Stаte of Ohio, Plaintiff-Appellee, v. Lamar R. Bass, Defendant-Appellant.
No. 12AP-622 (C.P.C. No. 11CR-09-5187) and No. 12AP-623 (C.P.C. No. 11CR-09-5183)
IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT
October 10, 2013
[Cite as State v. Bass, 2013-Ohio-4503.]
(REGULAR CALENDAR)
Rendered on October 10, 2013
Ron O‘Brien, Prosecuting Attorney, and Seth L. Gilbert, for appellee.
Yeura R. Venters, Public Defender, and Timothy E. Pierce, for appellant.
APPEALS from the Franklin County Court of Common Pleas
CONNOR, J.
{¶ 1} Defendant-appellant, Lamar R. Bass (“defendant“), appeals from his convictions of two counts of felonious assault with specifications, two counts of having a weapon while under disability, and one count each of aggravated burglary, discharge of a firearm on or near a prohibited premises with specification, and impropеrly handling firearms in a motor vehicle while under disability.
I. FACTS AND PROCEDURAL HISTORY
{¶ 2} Defendant‘s convictions arise out of two separate incidents involving two different victims. The two incidents became the subject of separate indictments. On August 24, 2011, defendant shot Anthony Taylor, the boyfriend of his “white girl Courtney,” because Taylor refused to give Courtney money to buy drugs from defendant.
{¶ 3} Plaintiff-appellee, the State of Ohio (“State“), requested that the indictments be joined for trial inasmuch as the same gun was used in both incidents. Following an oral hearing, the trial court joined thе two indictments. The case was tried to a jury and defendant was convicted.1 The trial court sentenced defendant to a total of 21 years of imprisonment.
II. ASSIGNMENTS OF ERROR
{¶ 4} Defendant appeals to this court assigning the following four assignments of error:
[I.] The Appellant‘s right to a fair trial as memorialized in Article I, Section 10 and 16 of the Ohio Constitution and the Sixth and Fourteenth Amendments of the United States Constitution was impugned when the trial court erred by consolidating for trial Appellant‘s two indictments in violation of Rules 8(A) and 13 of the Ohio Rules of Criminal Procedure and when it failed to sustain Appellant‘s motion for relief from prejudicial joinder under Rule 14 of the Ohio Rules of Criminal Procedure.
[II.] The consciousness of guilt instruction was contrary to law because it contained an improper comment on the evidence by the court and it was incomplete.
[III.] In its June 25, 2012 entries the lower court erred in ordering that the charges in these two indictments be served consecutively to one another because, at the June 12, 2012 sentencing hearing, it failed to so specify on the record.
[IV.] The trial court‘s sentence was contrary to law in violation of R.C. § 2953.08(A)(4) when it imposed consecutive sentences without making the required findings under R.C. § 2929.14(C)(4).
III. JOINDER OF INDICTMENTS
{¶ 5} In his first assignment of error, defendant contends that the improper joinder for a single trial of the unrelated offenses in the two indictments unduly prejudiced his defense.
A. Standard of Review
{¶ 6} We review a trial court‘s decision on joinder of offenses for trial under an abuse of discretion standard. State v. Banks, 10th Dist. No. 09AP-1087, 2010-Ohio-5714, ¶ 30, citing State v. LaMar, 95 Ohio St.3d 181, 2002-Ohio-2128. “The term ‘abuse of discretion’ connotes more than a mere error in law or judgment; it implies that the court‘s attitude was unreasonable, arbitrary or unconscionable.” Id., quoting State v. Adams, 62 Ohio St.2d 151, 157 (1980).
B. Same or Similar Character
{¶ 7} “The court may order two or more indictments * * * to be tried together, if the offenses * * * could have been joined in а single indictment.”
