State v. CassidyState v. Cassidy
Michael J. Short for Appellant
Jana E. Emerick for Appellee
{¶1} Defendant-appellant, Robert K. Cassidy ( Cassidy ), appeals the January 25, 2017 judgment entry of sentence of the Allen County Court of Common Pleas. For the reasons that follow, we affirm.
{¶2} This case stems from an incident that took place in Lima, Ohio on April 6, 2016. Ryan Plaugher ( Plaugher ) arrived at a carry-out grocery store to purchase baby formula in accordance with an agreement reached via the social networking site Facebook. After approaching a vehicle in the store‘s parking lot and determining that its occupants had the items he agreed to purchase, Plaugher gave Cassidy, the vehicle‘s driver, $30.00. Cassidy then produced a firearm and pointed it at Plaugher. Plaugher backed away from the vehicle before Cassidy quickly fled the scene in his vehicle.
{¶3} On June 16, 2016, the Allen County Grand Jury indicted Cassidy on Count One of aggravated robbery in violation of
{¶4} Cassidy appeared for arraignment on June 27, 2016, and pled not guilty to the counts and specifications in the indictment. (Doc. No. 13).
{¶5} A jury trial took place from November 28 to December 1, 2016. (Doc. Nos. 130, 131, 132). The jury found Cassidy guilty of Counts One and Two as well as the firearm specification included in Counts One and Two. (Nov. 28, 2016 Tr. at 714-716). The trial court held a hearing on sentencing and on the RVO specification on January 19, 2017 at which it found Cassidy guilty as to the RVO specification included in Count One. (Jan. 19, 2017 Tr. at 47). The trial court sentenced Cassidy to eleven years in prison as to Count One and one year in prison as to Count Two. (Id. at 78-79). The trial court further sentenced Cassidy to two years in prison as to the RVO specification and three years in prison as to each of the two firearm specifications. (Id.). The trial court ordered that all sentences be served consecutively for a total of 20 years of incarceration. (Id.). The trial court filed its judgment entry of sentence on January 25, 2017. (Doc. No. 110).
{¶6} Cassidy filed his notice of appeal on January 26, 2017. (Doc. No. 114). He brings three assignments of error for our review.
The Convictions Are Not Supported By The Weight Of The Evidence.
{¶7} In his first assignment of error, Cassidy argues that his convictions for aggravated robbery and for having a weapon while under disability are against the manifest weight of the evidence. Specifically, Cassidy argues that the trier of fact lost its way in convicting him of those offenses because there is inconsistent testimony as to whether Cassidy possessed a firearm during the incident. Cassidy further argues that his conviction is against the manifest weight of the evidence because there is no physical evidence linking him to the firearm.
{¶8} In determining whether a conviction is against the manifest weight of the evidence, a reviewing court must examine 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. Thompkins, 78 Ohio St.3d 380, 387 (1997), quoting State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist.1983). A reviewing court must, however, allow the trier of fact appropriate discretion on matters relating to the weight of the evidence and the credibility of the witnesses. State v. DeHass, 10 Ohio St.2d 230, 231 (1967). When applying the manifest-weight standard, [o]nly in exceptional cases, where the evidence weighs
{¶9} The criminal offense of aggravated robbery is codified in
No person, in attempting or committing a theft offense, as defined in section 2913.01 of the Revised Code, or in fleeing immediately after the attempt or offense, shall * * * [h]ave a deadly weapon on or about the offender‘s person or under the offender‘s control and either display the weapon, brandish it, indicate that the offender possesses it, or use it[.]
{¶10} The criminal offense of having weapons while under disability is codified in
{¶11} At trial, the State called Patrolman Kaitlyn Weidman ( Patrolman Weidman ) of the Lima City Police Department, who testified that Plaugher
{¶12} On cross-examination, Patrolman Weidman testified that Plaugher informed her that Cassidy had a firearm in his lap during the robbery. (Id. at 259). Specifically, she testified that Plaugher told her that Cassidy carried a gun with a black handle during the robbery. (Id. at 266).
{¶13} The State next called Plaugher, who testified that Cassidy had a firearm during the robbery and that Cassidy pointed that firearm at him. (Id. at 274, 279-281). Plaugher identified State‘s Exhibit 13 as the firearm that Cassidy pointed at him during the robbery. (Id. at 299).
{¶14} On cross-examination, Plaugher testified that Cassidy pointed a firearm at him during the robbery before fleeing the scene. (Id. at 314-315). Plaugher further testified that he initially told police that he saw only the handle of the firearm and that such is inconsistent with his testimony at trial. (Id. at 322-323).
{¶15} On re-direct examination, Plaugher testified that the assertion that the firearm was initially in Cassidy‘s lap is accurate, as is the assertion that Cassidy later pointed the gun at Plaugher. (Id. at 337).
{¶16} Rachel Wierwille ( Wierwille ) was then called as the trial court‘s witness. (Id. at 350). Wierwille, Cassidy‘s girlfriend and his passenger on the day of the robbery, testified that Cassidy did not have a firearm in the vehicle on the day
{¶17} The State next called Detective Steven Stechschulte Jr. ( Detective Stechschulte ), who testified that Wierwille initially told him Cassidy had a firearm on his lap during the robbery. (Id. at 429, 451-452).
{¶18} The defense rested without calling any witnesses. (Id. at 563).
