2008 Ohio 930 | Ohio Ct. App. | 2008
{¶ 1} Appellant, Antwon Fair, appeals his conviction for aggravated robbery. After a thorough review of the record and for the reasons set forth below, we affirm.
{¶ 2} On October 18, 2006, the Cuyahoga County Grand Jury returned a two-count indictment against appellant. Count One charged him with aggravated robbery, in violation of R.C.
{¶ 3} On March 23, 2007, the jury returned a guilty verdict on the aggravated robbery charge, but found appellant not guilty on the one-year and three-year firearm specifications. Count Two was tried to the bench, and the trial court found appellant not guilty of that charge. The court sentenced appellant to four years in prison on Count One.1 On April 3, 2007, appellant filed this appeal.2
{¶ 4} The state called five witnesses to testify as to the events leading to appellant's arrest. The victim of the alleged aggravated robbery testified that a man approached him on the evening of October 4, 2006 on a dark, abandoned street, while he was walking to a local K-Mart to pick up his sister from work. He testified that the man held a silver .45 weapon up to him and demanded, "Give me your dope." When the victim told the assailant he did not have any dope, the assailant allegedly asked him what he did have. The victim testified that he told the assailant he had a cell phone and three dollars, which the assailant demanded the victim give him. The victim next testified that the assailant took his cell phone and money, and the victim ran to K-Mart, where he told his sister he had been robbed. The victim *3 also testified that, on the night he was robbed, the assailant was wearing a black hoodie and had a gold "grill" on his teeth.3
{¶ 5} The victim further testified that after school on October 7, 2006, while walking to a nearby convenience store with his sister, brother, aunt, and some friends, he spotted appellant and recognized him as the person who had robbed him on October 4. He testified that his aunt was the first to notice appellant across the street from where they were walking, and the victim crossed the street under the pretense of going into the store. He also testified that he saw appellant near the clothing store where he worked, and he told his three co-workers that appellant was the same person who had robbed him. The victim testified that his co-workers confronted appellant, who denied robbing the victim and then threatened him for lying. The victim then testified that he and his sister and aunt contacted the police to identify appellant as the person who had robbed him on October 4. Finally, he testified that the police asked him to identify appellant after they had arrested him, and, at that time, appellant was wearing a gray hoodie.
{¶ 6} The victim's aunt, Tsara Butler, testified that she believed she knew the identity of the man who had robbed her nephew from her nephew's description of him on the night of the robbery. She also testified that she had seen appellant in the neighborhood on several occasions prior to the robbery. Tsara testified that a *4 couple of days after the robbery, October 7, she, her nephew, niece, and some friends were walking home from school, and they saw appellant in front of a convenience store. She testified that she walked past appellant and heard him say, "[t]hat's the nigger that I robbed the other day." She then asked her nephew if appellant was the person who robbed him. She testified that her nephew crossed the street to get a better look at appellant; he then told her that appellant was the person who robbed him.
{¶ 7} The victim's sister testified to many of the same facts that the victim and their aunt had testified to, but her testimony was that appellant had a silver grill. She also testified that he was wearing a black jacket, even though the victim testified that appellant was wearing a gray hoodie on the day he was arrested.
{¶ 8} The other witnesses for the state included the victim's mother, Detective Greg Cook, and Officer Michael Konn. The victim's mother testified to the events on the night of the robbery and her son's account of what had happened to him. Detective Cook testified to checking out appellant's alibi and to taking the victim's statement. Officer Konn testified to the events that led to appellant's arrest on October 7. While the testimony of these three witnesses was vital to the trial, appellant's assignments of error rest squarely on the testimony of the victim, his sister and aunt, who identified him as the person who committed the robbery. *5
{¶ 10} In order to substantiate a claim of ineffective assistance of counsel, the appellant is required to demonstrate that: 1) the performance of defense counsel was seriously flawed and deficient; and 2) the result of the appellant's trial or legal proceeding would have been different had defense counsel provided proper representation.Strickland v. Washington (1984),
{¶ 11} In reviewing a claim of ineffective assistance of counsel, it must be presumed that a properly licensed attorney executes his legal duty in an ethical and competent manner. State v. Smith (1985),
{¶ 12} A review of the transcript does not support reversal of appellant's conviction on the grounds of ineffective assistance of counsel. Appellant's attorney cross-examined all of the state's witnesses in great detail. He even brought to light several instances where their trial testimony seemed inconsistent. Although we may not understand why defense counsel did not request the written statements the witnesses made to the police, we cannot speculate on what the statements contained and whether they contained inconsistencies. Appellant cannot point to any actual discrepancies between the sworn testimony and the police statements because he failed to request the statements; therefore, the statements are not before this court. Appellant's argument is speculative at best.
