646 N.E.2d 866 | Ohio Ct. App. | 1994
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *339 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *340 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *341 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *342
It is undisputed that at about 3:00 a.m. on October 2, 1992, Amberley Village police officer Joseph Fryman encountered Fields and Adams sitting in an unlit *343 automobile. In response to the officer's questions, they said they were searching for Galbraith Road, which, the officer noted, was sixty to eighty feet from the parked vehicle. By a radio inquiry to headquarters, Fryman learned that Adams had outstanding arrest warrants for traffic violations. That prompted Fryman to take Fields and Adams into custody. Pursuant to the department's re-cite policy, at approximately 3:20 a.m., the Amberley police released Fields and Adams with instructions that Adams appear in court for the tickets.
Shortly after Fields and Adams were released by the Amberley police, a robbery occurred at the Burger King restaurant at Reading and Galbraith roads. Kathy Kilpatrick, a Burger King assistant manager, was attending to accounting duties in her office when two men approached. One of the men grabbed her, pulled her to her feet, and hit her in the jaw. The other shoved a metal money box into her ribs before pulling it from her grasp. They both dragged Kilpatrick into the restaurant's walk-in cooler and barricaded her and several other employees in the compartment. Before being closed in the cooler, Kilpatrick observed her assailants: a tall, African-American male wearing a dark ski mask and thick glasses accompanied by a shorter man wearing a glove.
At approximately 3:40 a.m., Officer Fryman heard a police radio broadcast identifying two suspects involved in the Burger King robbery. The description matched his recollection of Fields and Adams, whom he had just released. Fryman then put out a broadcast in which he included the names of Fields and Adams, a description of their automobile, and the vehicle's license number. From these broadcasts, Cincinnati police officer Thomas Slade identified the wanted automobile traveling near the corner of North Bend and Daly roads. Slade enlisted the assistance of another officer, and, within moments, they arrested Fields and Adams. In the automobile they found Kilpatrick's purse, her prescription bottle, and $1,200 in coins and bills belonging to Burger King.
Fields and Adams were charged with robbery and aggravated robbery of Burger King and robbery of Burger King's employee, Kilpatrick. The jury found them guilty of all charges. On count one, the Burger King aggravated robbery, the court sentenced them to fifteen to twenty-five years. On counts two and three, the Burger King robbery and the Kilpatrick robbery, the court sentenced them to twelve to fifteen years for each crime. The sentence for count one ran consecutively to the sentences for counts two and three. The sentences for counts two and three ran concurrently.
Fields and Adams first argue that they received multiple sentences in violation of R.C.
An error that is waived by failure to object will not be noticed by the court of appeals unless it is plain error. Crim.R. 52(B). Under plain error analysis, the court determines (1) whether there is an error, (2) whether it is plain error, and (3) whether the defendant was prejudiced. United States v.Olano (1992), 507 U.S. ___, ___,
The court's power under Crim.R. 52(B) is discretionary.Id., 507 U.S. at ___,
In the Burger King counts in the indictment, Field and Adams were charged with both aggravated robbery and robbery. The elements of aggravated robbery under R.C.
In the second step, the defendant properly may be sentenced for two crimes if that person committed the crimes with a separate animus or separate conduct. Vazirani,
The rule is, however, that the separate animus for eachcrime — not individual elements of each crime — must be different. State v. Blankenship (1988),
Regarding separate conduct, when two allied offenses are committed at separate times, at separate locations, or against different victims, the offender may be sentenced for two crimes.State v. Campbell (1983),
The state correctly argues that the aggravated robbery of Burger King and the robbery of Kilpatrick were against two different victims. See, generally, State v. Byrd (1987),
In Ohio, R.C.
