State v. Ross
2013 Ohio 3130
Ohio Ct. App.2013Background
- State v. Ross, 8th Dist. Cuyahoga, 2013; conviction affirmed, sentence partially reversed and remanded for resentencing.
- Counts: 1 aggravated robbery, 2 kidnapping, 3 grand theft of a motor vehicle, 4 petty theft, 5 felonious assault on a peace officer, 6-7 criminal damaging/endangering, 8 having weapons under disability, 10 tampering with evidence.
- Jury found Ross guilty on counts and firearm specifications; bench trial on some weapon/priority specifications.
- Gun and DNA evidence linked Ross to the crime scene; sweatshirt and gun found in yard; DNA on weapon; gunfire at Officer Nan.
- Ross testified to a defense of misidentification and claimed no weapon; prior felonious assault conviction disclosed.
- Judgment: conviction affirmed in part; sentencing reversed and remanded for resentencing on Count 5 (the consecutive-term issue).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Manifest weight of the evidence. | Ross argues the verdict is against the weight of the evidence. | Ross contends inconsistencies undermine credibility and weight. | Overruled; evidence supported the convictions. |
| Accomplice testimony instruction (R.C. 2923.03(D)). | State argues no plain error; no defense request made. | Ross asserts plain error for lack of cautionary instruction. | Overruled; no plain error. |
| Sufficiency of three-year firearm specifications. | Sufficient evidence supported firearm specs. | Insufficient linkage of weapon to both offenders. | Overruled; evidence supported specifications. |
| Allied-offenses doctrine (aggravated robbery and kidnapping). | Counts could be allied offenses; legality of merger. | Movements and restraint show separate animus. | Overruled; offenses are not allied; separate convictions proper. |
| Consecutive-sentencing findings under HB 86 (R.C. 2929.14(C)(4)). | Court findings supported necessity to protect public and conduct while awaiting trial. | Court failed to find proportionality not supported by the record. | Sustained; requires resentencing with proper findings. |
Key Cases Cited
- State v. Thompkins, 78 Ohio St.3d 380 (Ohio Supreme Court, 1997) (weight-of-the-evidence standard; deference to jury credibility)
- State v. Jenks, 61 Ohio St.3d 259 (Ohio Supreme Court, 1991) (sufficiency of evidence standard (Jackson v. Virginia))
- State v. Logan, 60 Ohio St.2d 126 (Ohio Supreme Court, 1979) (penologically significant restraint separate from robbery)
- State v. Dodson, No. 98521, 2013-Ohio-1344 (8th Dist. Ohio) (guides resentencing when HB 86 findings missing)