State v. Boyd

[Cite as State v. Boyd, 2019-Ohio-1902.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
CLARK COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 2018-CA-68
:
v. : Trial Court Case No. 2017-CR-776
:
TYREZ BOYD : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 17th day of May, 2019.
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JOHN M. LINTZ, Atty. Reg. No. 0097715, Clark County Prosecutor’s Office, Appellate
Division, 50 E. Columbia Street, Suite 449, Springfield, Ohio 45502
Attorney for Plaintiff-Appellee
STEVEN H. ECKSTEIN, Atty. Reg. No. 0037253, 1208 Bramble Avenue, Washington
Court House, Ohio 43160
Attorney for Defendant-Appellant
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HALL, J.
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{¶ 1} Tyrez Boyd appeals from his convictions for aggravated robbery, kidnapping,
aggravated drug trafficking, and aggravated drug possession. Finding no error, we affirm.
I. Facts and Procedural History
{¶ 2} Boyd was charged in 2017 with one count of aggravated robbery and six
counts of kidnapping, all felonies of the first degree.1 He was charged in 2018 with an
additional count of kidnapping and one count of aggravated trafficking in drugs, both first-
degree felonies, and eight counts of aggravated possession of drugs, all second-degree
felonies.2 Each of the counts in both cases included a 3-year firearm specification. The
two cases were consolidated and tried to a jury.
{¶ 3} The evidence presented at trial established that around 6 p.m. on December
5, 2017, two men—one wearing a red and black sweatshirt or jacket, sweatpants, and a
red hat—entered Harding Road Pharmacy in Springfield, Ohio. The man in red
brandished a handgun, and the men zip-tied the hands of seven employees. They then
started throwing bottles of controlled substances into a plastic garbage bag. Unbeknownst
to the men, one of the employees had her cell phone hidden on her, and several
employees worked together to retrieve the phone and call 911.
{¶ 4} Officer Roger Jenkins from the Springfield Police Department was the first
officer on the scene. He saw a man wearing red run with a trash bag through the store
and out the back door, and Officer Jenkins gave chase. The man was able to scale a
fence and get away, but not before dropping the trash bag full of stolen drugs. Officer
Jenkins returned to the scene with the bag.
1 Clark C.P. No. 17-CR-0776.
2 Clark C.P. No. 18-CR-0084.
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{¶ 5} A short time later, an officer saw Boyd standing in front of a Wendy’s and
wearing clothes like those worn by the perpetrator of the robbery. Boyd fled but was soon
caught. He was brought back to the pharmacy, where Officer Jenkins identified him as
“absolutely” the person he had chased. (Trial Tr. 379). A show-up identification was
arranged by police, and all the employee-victims who participated identified Boyd as the
man who had kidnapped them and robbed the store.
{¶ 6} The pharmacy’s security cameras captured the robbery. All the victims and
Officer Jenkins identified Boyd as the man in red shown in video and stills presented by
the state. Evidence was also presented that Boyd’s fingerprints were found on the plastic
bag containing stolen drugs that Officer Jenkins recovered. Boyd’s accomplice escaped
and was never caught.
{¶ 7} Boyd took the stand in his own defense and testified that he did not commit
the robbery, but he admitted that he was in Springfield on the day in question, that he was
wearing the clothes all the victims and the officers identified and shown in the video, and
that he had fled from police.
{¶ 8} The jury found Boyd guilty on all counts and specifications. At sentencing,
the trial court merged the drug possession and trafficking charges, and the state chose
to sentence for aggravated trafficking. The court sentenced Boyd to 11 years in prison for
aggravated robbery, 11 years for aggravated trafficking, and 11 years for each
kidnapping. The court ordered Boyd to serve the kidnapping sentences and the related
firearm specifications concurrently to each other, but ordered the aggravated-robbery,
aggravated-trafficking, and kidnapping sentences to be served consecutively. The court
also imposed three consecutive firearm-specification sentences. The aggregate
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sentence was 42 years in prison.
{¶ 9} Boyd appealed.
II. Analysis
{¶ 10} Boyd presents four assignments of error for our review.
A. Ineffective assistance of counsel
{¶ 11} The first assignment of error alleges:
TRIAL COUNSEL RENDERED INEFFECTIVE ASSISTANCE BY
FAILING TO FILE A MOTION TO SUPPRESS WHICH CHALLENGED THE
SHOW UP ID, IN VIOLATION OF BOYD’S RIGHTS UNDER THE FIFTH,
SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES
CONSTITUTION, AND SECTIONS 10 AND 16, ARTICLE I OF THE OHIO
CONSTITUTION.
Boyd contends that his trial counsel should have moved to suppress the one-man show-
up identification that police conducted at the pharmacy. He argues that the identification
was impermissibly suggestive, giving rise to a substantial likelihood of misidentification.
