STATE OF OHIO v. ADAM CASSANO
No. 97228
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
July 5, 2012
2012-Ohio-3073
Stewart, P.J., Boyle, J., and Rocco, J.
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-535072
Robert A. Dixon
The Brownhoist Building
4403 St. Clair Avenue
Cleveland, OH 44103
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
BY: Stephanie Heibertshausen
John Wojton
Assistant County Prosecutors
The Justice Center
1200 Ontario Street, 9th Floor
Cleveland, OH 44113
{¶1} Defendant-appellant Adam Cassano was found guilty by the trial court of four counts of felonious assault, two counts of aggravated robbery, and two counts of having a weapon while under disability. The state charged that Cassano, acting on information provided by codefendant Jerrell Glenn, robbed a group of victims, shooting two of them. The issues on appeal concern the sufficiency and wеight of the evidence, the admission of telephone text messages, ineffective assistance of counsel, and the court‘s failure to merge firearm specifications at sentencing.
I
{¶2} The first and second assignments of error raise issues relating to the weight and sufficiency of the evidence. Cassano does not make a specific argument as to why there was insufficient evidence to support his convictions. Instead, he refers us to the arguments made in support of arguments for why the court‘s judgmеnt is against the manifest weight of the evidence. This fails the
{¶4} The manifest weight of the evidence standard of review requires us to review the entire record, weigh the evidence and all reasonable inferences, consider the credibility of witnesses, and determine whether, in resolving conflicts in the evidence, the trier of fact 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. Otten, 33 Ohio App.3d 339, 340, 515 N.E.2d 1009 (9th Dist.1986). The use of the word “manifest” means that the trier of fact‘s decision must be plainly or obviously cоntrary to all of the evidence. This is a difficult burden for an appellant to overcome because the resolution of factual issues resides with the trier of fact. State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967), paragraph one of the syllabus. The trier of fact has the authority to “believe or disbelieve any witness or accept part of what a witness says and reject the rest.” State v. Antill, 176 Ohio St. 61, 67, 197 N.E .2d 548 (1964).
{¶6} The victims were unable to identify their assailant from photо arrays. Three of the four victims described the robber as short, white, and bald; the fourth believed that the robber was African-American, but allowed that she might have mistakenly reached that conclusion because the male was wearing a dark, hooded sweatshirt that cast a shadow over his face.
{¶7} A fresh covering of snow had fallen on the evening of the robbery. The police discovered footprints and tire marks leading away from the scene. They followed
{¶8} As Cassano spoke to the police, Glenn exited the building and greeted Cassano. Glenn told the police that he knew Cassano. He also told the police that he had been inside an apartment all night. The police took Glenn up to the apartment and learned from the occupants that Glenn had only just arrived at the apartment and that it was Cassano who had been at the apartment all evening.
{¶9} When confronted with information that he had not been in the apartment all evеning, Glenn admitted that he had been with the group of victims that evening. He said that his car was parked at his residence and that he started to walk back to his apartment as soon as the group of victims arrived at the crime scene. The police were skeptical of this account because Glenn‘s apartment was more than two miles away and it made no sense to them that Glenn would walk that distance at 2:30 a.m. in falling snow. As the police were preparing to give Glenn a ride to his house from thе police station, one of the victims casually asked them if they were taking Glenn back to the scene of the crime so he could get his car. Glenn continued to insist that he did not drive his car that
{¶10} With Glenn now a person of suspicion, the police obtained a record of Glenn‘s cell phone activity after he provided his telephone number. These records showed that he sent а number of text messages shortly before the robbery to the same telephone number. Those messages appeared to be directing the recipient of the text messages to the parking lot where the robbery occurred, and more specifically to the location of Glenn‘s car in that lot. The recipient‘s text messages in reply showed that the recipient was having difficulty locating the car because the parked cars were covered with snow. A final message from Glenn was: “wе on our way.”
{¶11} Although the police knew the number of the telephone that received Glenn‘s text messages, that telephone was registered to a “pay as you go” cell phone carrier that did not keep subscriber information. Looking at calling records from what we will refer to as the “recipient telephone,” the police discovered that the recipient telephone had made calls to a telephone owned by Cassano‘s mother at the house where he, tоo, resided. They also learned that Cassano‘s brother had called the recipient telephone. In addition, the police learned that the day after Cassano had been interviewed by the police, Glenn unsuccessfully attempted to call the recipient cell phone and then immediately called the Cassano residence telephone.
