State v. ChearsState v. Chears
Paul A. Dobson, Wood County Prosecuting Attorney, and David T. Harold, Assistant Prosecuting Attorney, for appellee/cross-appellant.
Jeffrey P. Nunnari, for appellant/cross-appellee.
*****
OSOWIK, J.
{1} This is a consolidated appeal from a judgment of the Wood County Court of Common Pleas, which convicted appellant/cross-appellee, Felicia A. Chears, for the
I. Background
{2} On September 17, 2020, a Wood County Grand Jury indicted Chears with one count of aggravated robbery, a violation of
{3} The indictments against Chears included firearms specifications that “on or about the offender‘s person or under the offender‘s control while committing the offense” pursuant to
{4} The grand jury also indicted Chears with one count of petty theft, a violation of
{5} Chears pled not guilty and waived a jury trial. The bench trial was held on February 10, 2021. As journalized on April 12,1 the trial court found Chears guilty of both counts and both specifications and sentenced her to prison as follows: three years for count 1, aggravated robbery, plus one year for the first firearm specification and then 180 days for count 2, petty theft. The trial court further stated:
The Court determined that it was appropriate to impose the one (1) year mandatory sentence under the
R.C. 2941.141(A) firearm specification pursuant toR.C. 2929.14(B)(1)(a)(iii) . The Court did not impose the three (3) year mandatory sentence underR.C. 2941.145(A) firearm specification because it imposed the one-year mandatory term. Pursuant toR.C. 2941.145(B) the imposition of the three (3) year sentence underR.C. 2929.14(B)(1)(a)(ii) is precluded if the one-year mandatory sentence is imposed pursuant toR.C. 2929.14(B)(1)(a)(iii) .
{6} Chears appeals, assigned case No. WD-21-026, and sets forth one assignment of error: The trial court‘s general finding of guilty is against the manifest weight of the evidence.
{8} On May 14, 2021 this court ordered the consolidation of case No. WD-21-028 under case No. WD-21-026.
II. Manifest Weight of the Evidence
{9} In support of her assignment of error, Chears argues her convictions should be reversed because the prosecution failed to prove beyond a reasonable doubt the criminal intent necessary to commit aggravated robbery and petty theft: “It cannot be said, beyond a reasonable doubt, that Chears was an active participant in the robbery given the victim‘s own doubts about her intentions.” Chears argues the victim “is equivocal in his testimony about Chears’ perceived intentions at the point she issued her admonishment to him about the gun. If the victim of the offense himself is not convinced of Chears’ intentions, how could the trial court be convinced – beyond a reasonable doubt?” (Emphasis sic.) Chears further argues that where the victim‘s testimony is the only evidence of her criminal intentions, and the victim was uncertain of those intentions, such “doubt by the victim surely falls within the realm of reasonable doubt. The trial court erred by overlooking this doubt and substituting its judgment for that of the victim.”
{11} In determining whether a verdict is against the manifest weight of the evidence, we review the entire record, weigh the evidence and all reasonable inferences, consider the credibility of the witnesses, and determine whether the trier of fact clearly lost its way to create such a manifest miscarriage of justice as to require a new trial. State v. Connin, 6th Dist. Fulton No. F-21-001, 2021-Ohio-4445, ¶ 23. A conviction will be overturned only in exceptional cases. Id. The unanimous concurrence of all three judges of a court of appeals panel is required to overturn a judgment that results from a trial. Id.
{13} Chears acted with an accomplice, and the prosecution chose the option of charging Chears in terms of the principal offenses pursuant to
{14} The mens rea, or criminal intent, necessary for aggravated robbery is found in the specific, underlying theft offense. State v. Wesson, 137 Ohio St.3d 309, 2013-Ohio-4575, 999 N.E.2d 557, ¶ 29. “Petty theft” is a “theft offense.”