{¶ 8} The threshold argument in this case is whether the offenses charged in the two indictments are of the “same or similar character.” In our decision, the fact that both indictments arise out of shooting incidents that occurred only a few weeks apart, and with the same handgun, establishes that each indictment charges offenses of a similar
{¶ 9} While defendant asks the court to focus on the fact that the offenses were committed against two different victims, at different locations and at different times, such distinctions do not mean that the two indictments charge offenses of dissimilar character. Indeed, the most serious offenses charged in each indictment, felonious assault, are of similar character and the related weapons charges involve the same firearm.
{¶ 10} In short, we find that the offenses charged in the two indictments are similar, and that the trial court did not abuse its discretion in granting the State‘s motion. We also reject defendant‘s claim that the prosecutor‘s oral argument in the penalty stage proves that the prosecutor believed the indictments arose out of “completely unrelated incidents.” (Tr. 503.) The prosecutor made the remark in advocating consecutive sentences for the convictions under two indictments. When viewed in proper context, the prosecutor‘s remarks are not inconsistent with joinder. The fact that the charged offenses are of similar character does not mean that there should not be separate punishment for multiple convictions.
C. Defendant‘s Claim of Prejudice
{¶ 11} An accused may move the trial court, pursuant to
{¶ 12} Defendant argues that the jury may have mistakenly considered his flight from police as evidence of his guilt of the offenses charged in both indictments, when such evidence is relevant only as to the offenses charged in the second indictment. Defendant also contends that he was prejudiced in his defense to the charges in the second indictment by Taylor‘s testimony that he saw defendant sitting in a vehicle with a gun on his lap “a couple of months bеfore I was shot.” (Tr. 82.) Defendant asserts that this evidence was admissible only when offered to prove his consciousness of guilt as to the drive-by shooting charge in the first indictment. Finally, defendant argues that the evidence of his involvement with drug trafficking unfairly prejudiced his defense of the charges in the second indictment, which had nothing to do with drugs.
{¶ 13} When defendant asserts that his defense will be prejudiced by the joinder of two or more indictments in a single trial, the prosecution may negate defendant‘s claim of prejudice with a showing that: (1) the evidence of the other crimes would be admissible even if the сounts were severed, and (2) if not, whether the evidence of each crime is simple and distinct. Banks, citing State v. Schaim, 65 Ohio St.3d 51, 59 (1992). The former is generally referred to as the “other acts test,” while the latter is known as the “joinder test.” The two tests are disjunctive, so that the satisfaction of one negates a defendant‘s claim of prejudice without consideration of the other. Sullivan at ¶ 22, citing State v. Gravely, 188 Ohio App.3d 825, 2010-Ohio-3379 (10th Dist.). The defendant must furnish the trial court with sufficient information to weigh the factors favoring joinder against the defendant‘s right to a fair trial. Id., citing State v. Lott, 51 Ohio St.3d 160, 163 (1990).
{¶ 14} As to the “other acts test” under
{¶ 15} As noted above, we believe that the character of the offenses chаrged in the two indictments is similar. Evidence that defendant used a firearm is clearly admissible evidence when offered to prove defendant‘s guilt of a majority of the charged offenses in each indictment. Williams; Nelms. The fact that defendant used the same firearm in committing the offenses charged in each indictment is also admissible when offered to prove opportunity, intent, preparation, plan, or absence of mistake or accident. Washington. Evidence that both victims had allegedly interfered with defendant‘s women would be admissible when offered to prove defendant‘s motive to сommit the felonious assault charges in the two indictments.
