State v. DavisState v. Davis
JUDGMENT: AFFIRMED IN PART; REVERSED IN PART; AND REMANDED
RELEASED: August 6, 2009
JOURNALIZED:
Christopher G. Thomarios
75 Public Square, Suite 800
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
BY: Robert Botnick
Assistant Prosecuting Attorney
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
N.B. This entry is an announcement of the court‘s decision. See
{¶ 1} Defendant-appellant Jovan Davis appeals from his convictions after a jury found him guilty of two counts of robbery.
{¶ 2} Davis presents three assignments of error. He first argues the trial court improperly permitted the state to introduce certain evidence, i.e., that he committed “other acts” of a similar nature, and that a woman who was observed in a videotape to have accompanied him one month before the incident carried the same purse into the courtroom on the day of his trial. He further argues his trial counsel provided ineffective assistance in several respects. Finally, he contends his convictions are against the manifest weight of the evidence.
{¶ 3} Upon a review of the record, this court finds the trial court committed no error with respect to the admission of evidence, trial counsel‘s performance fell within a reasonable standard of effective representation, and Davis‘s conviction for robbery in violation of
{¶ 4} However, the trial court erred in entering a conviction against Davis on count one. His conviction for violation of
{¶ 6} Two of the store‘s female loss prevention (“LP“) agents, Nicole Lewis and Shelaine Larson were watching Davis as he proceeded through the store. Although both LP agents pretended to be shoppers, Larson thought Davis would recognize her, so she moved away from him after she became aware of his presence.
{¶ 7} Lewis testified that, after Larson alerted her to Davis‘s presence in the store, Lewis observed Davis as he “rolled” up some merchandise and “shoved it into his pants,” thus concealing some clothing items. She saw him subsequently walk out of the store without paying for those items.
{¶ 8} Lewis testified that, as Davis passed through the store‘s “alarm towers” situated on each side of the exit, they were activated, indicating
{¶ 9} Lewis approached Davis in the vestibule, just before he stepped outside the store. She identified herself and told him she “needed to talk to him about the concealed merchandise.” Davis replied that he did not know what she was talking about, and continued toward the parking lot.
{¶ 10} Larson moved in front of Lewis and Davis just as they reached the curb. When Davis saw Larson, but before she could turn around to block him, he “pushed her off” and away from him by shoving her at her shoulder area, propelling Larson into the parking lot. This act formed the basis for Davis‘s indictment on count one. Lewis indicated the lot was busy at that time, and she, at that point, called the police.
{¶ 11} Larson regained her footing and followed Davis as he went to a car in the lot. She sought to “get either the license plate or * * * to try to get him to come back with us.” As she “was looking inside the window, that‘s when he grabbed both of [her] arms and pushed [her] away * * *.” His female companion urged him to get inside; when he did, she drove away. Larson relayed what she could of the license plate number to Lewis.
{¶ 12} Larson reported the incident to the police. In addition, she investigated the identity of the perpetrator on her own. Larson testified that,
{¶ 13} Davis subsequently was indicted on two counts of robbery.3 His case proceeded to a jury trial. After considering the state‘s evidence, the jury found Davis guilty on both counts. The trial court immediately sentenced Davis to concurrent prison terms of five years for each of his convictions.
{¶ 14} Davis presents the following assignments of error for review.
“I. Appellant was deprived of his constitutional right to a fair trial and due process of law when the trial court allowed unfairly prejudicial and not relevant evidence to be seen and heard by the jury.
“II. Defense counsel was ineffective thereby denying Appellant effective assistance of counsel as guaranteed by the Sixth Amendment to the United States Constitution.
“III. Appellant‘s convictions for Robbery are against the manifest weight of the evidence.”
{¶ 16} An abuse of discretion connotes more than an error of law or judgment; it implies that the court‘s attitude was unreasonable, arbitrary, or unconscionable. State v. Wolons (1989), 44 Ohio St.3d 64, 68. In applying this standard of review, an appellate court may not substitute its judgment for that of the trial court. State v. Yeager, Summit App. No. 21510, 2005-Ohio-4932, ¶29.
{¶ 17} First, Davis challenges the trial court‘s decision to permit the state to present the testimony of Old Navy‘s LP supervisor, Jeremiah Hruschak. Hruschak described his observations of Davis on previous occasions in other Old Navy clothing stores. Davis contends this evidence contravened Evid.R. 404(B), since it did not describe a discernible “pattern of behavior” sufficient to comply with the rule.
{¶ 19} It may, however, be admissible for other purposes. These include “proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” Evid.R. 404(B). (Emphasis added.)
{¶ 20} Identity is in issue when, while the fact of the crime is open and evident, the perpetrator is not personally known, and the accused denies that he committed the crime. State v. Smith (1992), 84 Ohio App.3d 647, 666. The testimony Davis challenges thus fit within this exception, since it was offered to explain how Hruschak and the other store LP agents came to identify Davis. State v. Simpson, Cuyahoga App. No. 89158, 2008-Ohio-3817, ¶41; State v. Lee, Cuyahoga App. No. 87972, 2007-Ohio-288. Under these circumstances, the trial court did not abuse its discretion.
{¶ 21} Davis additionally challenges the trial court‘s decision to permit a woman‘s purse into evidence. He presents mutually exclusive contentions with respect to this item, i.e., it was either irrelevant, or it was relevant but too highly prejudicial. Evid.R. 402; 403(A).
{¶ 23} Thereafter, during trial, the court permitted Larson to testify she had seen Davis in the store in August 2007, the month prior to the incident; Davis was with a female companion. Larson further testified she had seen the woman carrying a distinctive purse. Larson identified the purse at trial, and it became “State‘s Exhibit 5.” This court cannot fault the trial court‘s decision on this matter for two reasons.