{¶12} Using this information, the police obtained and executed a search warrant at Cassano‘s residence. They found an ammunition clip from a 9mm Glock handgun. The
{¶13} Because none of the victims could positively identify Cassano as the robber, the state relied on circumstantial evidence. Unlike direct evidence in which a witness testifies about a matter within the witness‘s pеrsonal knowledge such that the trier of fact is not required to draw an inference from the evidence to the proposition that it is offered to establish, circumstantial evidence requires the drawing of inferences that are reasonably permitted by the evidence. Although there are obvious differences between direct and circumstantial evidence, those differences are irrelevant to the probative value of the evidence — circumstantial evidence carries the same weight as direct evidence. State v. Treesh, 90 Ohio St.3d 460, 485, 739 N.E.2d 749 (2001). The Ohio Supreme Court has “long held that circumstantial evidence is sufficient to sustain a conviction if that evidence would convince the average mind of the defendant‘s guilt beyond a reasonable doubt.” State v. Heinish, 50 Ohio St.3d 231, 238, 553 N.E.2d 1026 (1990).
{¶14} Cassano‘s argument is built on two points: the state could not definitively prove that he was the recipient of Glenn‘s text messages on the night of the robbery and none of the witnesses positively identified him as the robber.
{¶15} It is true that the state‘s evidence concerning thе recipient of Glenn‘s text messages did not directly identify Cassano — the recipient number was for a prepaid
{¶16} The nature of the text messages were such that they could be reasonably interpreted as directing the recipient to the crime scene. Although none of the victims could specifically identify Cassano from photo arrays, they were able to give a general description of height, weight, and baldness that matched Cassano. When the police followed footprints and tire tracks leading from the crime scene to another apartment complex, they encountered both Cassano and Glenn. As they were friends, it was plausible that Cassano and Glenn would be together. But it was implausible to suggest that the tire and footprints leading from the scene of the robbery to an apartment complex where they were both found was mere coincidence when Cassano‘s apрearance matched the general description of the robber and his nervous disposition cast doubt on his story.
{¶17} Police suspicions further arose when it turned out that Cassano had been in one of the apartments contrary to his claims and that Glenn had not been in the apartment as he had claimed. At trial, Cassano contradicted the statements he made to the police shortly after the robbery by offering a new alibi — he had been at a strip bar on the
{¶18} In addition to evidence suggesting that Glenn sent messages to Cassano‘s telephone and that Cassano had been present on the scene of the robbery, the state offered evidence that Cassano was in possession of an ammunition clip for a Glock handgun. While the police did not recover the actual gun used during the commission of the robbery, one could reasonably believe that there would be no practical explanation for Cassano having ammunition for a non-еxistent gun.
{¶19} As with all circumstantial evidence, nothing in the state‘s case directly proved that Cassano was the robber. But the state‘s evidence could well have convinced the court that the application of various facts formed a larger picture that, when viewed as
II
{¶20} A major portion of the state‘s case consisted of the text messages sent from Glenn‘s telephone on the night of the robbery. Cassano argues that, as to him, these text messages were inadmissible hearsay, offered for the truth of what was stated in those messages. Although he concedes that the text messages might have been admissible against Glenn as admissions, he argues that any connection between those text messages and himself was just “theory” at the time the court admitted them. The state maintains that the text messages were offered as business records.
{¶21} Hearsay is “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.”
{¶23} Cassano argues that a representative of Verizon Wireless, the carrier for Glenn and the parent company of a subsidiary wireless service that acted as the carriеr for the recipient telephone, was not allowed by the court to testify to how the cell phone records were compiled and whether the method of record retention was reliable. This is not accurate. The representative testified that the records were maintained in the “normal course of business activity” through an automated computer system. That testimony alone was sufficient to establish the prerequisites for admitting the text messages as business records.
