantity of drugs, which Smith intended to then resell.
{¶ 24} The men decided to contact defendant’s friend, Mongo. According to Smith,
however, the defendant owed Mongo money, so Smith called to setup the sale approximately
four blocks away from McCall’s Motor Inn.
{¶ 25} The defendant drove Smith to this location, spotted Mongo’s van, and
parked behind the van. Defendant then entered the van, while Smith waited in defendant’s
car with a handgun. Smith heard defendant and Mongo arguing. Defendant then put his
right hand out of the passenger window and motioned for the gun. Smith approached the
men inside the van and asked them what was happening. Mongo then gave Smith a package
of drugs that Smith believed was less than the amount he had purchased. Smith then handed
the gun to defendant. The defendant then grabbed additional drugs that Mongo had in his
hand, and shot Mongo in his lower body. Smith took the gun back and asked defendant what
he had done, then fled back to McCall’s Motor Inn.
{¶ 26} As Smith was running, he saw Mongo’s van heading directly toward him.
Smith started shooting at the van. The van subsequently crashed into the wall of an overpass.
Smith spotted the defendant driving near Euclid Avenue and got into defendant’s car.
Smith asked the defendant to drive back to the inn, but the defendant was afraid to return
there. Defendant then drove Smith to “Smitty’s,” Michelle’s father’s house, on Rozelle
Avenue.
{¶ 27} After they arrived at Smitty’s, defendant and Smitty returned to the inn to pick
up the women, while Smith disassembled the gun. Smith explained that he was “getting rid
of what needed to be get rid of.” Defendant and Smitty then returned to Rozelle Avenue
with the women. Later, Smith, Michelle, Rochelle, and defendant drove to St. Clair Avenue,
to the home of one of defendant’s friends and continued partying. While en route, defendant
drove and Smith threw the pieces of the disassembled gun out of the car window.
{¶ 28} Smith further testified that defendant drove the group to the El Dorado Hotel.
Defendant subsequently learned that Mongo had died. Smith learned that the police were
looking for him, so he turned himself in at the East Cleveland police station. He provided the
police with a statement in which he indicated that they arranged to meet with Mongo in order
to buy drugs, that defendant drove a Vibe sport utility vehicle, that defendant made the
purchase inside Mongo’s van, and that Smith then passed his weapon to defendant. He stated
that he dismantled the gun and, while the group traveled from Rozelle Avenue to St. Clair
Avenue, he threw the pieces of the gun out of the car window. Smith also stated that as he
fled, Mongo’s van proceeded directly at him, and he fired at the van.
{¶ 29} On cross-examination, Smith admitted that he has prior convictions for robbery,
carrying a concealed weapon, drug possession, and having a weapon while under disability.
He admitted that after the defendant passed the money to Mongo, Mongo gave defendant five
rocks of crack. Defendant and Smith stated that Mongo had shorted them, and explained to
Smith and defendant that they had received less than expected because defendant owed him
money. Smith objected that this involved his money, and the defendant and Mongo began to
argue. Smith also admitted that he initially told the police that he never got out of the Vibe
during defendant’s meeting with Mongo. He also admitted that he told Michelle that he had
shot Mongo after Mongo tried to rob him.
{¶ 30} Smith also stated, on cross-examination, that he told the police he had
disassembled the gun while en route to the house on St. Clair Avenue, and that his previous
testimony on direct examination regarding dismantling the gun while alone on Rozelle Avenue
was incorrect.
{¶ 31} Creola Rice, defendant’s former girlfriend, testified that she used to own a
Pontiac Vibe. She further established that defendant had her car for a two-day period around
May 21, 2009.
{¶ 32} Tamika Compton testified that she and Mongo have a child. Although Mongo
cleaned houses and was attempting to start a record label, he also sold drugs. Mongo only
sold to regular customers or friends of his customers. According to Compton, defendant was
one of Mongo’s customers. A short time before the shooting, defendant falsely told her that
Mongo said he could get some drugs on credit. As a result, he obtained $75 in drugs, which
he never paid for.
{¶ 33} On May 21, 2009, at about 1:20 a.m., Compton drove her van to CVS to get
allergy medicine for Mongo. She gave Mongo the medicine, and the two arranged to work
on her yard the following day. Mongo then left in Compton’s van.
{¶ 34} Curtiss Jones of the Trace Evidence Department of the Coroner’s Office
testified that gunshot primer residue samples were obtained from both of Mongo’s hands.
Trace metal testing was also done, but yielded no reaction. Bullet defects from the entrance
and exit of the bullet or bullets were found on Mongo’s pants. Gunshot residue was also
found on his clothing, but no fouling, thus indicating that the weapon was within the range of
one to two feet away from Mongo at the time of discharge.
