STATE OF OHIO v. GRADY DALMIDA
APPEAL NO. C-140517; TRIAL NO. B-1205478-B
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
December 4, 2015
[Cite as State v. Dalmida, 2015-Ohio-4995.]
Mock, Judge.
Criminal Appeal From: Hamilton County Court of Common Pleas; Judgment Appealed From Is: Affirmed
Michele L. Berry, for Defendant-Appellant.
Please note: this case has been removed from the accelerated calendar.
{1} Following a jury trial, Grady Dalmida was found guilty of aggravated robbery, robbery, having weapons while under disability, and two counts of felonious assault. He was sentenced to 14 years imprisonment.
{2} Dalmida advances the following arguments in this appeal: (1) his rights were violated with regard to the trial court‘s treatment of the photo-lineup procedures used, (2) the trial court erred when it did not give a jury instruction on noncompliance with photo-lineup procedures, (3) his rights were violated when the photo lineups were lost, (4) the court erred when it did not instruct the jury on the elements of constructive possession, (5) the indictment improperly charged the weapon-under-disability offense, (6) his conviction for having a weapon while under disability was based on insufficient evidence, (7) the lack of a jury instruction on constructive possession created a fatal variance between the indictment and the state‘s evidence, (8) the court erred by forcing Dalmida to wear his jail uniform during trial, (9) his trial counsel provided constitutionally ineffective assistance, and (10) the court erred by failing to merge allied offenses of similar import.
I. Background
{3} George Hawkins was attacked in the parking lot behind his apartment by a man he recognized as Antonio Pryor. Pryor exited from a white Chevy Impala, yelled at Hawkins, “Give me your money,” and struck Hawkins in the head and face with a gun. As the two men struggled for control of the gun, another man exited from the Impala and grabbed Hawkins from behind. This second man was later identified as Grady Dalmida. The struggle continued with Dalmida yelling orders to Pryor and demanding drugs and money from Hawkins. Dalmida struck Hawkins repeatedly. As the struggle
{4} Dalmida was found lying on the ground behind a large trash can, wearing clothes that matched the description from 911 callers. He had Hawkins‘s blood on his shirt, and testing revealed lead and barium particles on his hands. As a result, detectives made a photo array, which they showed to Hawkins in the hospital. An officer read the “preparation form for a blind lineup” to Hawkins, and Hawkins identified Dalmida.
{5} Dalmida argued that Hawkins mistakenly identified him as an accomplice, when Dalmida attempted to help Hawkins before Pryor‘s actual accomplice arrived. He claimed that Pryor paid him for a ride, and that when Pryor attacked Hawkins, Dalmida grabbed Hawkins in order to stop the altercation. He stated that Pryor threated to shoot him after Pryor had shot Hawkins. Dalmida admitted that he had lied about where he was and how the blood had gotten on his shirt when police arrested him. But after hearing all the evidence and testimony, the jury found him guilty of robbery, aggravated robbery, possession of a weapon while under disability, and two counts of felonious assault.
{6} Dalmida‘s various assignments of error can be distilled into three main issues: (1) what effect the loss of the original photo lineup has on the case, (2) whether the facts of this case as demonstrated in the record support a conviction for the offense of having a weapon while under disability, and (3) whether any of Dalmida‘s convictions should have been merged.
{7} Dalmida‘s first three assignments of error essentially argue that his constitutional rights were violated when the photo-lineup procedures were not followed and the original lineups were lost.
{8}
{9} The statute provides that the individual conducting the lineup must make a written record that includes, among other information, the “identification and nonidentification results obtained during the lineup, signed by the eyewitnesses, including the eyewitnesses’ confidence statements made immediately at the time of identification.”
{10} However, an alleged violation of
{11} Dalmida complains that the jury should have been instructed on the officer‘s noncompliance with the identification statute, but since Dalmida never requested a jury instruction on that matter, and did not object to the jury instructions given at trial, this issue is also reviewed for plain error. See
{12} The only case Dalmida cites to support his contention that the loss of evidence warrants reversal is State v. Harper, 1st Dist. Hamilton No. C-130134, 2013-Ohio-5217. But there, this court found that because the officer deferred to the video in his testimony, without the DVD recording of the events the record lacked sufficient evidence to convict the defendant of resisting arrest. Here, the record indicates neither side ever offered the photo arrays into evidence. Since they were never admitted, the lineups would never be part of the appellate record. See
{13} We find no merit in Dalmida‘s first three assignments of error, and therefore, overrule them.
III. Weapons Under Disability
{14} In his fourth, fifth, sixth, and seventh assignments of error, Dalmida essentially argues his conviction for having weapons under disability violated his constitutional rights, because the evidence was insufficient, he was not properly indicted, and the jury was not properly instructed on constructive possession. At issue here is whether Dalmida was convicted of having weapons under disability because of his disability, since Pryor was the only person who actually held and fired the gun.
{15} A person who has been convicted of felony-drug possession is not permitted to knowingly acquire, have, carry, or use any firearm or dangerous ordnance, unless relieved from that disability.