{¶ 13} With respect to the inconsistency regarding the dates, specifically whether the witnesses were walking home from school on the date appellant was arrested, which was a Saturday, defense counsel pursued that line of questioning with Tsara Butler. On redirect, the state established that Tsara, like the other witnesses, may have been confused about the date. Certainly, the fact that the victim's sister said appellant was wearing a black jacket on the date they saw him, and the victim said he was wearing a gray hoodie on the day appellant was arrested, suggests these events happened on two separate days. This issue then becomes a matter of credibility for the jury to weigh, but it is clear from the transcript that defense counsel zealously pursued this inconsistency on cross-examination. *7
{¶ 14} With respect to appellant's argument that his attorney should have objected to the state's leading questions, we find no merit in this argument. Setting aside defense counsel's failure to object as constituting a waiver, the Ohio Rules of Evidence do not forbid the use of leading questions in direct examination, provided they are being used to develop or elicit testimony. See Evid.R. 611(C). Furthermore, the court in State v. Howard, Montgomery App. No. 20575,
{¶ 15} Finally, appellant argues that his trial attorney should have filed a motion to suppress eyewitness identification testimony. The gist of appellant's argument is that there is no evidence tying him to the robbery except the identification outside the convenience store and the cold stand performed three days after the alleged robbery took place.
{¶ 16} In Neil v. Biggers (1972),
{¶ 17} In State v. Williams,
{¶ 18} The second part of the inquiry then focuses upon five factors necessary to assess the reliability of the identification, despite the taint of the show-up. These five factors are: (1) the witness's opportunity to view the defendant at the time of the crime; (2) the witness's degree of attention at the time of the crime; (3) the accuracy of the witness's description of the defendant prior to the identification; (4) the witness's level of certainty when identifying the defendant at the confrontation; and (5) the length of time elapsed between the crime and the confrontation." Williams, supra.
{¶ 19} We are troubled by the fact that appellant was subjected to an impermissibly suggestive identification procedure, i.e., a cold stand. The robbery took place at ten o'clock at night on a darkened street, necessarily calling into question the victim's ability to view his assailant; the crime itself lasted a couple of minutes at most; the victim offered some identifying features of his assailant to his family and friends, who then suggested to the victim a possible suspect; and, the cold stand took place three days after the alleged robbery. These factors support a finding that the identification process might be tainted and would have supported defense counsel's moving the trial court to suppress the identification.
{¶ 20} Nonetheless, we decline to reverse the trial court on appellant's claim of ineffective assistance of counsel on this issue. During cross-examination at trial, the victim's aunt, Tsara Butler, testified that she heard appellant say "That's the nigger I *10 robbed the other day." (Tr. 320.) She also testified that she knew appellant was referring to her nephew because "there was no one else in the area" besides her nephew, and she heard appellant say, "I recognize him by the grill." (Tr. 321.) Tsara testified that her nephew wears a grill.
{¶ 21} Appellant was positively identified by a witness the jury found credible. Even if defense counsel had filed and been granted a motion to suppress the identification from the cold stand, there was still identification evidence at trial upon which appellant could have been found guilty.
{¶ 22} We do not find that defense counsel's representation fell to the level of ineffective assistance; therefore, we overrule appellant's first assignment of error.