{¶ 35} He admitted on cross-examination that it was possible that a defect on the pants
could have been caused by another bullet.
{¶ 36} Michelle testified that she, Smith, and Rochelle had been celebrating Smith’s
birthday at McCall’s Motor Inn. Smith then left, but he returned later with Michelle’s father
and defendant, who was driving a Vibe. Defendant drove the group to Michelle’s aunt’s
house on Rozelle Avenue. They remained there for about 30 minutes, then went to a drug
house on St. Clair Avenue. They remained at this location until about 1:00 a.m., then went to
the El Dorado Hotel in Euclid.
{¶ 37} On cross-examination, Michelle stated that she told the police that Smith had
told her that when they went to get more drugs the man tried to rob him, that he shot the man
in self-defense, and then fled into some nearby bushes. She also admitted that Smith carried
a “cowboy gun,” and that she had visited Smith numerous times while he was in jail. During
those visits, Smith never indicated to her that defendant was the actual shooter.
{¶ 38} Frank Miller, M.D. testified that he reviewed the autopsy performed in this
matter. Mongo sustained a gunshot wound to his right leg above the knee cap. There was
also a red abrasion under the right knee. The bullet entered the front of the knee and exited the
rear of the knee. It lacerated the popliteal artery, causing Mongo to bleed to death.
{¶ 39} East Cleveland Police Detective Charles Battle (Detective Battle) testified that
he followed a trail of blood from the van from Potomac Avenue to Allegheny Avenue to
Northfield Avenue, where they found a small pool of blood. Blood typing was not
performed, however. Detective Battle also testified that he reviewed Mongo’s phone records
and learned that Mongo had called Smith and a residence in East Cleveland shortly before his
death. Other calls included calls to Michelle and to McCall’s Motor Inn.
{¶ 40} East Cleveland Detective Scott Gardner (Detective Gardner) testified that blood
was dripping from the interior of the van to the exterior, and blood continued to drip even after
the van was towed to a police garage for processing. Detective Gardner also testified that
after the police learned that Mongo had called Smith, they obtained Smith’s phone records and
through a “reverse check,” obtained the telephone number of defendant’s girlfriend, Creola
Rice. Using that information, he obtained her address and vehicle information, as well as
defendant’s phone number.
{¶ 41} Detective Gardner subsequently obtained the registration form for the room at
McCall’s Motor Inn, in addition to a surveillance video from the El Dorado Hotel showing
defendant and Smith.
{¶ 42} The jury subsequently acquitted defendant of aggravated murder and the lesser
included offense of murder, under Counts 1 and 2. The jury found defendant guilty of
aggravated robbery, but not guilty of the firearm specifications as alleged in Count 3.
{¶ 43} On May 12, 2010, the remaining counts and remaining specifications proceeded
to trial to the court. At this time, the State incorporated its earlier testimony and also
presented the testimony of Brent Bartel and Donald Andree.
{¶ 44} Bartel testified that, as an administrative officer for the criminal division of the
Cuyahoga County Clerk of Courts, his job included maintaining records of motions, journal
entries, and other filings in criminal matters. In this matter, he produced records in Case
Nos. CR-424739 and CR-434472. He identified certified copies of defendant’s guilty plea
and his sentence in those matters. In Case No. CR-424739, defendant was convicted of, and
served time for, robbery. In Case No. CR-434472, defendant was also convicted of, and
served time for, robbery.
{¶ 45} Andree testified that he is a Cuyahoga County deputy sheriff and works in the
identification unit. He further testified that the primary function of the identification unit is
to identify through fingerprints all persons that are in the Cuyahoga County jail. Andree
identified fingerprint cards dated May 8, 2002, with sheriff’s number 167262, in the name of
Kevin Gosha. He also identified fingerprint cards dated December 16, 2002, with sheriff’s
number 167262, in the name of Kevin Gosha, as well as a fingerprint card in the name of
Kevin Gosha dated June 17, 2009, and a fingerprint card taken of defendant at the time of his
arraignment. Andree was then qualified as an expert in fingerprint analysis. He testified
that the prints on the fingerprint cards are identical to the fingerprints taken from defendant at
the time of his arraignment.
{¶ 46} The trial court found defendant guilty of the notice of prior conviction and
dismissed the repeat violent offender specification for this count. The court found defendant
guilty of tampering with evidence under Count 4, but not guilty of having a weapon while
under disability under Count 6. The trial court then sentenced defendant to ten years of
imprisonment on the aggravated robbery conviction, a consecutive term of four years of
imprisonment on the conviction for tampering with evidence, and five years of mandatory
postrelease control.
{¶ 47} Defendant now appeals and assigns three errors for our review.