Other appellate courts have reached the opposite conclusion regarding prejudice in concurrent sentences. State v. Hendrix (June 13, 1991), Cuyahoga App. Nos. 58519, 58520, unreported, 1991 WL 106038; State v. Miller (Dec. 5, 1990), Holmes App. No. CA-427, unreported, 1990 WL 200366. Notwithstanding these decisions, the trial court's error denied Fields and Adams a substantial right guaranteed by the United States Constitution, the Ohio Constitution, and the Ohio Revised Code. Had the error not occurred, the results clearly would have been otherwise,i.e., the defendants would have been sentenced for only one of the crimes. Fields and Adams, therefore, suffered plain error.
Fields's fifth assignment of error and Adams's first assignment of error are sustained.
B. Ineffective Assistance of Counsel
Fields next contends that he received ineffective assistance of counsel because his trial attorney did not object to the sentences for allied offenses.7 This assignment is moot under App.R. 12(A)(1)(c).
C. Motion to Suppress
Fields and Adams both argue that the court erred by failing to grant their motion to suppress.8 They challenged the legality of the stop after the Burger King robbery and the subsequent search of the vehicle. As to the stop, *349
police knew from the broadcast that the physical descriptions matched the suspects, who had been detained in the vicinity of Burger King just prior to the robbery. Under these circumstances, that collective information possessed by the law enforcement community was sufficient to provide reasonable suspicion for the stop. State v. Cook (1992),
As to the next police intrusion, Fields and Adams challenge the officer's seizure of items found in the automobile. Those items were a white linen bag containing currency and coin from Burger King, a purse and prescription bottle belonging to Kilpatrick, a tan gun holster, and several locking-blade knives. The record contains evidence that all these items were in plain view in the front seat of the automobile when the officer made the initial lawful stop after the robbery. Furthermore, because the contraband matched the description of the items taken during the robberies, it was immediately apparent that the items were incriminating. Therefore, the officer did not violate the
D. Sufficiency/Manifest Weight
Fields and Adams argue that there was no evidence of a serious, debilitating injury to Kilpatrick to satisfy proof of the serious-physical-harm element of aggravated robbery.9
Contrary to this assertion, the crime of aggravated robbery does not require that the victim receive an actual injury. It merely requires proof that the defendant attempted to inflict serious physical harm. R.C.
Reasonable minds could find that these acts were attempts to inflict incapacity, disfigurement, or pain, or even give rise to a risk of death, within the meaning of aggravated robbery. See, generally, R.C.
These assignments of error are overruled.
E. Seizing Glasses
Fields next argues that the trial court committed reversible error by allowing the state to seize his glasses at trial.10
Fields was under arrest at the time of the trial. Therefore, the seizure was not unlawful. State v. Akron Airport Post No. 8975
(1975),
As a general rule, the court's decisions under Crim.R. 16 are reviewed under an abuse-of-discretion standard. State v.Sowders (1983),
Here, Kilpatrick relied upon the glasses, because of their unusual thickness, to identify Fields. Fields was photographed wearing the glasses when he was arrested and he wore them at the hearing on the motion to suppress. At trial, however, he appeared without the glasses. The trial court noticed that he had papers in front of him that "he's reading almost up to his nose." Under these facts, therefore, the court did not abuse its discretion by allowing the glasses to be introduced into evidence. This assignment of error is overruled.
F. Speedy Trial
Fields finally contends that the trial court erred by not granting his motion to dismiss based on a violation of the ninety-day, three-for-one, speedy-trial provisions of R.C.
Judgments affirmed in part,reversed in partand causes remanded.
HILDEBRANDT, P.J., and DOAN, J., concur.
"(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.
"(B) Where the defendant's conduct constitutes two or more offenses of dissimilar import, or where his conduct results in two or more offenses of the same or similar kind committed separately or with a separate animus as to each, the indictment or information may contain counts for all such offenses, and the defendant may be convicted of all of them."
We note, parenthetically, that the failure to object to allied offenses is below the objective standard of reasonableness, and had the attorney objected, Fields and Adams should have been sentenced for only one Burger King crime. See, generally, Lockhart v. Fretwell (1993), 506 U.S. ___, ___,