{¶ 24} Ohio case law is clear that the verdicts handed down to appellant on Counts One and Two are not inconsistent. The court inState v. Boyd (1996),
{¶ 25} The Boyd court cited to the Wilson court's reliance onBrowning v. State (1929),
{¶ 26} It is entirely proper for the jury to find appellant guilty of aggravated robbery without a firearm specification. Further, it is proper for the court to find appellant not guilty of having a weapon while under a disability despite the jury's guilty verdict on aggravated robbery. Despite appellant's argument that this court should reconsider this issue, we decline to do so in light of legal precedent on this exact issue. Therefore, we overrule appellant's second assignment of error.
{¶ 28} We have already rejected the idea of inconsistent verdicts in overruling appellant's second assignment of error. We will therefore address appellant's other contentions.
{¶ 29} Whether the evidence is legally sufficient to sustain a verdict is a question of law. State v. Robinson (1955),
{¶ 30} Sufficiency of the evidence is subjected to a different standard than is manifest weight of the evidence. Article
{¶ 31} R.C.
{¶ 32} The state produced sufficient evidence on all elements of the charge of aggravated robbery. A review of the trial testimony of the three witnesses who identified appellant as the victim's assailant does not support appellant's argument that there was insufficient evidence to support a guilty verdict on the charge of aggravated robbery.
{¶ 33} What appellant is really arguing is that the verdict is against the manifest weight of the evidence in light of the discrepancies in the testimony of the three identifying witnesses. Appellant focuses primarily on the fact that the witnesses could not have been walking home from school on Saturday, October 7, *15 the date appellant was arrested. The state did redirect its questions to Tsara Butler, and she acknowledged that it may have been Friday, October 6. This then becomes a matter of credibility for the jury to decide. The witnesses were consistent in their respective testimony about seeing appellant by the convenience store and again in a pizza shop. The jury could believe that they were telling the truth about recognizing appellant, even if they could not remember the exact date on which he was arrested.
{¶ 34} Appellant also focuses on the conflicting testimony of the witnesses regarding whether appellant was wearing a black hoodie or a gray hoodie and whether his grill was gold or silver. The jury was presented with this conflicting testimony and determined that, in essence, the witnesses were credible in their identification of appellant, especially in light of the testimony of the victim's aunt that she had seen appellant numerous times around the neighborhood and recognized him from the description her nephew gave her after the robbery.
{¶ 35} The evidence presented to the jury, when weighed, would support a guilty verdict on the charge of aggravated robbery. There is nothing in the record to suggest that the jury lost its way; therefore, we overrule appellant's third assignment of error. *16
{¶ 37} In following this court's decision in State v. Mallette, Cuyahoga App. No. 87984,
{¶ 38} The Ohio Supreme Court's recent decision in Foster renders appellant's assignment of error without merit. In Foster, the Court found several sections of the revised code unconstitutional, including R.C.
{¶ 39} If Foster did not apply to appellant, he would enjoy a presumption of minimum concurrent sentencing. The ex post facto clause of Article
{¶ 40} This court recently addressed this issue and, after a thorough analysis of state and federal law, found as follows: "In the instant case, Mallette had notice that the sentencing range was the same at the time he committed the offenses as when he was sentenced. Foster did not judicially increase the range of his sentence, nor did it retroactively apply a new statutory maximum to an earlier committed crime, nor did it create the possibility of consecutive sentences where none existed. As a result, we conclude that the remedial holding of Foster does not violate Mallette's due process rights or the ex post facto principles contained therein." Mallette, supra.
{¶ 41} We therefore find that the remedial holding of Foster does not violate appellant's due process rights or the ex post facto principles contained therein. Accordingly, appellant's fourth assignment of error is overruled.
Judgment affirmed.
It is ordered that appellee recover from appellant 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 conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. *18
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
ANTHONY O. CALABRESE, JR., P.J., and CHRISTINE T. McMONAGLE, J., CONCUR *19
I. Defendant Antwon Fair was denied effective assistance of counsel.
II. The verdict is inconsistent.
III. Antwon Fair's conviction should be reversed due to insufficiency of evidence and a failure of the state to carry the manifest weight of the evidence burden.
IV. Antwon Fair is entitled to a presumptive minimum sentence because a greater sentence would violate the Ex Post Facto and Due Process Clauses of the United States Constitution.