{¶ 16} We disagree with defendant‘s contention that the evidence of flight was relevant only as to the second indictment. Contrary to defendant‘s assertion, “[a]dmissibility of evidence of flight has not been made contingent upon how much time passes between the offense and the defendant‘s flight.” State v. Willis, 8th Dist. No. 98847, 2013-Ohio-2531, ¶ 13, quoting State v. Alexander, 8th Dist. No. 51784 (Feb. 26, 1987). While defendant‘s flight is of greater probative value when offered to prove defendant‘s consciousness of guilt as to the offenses charged in the second indictment, flight occurred within a period of time reasonably near the Taylor shоoting and is
{¶ 17} We also reject defendant‘s claim that his defense to the handgun charges in the second indictment was unfairly prejudiced by Taylor‘s testimony that he saw defendant in possession of a firearm “a couple months before I was shot.” (Tr. 82.) Evidence that defendant was seen in possession of a handgun a few months prior to the Jordan shooting would have been admissible in a separate trial of the seсond indictment when offered to prove defendant‘s opportunity, intent, preparation or plan to shoot Jordan. This is particularly true given Hummel‘s testimony that defendant had threatened to shoot any man he found in her apartment. The fact that defendant shot at Taylor from a vehicle but shot at Jordan in an apartment building is a distinction without a difference. The important fact is that Taylor saw defendant in possession of a handgun prior to the Jordan shooting.
{¶ 18} Defendant insists that the jury gave great weight to Taylor‘s testimony inasmuch as one of the juror‘s asked the court whether suсh testimony was admissible. However, our review of the transcript shows that the jury did not specifically ask whether the testimony was admissible as to any particular charge or for any particular purpose. (Tr. 482.) Thus, evidence of the alleged prejudice is not shown in the record.
{¶ 19} Moreover, even if we were to find that the Taylor evidence would not have been admissible if the second indictment had been tried separately, given the mountain of evidence to support defendant‘s guilt of the handgun offenses charged in the second indictment, the potential prejudice is negligible. Indeed, Hummel testified that defendant took his handgun with him everywhere. Both Jordan and Hummel testified that a hooded individual, brandishing a handgun, broke in the door to Hummel‘s apartment and that the individual shot Jordan as he fled the apartment. Hummel identified defendant as the assailant, and a shell casing found at the scene matched a shell casing recovered at the Taylor shooting.
{¶ 20} With regard to the evidence of defendant‘s involvement in drug activities, we find that such evidence would not have been admissible if offered in a separate trial of the second indictment. Even the prosecutоr concedes that the drug evidence is not relevant to any of the offenses charged in the second indictment. We also agree that
2. Joinder Test
{¶ 21} As noted above, the State may also negate a claim of prejudice by showing that the evidence of eaсh crime is simple and distinct. The evidence relevant to the second shooting consists almost entirely of the eyewitness testimony of Jordan and Hummel. Their testimony is corroborated both by the physical evidence gathered at the scene, defendant‘s flight from police, and Hummel‘s recollection of defendant‘s prior threat. While the offenses charged are of similar character, the two indictments arise out of incidents that occurred on different days involving different victims. Thus, there was little chance that the jury would be unable to set aside the evidence of defendаnt‘s drug activity in determining defendant‘s guilt as to the offenses charged in the second indictment.
{¶ 22} Moreover, the trial court instructed the jurors as follows:
Each indictment and each offense constitutes a separate and distinct matter for you to consider. You must independently weigh and consider each -- consider the evidence applicable to each offense and each indictment
Your verdict must not be influenced by your decision as to any one or more offense or indictment.
You may find the defendant not guilty or guilty of any one or all of the offenses charged in either indictment.
(Tr. 459-60.)
{¶ 23} Presuming that the jury followed the instructions, as we are required to do in the absence of evidence to the contrary, the possibility of jury confusion was extremely remote. In short, applying the “joinder test,” we find that the evidence relevant to the offenses charged in the two indictments is both simple and distinct. Accordingly, defendant‘s claim of prejudice was negated by the State under the “joinder test.”
IV. CONSCIOUSNESS OF GUILT
{¶ 25} In defendant‘s second assignment of error, defendant contends that the trial court abused its discretion by improperly instructing the jury on “consciousness of guilt.” When reviewing a trial court‘s jury instruction, the proper standard of review for an appellate court is whether the trial court abused its discretion given the facts and circumstances of the case. State v. Gover, 10th Dist. No. 05AP-1034, 2006-Ohio-4338. An abuse of discretion implies that the court‘s attitude was unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983). Additionally, “‘[i]n considering whether a particular portion of a trial court‘s instructions was improper, the instructions must be viewed in their entirety.‘” State v. Brady, 9th Dist. No. 22034, 2005-Ohio-593, ¶ 7, quoting State v. Pitts, 6th Dist. No. L-96-256 (Sept. 30, 1997), citing Schade v. Carnegie Body Co., 70 Ohio St.2d 207, 210 (1982).
