State v. Lash

[Cite as State v. Lash, 2017-Ohio-4299.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 104725
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
JAKWAN LASH
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED AND REMANDED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-15-598485-C
BEFORE: Jones, J., E.A. Gallagher, P.J., and Stewart, J.
RELEASED AND JOURNALIZED: June 15, 2017
ATTORNEY FOR APPELLANT
Russell S. Bensing
1360 East 9th Street, Suite 600
Cleveland, Ohio 44114
ATTORNEYS FOR APPELLEE
Michael C. O’Malley
Cuyahoga County Prosecutor
BY: Carl Mazzone
Assistant County Prosecutor
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
LARRY A. JONES, SR., J.:
{¶1} Defendant-appellant, Jakwan Lash, appeals his conviction and sentence for
aggravated robbery and kidnapping. For the reasons that follow, we affirm the
conviction and sentence but the matter is remanded to the trial court to enter a nunc pro
tunc entry setting forth the applicable consecutive sentence findings made at the
sentencing hearing.
I. Procedural History and Facts
{¶2} In 2015, Lash was charged with aggravated robbery, robbery, two counts of
kidnapping, petty theft, and tampering with evidence. The aggravated robbery, robbery,
and kidnapping counts contained one- and three-year firearm specifications and forfeiture
specifications. The matter proceeded to a jury trial at which the following pertinent
evidence was presented.
{¶3} Lash worked as a sales clerk at AutoZone on Mayfield Road in Cleveland
Heights in 2013 and 2014. As a clerk, his duties included sweeping and mopping the
store floor, tidying up displays, and taking trash out to the dumpsters, which was the
routine he conducted each night at closing time. He was familiar with the procedures for
operating the cash register, including where large bills were kept, and what remained in
the registers and store safe at closing time. He also knew the manager could access
about $1,400 in cash at closing time.
{¶4} Kenneth McElrath had been the sales manager at AutoZone since the store
had opened. He had worked with Lash and considered him a friend. Lash quit
Autozone in 2014, but continued to shop there.
{¶5} In early August 2015, Lash, and three friends, Jeremy Merritt, Alexander
Hawkins, and Leontae Jones, began plotting to rob AutoZone. In the weeks leading up
to the robbery, the four men texted each other to discuss plans to case the store, transfer
the title for the getaway car, purchase handcuffs, and discuss what to wear during the
robbery.
{¶6} On Sunday, August 16, 2015, shortly before the 9:00 p.m. closing time,
McElrath and store employee Randy Hay began store closing procedures. Hay, who had
worked at the store for six to eight months, swept and mopped the floor, and then
proceeded to take the trash out to the dumpster. Two men wearing masks approached
Hay as he neared the trash corral. The men took him inside the corral at gunpoint and
one man held a gun to his neck while the other man bound him with duct tape, and
handcuffed him. The men took Hay’s cell phone and left him. Hay, who testified he
was scared for his life, did not move until police arrived.
{¶7} Meanwhile, McElrath was alone inside the store when three customers pulled
up in a SUV and entered the store. The customers told McElrath that they had seen
something happening in the back near the trash corral. McElrath immediately locked the
door with customers inside and called 911.
{¶8} Officer Robert Butler of the Cleveland Heights Police Department was the
first officer to arrive on scene. He saw Hay on his knees, handcuffed, and covered with
tape. Using his key, Officer Butler removed the handcuffs and observed that the serial
number on the handcuffs had been scratched beyond recognition. Officer Butler also
saw items discarded near the trash corral and used his canine partner Rocky to find a
scent. Rocky tracked a scent through the neighborhood south of the store. The trail
went cold in the middle of a nearby street which, the officer testified, suggested that the
assailants had gotten into a car.
{¶9} During the same time as the incident at AutoZone was occurring, a call came
into the Cleveland Heights Police Department for a street fight with guns on Hollister
Avenue. Sergeant David Speece and Officer Lewis Alvis responded to the street but
found the street quiet. This led the officers to believe the call had been a hoax. The
officers then responded to AutoZone.
{¶10} Detective Michael Reese and Officer Matthew Lasker processed the crime
scene. Officer Lasker located discarded latex gloves and additional strips of duct tape
on the tree lawn near the western entrance to the AutoZone parking lot. Sergeant Speece
interviewed the three customers who saw commotion out by the trash corral and obtained
a suspect description, which he subsequently called out over the radio. Detective Reese
learned that the two men had stolen Hay’s cell phone; the detective requested
authorization from Hay’s cell phone provider to track the phone. The detective traced
the phone to Monticello Boulevard and located a red Chevy Blazer, which was registered
to a Jeremy Merritt at 3808 Delmore. The police effectuated a traffic stop and identified
the driver of the car as Alexander Hawkins.
