State v. GarrettState v. Garrett
STATE OF OHIO, PLAINTIFF-APPELLEE vs. ANTWONE GARRETT, DEFENDANT-APPELLANT
JUDGMENT: CONVICTIONS MODIFIED; REMANDED FOR RESENTENCING
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-512786
RELEASED: October 8, 2009
JOURNALIZED:
Robert L. Tobik
Chief Public Defender
BY: John T. Martin
Assistant Public Defender
310 Lakeside Avenue, Suite 200
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
BY: Marc Bullard
Gregory J. Mussman
Assistant Prosecuting Attorneys
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 Antwone Garrett appeals from his convictions after a jury found him guilty of possession of criminal tools (PCT) and attempted tampering with records.
{¶ 2} Garrett presents five assignments of error. As to his conviction for PCT, he argues that conviction should be reversed because the jury specifically found he did not intend to use the tools criminally. He further asserts that, even if his PCT conviction is not reversible, rather than a fifth-degree felony as set forth in the journal entry, it constituted only a first-degree misdemeanor; therefore, the trial court imposed an improper sentence for that conviction.
{¶ 3} As to his conviction for tampering with records, Garrett argues his conviction should be reversed because he was charged with a general crime when a more specific crime applied and because it is unsupported by sufficient evidence. He further asserts that, even if his conviction is not reversible, the verdict form signed by the jury supports a conviction only for a second-degree misdemeanor, rather than for a fifth-degree felony.
{¶ 4} This court has reviewed the record with Garrett‘s arguments in mind. Since the verdict forms provided to the jury so require, his conviction for PCT must be modified to reflect he was convicted of a first-degree misdemeanor, and his
{¶ 5} Garrett originally was indicted in this case on thirteen counts. He was charged with one count of aggravated burglary, four counts of aggravated robbery, four counts of kidnapping, one count of felonious assault, one count of attempted murder, one count of PCT, and one count of tampering with records. Counts one through eleven each additionally contained both a one-year and a three-year firearm specification.
{¶ 6} All the crimes were alleged to have taken place on November 13, 2006. According to the state‘s witnesses, on that night, a man carrying a gun entered a delicatessen located at the intersection of East 104th Street and Union Avenue in Cleveland.
{¶ 7} Once inside, the intruder snatched1 some money, then pulled the owner by his hair out to the street, where an accomplice who wore a mask waited. The intruder tried to force the owner into a black Aztek SUV; another accomplice was in the driver‘s seat of the vehicle. The owner resisted and escaped; shots were fired at him as he fled.
{¶ 9} At Garrett‘s trial, Johnson testified she permitted Garrett to drive her vehicle on November 13, 2006, but he returned that night without it. When she asked him where it was, he told her the police had it. Johnson stated Garrett informed her his stupid friend had done something stupid, and he needed her to report [her] car stolen.
{¶ 10} Johnson testified Garrett provided her with a story to tell the police, i.e., that she was kidnapped while driving the Aztek, a bag was placed over her head, then the kidnappers put her out on the freeway before driving away in her vehicle. She stated she got into Garrett‘s car, and he took her to the freeway then dropped her off. She started running, crying, and flagged a car down.
{¶ 11} After arriving at the police station, Johnson began making a false police report of her fictional ordeal. While an officer was taking her report, three detectives showed up.
{¶ 12} One of the detectives was John Kraynik. According to his testimony, Johnson‘s vehicle already had been located near the scene of the incident, and he suspected Garrett had been involved. Kraynik arrived at the police station just as
{¶ 13} Kraynik indicated he advised Johnson that if what she described actually happened, she should complete it. Otherwise, she needed to reconsider what she was doing.
{¶ 14} Johnson testified that, at that point, she told the police she had been lying about what really happened. She proceeded to tell them the truth. Johnson further provided a written statement in which she declared Garrett had told her to report her Aztek stolen by her kidnappers.
{¶ 15} Kraynik testified that after the Aztek was located on East 104th Street on the night of the incident, it had been towed to the police impound lot. He searched it on November 15, 2006. It contained, among other things, rolls of duct tape and a neoprene ski mask.