{¶ 48} Defendant’s first assignment of error states:
“The evidence is insufficient to sustain a conviction of tampering with
evidence, R.C. 2921.12.”
{¶ 49} Within this assignment of error, defendant asserts that pursuant to State v.
Spears, 178 Ohio App.3d 580, 2008-Ohio-5181, 899 N.E.2d 188, his conviction for tampering
with evidence was plain error because there was no evidence that he assisted Smith in
disposing of the weapon after the shooting.
{¶ 50} Sufficiency is the legal standard that is applied to determine whether the case
may go to the jury or whether the evidence is adequate to support the jury verdict as a matter
of law. State v. Thompkins, 78 Ohio St.3d 380, 1997-Ohio-52, 678 N.E.2d 541. When
reviewing the sufficiency of the evidence to support a criminal conviction,
“[a]n appellate court’s function * * * 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.” State v.
Jenks (1991), 61 Ohio St.3d 259, 574 N.E.2d 492, paragraph two of the
syllabus.
{¶ 51} R.C. 2921.12(A)(1) provides the essential elements of tampering with evidence
as follows:
“No person, knowing that an official proceeding or investigation is in
progress, or is about to be or likely to be instituted, shall * * * [a]lter, destroy,
conceal, or remove any record, document, or thing, with purpose to impair its
value or availability as evidence in such proceeding or investigation.”
{¶ 52} In Spears, the court found that the defendant’s conviction for tampering with
evidence was plain error when the conviction was based solely on the absence of a weapon at
the scene of a shooting and the defendant’s own statements that he “threw the gun away.”
{¶ 53} However, in State v. Suggs, Butler App. Nos. CA2008-02-052 and
CA2008-02-053, 2009-Ohio-95, the State presented evidence that the defendant’s reason for
throwing the gun was to stop the police from using it as evidence against him. On that
record, the court of appeals determined that the conviction for tampering with evidence was
supported by sufficient evidence. Id., citing State v. Mann, Clermont App. No.
CA2006-05-035, 2007-Ohio-1555 (affirming the defendant’s conviction for tampering with
evidence where he threw a gun out of the car after police began pursuing him to investigate an
assault report); State v. Rinehart, Ross App. No. 07CA2983, 2008-Ohio-5770 (affirming
conviction for tampering with evidence where the defendant threw a gun out of a window
during a police pursuit even when his reason for doing so was that the driver told him to do it
and he was afraid of getting shot if the police found him in possession of the gun); and State v.
Lytle (Aug. 19, 1988), Highland App. No. 632 (affirming conviction for tampering with
evidence where the defendant threw a gun out of his car window and a third party located the
gun because it was so displaced that police were unable to locate it during an initial search).
{¶ 54} Therefore, the key is whether the State has presented evidence that the
defendant disposed of the gun from the van with the purpose to impair its value or its
availability as evidence. State v. Sims, Clark App. No. 2008 CA 92, 2009-Ohio-5875.
{¶ 55} In this matter, the State maintained that defendant tampered with evidence by
aiding and abetting in disposing of the weapon.
{¶ 56} R.C. 2923.03(A)(2), Ohio’s complicity statute, states that “no person, acting
with the kind of culpability required for the commission of an offense, shall do any of the
following: * * * Aid or abet another in committing the offense.”
{¶ 57} To support a conviction for complicity by aiding and abetting, the evidence
must demonstrate “that the accused supported, assisted, encouraged, cooperated with, advised,
or incited the principal in the commission of the crime, and that the accused shared the
criminal intent of the principal.” State v. Mota, Warren App. No. CA2007-06-082,
2008-Ohio-4163.
{¶ 58} A charge of tampering with evidence may be established from evidence that the
defendant aided and abetted another in altering, destroying, concealing, or removing an object
with purpose to impair its value or availability as evidence in such proceeding or investigation.
State v. Mitchum (Mar. 30, 1984), Gallia App. No. 82CA12; State v. Greene, Summit App.
No. 21795, 2004-Ohio-3944.
{¶ 59} In Greene, the court held that driving the getaway car during the commission of
an offense serves as the proper basis for a conviction of aiding and abetting the commission of
an offense. The court affirmed a conviction for tampering with evidence where the record
demonstrated that defendant drove the getaway car, while the codefendant threw evidence
from the car.
{¶ 60} In this matter, Smith testified that after the shooting, defendant and Michelle’s
father returned to McCall’s Motor Inn to pick up the women, while Smith disassembled the
gun. Smith explained that he was “getting rid of what needed to be get rid of.” Defendant
and Michelle’s father then returned to Rozelle Avenue with the women. Later, Smith,
Michelle, Rochelle, and defendant drove to St. Clair Avenue, to the home of defendant’s
friend, and continued partying. While en route, defendant drove and Smith threw the pieces
of the disassembled gun out of the car window. On cross-examination, Smith acknowledged
that he told police that he had disassembled the gun while with defendant en route to the St.