{¶11} Officer Alvis canvassed the area south of AutoZone, the same general area
where Rocky had traced a scent. A witness told Officer Alvis that he had seen a man
pacing around a “beat-up” red Blazer. Alvis took the witness to Monticello Blvd. and
the witness identified Merritt’s Blazer as the same vehicle he had earlier seen.
{¶12} Detective Reese investigated the 911 call that sent officers to Hollister
Avenue at the same time as the AutoZone robbery. He traced the 911 call to Brenda
Lash, who lived at 3808 Delmore. The police went to conduct surveillance on the
residence and observed two cars, a Monte Carlo and a Lexus, pull out of the driveway.
The cars split off in separate directions and officers followed the Monte Carlo. Sergeant
Speece set up a roadblock and the Monte Carlo was stopped. The officers identified
Lash as the driver and Jeremy Merritt as the passenger. Lash told the officers that he
was a valid CCW permit holder and had a weapon in the center console. During a
subsequent search of the Monte Carlo, police recovered a bag of black latex gloves,
which they believed matched those recovered at the crime scene and later at 3808
Delmore, as well as a black-hooded sweatshirt and a bucket style hat that matched the
description of a hat worn by one of the assailants.
{¶13} Officer Lasker pursued the Lexus. The officer stopped the Lexus and
identified the driver as Leontae Jones, who was also a valid CCW permit holder. The
officer recovered a gun from the car.
{¶14} Officers went to speak with Brenda Lash, Lash’s mother, who lived at 3808
Delmore with her boyfriend, children (including Lash), and Jeremy Merritt. She denied
placing the call to 911 for the fight on Hollister, and permitted police to photograph the
call log on her phone. While photographing the log, police were able to confirm phone
numbers for both Lash and Jeremy Merritt. Brenda then permitted the police to search
her son’s bedroom and the basement, where Jeremy Merritt stayed. Police found a pair
of handcuffs with the serial number scratched off on Lash’s bed and a handgun in Lash’s
dresser. Brenda testified that the handcuffs belonged to her 13-year-old son. Police
also found a shopping bag, boxes for two pairs of handcuffs, and handcuff keys in the
basement.
{¶15} Detective Reese found two receipts on Lash’s person from AutoZone
stores while booking him into the Cleveland Heights jail. One receipt was from
Superior Avenue near East 79 Street in Cleveland and the other was from Euclid Avenue
in East Cleveland. Both receipts were time-stamped the afternoon of August 16, 2015,
the same day as the robbery at the AutoZone. Both receipts were for the purchase of
rolls of duct tape.
{¶16} Lash testified at trial. He testified that he had never seen the handcuffs the
police found on his bed. He testified that the bucket hat located in his car at the time of
his arrest belonged to Leontae Jones, and that just before they left 3808 Delmore and
were pulled over by the police, Jones gave him the hat as partial payment for $30 that
Jones owed him.
{¶17} Lash explained the two AutoZone receipts as follows. He testified that he
and his girlfriend went to the AutoZone on Superior Avenue to purchase RainEx, but the
store was too crowded so they did not go inside. They then drove to the store on Euclid
Avenue where they bought the RainEx with cash, but Lash did not have the receipt
because he “probably” left it in his girlfriend’s car. He denied ever purchasing duct tape
at those two locations on August 16, 2015, and explained that Jones gave him the receipts
for the duct tape so Lash could return the duct tape and keep the cash for fulfillment of
the $30 debt.
{¶18} The jury convicted Lash of all counts, except theft. After the court
determined that the robbery and kidnapping counts merged, the court sentenced Lash to
six years for aggravated robbery plus three years for the firearm specification concurrent
to six years for kidnapping plus three years for the firearm specification, and 24 months
for tampering with evidence. The court ran each six year sentence on the underlying
counts concurrent to each other, but consecutive to the 24 month sentence for tampering
with evidence for a total aggregate sentence of 14 years.1
{¶19} Lash now appeals, raising four assignments of error for our review:
I. The court erred in entering a judgment of conviction of kidnapping in
Count 4 of the indictment, as the evidence was insufficient to sustain the
verdict.
II. The court erred in entering a judgment of conviction of tampering with
evidence, as the evidence was insufficient to sustain the verdict.
III. The court erred in sentencing the Defendant on both the merged
robbery convictions and the merged kidnapping convictions, as those
offenses were allied offenses of similar import.