{¶ 16} Garrett subsequently was indicted; his case proceeded to a jury trial. Prior to the commencement of the proceeding, the state dismissed two counts. This led to the renumbering of the remaining counts, thus, count 10 charged Garrett with PCT and count 11 charged him with tampering with records.
{¶ 17} After receiving the trial court‘s instructions, the jury found Garrett not guilty on counts 1 through 9. The jury found Garrett guilty of count 10, PCT, but specifically found that he did not intend to use the articles to commit aggravated burglary, and/or aggravated robbery. The jury also found Garrett guilty of
{¶ 18} The trial court sentenced Garrett for the foregoing felony convictions to concurrent prison terms of, respectively, six months and fourteen months.
{¶ 19} Garrett presents the following assignments of error:
{¶ 20} I. The verdict form in Count Ten only supports a conviction for possession of criminal tools as a first-degree misdemeanor.
{¶ 21} II. The verdict form in Count Eleven only supports a conviction for tampering with records [sic] as a second-degree misdemeanor.
{¶ 22} III. The defendant cannot be convicted of possession of criminal tools because the jury specifically found that the state did not prove one of the elements of the offense that the jury was instructed had to be proven.
{¶ 23} IV. Mr. Garrett could not be charged with tampering with records because the offense of making a false statement to the police is governed by
{¶ 24} V. The evidence is insufficient to support the defendant‘s conviction for tampering with records [sic] as alleged in Count Eleven.
{¶ 25} This court will address Garrett‘s arguments in logical order. In his first assignment of error, he argues with respect to the charge of PCT that since
{¶ 26} The state concedes Garrett‘s argument on this point. The verdict form fails to state the jury made a finding that the items were possessed with the intent to use them in the commission of a felony; therefore, pursuant to
{¶ 27} Garrett‘s first assignment of error, accordingly, is sustained. That does not end the matter, however, since Garrett further argues in his third assignment of error that his conviction for PCT remained unsupported by sufficient evidence and thus the trial court should have dismissed that charge.
{¶ 28} Garrett points out that, according to the verdict form, the jury specifically found that he did not possess the criminal tools with the intent to use them to commit the offense of Aggravated Burglary and/or Aggravated Robbery. In instructing the jury, the trial court stated in pertinent part:
{¶ 29} Before you can find the defendant guilty of [PCT] you must find beyond a reasonable doubt that on or about the 13th day of November, 2006 and in Cuyahoga County, Ohio, the defendant possessed or had under his control a * * * instrument or article with the purpose to use it criminally, to wit: a firearm and/or
{¶ 30} The felony in this case is aggravated burglary, and/or aggravated robbery. All elements of these offenses have been previously defined and the same definitions apply herein. * * *
{¶ 31} If you find that the State failed to prove beyond a reasonable doubt any one of the essential elements of the offense of [PCT] as charged in count ten of the indictment your verdict must be not guilty according to your findings.
{¶ 32} If you find that the defendant is guilty of [PCT] you will separately decide whether the State has proven beyond a reasonable doubt that the defendant did or did not intend to use the * * * instrument or article * * * to commit the offense of aggravated burglary, and/or aggravated robbery, and indicate your finding on the further finding of the verdict form.
{¶ 33} If your verdict [is] not guilty of [PCT], it will not be necessary to make any further determination. (Emphasis added.)
{¶ 34} Garrett contends the jury‘s verdict on Count 10 is internally inconsistent. He claims the jury could not have decided the state proved the elements of the offense of PCT, while at the same time have decided the state did not prove he intended to use the items to commit either of the only two underlying felonies, which the jury was instructed also were elements of the crime.
{¶ 36} An inconsistent verdict arises from inconsistent responses to the same count. State v. Kennedy, Cuyahoga App. No. 90231, 2008-Ohio-4237, fn. 1. This court has previously noted that a jury‘s finding on a specification that is inconsistent with a guilty finding on the principal charge will not undermine the guilty finding on the principal charge where the guilty finding on the principal charge is supported by the evidence. State v. Kimbrough (Aug. 17, 2000), Cuyahoga App. No. 76517. See, also, State v. Burton (Mar. 8, 1996), Sandusky App. No. S-95-008.
