State v. ConnerState v. Conner
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Julia R. Bates, Lucas County Prosecuting Attorney, and Michael D. Bahner, Assistant Prosecuting Attorney, for appellee.
Deborah Kovac Rump, for appellant.
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OSOWIK, P.J.
{¶ 1} This is an appeal from a judgment of the Lucas County Court of Common Pleas that found appellant guilty of one count of felonious assault, one count of complicity to robbery and one count of kidnapping. For the following reasons, the judgment of the trial court is affirmed.
{¶ 2} On the night of December 3, 2008, Michael Dantzler was picked up by some men he knew and taken to the Toledo apartment of a “friend” where he was
{¶ 3} On January 13, 2009, appellant was indicted on six felony counts in connection with the assault on Dantzler: one count of felonious assault in violation of
{¶ 4} Trial before a jury commenced on May 6, 2009. On May 8, 2009, at the close of the state‘s evidence, appellant moved for acquittal as to the charge of aggravated robbery. The motion was granted and the aggravated robbery charge was dismissed.
{¶ 5} On May 9, 2009, the jury returned its verdicts. Appellant was found not guilty of one felonious assault charge in violation of
{¶ 6} Appellant now sets forth the following assignments of error:
{¶ 8} “Assignment of Error II: Conner‘s 15-year sentence was disproportionate to similarly situated defendants. As such, his rights to Equal Protection and Due Process of law were violated.
{¶ 9} “Assignment of Error III: Conner‘s sentence was improper because the convictions were allied offenses of similar import.
{¶ 10} “Assignment of Error IV: Conner‘s sentence was imposed in violation of State v. Foster because the trial court made numerous findings of fact.
{¶ 11} “Assignment of Error V: The trial court abused its discretion by imposing such a lengthy sentence.
{¶ 12} “Assignment of Error VI: Conner‘s due process and statutory rights to a speedy trial were violated.
{¶ 13} “Assignment of Error VII: Conner‘s right to due process was violated because the jury instruction for complicity, for which Conner was not indicted, was vague and was not done for each individual count.
{¶ 14} “Assignment of Error VIII: The prosecutor engaged in a pattern of misconduct that precluded Conner from receiving a fair trial.
{¶ 15} “Assignment of Error IX: The convictions are against the manifest weight of the evidence.
{¶ 17} “Assignment of Error XI: White should not have been permitted to testify as the state failed to identify him as a witness in a timely manner and failed to timely produce a recorded statement he gave in violation of Rule 16.”
{¶ 18} Appellant‘s assignments of error are reviewed out of order; appellant‘s second through fifth assignments will be addressed together at the end of this decision as all raise issues related to appellant‘s sentence.
{¶ 19} As his first assignment of error, appellant sets forth two arguments in support of his claim that the trial court erred by denying his requests for a mistrial.
{¶ 20} Generally, the granting or denying of a mistrial rests within the sound discretion of the trial court. State v. West, 6th Dist. No. WD-07-002, 2008-Ohio-368, ¶ 28, citing State v. Sage (1987), 31 Ohio St.3d 173. An appellate court will not disturb this exercise of discretion absent a showing that the accused has suffered material prejudice. Id. Further, granting a mistrial is only necessary where a fair trial is no longer possible. Id., citing State v. Franklin (1991), 62 Ohio St.3d 118.
{¶ 21} First, appellant argues that the trial court should have declared a mistrial after the state disclosed that appellant was in custody during trial. Appellant had been unable to make bail after his arrest and was dressed in street clothes during his trial so that the jury would not speculate as to why he was in custody.
{¶ 23} Defense counsel moved for a mistrial, arguing that appellant was prejudiced by the jury learning that he was incarcerated because the jury might then assume he was being held on other matters in addition to the instant charges. Counsel argued that no instruction to the jury would be adequate to cure the damage done by Dantzler‘s statement. The prosecutor responded that the question was asked because he intended to elicit testimony from the witness that the witness and the defendant had a conversation in jail relative to a potential payoff if the victim did not testify.