IV. The record clearly and convincingly fails to support the imposition of
1
Merritt went to trial and was acquitted of all charges. Jones and Hawkins each pleaded
guilty to various charges and were sentenced to prison time.
consecutive sentences.
II. Law and Analysis
{¶20} In the first assignment of error, Lash argues that the evidence was
insufficient to support his convictions for kidnapping.
{¶21} When reviewing a challenge of the sufficiency of the evidence, we examine
the evidence admitted at trial and 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, 263, 574 N.E.2d 492 (1991). “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.” Id. at paragraph two of the syllabus.
{¶22} A sufficiency challenge requires us to review the record to determine
whether the state presented evidence on each of the elements of the offense. This test
involves a question of law and does not allow us to weigh the evidence. State v. Martin,
20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).
{¶23} Lash was convicted of kidnapping, pursuant to R.C. 2905.01(A)(1) and
(A)(2), which state that:
(A) No person, by force, threat, or deception, or, in the case of a victim
under the age of thirteen or mentally incompetent, by any means, shall
remove another from the place where the other person is found or restrain
the liberty of the other person, for any of the following purposes:
(1) To hold for ransom, or as a shield or hostage;
(2) To facilitate the commission of any felony or flight thereafter[.]
{¶24} Lash argues that the evidence was insufficient to support his conviction
under either R.C. 2905.01(A)(1) or (A)(2), but does not discuss why the evidence did not
support his conviction under R.C. 2905.01(A)(2) or support that argument with any
citations to the record or to authority as required by App.R. 12(A)(2) and 16(A).
{¶25} Lash argues that the evidence was insufficient to support his conviction for
kidnapping under R.C. 2905.01(A)(1) because the state did not provide any evidence to
support the claim that Hay was kidnapped for the purpose of using him as a human shield
or hostage.
{¶26} Hay testified that he was taking out the store’s trash when he was
approached by two assailants with guns. The two men took him around the back side of
the trash corral, told him to get on his knees, grabbed his arms, put his arms behind his
back, put him in handcuffs, and then took a roll of duct tape and covered his eyes, mouth,
and ears, and wrapped it around his head. Hay further testified that one of the men held
the gun to his neck or head the entire time. The two men repeatedly told Hay not to move
or they would kill him.
{¶27} In State v. Sanders, 8th Dist. Cuyahoga No.75398, 2000 LEXIS 1651 (Apr.
13, 2000), three assailants planned to kidnap and rob a store owner and his girlfriend.
The men waited for the victims to exit the store when they approached with guns. Both
victims were ordered to their knees. The store owner was placed in handcuffs, while one
of the assailants attempted to duct tape the girlfriend’s hands behind her back. The
robbery was thwarted when the store owner was able to gain access to the weapon the
defendant had placed on the ground. The jury convicted the defendant of kidnapping
under R.C. 2905.01(A)(1) and this court affirmed the conviction. Id. at *19.
{¶28} Based on the testimony in the record and viewing the evidence in the light
most favorable to the state of Ohio, a rational trier of fact could find Lash guilty of each
element of the offense of kidnapping beyond a reasonable doubt.
{¶29} The first assignment of error is overruled.
{¶30} In the second assignment of error, Lash claims that the evidence was
insufficient to support his conviction for tampering with evidence.
{¶31} Lash was convicted of tampering with evidence for scratching the serial
numbers off the handcuffs in violation of R.C. 2921.12(A)(1), which provides:
(A) No person, knowing that an official proceeding or investigation is in
progress, or is about to be or likely to be instituted, shall do any of the
following:
(1) Alter, destroy, conceal, or remove any record, document, or thing,
with purpose to impair its value or availability as evidence in such
proceeding or investigation[.]
{¶32} The Ohio Supreme Court has outlined three elements of the offense of
tampering with evidence: (1) the knowledge of an official proceeding or investigation in
progress or likely to be instituted, (2) the alteration, destruction, concealment, or removal
of the potential evidence, and (3) the purpose of impairing the potential evidence’s
availability or value in such proceeding or investigation. State v. Straley, 139 Ohio
St.3d 339, 2014-Ohio-2139, 11 N.E.3d 1175, ¶ 11.
{¶33} In Straley, the defendant’s car was stopped for a traffic violation. Upon
further investigation, the police suspected she was driving under the influence of alcohol.
When the detectives were trying to find her a ride home, she insisted that she needed to
go to the bathroom. She ran to the side of a building in order to do so. One of the
detectives later found a urine-soaked baggie containing crack cocaine in the area. The
Ohio Supreme Court held that her conviction was not supported by sufficient evidence,
because there was nothing in the record to suggest that police were conducting or likely to
conduct an investigation into trafficking or possession of cocaine when Straley discarded
the baggie. Id. at ¶19.