{¶19} In regard to Cassidy‘s argument as to the consistency and credibility of Plaugher‘s and Wierwille‘s testimony, we note that, in assessing the manifest weight of the evidence, [i]t is well established that the * * * credibility of the witnesses [is] primarily a matter for the trier of fact. State v. Clark, 101 Ohio App.3d 389, 409 (8th Dist.1995). A reversal on manifest weight grounds is not required when inconsistencies exist in the testimony of different witnesses. State v. Wareham, 3d Dist. Crawford No. 3-12-11, 2013-Ohio-3191, ¶ 24, citing State v. Humberto, 196 Ohio App.3d 230, 2011-Ohio-3080, ¶ 11 (10th Dist.) ( The jury may take note of any inconsistencies and resolve them accordingly, believing all, part, or none of a witness‘s testimony. ). Jurors are free to credit testimony offered by the State‘s witnesses. See State v. Bates, 12th Dist. Butler No. CA2009-06-174, 2010-Ohio-1723, ¶ 11, quoting State v. Bromagen, 12th Dist. Clermont No. CA2005-09-087, 2006-Ohio-4429, ¶ 38 ( It is well-established that [w]hen conflicting evidence is presented at trial, a conviction is not against
{¶20} Weighing the evidence above, we conclude that Cassidy‘s convictions for aggravated robbery and possessing a weapon while under disability are not against the manifest weight of the evidence. The jury did not lose its way in finding that Cassidy possessed a firearm. A conviction is not against the manifest weight of the evidence when inconsistencies exist in the testimony of different witnesses. Wareham at ¶ 24, citing Humberto at ¶ 11. The jury is free to credit Plaugher‘s testimony. See Bates ¶ 11, quoting Bromagen at ¶ 38. The jury heard ample evidence from which it could conclude that Cassidy possessed a firearm. Plaugher informed Patrolman Weidman that Cassidy possessed a firearm. Plaugher testified multiple times at trial that Cassidy possessed a firearm and pointed it at him during the robbery. Nor are Cassidy‘s convictions against the manifest weight of the evidence because the absence of physical evidence such as fingerprints or DNA
Assignment of Error No. II
The Trial Court Erred In Failing To Swear In Prospective Jurors Prior To The Court‘s Examination Of These Jurors.
{¶21} In his second assignment of error, Cassidy argues that the trial court erred in failing to swear in prospective jurors prior to its examination of those jurors at the beginning of voir dire.
{¶22}
{¶23} It is a general rule that an appellate court will not consider any error which counsel for a party complaining of the trial court‘s judgment could have called but did not call to the trial court‘s attention at a time when such error could have been avoided or corrected by the trial court. State v. Zehner, 3d Dist. Crawford No. 3-02-30, 2003-Ohio-936, ¶ 22, citing State v. Childs, 14 Ohio St.2d 56, 61 (1968), citing State v. Glaros, 170 Ohio St. 471 (1960), paragraph one of the
{¶24} In the present case, Cassidy did not call the trial court‘s failure to comply with
{¶25} For the foregoing reasons, Cassidy‘s second assignment of error is overruled.
Assignment of Error No. III
The Defendant Was Denied A Fair Trial As A Result Of Juror Misconduct.
{¶26} In his third assignment of error, Cassidy claims that he was denied a fair trial as a result of juror misconduct. Specifically, Cassidy argues that he was denied a fair trial because a juror allegedly slept through a portion of the proceedings.
{¶27} It is well-settled that the trial court is in the best position to discern the nature of alleged juror misconduct and to fashion the proper remedy for any demonstrated misconduct. State v. McKnight, 107 Ohio St.3d 101, 2005-Ohio-6046, ¶ 184. Further, the trial court has considerable discretion in deciding how to handle a sleeping juror. Id., quoting State v. Sanders, 92 Ohio St.3d 245, 253 (2001). We will not disturb a trial court‘s handling of a sleeping juror absent an abuse of that discretion. See State v. Suarez, 11th Dist. Geauga No. 2013-G-3167, 2014-Ohio-1350, ¶ 31. Where a defendant requests no remedy at trial and expresses no dissatisfaction with the trial court‘s handling of an allegedly sleeping juror, such issues are waived on appeal absent plain error. McKnight at ¶ 185, citing State v. Childs, 14 Ohio St.2d 56 (1968). No plain error occurs when whether a juror was, in fact, sleeping is entirely speculative. Id. at ¶ 186.
{¶29} In the present case, Cassidy‘s brief asserts that the allegedly sleeping juror slept during the direct and cross [examination] of the State‘s first witness or during the direct examination of the State‘s second witness. (Appellant‘s Brief at 7). Cassidy further argues that such misconduct is especially concerning if it occurred during Plaugher‘s direct testimony because Plaugher provided the sole eyewitness testimony about the presence of a firearm. (Id.). Cassidy invites this court to speculate that alleged juror misconduct rendered a juror unable to perceive large or critical portions of witness testimony. However, he cites nothing in the record indicating that such is the case. The only reference in the record to a sleeping juror is the trial court‘s statement that it received a report that there may be some
{¶30} For the reasons explained above, Cassidy‘s third assignment of error is overruled.
{¶31} Having found no error prejudicial to the appellant herein in the particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
WILLAMOWSKI and ZIMMERMAN, J.J., concur.
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