{¶ 24} First, the record reflects Davis raised no objection to Larson‘s testimony regarding the purse at the time the prosecutor elicited that testimony. Davis, instead, at the conclusion of the state‘s case, objected to the admission into evidence of the purse itself. He thus waived his argument for purposes of appeal. State v. Williams (1977), 51 Ohio St.2d 112. Second, Davis did not include “State‘s Exhibit 5” in the record on appeal; therefore, this court cannot entertain argument with respect to it.
{¶ 26} Davis argues in his second assignment of error that his retained trial counsel rendered constitutionally inadequate assistance by: 1) misspeaking during opening statement; 2) failing to present expert testimony regarding the unreliability of eyewitness identification; 3) “opening the door” to incriminating testimony; 4) failing to object to a jury instruction regarding “flight“; and, 5) failing to request a jury instruction on the “shortcomings” of eyewitness identification.
{¶ 27} To sustain a constitutional claim of ineffective assistance of trial counsel, an appellant has the burden to demonstrate not only that counsel substantially violated an essential duty he owed to his client, but, additionally, that the violation prejudiced him. State v. Bradley (1989), 42 Ohio St.3d 136, citing Strickland v. Washington (1984), 466 U.S. 688. Trial counsel is strongly presumed to have rendered adequate assistance, and this court will not second-guess what can be considered a matter of trial strategy. Vaughn v. Maxwell (1965), 2 Ohio St.2d 299. A review of the record in this case demonstrates Davis‘s trial counsel violated none of his essential duties.
{¶ 29} As to the decision to forego expert testimony, this was a matter of trial strategy. State v. Conway, 109 Ohio St.3d 412, 2006-Ohio-2815, ¶118. The record reflects counsel deliberately kept his defense of Davis simple in order to appeal to the “common sense” of the jurors.
{¶ 30} The record reflects that defense counsel could have been more careful in his cross-examination of the state‘s witnesses. Nevertheless, he clearly sought to cast doubt on their identifications of Davis as the man involved in the incident that led to this case.
{¶ 31} In view of the witnesses’ familiarity with Davis, and thus the overwhelming evidence of his client‘s guilt, counsel‘s efforts in this regard cannot be deemed to have fallen below an acceptable standard of reasonable representation. Id., ¶100-102. Trial counsel was well-prepared and diligent. Simply put, counsel expended great effort to put the state to its burden of proof.
{¶ 32} Davis‘s challenge to trial counsel‘s acquiescence to the jury instructions also lacks merit, since the court provided instructions that were both properly phrased and warranted by the evidence. State v. Hambrick (Feb. 1, 2001), Cuyahoha App. No. 77686; cf., State v. Wolf, Cuyahoga App. No. 83673,
{¶ 33} Since the record fails to reflect defense counsel violated an essential duty owed to his client, Davis‘s second assignment of error also is overruled.
{¶ 34} In his third assignment of error, Davis argues that neither of his convictions is supported by the manifest weight of the evidence. Prior to addressing his argument, although Davis thus does not raise the issue of the sufficiency of the evidence, this court finds it necessary to consider that issue as to count one.
{¶ 35} At the conclusion of the state‘s case and at the close of the evidence, Davis moved for acquittal of the charges against him. His trial counsel asserted the state‘s evidence did not prove his guilt on both counts. Although the trial court denied Davis‘s motion, the court committed plain error in failing to grant the motion with respect to count one.
{¶ 36} The plain error doctrine permits correction of judicial proceedings when error is clearly apparent on the face of the record and is prejudicial to the appellant. See State v. Barnes, 94 Ohio St.3d 21, 27, 2002-Ohio-68.
{¶ 37} When ruling on a defendant‘s motion for acquittal, the trial court is required to view the evidence in a light most favorable to the prosecution, and to determine if reasonable minds could reach different conclusions as to whether
{¶ 38} Davis was charged in count one with violating
{¶ 39} In this case, when the prosecutor asked Lewis if the parking lot was “busy” at the moment Davis pushed Larson off the curb, Lewis merely agreed. For her part, Larson testified only that Davis pushed her into the lot; she never stated whether any vehicles were traveling near her, and she indicated she felt surprised, not physically threatened or injured in any way.
{¶ 40} On these facts, the trial court should have granted Davis‘s motion for acquittal on count one. Its failure to do so constitutes error. Id. The matter of Davis‘s conviction on count two now must be addressed.
{¶ 42} Weight of the evidence concerns the inclination of the greater amount of credible evidence offered to support one side of the issue rather than the other. Id. In making a determination on the weight of the evidence, a reviewing court is not required to view the evidence in a light most favorable to the prosecution. Id. at 390. The court must be mindful, however, that credibility is a matter primarily for the trier of fact. State v. DeHass (1967), 10 Ohio St.2d 230, paragraph one of the syllabus.
{¶ 43} The jury convicted Davis of violating
{¶ 45} Since the jury was entitled to believe the LP agents’ testimony, Davis‘s conviction on count two is supported by the manifest weight of the evidence. State v. Hughes, Cuyahoga App. No. 81768, 2003-Ohio-2307; State v. Calhoun (Nov. 14, 1991), Cuyahoga App. No. 59370.
{¶ 46} Accordingly, Davis‘s third assignment of error is sustained in part, and denied in part.
{¶ 47} Davis‘s conviction on count two is affirmed. His conviction on count one is reversed, and this case is remanded to the trial court to vacate Davis‘s conviction and sentence on that count.
It is ordered that appellant and appellee share the 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 common pleas court to carry this judgment into execution. The defendant‘s
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
KENNETH A. ROCCO, JUDGE
COLLEEN CONWAY COONEY, A.J., and
MARY EILEEN KILBANE, J., CONCUR