{¶ 12} “To reverse a judgment based on ineffective assistance, the record must
support a finding that defense counsel’s performance was deficient, and that a reasonable
probability exists that, but for counsel’s omissions, the outcome would have been
different.” State v. Jackson, 2015-Ohio-5490, 63 N.E.3d 410, ¶ 27 (2d Dist.), citing State
v. Jones, 1st Dist. Hamilton No. C-130359, 2014-Ohio-3110, ¶ 27, citing Strickland v.
Washington, 466 U.S. 668, 687, 694, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v.
Bradley, 42 Ohio St. 3d 136, 538 N.E.2d 373 (1989), paragraphs two and three of the
syllabus.
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{¶ 13} “When a witness identifies a defendant prior to trial, due process requires a
court to suppress evidence of the witness’s prior identification upon the defendant’s
motion if the confrontation was unduly suggestive of the defendant’s guilt to an extent that
the identification was unreliable as a matter of law under the totality of the circumstances.”
State v. Lewis, 2d Dist. Montgomery No. 21592, 2007-Ohio-2601, ¶ 15, citing State v.
Murphy, 91 Ohio St. 3d 516, 534, 747 N.E.2d 765 (2001). “[O]ne man show-ups are
inherently suggestive.” State v. Broadnax, 2d Dist. Montgomery No. 21844, 2007-Ohio-
6584, ¶ 18. But “such identifications are not unduly suggestive and are admissible if they
are reliable.” Id., citing State v. Moody, 55 Ohio St. 2d 64, 67, 377 N.E.2d 1008 (1978).
{¶ 14} “ ‘[R]eliability is the linchpin in determining the admissibility of identification
testimony.’ ” Moody at 67, quoting Manson v. Brathwaite, 432 U.S. 98, 114, 97 S. Ct. 2243,
53 L. Ed. 2d 140 (1977). “[O]ne man show-ups which occur shortly after the crime are not
per se improper.” (Citation omitted.) Lewis at ¶ 17. Indeed, “prompt on-the-scene show-
ups tend to insure the accuracy of identification, involve a minimum intrusion, and support
the prompt release of persons not identified.” (Citations omitted.) Id. “Factors to be
considered in evaluating their reliability include the prior opportunity of the witness to view
the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the
witness’ prior description of the criminal, the level of certainty demonstrated by the
witness at the confrontation, and the length of time between the crime and the
confrontation.” (Citations omitted.) Id.
{¶ 15} Here, immediately after being apprehended by police, Boyd was taken back
to the pharmacy. When he arrived back at the scene, a show-up identification was then
arranged. Officers had Boyd stand in front of a vehicle with its lights trained on him so
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that the victims could see him, but he could not see them. One by one, four of the victims
stood behind an officer and whispered whether Boyd was the person who robbed the
pharmacy, and then each victim was set apart from the others. These victims testified
that the officers did not pressure them to identify Boyd as the perpetrator but encouraged
them to answer honestly. Ultimately, all the victims who participated in the show-up
identification said that Boyd was the one who had robbed the store.
{¶ 16} The record supports the conclusion that, had Boyd challenged the
identifications in a motion to suppress, the trial court would have found the identifications
reliable. Each victim had seen the perpetrator’s face during the robbery, which had
occurred only a short time earlier. No evidence suggested that the victims’ identification
should not be believed. We see little basis on which counsel could have plausibly argued
that the identification should be suppressed, so we cannot conclude that counsel’s
decision not to challenge admission of the identification constituted deficient performance.
{¶ 17} Even if counsel should have tried to suppress the show-up identification, we
doubt that counsel’s failure to do so affected the outcome of the trial. Even if the court
had not admitted the evidence, there was ample other evidence that Boyd was the
perpetrator. All seven victims testified at trial that the man seen in the security videos and
stills was the man who robbed the store. Officer Jenkins testified that Boyd was
“absolutely” the man that he chased and the man in the security video. (Trial Tr. 379). In
addition, Boyd’s fingerprints were found on the trash bag that contained drugs stolen from
the pharmacy. Furthermore, the shoes and clothing that Boyd was wearing when he was
booked into jail matched those seen in the security video and stills. Lastly, Boyd admitted
that he was in Springfield on the day in question, admitted that he was wearing the clothes
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identified by all the victims and the officers and shown in the video, and admitted that he
fled from police. This was more than enough evidence to find Boyd guilty.
{¶ 18} Boyd has not shown either that defense counsel’s performance was
deficient or that he was prejudiced. Therefore, his claim of ineffective assistance of
counsel cannot prevail.
{¶ 19} The first assignment of error is overruled.