{¶ 26} The trial court instructed the jury as follows:
In this case there was evidence that the defendant fled from justice. You are instructed that you may not presume the defendant guilty from such evidence. You may, however, infer a consciousness of guilt regarding the evidence of defendant‘s alleged flight.
An accused‘s flight and related conduct may be considered as evidence of consciousness of guilt and thus of guilt itself.
(Tr. 459.)
{¶ 27} “‘Flight from justice “means some escape or affirmative attempt to avoid apprehension.” It is well established that evidence of flight is admissible as tending to show consciousness of guilt. Thus, a trial court does not abuse its discretion by issuing an instruction on flight if sufficient evidence exists in the record to support the charge.‘” State v. Lozada, 8th Dist. No. 94902, 2011-Ohio-823, ¶ 17, quoting State v. Benjamin, 8th Dist. No. 80654, 2003-Ohio-281, ¶ 29-31.
{¶ 28} Defendant argues that the phrase “there was evidence that the defendant fled from justice” implies that defendant‘s “behavior was leavened with a nefarious
{¶ 29} A number of courts have used the phrase “from justice” in discussing the propriety of a consciousness of guilt instructiоn. See Lozada; Benjamin; State v. Allen, 5th Dist. No. 2009-CA-13, 2010-Ohio-4644. We also disagree that the instruction presumes that flight was established. The instruction merely states that there was evidence of flight. Whether defendant fled from justice is a question clearly left to the jury.
{¶ 30} Defendant also claims that the instruction is incomplete inasmuch as it does not remind the jury that (1) defendant‘s flight may be motivated by factors other than consciousness of guilt, and (2) that it must find that the defendant‘s guilty conscious is due to the charge in question. However, a jury instruction “should not be held erroneous merely because every condition to a recovery or defense is not embrаced in each paragraph.” State v. Nichols, 9th Dist. No. 24900, 2010-Ohio-5737, citing Youngstown Municipal Ry. Co. v. Mikula, 131 Ohio St. 17, 20 (1936).
{¶ 31} Although we agree that the instruction given by the trial court is brief, we note that it is consistent with Ohio law as it pertains to consciousness of guilt. See State v. Eaton, 19 Ohio St.2d 145, 160 (1969). The instruction informs the jury that defendant‘s flight “may be considered as evidence of consciousness of guilt.” (Jury Instructions, 7.) Thus, the jury was free to consider other reasons for defendant‘s conduct. Similarly, to the extent that defendant claims that the jury should have been told to consider evidence of flight only in reference to the offenses charged in the second indictment, we have held that such was relevant to thе offenses charged in both indictments, not just the second. Moreover, the trial court instructed the jury as follows: “Each indictment and each offense constitutes a separate and distinct matter for you to consider. You must independently weigh and consider each -- consider the evidence applicable to each offense and each indictment.” (Tr. 459-60.)
{¶ 32} Based upon the foregoing, we cannot say that the trial court abused its discretion in giving the consciousness of guilt instruction. Accordingly, defendant‘s second assignment of error is overruled.
{¶ 34} A defendant has a due process right, embodied in
{¶ 35} In this case, the two sentencing entries issued by the trial court specifically state that the prison term for his convictions on the first indictment are to be served consecutively with the prison term for the convictions on the second indictment.3 Defendant argues, however, that the trial court was unclear on this point when it sentenced defendant in open court. The transcript of defendant‘s sentencing hearing shows the following:
THE COURT: Okay, Mr. Benton. Mr. Bass -- sir, the Court at this time, in considering the factors the Court is required to consider, in case number 5183, the Court imposes the following sentence: On count one, three years; count two, three years; count three, 18 months; court four, three years. In addition, the Cоurt will impose the mandatory five years for the drive-by shooting and three years for the firearm specification. That all is for a total of 11 years on this case.
