State v. Moss

[Cite as State v. Moss, 2015-Ohio-3466.]
COURT OF APPEALS
FAIRFIELD COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
: Hon. W. Scott Gwin, P.J.
Plaintiff - Appellee : Hon. John W. Wise, J.
: Hon. Craig R. Baldwin, J.
-vs- :
:
CODY R. MOSS : Case No. 14-CA-52
:
Defendant - Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Fairfield County
Court of Common Pleas, Case No.
2013 CR 00576
JUDGMENT: Affirmed
DATE OF JUDGMENT: August 24, 2015
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
GREGG MARX DAVID A. SAMS
Fairfield Prosecuting Attorney Box 40
West Jefferson, OH 43162
By: ANDREA GREEN
Assistant Prosecuting Attorney
239 W. Main Street, Suite 101
Lancaster, OH 43130
Fairfield County, Case No. 14-CA-52 2
Baldwin, J.
{¶1} Appellant Cody R. Moss appeals a judgment of the Fairfield County
Common Pleas Court convicting him of two counts of robbery (R.C. 2911.02(A)(2)) and
sentencing him to five years incarceration on each count, to be served consecutively.
Appellee is the State of Ohio.
STATEMENT OF FACTS AND CASE
{¶2} At 8:00 p.m. on January 9, 2013, appellant entered a Circle K store in
Lancaster, Ohio. Appellant's face was covered by his clothing so that the clerk could
only see his eyes. Appellant approached the clerk and moved his coat aside to display
what she believed to be a black hand gun. He asked the clerk for all the money in the
register. She gave the money to appellant, and he fled on foot, discarding his jacket.
The clerk called 911 and explained that she had been robbed at gunpoint. She called
the store manager and locked the doors to the store. The manager arrived to find the
clerk crying and upset, and it took nearly thirty minutes for her to calm down enough to
explain what had happened.
{¶3} On January 11, 2013, appellant went into the Fairfield National Bank in
Lancaster several times over the course of the afternoon. On his final visit to the bank,
appellant, who was wearing dark-colored face paint, wrote a note on a checking deposit
slip stating that he had a gun, and instructing the teller to empty her register. He
handed the note to a teller, who gave appellant the money. Appellant fled on foot,
discarding his jacket and a winter hat.
{¶4} Police were able to match the discarded clothing to the clothing appellant
was wearing on surveillance videos from the Circle K and the bank. Further, forensic
Fairfield County, Case No. 14-CA-52 3
scientists concluded that appellant's DNA was a match to the clothing found at both
scenes. Appellant's roommate saw appellant putting on face paint on the day of the
bank robbery, and appellant admitted to his roommate that he robbed a bank and a
Circle K.
{¶5} Appellant was indicted by the Fairfield County Grand Jury with two counts
of robbery in violation of R.C. 2911.02(A)(2). The case proceeded to trial in the Fairfield
County Common Pleas Court. Appellant was convicted as charged. The court
sentenced appellant to five years incarceration on each count, to be served
consecutively. Appellant assigns a single error to his sentence:
{¶6} "THE TRIAL COURT ERRED WHEN IMPOSING CONSECUTIVE
PRISON TERMS."
{¶7} In Ohio, there is a statutory presumption in favor of concurrent sentences
for most felony offenses. R.C. 2929.41(A). The trial court may overcome this
presumption by making the statutory, enumerated findings set forth in R.C.
2929.14(C)(4). State v. Bonnell, 140 Ohio St.3d 209, 2014–Ohio–3177, 16 N.E.3d 659,
¶ 23. R.C. 2929.14(C)(4) provides:
If multiple prison terms are imposed on an offender
for convictions of multiple offenses, the court may require
the offender to serve the prison terms consecutively if the
court finds that the consecutive service is necessary to
protect the public from future crime or to punish the offender
and that consecutive sentences are not disproportionate to
the seriousness of the offender's conduct and to the danger
Fairfield County, Case No. 14-CA-52 4
the offender poses to the public, and if the court also finds
any of the following:
(a) The offender committed one or more of the
multiple offenses while the offender was awaiting trial or
sentencing, was under a sanction imposed pursuant to
section 2929.16, 2929.17, or 2929.18 of the Revised Code,
or was under post-release control for a prior offense.