{¶ 37} Clearly, both the instructions and additional verdict form provided to the jury in this case on Count 10 treated the underlying felony as a specification for the jury‘s further determination. The evidence supported a finding that Garrett intended to use the items for a criminal purpose. State v. Parks, Cuyahoga App. No. 90368, 2008-Ohio-4245.
{¶ 38} However, the jury previously determined the state failed to prove Garrett himself intended to commit either aggravated burglary or aggravated robbery. In view of the instruction the jury received that, It is also alleged that the
{¶ 39} Under the circumstances presented in this case, therefore, the verdict forms cannot be deemed internally inconsistent. Consequently, Garrett‘s third assignment of error is overruled.
{¶ 40} Garrett‘s second, fourth and fifth assignments of error all challenge his conviction for attempted tampering with records.2
{¶ 41} Initially, he argues, as he does in his first assignment of error, that because the verdict form neglected to set forth either the degree of the offense or the nature of the record he was accused to have falsified, he could be convicted of only the least degree of the offense. A review of the record demonstrates Garrett is correct.
{¶ 42} The verdict forms signed by the jury indicate the jury found Garrett not guilty of Tampering with Records, in violation of
{¶ 44} Garrett next argues that the trial court should have ordered his acquittal on Count 11 because he was charged with tampering with records under
{¶ 45} More recently, however, the Ohio Sixth District Court of Appeals rejected a nearly identical argument by observing as follows:
{¶ 46} Well-established principles of statutory construction require that specific statutory provisions prevail over conflicting general statutes.
{¶ 47} If a general provision conflicts with a special or local provision, they shall be construed, if possible, so that effect is given to both. If the conflict between the provisions is irreconcilable, the special or local provision prevails as
{¶ 48} In State v. Volpe, the Ohio Supreme Court found that
{¶ 49} In this case * * * we find that
{¶ 50} Clearly, the General Assembly considered that the uttering of a falsified written document or record, that was to be maintained by a governmental agency, was more egregious conduct, necessitating a greater degree of offense, than making a statement, whether oral or written, for the purpose of securing the issuance of a license or permit. Moreover, we note that absent a discriminatory purpose, it is not unconstitutional for the prosecution to determine, within its discretion, which offense will be charged when two statutes proscribe similar conduct. State v. McDonald (1987), 31 Ohio St.3d 47, 50, 509 N.E.2d 57, citing, State v. Wilson (1979), 58 Ohio St.2d 52, 55, at fn. 2, 388 N.E.2d 745. As such, we find that it was properly within the state‘s discretion to proceed under
{¶ 51} Garrett finally claims his conviction for attempted tampering with records is not supported by sufficient evidence. In reviewing his claim, this court is required to view the evidence adduced at trial, both direct and circumstantial, in a light most favorable to the prosecution to determine if a rational trier of fact could find the essential elements of the crime were proven beyond a reasonable doubt. State v. Dennis, 79 Ohio St.3d 421, 1997-Ohio-372; State v. Jenks (1991), 61 Ohio St.3d 259. Viewing the evidence adduced at Garrett‘s trial in a light most favorable to the state leads to the conclusion that Count 11 was supported by sufficient evidence.
{¶ 52} According to Johnson‘s testimony, Garrett encouraged her to falsely report to the police that her vehicle was stolen. Garrett did so in order to distance himself from the incident in which the vehicle was used. An officer was taking Johnson‘s report in writing for official purposes when she changed her mind and recanted her story.
{¶ 53} Based upon the record, this court cannot determine Garrett‘s conviction for attempted tampering with records was supported by insufficient evidence.
{¶ 54} Accordingly, Garrett‘s fourth and fifth assignments of error are overruled.
{¶ 55} Based upon the disposition of Garrett‘s first and second assignments of error, his convictions are modified. Garrett‘s conviction for PCT is reduced to a first-degree misdemeanor, and his conviction for attempted tampering with records is reduced to a second-degree misdemeanor.
{¶ 56} This case is remanded for resentencing consistent with this opinion.
It is ordered that appellant and appellee share the costs herein taxed.
The court finds there were reasonable grounds for this appeal.
A certified copy of this entry shall constitute the mandate pursuant to
KENNETH A. ROCCO, PRESIDING JUDGE
JAMES J. SWEENEY, J., and
LARRY A. JONES, J., CONCUR