{¶ 24} After a lengthy discussion of the matter, court was recessed for the day. The matter was debated further in chambers the following day before trial resumed. The trial court ultimately denied the motion for a mistrial, commenting that while the question was “probably inartfully drawn,” it was made with the intent to “get into matters that would have been admissible and relevant.” The trial court asked defense counsel if he wanted a curative instruction, noting that sometimes “less is better.” Counsel agreed to “just move on.”
{¶ 25} Having thoroughly reviewed the entire transcript of appellant‘s trial, we find that appellant has not shown that he suffered material prejudice as a result of
{¶ 26} As his second argument in support of this assignment of error, appellant asserts that the trial court should have granted a mistrial because the state improperly shifted the burden of proof during closing argument. At issue is the following statement by the prosecutor: “There is no dispute that this happened to [the victim]. None. You haven‘t heard anything from the defense denying. It is not contradicted that it happened.” Defense counsel then asked to approach the bench and stated that the prosecutor was “getting pretty close to shifting the burden to the defendant” and moved for a mistrial. The prosecutor then stated that he was simply stating that the defense had not argued that the assault had not been made on Dantzler. The court reminded the prosecutor to make sure the jury understands that the burden is with the state.
{¶ 27} After the discussion at the bench, the prosecutor continued as follows: “Like we talked about in voir dire, you understand the defendant has no burden in this case. He has no burden of proof. He doesn‘t have to prove a single thing. It‘s on the State to prove that. It‘s undisputed that this happened to him.”
{¶ 28} Generally, prosecutors are entitled to considerable latitude in opening statement and closing arguments. State v. Gravelle, 6th Dist. No. H-07-10, 2009-Ohio-1533, ¶ 20, citing State v. Ballew (1996), 76 Ohio St.3d 244, 255. Since isolated instances of prosecutorial misconduct are generally harmless, any alleged misconduct in the closing argument must be viewed within the context of the entire trial to determine if any prejudice has occurred. See Ballew, supra; State v. Lorraine (1993), 66 Ohio St.3d 414, 420. To determine if the alleged misconduct resulted in prejudice, an appellate court should consider the following factors: (1) the nature of the remarks, (2) whether an objection was made by counsel, (3) whether corrective instructions were given by the court, and (4) the strength of the evidence against the defendant. State v. Braxton (1995), 102 Ohio App.3d 28, 41.
{¶ 29} This court has thoroughly reviewed the record of proceedings in the trial court and, upon consideration of the prosecutor‘s remarks in the context of the entire record, we find that the statements did not amount to prosecutorial misconduct sufficient to warrant the granting of a motion for a mistrial. It is clear from the transcript as set forth above that the prosecutor complied with the trial court‘s admonition and emphasized to the jury that the burden of proof was on the state, not the defendant. We therefore find that this argument has no merit.
{¶ 30} Accordingly, we find that the trial court‘s decisions to deny appellant‘s two motions for a mistrial were not unreasonable, arbitrary or unconscionable. Appellant‘s first assignment of error is not well-taken.
{¶ 31} In his sixth assignment of error, appellant asserts that he was not brought to trial within the time parameter set forth in
{¶ 32} Under Ohio law, a person who has been charged with a felony must ordinarily be brought to trial within 270 days of his or her arrest.
{¶ 33} Pursuant to
{¶ 34} In the case before us, appellant was served with a warrant on January 14, 2009. He was in custody at that time for other charges, the details of which are not in the record of this case. Because he was in custody, the state was required to bring him to trial within 90 days, barring any events to toll the running of time pursuant to
{¶ 35} We note that the Rules of Superintendence for the Courts of Ohio provide that a motion shall be ruled upon within 120 days from the date the motion is filed.
{¶ 36} In his seventh assignment of error, appellant asserts that he was prejudiced because the jury instruction for complicity, for which appellant was not indicted, was vague and was not given for each count in the indictment.
{¶ 37} Because appellant did not object to the jury instruction, our review of the alleged error is discretionary and limited to plain error only.