{16} The victim testified at trial that Chears drove the getaway car to and from the rendezvous for the television sale transaction. After Chears and her accomplice had possession of the television and before paying for it, the accomplice pointed a gun at the victim while everyone was standing around. From behind, the victim heard Chears announce in a “threatening” and “aggressive” manner that her accomplice had a gun, which was cocked and pointing at the victim, and the victim should “go.” According to the victim, Chears appeared neither nervous nor surprised when she saw her accomplice brandish the gun. The victim testified that because Chears never attempted to hand over the cash, and with the pointing of the gun during the delayed cash-counting and Chears’ lack of nervousness, the victim believed Chears “knew about the gun.” The victim was
{17} The investigating police officer also testified at trial. The officer described the investigation process that identified and connected Chears directly to the crimes, including the ownership of the getaway car and the recovery of the stolen television and a gun from her residence. Despite Chears’ claims, the victim‘s testimony was corroborated by many sources obtained by the police officer, including the Kroger parking lot surveillance videos, two telephone calls by the officer to Chears, additional telephone records, license plate records, GPS mapping, social media posts, and physical evidence obtained from search warrants. Chears’ cross-examination of the police officer at trial argued she was as surprised and scared as the victim when her accomplice brandished a gun at the victim during the transaction. From the officer‘s law enforcement experience and her investigation of Chears, “I don‘t get that impression from her.” The officer also testified that Chears “was clearly the driver in this situation * * * she drove to the situation. Her co-defendant got out, used the gun, robbed [the victim], took the TV, and she let the co-defendant back in the car and took off.”
{18} On appeal Chears only disputes the mens rea element, acting knowingly of the theft offense. “Knowingly” is defined by
{19} We reviewed the record and find some competent and credible evidence going to all the essential elements of the offenses of which the trial court judge convicted Chears. Despite Chears’ assertions to the contrary, we do not find the jury clearly lost its way to create such a manifest miscarriage of justice as to require a new trial.
{20} Appellant/cross-appellee‘s assignment of error is not well-taken.
III. Sentencing
{21} In support of appellee/cross-appellant‘s assignment of error, the prosecution argues the trial court committed reversible error by failing to sentence Chears to the mandatory three-year sentence enhancement pursuant to
{22} The Eighth District Court of Appeals announced in Shepherd, “There was no discretion, and the state was not even in a position to elect which specification to proceed with sentencing on. The mandatory three-year sentence necessarily subsumes the mandatory one-year sentence.” Id. at ¶ 6. In that case, the offender was convicted of two counts of felonious assault and both contained one-year and three-year firearm specifications. Id. at ¶ 2. At sentencing the trial court merged the counts, merged the one-year firearm specification into the three-year firearm specification and, in addition to the sentence for the underlying felony, sentenced the offender to the mandatory three years for the firearm specification. Id. The offender appealed the sentence and argued the state was required to elect the specification on which the trial court should impose the sentence because “the trial court was not authorized to unilaterally choose.” Id. at ¶ 5. The court of appeals disagreed with that argument and simply pronounced, “Shepherd was found guilty of felonious assault with firearm specifications that carry both one- and three-year mandatory prison sentences. Accordingly, the trial court was required pursuant to
{24} Because the prosecution essentially argues the trial court‘s sentence is contrary to law, we find this cross-appeal was filed pursuant to
{25} We begin with the pronouncement that all criminal offenses and penalties for those offense are statutory in Ohio. State v. Ford, 128 Ohio St.3d 398, 2011-Ohio-765, 945 N.E.2d 498, ¶ 10. “We construe a statute to determine the legislative intent, looking to the language used and the purpose to be accomplished.” Amalgamated Transit Union, AFL-CIO, Local 697 v. Toledo Area Regional Transit Auth., 2020-Ohio-6655, 164 N.E.3d 569, ¶ 13 (6th Dist.). Unambiguous and definite statutory language must be applied as written. Id. We will avoid interpreting statutory provisions in a manner to render its language unnecessary or meaningless or inoperative. New Riegel Local School Dist. Bd. of Education v. Buehrer Group Architecture & Eng., Inc., 157 Ohio St.3d 164, 2019-Ohio-2851, 133 N.E.3d 482, ¶ 29, citing State v. Moore, 154 Ohio St.3d 94, 2018-Ohio-3237, 111 N.E.3d 1146, ¶ 13. We presume that the General Assembly enacted a statute intending a just and reasonable result. State v. White, 142 Ohio St.3d 277, 2015-Ohio-492, 29 N.E.3d 939, ¶ 29, citing
{27} We first review the sentence enhancement statute for the one-year firearm specification.