{¶24} The court did sustain a dеfense objection to the representative‘s statement that the records were “reliable.” The reliability of evidence has two components here. Proper authentication of a business record under
{¶25} This form of reliability must not be confused with the reliability or credibility of the text messages as evidence that implicated Cassano in the robbery. When viewed in context, the court‘s statement about whether the text messages were “reliable” was not that the text messages were not reliable as business records (they were), but whether they credibly showed that Cassano had been the recipient and sender of the text messages when there was no direct evidence to show that he received and sent those messages. That kind of reliability was a matter for the court to determine, so the court properly sustained an objection to a question that might have allowed the cell phone representative to give an opiniоn that encroached into the court‘s factfinding function.
{¶26} But whether the court was wrong to admit the text messages under the business record exception to the hearsay rule is of no consequence because two possible outcomes existed from the use of the evidence, neither of which benefit Cassano. If the court was to find from the circumstantial evidence that Cassano owned the recipient telephone, any text messages sent from the recipient telephone werе nonhearsay as admissions under
{¶27} This is exactly what the court concluded after extensive discussions on whether to allow the text messages into evidence. The court confirmed that if it concluded that Cassano did not own the recipient telephone, the text messages sent from that telephone would not constitute proof against Cassano and their admission would not “hurt” him. It ultimately allowed them as having “some relevance.”
{¶28} Exactly what relevance and weight the court gave to the text messages is unclear because the court gave no reasons for its guilty finding. Cassano finds it “unsettling” that the court did not alert counsel prior to delivering the verdict that it gave weight to the text messages in its deliberations, but the court was under no obligation to do so and it is unclear just how Cassano might have benefitted from prior notice. He claims that he would have filed a motion for a mistrial based on a Bruton violation, but as we address in the following section, a motion on those grounds would not have been viable. While the court‘s basis for admitting the text messages might have been equivocal, no error is manifest, so we have no basis for finding that the court abused its discretion by admitting the text messages.
III
{¶30} In Bruton v. United States, 391 U.S. 123, 135, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), the United States Supreme Court held that the confession of a codefendant who exercises his or her Fifth Amendment right not to testify is not admissible against the other defendant because that defendant has no opportunity to cross-examine the confessing codefendant. But the admission of nonhearsay is not a Bruton violation. United States v. Inadi, 475 U.S. 387, 398, 106 S.Ct. 1121, 1128, 89 L.Ed.2d 390, fn. 11 (1986) (stating that nonhearsay does not violate the defendant‘s right to confront witnesses); White v. Lewis, 874 F.2d 599, 603 (9th Cir.1989) (“Because this testimony was not used for the truth of the matter asserted by the out-of-court declarant, it was not hearsay, and Bruton is inapposite.“) If, as Cassano concedes, the text messages sent by Glenn constituted admissions by him, they were nonhearsay and Bruton does not apply.
{¶31} Even if Glenn‘s text messages were not considered nonhearsay, Cassano would have no confrontation argument because the Bruton rule applies to trials by juries. Cassano waived the right to a trial by jury and elected to be tried by the court. In Lee v. Illinois, 476 U.S. 530, 542, 106 S.Ct. 2056, 90 L.Ed.2d 514 (1986), the court noted that the admission of a non-testifying codefendant‘s confession in a joint bench trial was “not
IV
{¶32} Finally, Cassano complains that the court erred by sentencing him to three consecutive three-year terms on firearm specifications. The three firearm specifications related to the felonious assault аnd aggravated robbery counts against Elsleger and a single count of felonious assault against the brother. Cassano argues that the firearm specifications should have merged because he claims they all derived from “a continuous sequence of events, connected in time and space.”
{¶33} Ordinarily, the court is forbidden from imposing sentence on multiple firearm specifications for “felonies committed as part of the same act or transaction.” See former
If an offender is convicted of or pleads guilty to two or more felonies, if one or more of those felonies are aggravated murder, murder, attempted aggravated murder, attempted murder, aggravated robbery, felonious assault, or rape, and if the offender is convicted of or pleads guilty to a specification of the type described under division (B)(1)(a) of this section in connection with two or more 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).
{¶35} Judgment affirmed.
It is ordered that appellee recover of appellant its 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 Cuyahoga County Court of Common Pleas 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.
MELODY J. STEWART, PRESIDING JUDGE
MARY J. BOYLE, J., and
KENNETH A. ROCCO, J., CONCUR