{¶34} Lash argues that there was no likelihood of an investigation at the time the
serial numbers were scratched of the handcuffs because the crime was still in the planning
stages at that time. The state argues that the record demonstrates that the handcuffs were
purchased for the express purpose of robbing AutoZone. To support its position, the
state points to the discovery of two empty handcuff boxes in Lash’s house and the text
messages between Jones and Lash. Jones texted Lash on August 12 telling Lash he was
going to the “cuff store,” and again on August 13 that he “got cuffs.” The state argues
that Lash and his codefendants purchased matching handcuffs as part of their plan to rob
AutoZone; the two sets of handcuffs were part and parcel to the crime. According to the
state, as part of the robbery, police would likely be called, and an investigation would
likely follow, including the processing of the matching handcuffs. Both sets of
handcuffs had serial numbers that were scratched beyond recognition. The state posits
that there was no other purpose for obliterating the serial numbers on the matching
handcuffs except to prevent police from attempting to connect the pairs of handcuffs to
each other, possibly their purchase, and thereby the purchaser of the handcuffs.
{¶35} “Likelihood is measured at the time of the act of alleged tampering.”
Straley at id. In this case, the evidence showed that the handcuffs were purchased on
August 13, 2015, three days prior to the kidnapping and robbery. Thus, Lash and his
codefendants scratched off the serial numbers on the handcuffs within the three days prior
to the robbery. Is that act sufficient to show proof that Lash intended to impair the value
or availability of evidence as it related to a likely official investigation? We believe that
under the unique circumstances of this case, it is. Unlike many tampering with evidence
cases, where there is a single actor who attempts to destroy evidence immediately before
or after apprehension, in this case, the evidence showed that the four codefendants were
in communication in the days leading up to the crime, plotting a complex and violent
crime. Their plan included casing the AutoZone and using firearms, duct tape, and
handcuffs to subdue the people working in the AutoZone store to steal money. Lash, as
a former AutoZone employee, knew the inner workings of that store.
{¶36} Based on these facts, the likelihood is high that a police investigation would
follow a kidnapping and robbery involving firearms, duct tape, and handcuffs. The
likelihood is certainly high enough when viewing the evidence in the light most favorable
to the state. Therefore, we find a rational trier of fact could find Lash guilty of each
element of the offense of tampering with evidence beyond a reasonable doubt.
{¶37} The second assignment of error is overruled.
{¶38} In the third assignment of error, Lash argues that the trial court erred by
refusing to merge his convictions for kidnapping and aggravated robbery.
{¶39} Ohio’s multiple-count or “allied offenses” statute, R.C. 2941.25, provides
the following:
(A) Where the same conduct by defendant can be construed to constitute
two or more allied offenses of similar import, the indictment or information
may contain counts for all such offenses, but the defendant may be
convicted of only one.
(B) Where the defendant’s conduct constitutes two or more offenses of
dissimilar import, or where his conduct results in two or more offenses of
the same or similar kind committed separately or with a separate animus as
to each, the indictment or information may contain counts for all such
offenses, and the defendant may be convicted of all of them.
{¶40} Lash argues that his convictions for kidnapping should have merged into his
conviction for aggravated robbery because his kidnapping of Hay was committed with the
same animus as the aggravated robbery of Hay or AutoZone (the indictment lists both
Hay and AutoZone as victims). R.C. 2941.25(B) provides that when a defendant’s
conduct constitutes two or more offenses of dissimilar import, the defendant may be
convicted of all of the offenses. State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34
N.E.3d 892, ¶ 16. “Two or more offenses of dissimilar import exist within the meaning
of R.C. 2941.25(B) when the defendant’s conduct constitutes offenses involving separate
victims or if the harm that results from each offense is separate and identifiable.” Id. at
¶ 26.
{¶41} The state argues that the two crimes were committed with separate
animuses: one animus was to kidnap Hay in order to facilitate the second crime of
aggravated robbery of AutoZone.
{¶42} Lash cites State v. Ranzy, 8th Dist. Cuyahoga No. 97275, 2012-Ohio-2763,
to support his position that the offenses of aggravated robbery and kidnapping should be
merged. In Ranzy, the victim left his apartment and walked to his car. He was
approached by his former girlfriend and another man he knew; they demanded his car
keys. The victim offered them $20. The girlfriend told the victim to give them his car
keys or the other man would shoot him. The victim tackled the assailant with the gun,
but was shot in the head. He was able to get away, but not before being shot a second
time, in the shoulder. Id. at ¶ 5. This court held that the evidence established that the
offenses were committed with a “single state of mind” and that the restraint was merely
incidental to the defendant’s intention to rob the victim at gunpoint. Id. at ¶ 71.