{17} The jury was instructed on both having a weapon under disability and complicity. Dalmida stipulated that he had a prior felony conviction and the state presented evidence that, while Pryor was the only person to actually possess and fire the gun, Dalmida actively participated in the robbery, yelled orders at Pryor, and instructed Pryor to shoot Hawkins. Further, because Dalmida never requested a jury instruction on constructive possession and did not object to the jury instructions given at trial, this issue must be reviewed under the plain-error standard. See
{19} Dalmida was aware that he had a disability and was not supposed to have a firearm. He possessed the firearm by actively participating in the robbery and directing Pryor to shoot Hawkins. Therefore, Dalmida‘s fourth, fifth, sixth, and seventh assignments of error are overruled.
IV. Jail Uniform
{20} In his eighth assignment of error, Dalmida claims the trial court erred by “forcing him to stand trial before a jury while wearing his jail uniform.”
{21} Nothing in the record indicates that Dalmida requested and was denied a recess or continuance in order to obtain different clothing. Further, the portions of the record Dalmida identifies as evidence that he “made clear on the record that he did not wish to appear in his jail uniform,” include the judge telling prospective jurors to ignore the fact that Dalmida was wearing “garb from the Justice Center.” The other is a statement Dalmida made at sentencing, which is obviously after the trial had been completed. There is no evidence that Dalmida ever objected or communicated that he wanted different clothing until sentencing. Therefore, the standard here is plain error.
V. Ineffective Assistance
{22} In his ninth assignment of error, Dalmida contends his trial counsel provided constitutionally ineffective assistance of counsel. To succeed on his claim of ineffective assistance of counsel, Dalmida must show that his trial counsel‘s performance was deficient and that this deficient performance prejudiced his defense such that he was denied a fair trial. State v. Bradley, 42 Ohio St.3d 136, 142, 538 N.E.2d 373 (1985), citing Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 67 (1984). Dalmida claims his trial counsel‘s performance fell below an objective standard of reasonableness when he failed to present evidence regarding law enforcement‘s failure to follow the photo-lineup procedure, present evidence that Hawkins had identified another suspect, admit the photo lineups into evidence, request a jury instruction on law enforcement‘s failure to follow the photo-lineup procedure, object to the jury instructions and/or indictment regarding the charge of having a weapon while under disability, object to Dalmida appearing at trial in his jail uniform, and object to the court‘s improper sentence.
{23} But Dalmida does not explain how these failures fell below the objective standard of reasonableness or how he has been prejudiced. Counsel extensively cross-examined the officers with regard to the steps taken in the photo lineup. The trial court merged several of the counts at sentencing, demonstrating that the court performed a merger analysis and determined which counts it believed should merge. Importantly, Dalmida has failed to demonstrate “a reasonable probability that, were it not for
VI. Merger
{24} In his tenth assignment of error, Dalmida claims that the trial court erred by convicting him of multiple offenses based on the same conduct, because the offenses should have been merged. Under
{25} To determine whether allied offenses merge under
{26} Dalmida maintains that the felonious-assault, having-weapons-under-disability, and aggravated-robbery counts merge, because the convictions are based on his sole conduct of acting in concert with Pryor to assault Hawkins with a firearm. The court merged the robbery with the aggravated robbery, and merged the two felonious assaults. Because this case involved only one victim, in looking at Dalmida‘s conduct, we must answer the following questions: (1) are the offenses dissimilar in import, in other
A. Merger of Felonious Assault with Aggravated Robbery
{27} The record is clear that the aggravated robbery and felonious assault were committed separately. To adequately examine whether the offenses are subject to merger, we must look at Dalmida‘s conduct in the context of the statutory elements.
{28} The pertinent aggravated robbery statute,
No person, in attempting or committing a theft offense * * * or in fleeing immediately after the attempt or offense, shall * * * have 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.
The relevant felonious assault statute,
{29} The use of a gun to rob Hawkins satisfies the elements of aggravated robbery. Pryor displayed the gun and both Dalmida and Pryor demanded drugs and money from Hawkins. After Hawkins told Dalmida and Pryor that he did not have any drugs or money, Dalmida and Pryor ripped the pockets off Hawkins‘s pants. Finding no drugs or money, they took his cell phone. Then, Dalmida told Pryor to shoot Hawkins.
B. Merger of Weapons Under Disability with Felonious Assault and Aggravated Robbery
{30} Dalmida‘s constructive possession of the firearm is sufficient to meet the weapons-under-disability statute. However, Dalmida claims the weapons-under-disability count is an allied offense of similar import that must merge with the aggravated robbery and felonious assault. We disagree.
{31} The relevant weapons-under-disability statute,
{32} Offenses are of dissimilar import if the harm that results from each offense is separate and identifiable. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, at ¶ 26; see State v. Earley, 145 Ohio St.3d 281, 2015-Ohio-4615, 49 N.E.3d 1248, ¶ 15. This court has previously held that having weapons while under disability is of a dissimilar import from other offenses “because the statute manifests a legislative purpose to punish the act of possessing a firearm while under a disability separately from any offense committed with the firearm.” See State v. Bates, 1st Dist. Hamilton No. C-140033, 2015-Ohio-116, ¶ 30. The underlying purpose of criminalizing having weapons while under disability is to protect the general public from the increased risk of harm of armed criminals. See State v. Rice, 69 Ohio St.2d 422, 427, 433 N.E.2d 175 (1982).
VII. Conclusion
{34} We affirm the trial court‘s judgment.
Judgment affirmed.
CUNNINGHAM, P.J., and STAUTBERG, J., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.