(b) At least two of the multiple offenses were
committed as part of one or more courses of conduct, and
the harm caused by two or more of the multiple offenses so
committed was so great or unusual that no single prison
term for any of the offenses committed as part of any of the
courses of conduct adequately reflects the seriousness of
the offender's conduct.
(c) The offender's history of criminal conduct
demonstrates that consecutive sentences are necessary to
protect the public from future crime by the offender.
{¶8} In Bonnell, supra, at syllabus, the Supreme Court of Ohio held that in
order to impose consecutive terms of imprisonment, a trial court is required to make the
findings mandated by R.C. 2929.14(C)(4) at the sentencing hearing and incorporate its
findings into its sentencing entry, but it has no obligation to state reasons to support its
findings. Furthermore, the sentencing court is not required to recite “a word-for-word
recitation of the language of the statute.” Id. at ¶ 29. “[A]s long as the reviewing court
Fairfield County, Case No. 14-CA-52 5
can discern that the trial court engaged in the correct analysis and can determine that
the record contains evidence to support the findings, consecutive sentences should be
upheld.” Id.
{¶9} In the instant case, the court stated in the sentencing entry that
consecutive sentences were necessary pursuant to R.C. 2929.14(C)(4)(a) and (b). At
the sentencing hearing, the court discussed the statutory requirements for consecutive
sentencing and the findings required by Bonnell, supra. Sent. Tr. 19-20. The court
made the following statement on the record in support of its decision to sentence
appellant consecutively:
With regard to the concurrent/consecutive sentencing
issue, the court finds that consecutive sentences are
necessary to protect the public from future crime and to
punish you and that consecutive sentences are not
disproportionate to the seriousness of your conduct and to
the danger that you pose to the public.
And if the Court - The Court also finds that these two
offenses were committed as part of several courses of
conduct. They occurred on two separate days, two separate
locations, two separate victims or sets of victims and that the
harm caused by these two offenses was so great or unusual
that no single prison term for the offenses - for any of the
offenses committed as part of the course of conduct -
adequately reflects the seriousness of your conduct.
Fairfield County, Case No. 14-CA-52 6
In this case both of the victims were put in great fear
by having even the threat of the firearm being used and Ms.
Saunders, the Circle K clerk, the Court noticed during the
trial that she was still visibly shaken not just being nervous
about being in court, but she was upset about what had
happened a year and a half earlier and there was still fear on
her part.
The clerk from the Fairfield National Bank was also
placed in fear and simply complied with the request because
out of fear of what could happen.
And since we have the two separate victims, the two
separate harms that were caused, the Court believes that
consecutive sentences are necessary to adequately reflect
the seriousness of your conduct and all of the other - meets
all of the requirements of Ohio Revised Code Section
2929.14.
And it also appears that although it was a
misdemeanor offense - a misdemeanor traffic offense, that
you were on community control at the time through municipal
court at the time [sic] of these offenses.
And your attorney mentioned you had not had a prior
felony record. That's accurate, but you have had starting in
Fairfield County, Case No. 14-CA-52 7
2011, a series of misdemeanor offenses, both criminal and
traffic offenses." Sent. Tr. 21-22.
{¶10} The trial court made all of the required findings to impose consecutive
sentences. Appellant argues that the harm caused to the victims was no more than
normally found in a robbery case and thus did not rise to the level of "great or unusual"
harm as required by the statute. The court specifically noticed that the Circle K clerk
was at the time of trial still visibly shaken and in fear because of the incident, beyond
what was normal while testifying in court. The prosecutor represented to the court at
the sentencing hearing that Ms. Saunders has changed shifts to avoid working at the
time of day when the offense occurred. The court indicated that it reviewed a letter from
the Vice President of the bank regarding the impact the crime had on the safety and
security of the bank employees. The court considered appellant's argument concerning
his lack of criminal history, but also noted that he was on community control at the time
of the offenses and that his record reflected a series of misdemeanor offenses
beginning in 2011. The court's findings regarding consecutive sentencing were
supported by the record.
Fairfield County, Case No. 14-CA-52 8
{¶11} The assignment of error is overruled. The judgment of the Fairfield
County Common Pleas Court is affirmed. Costs are assessed to appellant.
By: Baldwin, J.
Gwin, P.J. and
Wise, J. concur.