{29} The Ohio Supreme Court explains these firearm specifications:
Ohio law allows for the additional punishment of an offender when a firearm is involved in the offense.
R.C. 2929.14(B) . This is accomplished through a “specification,” which must be set forth in the indictment for the underlying felony. See, e.g.,R.C. 2941.141 . For example, an offender who had a firearm on his person or under his control while committing the offense is subject to a one-year prison term for the specification. Id.;R.C. 2929.14(B)(1)(a)(iii) . An offender who displays, brandishes, or uses the firearm to facilitate the underlying offense is subject to an additional three-year prison term.R.C. 2941.145 ;R.C. 2929.14(B)(1)(a)(ii) . A sentence fora specification must be served consecutively to and prior to any sentence for the underlying felony offense. R.C. 2929.14(C)(1)(a) . The prison term for the firearm specification is mandatory.R.C. 2929.14(B)(1)(a) .
Moore, 154 Ohio St.3d 94, 2018-Ohio-3237, 111 N.E.3d 1146, at ¶ 8-9.
{30} Neither party disputes that Chears was convicted of a single felony, aggravated robbery, to which both firearm specifications attached. As a result, the sentencing provisions under
{31} Here, the trial court‘s sentencing judgment entry stated it imposed the one-year sentence enhancement under
{32} There is no statutory language under either
{33} We find the statutory language of
{34} A review of
{35} This court recognizes a trial court commits no error when imposing a firearm specification sentence enhancement where there is evidence of the appropriate statutory notice in the indictment against the offender. State v. Allen, 6th Dist. Lucas No. L-14-1078, 2016-Ohio-2742, ¶ 31-32. We previously determined the indictment satisfied both firearm specifications.
{36} Our determination is not altered by a review of
Except as provided in [
R.C. 2929.14(B)(1)(e) ], if an offender who is convicted of * * * a felony also is convicted of * * * a specification of the type described in section2941.141 ,2941.144 , or2941.145 of the Revised Code, the court shall impose on the offender one of the following prison terms: * * * (iii) A prison term of one year if the specification is of the type described in [R.C. 2941.141(A) ] that charges the offender with having a firearm on or about the offender‘s person or under the offender‘s control while committing the offense.
We find the statutory language of
Except as provided in [
R.C. 2929.14(B)(1)(e) ], if an offender who is convicted of * * * a felony also is convicted of * * * a specification of the type described in section2941.141 ,2941.144 , or2941.145 of the Revised Code, the court shall impose on the offender one of the following prison terms: * * * (ii) A prison term of three years if the specification is of the type described in [R.C. 2941.145(A) ] that charges the offender with having a firearm on or about the offender‘s person or under the offender‘s control while committing the offense and displaying the firearm, brandishing the firearm, indicating that the offender possessed the firearm, or using it to facilitate the offense.
We agree and find the statutory language of
{38} Our findings are entirely consistent with each other and do not compel the outcome the prosecution seeks. Although the trial court was statutorily mandated to impose both a one-year and a three-year sentence enhancement, those concurrent mandates were anticipated by both
{39} We reviewed the entire record and do not find any trial court error when the trial court imposed a one-year sentence enhancement pursuant to
{40} Appellee/cross-appellant‘s assignment of error is not well-taken.
IV. Conclusion
{41} On consideration whereof, we find that substantial justice has been done in this matter. The judgment of the Wood County Court of Common Pleas is affirmed. Appellant/cross-appellee and appellee/cross-appellant are ordered to equally pay the costs of this appeal pursuant to
Judgment affirmed.
Thomas J. Osowik, J.
JUDGE
Christine E. Mayle, J.
JUDGE
Gene A. Zmuda, J.
CONCUR.
JUDGE
This decision is subject to further editing by the Supreme Court of Ohio‘s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court‘s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.