MR. BENTON: Your Honor, what was the sentence on count four?
THE COURT: Count four was three years.
MR. BENTON: Okay.
THE COURT: With respect to case number 5187, the Court imposes the following sentence: On count one, seven years; count two, six years; and count three, twelve months. Those are to be served concurrently. In addition, the Court will add an additional three years for the firearm specification, for a total of 21 years.
(Tr. 514-15.)
MR. BENTON: Judge, I‘m still a little confused.
THE COURT: Mr. Bass, the Court imposed 21 years. I took into consideration your age at this time. Twenty-one years is sufficient time for you to hopefully grow up and realize -- you‘ll be 48 when you are released -- that guns and you don‘t get along well.
MR. BENTON: Your Honor, that‘s the total sentence as to both cases?
THE COURT: That‘s the total sentence on both cases. Twenty-one years. Twenty-one years.
(Tr. 516.)
{¶ 36} Defendant concedes that, in all probability, the trial court intended to sentence defendant to consecutive terms. Defendant maintains, however, that the trial court‘s failure to explicitly state its intentions on the record leaves us with no choice but to rеverse the trial court sentencing entry and order that the sentences are to run concurrently. We disagree.
{¶ 37} It is clear from the trial transcript that defendant was informed that he was to serve a 21-year prison term. Defendant was told, in no uncertain terms, that he would be 48 years old when he was released from prison. Ohio courts have repeatedly stated that “the trial court is not * * * required to recite any ‘magic’ or ‘talismanic’ words when imposing consecutive sentences.” State v. Hubbard, 10th Dist. No. 11AP-945, 2013-Ohio-2735, ¶ 86, quoting State v. Farnsworth, 7th Dist. No. 12 CO 10, 2013-Ohio-1275, ¶ 8. See also State v. Bailey, 10th Dist. No. 12AP-699, 2013-Ohio-3596, ¶ 43; State v. Frasca, 11th Dist. No. 2011-T-0108, 2012-Ohio-3746, ¶ 57; State v. Murrin, 8th Dist. No. 83714, 2004-Ohio-3962, ¶ 12. The only reasonable conclusion to draw from the trial transcript is that the 11-year prison term for the convictions under the first indictment is consecutive to the ten year term for the convictions under the second indictment. The fact that the trial court did not use the word “consecutive,” in defendant‘s presence is not fatal to the validity of the sentence. The record demonstrates that defendant understood that his sentences were consecutive, and the sentencing entries are consistent with the sentence imposed in open court.
{¶ 38} Accordingly, defendant‘s third assignment of error is overruled.
{¶ 39} In his fourth assignment of error, defendant contends that the trial court erred when it ordered his sentences to run consecutively without expressly considering the factors set out in
{¶ 40} H.B. No. 86 took effect on September 30, 2011.
{¶ 41}
{¶ 43} The State‘s final argument is that
{¶ 45} For the foregoing reasons, defendant‘s fourth assignment of error is sustained in part and overruled in part.
V. DISPOSITION
{¶ 46} Having overruled appellant‘s first, second, and third assignments of error, but having sustained the fourth assignment of error in part and overruled in part, the judgment of the Franklin County Court of Common Pleas is affirmed in part and reversed in part. This case is hereby remanded to that court to consider whether consecutive sentences are appropriate undеr H.B. No. 86 and, if so, to enter the proper findings on the record.
Judgments affirmed in part and reversed in part; cause remanded.
SADLER and McCORMAC, JJ., concur.
McCORMAC, J., retired, formerly of the Tenth Appellate District, assigned to active duty under the Ohio Constitution, Article IV, Section 6(C).