{¶ 38} Appellant argues that the trial court‘s instruction on complicity was “at best, an abbreviated version” and was faulty because the trial court did not give the proper definition of “aided or abetted.” Appellant also asserts that the trial court omitted words from its definition of “aided or abetted,” but does not specify the words that should have been included.
{¶ 39} The trial court gave the following instructions relevant to this assignment of error:
{¶ 40} “Complicity. You, the jury, may also consider the legal concept of complicity with respect to each count in the indictment. Complicity means no person, acting with the kind of culpability required for the commission of the offense, shall aid or abet another in committing the offense.
{¶ 41} “* * *
{¶ 42} “Aided or abetted. Aided or abetted means supported, cooperated with, advised, or incited. The mere presence of the defendant, Brandon Conner, at the scene of the felonious assaults, and/or the robbery, and/or the kidnapping, and the fact that he was acquainted with the co-defendants, is insufficient proof that he aided and abetted the co-
{¶ 43} “* * *
{¶ 44} “The defendant cannot be found guilty of the complicity unless any or both of the felonious assaults, and/or the robbery, and/or any or both of the kidnappings were actually committed.”
{¶ 45} The trial court‘s instruction as to complicity and the definition of “aided or abetted” were neither vague nor improperly worded. Appellant argues that the instruction “caused great confusion” for the jury; however, there is no evidence of that. The instruction as set forth above was clear and sufficient. This argument is without merit. Further, a charge of complicity may be stated in terms of the principle offense.
{¶ 46} In his eighth assignment of error, appellant asserts that the prosecutor engaged in a pattern of misconduct that deprived appellant of a fair trial. In support, appellant argues that the prosecutor improperly stated in closing that Dantzler was “left for dead” and referred to appellant as a “vigilante;” vouched for numerous witnesses; falsely stated that appellant “conceded” Dantzler suffered “serious physical harm,” and improperly attempted to remedy what appellant refers to as Dantzler‘s inaccurate testimony about nearly drowning in the ditch by telling the jury the testimony was understandable “considering what he had gone through.”
{¶ 48} Having reviewed the state‘s closing argument in the context of all of the evidence presented at trial, we find this argument to be without merit. The prosecutor did not refer to appellant as a “vigilante.” Rather, he described the manner in which the victim was assaulted, kidnapped and left in a ditch, possibly in retaliation for having stolen one of the co-defendant‘s guns, as “vigilantism.” Additionally, the expression “left for dead” as used by the prosecutor could arguably apply in this situation, in light of evidence that showed appellant was beaten, stripped nearly naked, and left in a water-filled ditch in a rural area with his hands tied behind his back in the middle of a December night when the temperature was in the teens. As to the prosecutor “vouching” for his witnesses, appellant mischaracterizes the statement. The prosecutor suggested that rather than fabricate a story, the witnesses testified as to what they saw without embellishment. Finally, appellant asserts he was prejudiced by the prosecutor‘s comment that the defense conceded Dantzler had suffered “serious physical harm.” The record
{¶ 49} Upon consideration of the foregoing, this court finds that appellant has not demonstrated that the outcome of his trial would have been different but for the prosecutor‘s statements as discussed above. Accordingly, appellant‘s eighth assignment of error is not well-taken.
{¶ 50} In his ninth assignment of error, appellant asserts that his convictions are against the manifest weight of the evidence. In his tenth assignment of error, he asserts that his conviction for complicity to commit robbery was not supported by sufficient evidence.
{¶ 51} A manifest weight challenge questions whether the state has met its burden of persuasion. State v. Thompkins, 78 Ohio St.3d 380, 387. In making this determination, the court of appeals sits as a “thirteenth juror” and, after “reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.” Thompkins supra, at 386, citing State v. Martin (1983), 20 Ohio App.3d 172, 175.
{¶ 53} In support of his ninth assignment of error, appellant asserts that there was a lack of credible evidence that he is guilty of the charges against him. Appellant challenges the credibility of the state‘s witnesses, asserting that “everyone who testified was extremely impaired” and that the testimony was “almost nonsensical.” Appellant further argues that the witnesses “would say anything to get a great deal” from the state.