B. Sufficiency and manifest weight of the evidence
{¶ 20} The second and third assignments of error respectively allege:
THE TRIAL COURT ERRED IN ACCEPTING THE JURY VERDICT
OF GUILTY AS THE EVIDENCE PRESENTED WAS INSUFFICIENT TO
CONCLUDE THAT GUILT HAD BEEN PROVEN BEYOND A
REASONABLE DOUBT IN VIOLATION OF BOYD’S RIGHTS TO DUE
PROCESS AND A FAIR TRIAL UNDER THE FIFTH, SIXTH, AND
FOURTEENTH AMENDMENTS TO THE UNITED STATES
CONSTITUTION, AND ARTICLE I, SECTIONS 10 AND 16 OF THE OHIO
CONSTITUTION.
THE TRIAL COURT ERRED IN ENTERING A FINDING OF GUILTY
BECAUSE SUCH VERDICT WAS AGAINST THE MANIFEST WEIGHT OF
THE EVIDENCE. FIFTH AND FOURTEENTH AMENDMENTS, UNITED
STATES CONSTITUTION, AND ARTICLE I, SECTION 16 OF THE OHIO
CONSTITUTION.
Boyd argues that the evidence was insufficient to prove that he was the one who
committed the crimes and that his convictions were against the manifest weight of the
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evidence.
{¶ 21} “An appellate court’s function when reviewing the sufficiency of the
evidence to support a criminal conviction 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.” State v. Jenks, 61 Ohio St. 3d 259, 574
N.E.2d 492 (1991), paragraph two of the syllabus. After reviewing the evidence in the
light most favorable to the prosecution, the reviewing court must determine if “any rational
trier of fact could have found the essential elements of the crime proven beyond a
reasonable doubt.” Id. “[I]n a review of the sufficiency of the evidence, the court does not
engage in a determination of the witnesses’ credibility.” State v. Goff, 82 Ohio St. 3d 123,
139, 694 N.E.2d 916 (1998).
{¶ 22} In contrast, when an appellate court considers a manifest-weight-of-the-
evidence challenge, “ ‘[t]he court, reviewing the entire record, weighs the evidence and
all reasonable inferences, considers the credibility of the 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.’ ” State v. Thompkins, 78 Ohio St. 3d 380, 387, 678 N.E.2d 541 (1997),
quoting State v. Martin, 20 Ohio App. 3d 172, 175, 485 N.E.2d 717 (1st Dist. 1983).
{¶ 23} The evidence presented at trial left little doubt that Boyd was one of the
perpetrators. The victims and the police officer who responded all identified Boyd as the
person who robbed the pharmacy and tied up the victims. Officer Jenkins, who initially
saw him running through the pharmacy with the bag of drugs and then chased him on
foot, identified Boyd at the scene and in court. The clothes that Boyd was wearing when
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he was booked into jail matched the clothes that the perpetrator was wearing in the
security video and video stills. Also, all seven victims identified him as the person who
robbed the store and tied them up. Finally, Boyd’s fingerprints were found on the bag of
recovered drugs. That the jury believed all this evidence over Boyd’s testimony that he
was not the perpetrator is not surprising. In this case, the sufficiency and manifest weight
of the evidence were not close questions.
{¶ 24} The second and third assignments of error are overruled.
C. Consecutive sentences
{¶ 25} The fourth assignment of error alleges:
BOYD’S SENTENCE IS TOO LONG IN VIOLATION OF HIS
RIGHTS UNDER THE FIFTH, SIXTH AND FOURTEENTH AMENDMENTS
TO THE UNITED STATES CONSTITUTION, AND SECTIONS 10 AND 16,
ARTICLE I OF THE OHIO CONSTITUTION.
Boyd contends that the trial court erred by ordering him to serve several of the sentences
consecutively. He also contends that the court erred by imposing a third consecutive
firearm-specification sentence.
{¶ 26} “R.C. 2953.08(G)(2) requires an appellate court to review the entire record
to determine if the sentence is contrary to law, and to evaluate whether the record clearly
and convincingly does not support the statutory findings required to impose consecutive
sentences. If the ‘reviewing court 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.’ ” State v. Kay, 2d Dist. Montgomery No. 26344,
2015-Ohio-4403, ¶ 13, quoting State v. Bonnell, 140 Ohio St. 3d 209, 2014-Ohio-3177, 16
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N.E.3d 659, ¶ 29. This is an “extremely deferential standard of review.” State v. Rodeffer,
2013-Ohio-5759, 5 N.E.3d 1069, ¶ 31.
{¶ 27} Boyd contends that ordering him to serve the sentences on the underlying
felony counts consecutively was not supported by the record. He says that the trial court
improperly found that the events constituted a course of conduct.
