State v. Dukes
2019 Ohio 2893
Ohio Ct. App.2019Background
- On Feb. 25, 2015, Akron police officers reported that a van driven by Lavonte Dukes sped out of a driveway toward them, struck their cruiser and another vehicle, and fled; officers identified Dukes as the driver and later located the van at an ex-girlfriend’s house.
- Weeks later a City of Akron storage facility was broken into; investigators recovered a cellphone inside that contained a video taken in the facility and photos tied to Dukes.
- A grand jury indicted Dukes for two counts of felonious assault and one count of vandalism arising from the van incident; a supplemental indictment charged breaking and entering of the storage unit.
- Dukes moved to dismiss on speedy-trial grounds; the trial court denied the motion, the State amended the vandalism count at trial (with defense counsel’s assent), a jury convicted Dukes on all counts, and the court imposed a total 7.5-year prison sentence.
- On appeal Dukes raised six assignments of error: (1) indictment/jurisdictional defect as to felonious-assault degree; (2) vandalism degree/amendment; (3) speedy-trial violation; (4) juror misconduct (viewing online map); (5) insufficiency/manifest weight; and (6) ineffective assistance of counsel.
- The appellate court affirmed convictions except it sustained the second assignment to the extent the trial court’s sentencing entry mistakenly labeled the vandalism as a fourth-degree felony (it had been properly amended to a fifth-degree felony at trial); the case was remanded for proceedings consistent with that correction.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Dukes) | Held |
|---|---|---|---|
| 1) Validity of felonious-assault counts when indictment misstates degree | Indictment charged required elements of felonious assault; labeling error does not void conviction | Indictment was void because felonious assault should have been charged as 1st-degree (victims were peace officers) | Court: Overruled Dukes; element charging was sufficient despite degree error |
| 2) Vandalism degree and amendment of indictment | State moved to amend felony degree from 4th to 5th at start of trial; defense counsel consented | Dukes argued trial court erred in treating the conviction as 4th-degree; challenges amendment | Court: Amendment proper (Crim.R.7(D)); Dukes bound by counsel’s assent; sustained Dukes’ claim only to correct sentencing entry (should be 5th-degree) |
| 3) Speedy-trial compliance | State counted periods tolled by defendant-requested continuances and motion to dismiss; nunc pro tunc correction reflected actual events | Dukes argued continuance was not his request, tolling miscounted, undue delay on motion to dismiss, and improper nunc pro tunc use | Court: Found competent evidence that two-week continuance was requested by defense, motion tolled time, ruling on motion timely, nunc pro tunc permissible; denied Dukes’ speedy-trial claim |
| 4) Juror misconduct for accessing online map during deliberations | State: jurors’ testimony showed the image did not influence deliberations or verdict | Dukes: juror(s) consulted online aerial map and at least two lied; prejudice resulted (clarified evidence) | Court: Trial court credited jurors’ statements, found no prejudice, denied mistrial; appellate court found no abuse of discretion |
| 5) Sufficiency/manifest-weight of evidence | State: eyewitness ID by officers and victim, van located at ex-girlfriend’s, cruiser disabled, cellphone/video and photos link Dukes to storage break-in | Dukes: identifications unreliable (lighting, time lapse, color-blind witness), inconsistent testimony, lack of direct forensic link to phone or physical break-in | Court: Evidence was sufficient and weight did not warrant reversal; jury not shown to have lost its way |
| 6) Ineffective assistance of counsel | State: trial strategy and objections were within reasonable professional judgment; many allegations require evidence outside the record | Dukes: counsel failed to produce exculpatory witnesses/evidence, subpoena owner, obtain dash cam, challenge identifications, move to dismiss vandalism earlier, call experts | Court: Claims largely undevelopable on direct appeal; record did not show deficient performance or prejudice; assignment overruled |
Key Cases Cited
- State v. Pasqualone, 121 Ohio St.3d 186 (2009) (defendant bound by counsel’s assent to indictment amendment)
- State v. Sanchez, 110 Ohio St.3d 274 (2006) (speedy-trial delay and reasonable time to rule on motions)
- State v. Bonnell, 140 Ohio St.3d 209 (2014) (use of nunc pro tunc entries to correct clerical errors to reflect what occurred in open court)
- State v. Thompkins, 78 Ohio St.3d 380 (1997) (standard for sufficiency review)
- State v. Jenks, 61 Ohio St.3d 259 (1991) (sufficiency-of-evidence standard and deference to jury)
- State v. Otten, 33 Ohio App.3d 339 (9th Dist.) (manifest-weight standard)
- Strickland v. Washington, 466 U.S. 668 (1984) (two-pronged test for ineffective assistance of counsel)
- State v. Bradley, 42 Ohio St.3d 136 (1989) (defining deficient performance standard under Strickland)
- Cooperrider v. State, 4 Ohio St.3d 226 (1983) (ineffective-assistance claims relying on out-of-record evidence properly raised in post-conviction proceedings)
- Smith v. Phillips, 455 U.S. 209 (1982) (juror testimony and hearings on juror misconduct)
- State v. Gunnell, 132 Ohio St.3d 442 (2012) (guidance that juror-misconduct hearings often turn on juror testimony)
- State v. Gross, 97 Ohio St.3d 121 (2002) (trial court may rely on juror testimony to determine misconduct)