{¶ 54} Michael Dantzler testified that at approximately 12:30 a.m. on December 4, 2008, he was at a friend‘s apartment in Holland, Ohio, smoking marijuana when he saw several people he knew drive up. A few minutes later, Dantzler voluntarily left with them to go to the apartment of Brandy Johnson in Toledo. Appellant and several other individuals were at Johnson‘s apartment when Dantzler arrived. After Dantzler sat down
{¶ 55} After a while, someone wrapped Dantzler in a blanket and put him, still tied up, in the back of a truck owned by Andreas Ladd, who was someone else Dantzler knew. Dantzler‘s eyes were almost swollen shut but he was able to see appellant sitting in the back of the truck with him. Eventually, the truck stopped; appellant opened the door and Dantzler fell out onto the road. Someone cut Dantzler‘s feet loose and threw him in a ditch with his hands still tied behind his back. Dantzler was able to work his way to the side of the ditch and walk up the embankment. He then saw some house lights in the distance. He walked toward the light and approached a house. Dantzler kicked the door until someone answered and said he had called the police. When the police arrived, they cut his hands free, wrapped him in a blanket and put him in a cruiser to get warm. Eventually, appellant was taken to the hospital and treated for his injuries.
{¶ 56} The state presented the testimony of two Perrysburg Township police officers who responded to the scene. Officer Scott Mezinger testified that he and his
{¶ 57} Toledo Police Detective Bill Seymour testified as to his investigation of Brandy Johnson‘s apartment. Seymour reported seeing a chair in the kitchen with duct tape on the legs and two rolls of duct tape in a closet on the main floor. Detective Jerry Schriefer testified that he found what he thought might be two small samples of blood in the back of a Suburban that belonged to Andreas Ladd, one of the co-defendants. The detective collected the carpet with the blood stains and submitted it for testing, which showed that the sample was presumptive positive for blood. Toledo Police Detective Raynard Cooper testified that he spoke to Dantzler in the hospital and took the names of the individuals Dantzler said were involved. Cooper eventually talked to Brandy Johnson, Latasha Stewart and Andreas Ladd. Based on the information they gave him, he issued warrants for appellant, Keith White and Roosevelt Kelly.
{¶ 59} Latasha Stewart testified that she went to Johnson‘s apartment on the night of December 3, 2008, with Ladd. She went in the apartment to use the bathroom and saw White, Johnson, Kelly and appellant; she did not see Dantzler. Eventually, she returned to Ladd‘s truck with Ladd, Kelly, White and appellant. The men told Stewart to drive
{¶ 60} Keith White testified that he met Dantzler in the fall of 2008. On December 3, 2008, White was at Johnson‘s apartment with appellant, Kelly and some others when Kelly asked White to drive to Holland to get Dantzler. Kelly wanted to find out if Dantzler had taken his gun and White was the only person who knew where to find Dantzler. That evening, White, Kelly and appellant drove to Holland; Dantzler got in the car with them and they returned to Johnson‘s apartment. White left for a while later in the evening and returned to Johnson‘s shortly after midnight. When he walked into the apartment, it was “messed up.” He saw Kelly sitting on a chair in front of a closet holding a gun. When White looked in the closet, he saw Dantzler “hogtied.” Dantzler looked like “he was beat” and in pain, and asked White to help him. White left because
{¶ 61} Andreas Ladd, whose truck was used to take Dantzler to the site in Perrysburg Township where he was abandoned, testified that at approximately 3 a.m. on December 4, 2008, he and Stewart drove to Johnson‘s apartment to meet some friends. When Ladd walked into the apartment, White and Kelly said, “Look at your boy.” Ladd looked in a closet and saw Dantzler on the floor, in his underwear and hogtied with string and duct tape. Ladd testified that he and Dantzler were friends and that he tried unsuccessfully to talk the others into letting Dantzler go. Appellant and Kelly then wrapped Dantzler in a blanket and carried him out to the back of Ladd‘s truck. Appellant sat in the back with Dantzler and Kelly told Stewart where to drive. The truck eventually stopped and appellant cut the shoestrings from Dantzler‘s legs. Ladd then saw Kelly throw Dantzler in a ditch. Ladd testified that he was not given any promises regarding the charges against him in exchange for his testimony.