{¶ 28} “[B]ecause R.C. 2929.41(A) creates a presumption in favor of concurrent
sentences for most felony sentences, our review of the record must determine whether
the presumption was overcome by the trial court’s findings set forth in R.C.
2929.14(C)(4).” (Citation omitted.) Kay at ¶ 15. R.C. 2929.14(C)(4) permits a court to
require that an offender serve prison terms consecutively if the court finds that (1) “the
consecutive service is necessary to protect the public from future crime or to punish the
offender,” (2) “consecutive sentences are not disproportionate to the seriousness of the
offender’s conduct and to the danger the offender poses to the public,” and (3) one of the
circumstances described in division (C)(4)(a), (b) or (c) is present.
{¶ 29} Here, the trial court made the required consecutive-sentence findings,
including the circumstance in division (C)(4)(b) that “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.” We have said that “course
of conduct” “may be established by factual links including time, location, weapon, cause
of death or similar motivation.” Kay at ¶ 19, citing State v. Short, 129 Ohio St. 360, 2011-
Ohio-3641, 952 N.E.2d 1121, ¶ 144. We think that Boyd’s crimes in this case were plainly
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committed as part of one course of conduct—he kidnapped the victims precisely in order
to steal drugs from the pharmacy. We note too that the trial court found that the victims
of the offense “suffered serious psychological harm as a result of [these] offenses.”
(Sentencing Tr. 29). Consecutive sentences are not unsupported by the record in this
case.
{¶ 30} Boyd also contends that the trial court abused its discretion by imposing a
third consecutive firearm-specification sentence.
{¶ 31} Under R.C. 2929.14(B)(1)(b), a trial court ordinarily may not impose more
than one prison term for firearm specifications for felonies that were committed as part of
the same act or transaction. But R.C. 2929.14(B)(1)(g) creates an exception:
If an offender is convicted of * * * two or more felonies, if one or more of
those felonies are * * * aggravated robbery * * *, and if the offender is
convicted of * * * a specification of the type described under division
(B)(1)(a) of this section in connection with two or more of the felonies, the
sentencing court shall impose on the offender the prison term specified
under division (B)(1)(a) of this section for each of the two most serious
specifications of which the offender is convicted or to which the offender
pleads guilty and, in its discretion, also may impose on the offender the
prison term specified under that division for any or all of the remaining
specifications.
(Emphasis added.)
{¶ 32} Because Boyd was found guilty of two or more felonies, including
aggravated robbery, and the felony counts contained firearm specifications, the trial court
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was required to impose two consecutive sentences for two of the specifications of which
Boyd was convicted. In addition to the mandatory, consecutive sentences, the trial court
had discretion to impose consecutive sentences for the remaining firearm specifications,
which the court exercised by imposing the third consecutive three-year sentence. See
State v. Welninski, 2018-Ohio-778, 108 N.E.3d 185, ¶ 102 (6th Dist.).
{¶ 33} Boyd is not challenging the trial court’s mandatory imposition of consecutive
sentences for the first and second 3-year firearm specifications. Instead, he challenges
the discretionary imposition of a consecutive sentence for the third 3-year firearm
specification. He argues that the trial court abused its discretion by imposing this sentence
because the court failed to consider the burden on state resources, which R.C. 2929.11
instructs a sentencing court to consider.3 Boyd does not say why the third three-year
prison term imposes an unnecessary burden on government resources.
{¶ 34} The trial court here did consider state resources. The court expressly stated
in its judgment entry that it considered the purposes and principles of sentencing in R.C.
2929.11 and that it was “guided by the overriding purposes of felony sentencing, including
* * * using the minimum sanctions that the court determines will accomplish those
purposes without imposing an unnecessary burden on state or local government
resources.”
3 R.C. 2929.11(A) states that a sentencing court must be guided by the purposes of felony
sentencing, which are “to protect the public from future crime by the offender and others,
to punish the offender, and to promote the effective rehabilitation of the offender using
the minimum sanctions that the court determines accomplish those purposes without
imposing an unnecessary burden on state or local government resources.” But see State
v. Wilson, 2d Dist., Montgomery No. 24978, 2012-Ohio-4756, ¶ 28 (Hall, J., concurring)
(questioning whether resource burdens are exclusively the province of the executive and
legislative branches of government.)
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{¶ 35} Boyd fails to show that the trial court abused its discretion by ordering him
to serve a third consecutive firearm-specification sentence.
{¶ 36} The fourth assignment of error is overruled.
III. Conclusion
{¶ 37} We have overruled each of the assignments of error presented. The trial
court’s judgment is therefore affirmed.
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WELBAUM, P.J. and DONOVAN, J., concur.
Copies sent to:
John M. Lintz
Steven H. Eckstein
Hon. Richard J. O’Neill