Clair house, then threw the pieces from the car. He admitted that his previous testimony on
direct examination was incorrect. Viewing the evidence in a light most favorable to the
prosecution, a rational trier of fact could have found that defendant aided and abetted in the
tampering with evidence. The record contains evidence that defendant drove while Smith
was “getting rid of what needed to be get rid of,” i.e., disassembled the weapon used in the
shooting and discarded the pieces out of the window in order to destroy, conceal, or remove
the weapon with purpose to impair its availability as evidence in any subsequent investigation
or court proceeding.
{¶ 61} The first assignment of error is without merit and overruled.
{¶ 62} Defendant’s second assignment of error states:
“The convictions of aggravated robbery and tampering with evidence are
against the weight of the evidence.”
{¶ 63} In determining whether a conviction is against 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. Thompkins at 387, citing Tibbs v. Florida (1982),
457 U.S. 31, 42, 102 S.Ct. 2211, 72 L.Ed.2d 652. The reviewing court 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.” Id., quoting State v. Martin
(1983), 20 Ohio App.3d 172, 175, 485 N.E.2d 717.
{¶ 64} The appellate court may not merely substitute its view for that of
the jury, and reversal on manifest weight grounds is reserved for “the
exceptional case in which the evidence weighs heavily against the conviction.”
Id., quoting Martin.
{¶ 65} In this matter, after examining the entire record, weighing the
evidence and all reasonable inferences, we are unable to conclude that the
finder of fact clearly lost its way and created such a manifest miscarriage of
justice in convicting defendant of the offenses. The evidence demonstrated
that in attempting or committing a theft offense, defendant obtained Smith’s gun, and then
took the drugs from Mongo’s hands. The evidence further demonstrated that defendant later
drove Smith, Michelle, and Rochelle from the house on Rozelle Avenue to the house on St.
Clair, and at this time Smith was “getting rid of what needed to be get rid of.” He
disassembled the gun, and threw the pieces of the gun out of the car window.
{¶ 66} The convictions for aggravated robbery and tampering with evidence are not
against the manifest weight of the evidence.
{¶ 67} The second assignment of error is without merit and overruled.
{¶ 68} Defendant’s third assignment of error states:
“The trial court erred by sentencing the appellant to consecutive sentences
without making a record of its findings as required by R.C. 2929.14(E).”
{¶ 69} In State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, the Ohio
Supreme Court held that trial courts were no longer required to make findings when “imposing
maximum, consecutive, or more than the minimum sentences.” The Foster court then
severed these provisions from the Ohio Revised Code. Defendant asserts, however, that the
United States Supreme Court’s decision in Oregon v. Ice (2009), 555 U.S. 160, 129 S.Ct. 711,
172 L.Ed.2d 517, abrogates that portion of Foster.
{¶ 70} In State v. Hodge, 128 Ohio St.3d 1, 2010-Ohio-6320, 941 N.E.2d 768, the
Ohio Supreme Court rejected the argument that the decision in Ice automatically and
retroactively reinstates the consecutive-sentencing statutes that were excised in Foster. The
court stated:
“[T]he decision of the United States Supreme Court in [Ice] does not revive
Ohio’s former consecutive-sentencing statutory provisions, R.C.
2929.14(E)(4) and 2929.41(A), which were held unconstitutional in [Foster].
Because the statutory provisions are not revived, trial court judges are not
obligated to engage in judicial fact-finding prior to imposing consecutive
sentences unless the General Assembly enacts new legislation requiring that
findings be made.
The trial court in this case did not err in imposing consecutive sentences
without applying R.C. 2929.14(E)(4) and 2929.41(A)[.]” Accord State v.
Reed, Cuyahoga App. No. 91767, 2009-Ohio-2264.
{¶ 71} Moreover, following our review of the record, we are unable to conclude that
the trial court erred in imposing consecutive sentences herein. The sentence is within the
permissible statutory range for the counts for which he was convicted, the sentence is not
clearly and convincingly contrary to law, and the trial court did not abuse its discretion in
applying the factors set forth in R.C. 2929.11 and 2929.12. In addition, the court stated at
the sentencing hearing and in its sentencing entry that it considered the purposes and principles
of sentencing in R.C. 2929.11 and the seriousness and recidivism factors in R.C. 2929.12.
{¶ 72} The third assignment of error is without merit and 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.
A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
MARY EILEEN KILBANE, ADMINISTRATIVE JUDGE
MELODY J. STEWART, J., and
MARY J. BOYLE, J., CONCUR