{¶ 63} Given the foregoing, after having considered all of the evidence in the record, we are unable to find that the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. Thompkins, supra, at 387. Accordingly, appellant‘s ninth assignment of error is not well-taken.
{¶ 64} In support of his tenth assignment of error, appellant argues that his conviction for complicity to commit robbery was legally insufficient because the state failed to establish an amount of loss or what items were stolen. Appellant asserts that an amount of loss is an essential element of the offense of robbery.
{¶ 65}
{¶ 66} “(A) No person, in attempting or committing a theft offense or in fleeing immediately after the attempt or offense, shall do any of the following:
{¶ 67} “* * *
{¶ 69}
{¶ 70} In the case before us, the victim testified that his clothes, wallet and cell phone were taken from him. The jury clearly believed that when Dantzler was abandoned in a ditch, tied up and wearing only his underwear after suffering physical harm, it was unlikely Dantzler would recover his clothing or other possessions and that, therefore, the testimony was sufficient to establish robbery.
{¶ 71} As to complicity, this court has held that complicit behavior may be inferred from the defendant‘s presence, companionship and conduct before and after the offense is committed. State v. Pino, 6th Dist. No. WD-07-020, 2008-Ohio-3578, ¶ 28; State v. Boyd, 6th Dist. No. OT-06-034, 2008-Ohio-1229. Again, the jury clearly believed testimony showed appellant was, at a minimum, present at the time the offense was committed.
{¶ 72} Based on the foregoing, we find that there was sufficient evidence for a rational trier of fact to find the elements of complicity to commit robbery proven beyond
{¶ 73} In his eleventh assignment of error, appellant asserts that the trial court should not have permitted witness Keith White to testify because the state failed to identify him as a witness in a timely manner and failed to produce the witness‘s recorded statement, in violation of
{¶ 74} A trial court‘s decision on whether to exclude a witness based on a lack of timely discovery will only be disturbed on appeal in the event of an abuse of discretion. State v. Finnerty (1989), 45 Ohio St.3d 104. An abuse of discretion connotes more than an error of law or judgment; it implies that the trial court‘s decision was unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217.
{¶ 75} When a prosecutor violates
{¶ 76} After reviewing the record and the guidelines set forth in Scudder, supra, we find that the trial court did not abuse its discretion in allowing White to testify. We note first that appellant has not shown that the prosecutor willfully violated the discovery
{¶ 77} Further, appellant has not shown how knowing about White‘s testimony sooner would have benefited him in the preparation of his case, or that he was unfairly prejudiced. Defense counsel objected to White‘s testimony, but then stated that he had been provided with a copy of White‘s recorded statement and had listened to it. Counsel also stated that there was nothing in the tape that caused undue surprise. At that time, the trial court noted that White‘s testimony would most likely be the same as that presented by several other co-defendants who had already testified, and allowed the testimony.
{¶ 78} Based on the foregoing, we find that the trial court did not abuse its discretion by allowing White‘s testimony and appellant‘s eleventh assignment of error is not well-taken.
{¶ 79} Lastly, we will consider appellant‘s second, third, fourth and fifth assignments of error, all of which raise issues related to sentencing. In his second assignment of error, appellant asserts that his 15-year sentence is disproportionate to that of co-defendant Roosevelt Kelly, who was sentenced to serve four years for his
{¶ 80} In support of his third assignment of error, appellant asserts that the offenses for which he was sentenced were allied offenses of similar import and that the convictions should therefore have been merged. In support, appellant argues that the incidents of kidnapping, felonious assault and complicity to robbery “occurred in one event.” First, appellant argues that the assault occurred simultaneously with the kidnapping. In making this argument, it appears that appellant believes that the only act of kidnapping occurred in Johnson‘s kitchen when Dantzler initially was tied to the chair and beaten. Appellant does not present a discernible argument as to why the complicity to robbery sentence should have been merged with the others.