{¶43} Ranzy is distinguishable from this case. Here, the two assailants waited for
Hay to exit the AutoZone, approached him, pointed guns at him, handcuffed him, bound
him, threatened to kill him, and then left him. At that point, the offense of kidnapping
was complete. The assailants then moved on to rob the AutoZone store; that robbery
was interrupted. The kidnapping of Hay was planned and executed with a separate
animus from what the assailants planned to do once inside the AutoZone.
{¶44} Moreover, because the aggravated robbery charge lists AutoZone as a victim
in the alternative, and Lash did not object to the indictment, he has waived his right to
challenge the fact that there are two separate and identifiable victims to the crimes.
Therefore, his conduct also constitutes offenses involving separate victims pursuant to
R.C. 2941.25(B).
{¶45} Therefore, the trial court did not err when it did not merge the aggravated
robbery and kidnapping convictions. The third assignment of error is overruled.
{¶46} In the fourth assignment of error, Lash contends that the record does not
support the imposition of consecutive sentences.
{¶47} Consecutive sentences may be imposed only if the trial court makes the
required findings pursuant to R.C. 2929.14(C)(4). State v. Bonnell, 140 Ohio St. 3d
209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 20-22. Under the statute, consecutive sentences
may be imposed if the trial court finds that (1) consecutive sentences are necessary to
protect the public from future crime or to punish the offender, and (2) consecutive
sentences are not disproportionate to the seriousness of the offender’s conduct and to the
danger the offender poses to the public. In addition, the court must find that any one of
the following applies:
(1) the offender committed one or more of the multiple offenses while
awaiting trial or sentencing, while under a sanction, or while under
postrelease control for a prior offense;
(2) at least two of the multiple offenses were committed as part of one or
more courses of the conduct, and the harm caused by two or more of the
offenses 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; or
(3) the offender’s history of criminal conduct demonstrates that consecutive
sentences are necessary to protect the public from future crime by the
offender.
R.C. 2929.14(C)(4)(a)-(c).
{¶48} In order to impose consecutive terms of imprisonment, a trial court must
both make the statutory findings mandated for consecutive sentences under R.C.
2929.14(C)(4) at the sentencing hearing and incorporate those findings into its sentencing
entry. Bonnell at the syllabus. And although 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, * * * it has no obligation to state reasons to support its
findings.” Id.{¶49} 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
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.
{¶50} Upon review, the trial court made the required findings in sentencing Lash
to consecutive terms and the record contains evidence to support the findings. In
sentencing Lash, the trial court stated:
I do find that consecutive sentences are necessary to protect the public from
future crimes and to punish you. They are not disproportionate to the
seriousness of your conduct in this case and the danger that you pose to the
public. The extraordinary steps you took with respect to the tampering with
evidence to get rid of those markings certainly to me displayed a thorough
process that was really great or unusual. So, therefore, no single term for
any of the offenses committed as part of this course of conduct would
reflect their seriousness.
{¶51} The court also considered Lash’s role in planning the robbery, the text
messages Lash and the other men exchanged in the weeks leading up to the robbery, and
that he was arrested and charged with another crime while he was out on bond in this
case. The court commented that when it gave Lash a chance on home detention with a
GPS monitor, Lash cut the monitor off and that, after arrest, he called one of his
codefendants and told him what to say in order to minimize his exposure.
{¶52} Lash argues that the trial court failed to properly incorporate its findings
pursuant to R.C. 2929.14(C)(4) into the journal entry and the record does not support its
findings. We cannot clearly and convincingly find that the record does not support the
trial court’s findings, but agree that the trial court failed to incorporate its findings into
the journal entry per Bonnell. Instead, the trial court put another reason pursuant to R.C.
2929.14(C)(4) in the journal entry, which was clearly a clerical error. Thus, the matter
is remanded to the trial court to enter a nunc pro tunc entry setting forth the applicable
consecutive sentence findings made at the sentencing hearing. Bonnell at ¶ 30.
{¶53} The fourth assignment of error is sustained in part.
{¶54} Conviction and sentence affirmed; case remanded to the trial court to enter a
nunc pro tunc entry setting forth the applicable consecutive sentence findings made at the
sentencing hearing.
It is ordered that appellee recover of 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.
LARRY A. JONES, SR., JUDGE
EILEEN A. GALLAGHER, P.J., and
MELODY J. STEWART, J., CONCUR