{¶ 81}
{¶ 82} “(A) Where the same conduct by defendant can be construed to constitute two or more allied offenses of similar import, the indictment or information may contain counts for all such offenses, but the defendant may be convicted of only one.
{¶ 84} This court has already determined that felonious assault and robbery are not allied offenses because the commission of one does not necessarily result in the commission of the other. State v. White, 6th Dist. No. L-07-1196, 2009-Ohio-4587, ¶ 20. Upon our review of the elements of these two offenses, we find that the elements do not correspond. A person may commit a robbery by attempting to inflict or threatening to inflict physical harm, whereas felonious assault requires serious physical harm. Conversely, simply causing serious physical harm does not automatically equate to the commission of a robbery.
{¶ 85} The elements of kidnapping, however, require further consideration. This court recently found that because kidnapping is often consumed by other crimes it requires the application of guidelines established in State v. Logan (1979), 60 Ohio St.2d 126. See State v. Brown, 6th Dist. No. WD-09-058, 2010-Ohio-1968. In Logan, the Supreme Court of Ohio found that in order to determine whether or not kidnapping and another offense are allied offenses of similar import, a sentencing court must consider the following:
{¶ 87} Accordingly, we find that the acts of kidnapping were committed with a separate animus in this case and appellant was properly convicted and sentenced separately for kidnapping. Appellant‘s third assignment of error is not well-taken.
{¶ 88} In his fourth assignment of error, appellant asserts that the trial court improperly made findings of fact during sentencing by using words such as “horrific,” “anarchy,” and “despicable.” Appellant argues that the trial court‘s statements violated State v. Foster (2006), 109 Ohio St. 3d 1.
{¶ 89} Upon a thorough review of the transcript of appellant‘s sentencing hearing, this court finds that the trial court did not make findings in violation of Foster, supra, which holds that trial courts are no longer required to make findings or give reasons for imposing maximum, consecutive or greater than minimum sentences.
{¶ 90} The language to which appellant objects was used to describe appellant‘s conduct. Implicit in the trial court‘s sentencing colloquy was its belief that appellant should be punished for his conduct and that society needed to be protected from him. Nowhere in the trial court‘s colloquy is there evidence that the court went afoul of Foster
{¶ 91} As his fifth assignment of error, appellant asserts that the trial court was unable to fairly and impartially sentence him based on the evidence presented, the sentences imposed on the co-defendants, and the trial court‘s statements during sentencing. Appellant does not support this claim with specific references to the record. As to the co-defendants’ sentences and language used by the trial court, we have addressed those issues under appellant‘s second and fourth assignments of error and found them to be without merit.
{¶ 92} In Ohio, sentencing courts have full discretion to impose a sentence within the statutory range. State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, ¶ 11.
{¶ 93} The sentencing range for a first-degree felony is three, four, five, six, seven, eight, nine or ten years.
{¶ 94} Further, the record reflects that in sentencing appellant the trial court considered the overriding purposes and principles of felony sentencing as well as the
{¶ 95} Based on the foregoing, we find that the trial court did not abuse its discretion in sentencing appellant. Accordingly, appellant‘s fifth assignment of error is not well-taken.
{¶ 96} On consideration whereof, this court finds that appellant was not prejudiced or denied a fair trial and the judgment of the Lucas County Court of Common Pleas is affirmed. Pursuant to App.R. 24, costs of this appeal are assessed to appellant.
JUDGMENT AFFIRMED.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See, also, 6th Dist.Loc.App.R. 4.
Arlene Singer, J. _______________________________
JUDGE
Thomas J. Osowik, P.J. _______________________________
Keila D. Cosme, J. JUDGE
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.sconet.state.oh.us/rod/newpdf/?source=6.