State v. HuberState v. Huber
JUDGMENT: AFFIRMED IN PART, REVERSED IN PART AND REMANDED FOR RESENTENCING
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-521813
ATTORNEY FOR APPELLANT
Paul Mancino, Jr. 75 Public Square, Suite 1016 Cleveland, OH 44113-2098
ATTORNEYS FOR APPELLEES
William D. Mason Cuyahoga County Prosecutor BY: Daniel T. Van Assistant County Prosecutor The Justice Center 1200 Ontario Street, 8th Floor Cleveland, OH 44113
MELODY J. STEWART, J.:
{¶ 1} A jury found defendant-appellant, Joseph Huber, guilty of two counts of aggravated robbery and single counts of kidnapping and attempted felonious assault. The crimes resulted from a scheme in which Huber and two others lured a delivery driver to their location, abducted him at knife point, forced him to make an ATM withdrawal from his personal bank
I
{¶ 2} The first four assignments of error complain that (a) the court erred by refusing to allow defense counsel to withdraw, (b) the court erred by examining a prospective juror out of Huber‘s presence, (c) the court erred by refusing to dismiss the indictment on speedy trial grounds, and (d) the state failed to give complete discovery.
A
{¶ 3} Two weeks before trial, Huber filed a pro se motion to disqualify counsel, complaining that she had been unresponsive to his requests for information about his case. The court did not rule on that motion. On the day before trial, counsel filed a supplemental motion to withdraw as counsel, claiming a conflict of interest: one of Huber‘s codefendants, Austin Teter, who also happened to be Huber‘s son, was apparently serving a term of juvenile probation and was represented, like Huber, by the Cuyahoga County Public Defender. Defense counsel told the court that she was basing Huber‘s defense on his state of mind at the time the crimes were committed and that his state of mind had been influenced by his “knowledge of Mr. Teter from the past.” Counsel told the court that she was aware of Teter‘s juvenile history
{¶ 4} To establish a Sixth Amendment violation of the right to counsel, Huber had to show an actual conflict of interest that adversely affected his attorney‘s performance. State v. Getsy (1998), 84 Ohio St.3d 180, 187, 1998-Ohio-533, 702 N.E.2d 866.
{¶ 5} The court found no conflict of interest existed under Prof.Cond.R. 1.9(c)(2), which prohibits a lawyer who has formerly represented a client from revealing information relating to that representation. We agree. Any information that Huber‘s attorney learned from another member of the public defender‘s office would not be subject to disclosure under Prof.Cond.R. 1.9(c)(2). With the state telling the court that it would not call Teter as a witness, all defense counsel could point to was a possible conflict of interest that could only become a full-fledged conflict of interest if defense counsel called Teter as a witness and violated Prof.Cond.R. 1.9(c)(2) by questioning him on his juvenile record. Even if another attorney from outside the pubic defender‘s office had been appointed to represent Huber, the acts forming the basis of Teter‘s juvenile court record would be inadmissible to prove Huber‘s state of mind at the time he committed the charged offenses. See State v. Cooperider, 3rd Dist. No. 9-03-11, 2003-Ohio-5133, at ¶16.
{¶ 6} We likewise find no abuse of discretion in the manner in which the court denied Huber‘s pro se motion to remove counsel. The Sixth Amendment does not guarantee “rapport” or a “meaningful relationship” between client and counsel. State v. Hennes, 79 Ohio St.3d 53, 65, 1997-Ohio-405, 679 N.E.2d 686, citing Morris v. Slappy (1983), 461 U.S. 1, 13-14, 103 S.Ct. 1610, 75 L.Ed.2d 610. Huber made unsupported claims that counsel had refused to communicate with him and refused to respond to his pro se motion to dismiss on speedy trial grounds. Nothing in the record suggests that there was such a breakdown of communication between attorney and client so as to constitute the denial of counsel.
B
{¶ 7} Huber next complains that the court denied him his right to be present at trial when it examined a prospective juror out of his presence at the sidebar. We reject this argument because defense counsel, in response to a specific question from the court posed at the sidebar, specifically stated that Huber waived his right to participate. State v. Williams (1969), 19 Ohio App.2d 234, 250 N.E.2d 907. It is of no consequence that counsel made the waiver after the sidebar concluded. After stating that she waived Huber‘s presence, the court offered to give her “a second to discuss this with your client.” Counsel replied that “we‘re satisfied” and again noted Huber‘s decision to waive any error relating to the juror remaining on the panel.
C
{¶ 8} Huber also complains that the court erred by failing to rule on his pro se motion to dismiss on speedy trial grounds.
{¶ 9} When a court fails to rule on a motion, we presume that the motion was denied. Univ. Mednet v. Blue Cross & Blue Shield of Ohio (1997), 126 Ohio App.3d 219, 236, 710 N.E.2d 279. Moreover, there is no requirement that a court hold a hearing on a motion to dismiss for want of a speedy trial when the court is able to determine the issue from the record. See State v. Freeman, 8th Dist. No. 85137, 2005-Ohio-3480, at ¶62, reversed on other grounds, In re Ohio Criminal Sentencing Statutes Cases, 109 Ohio St.3d 313, 2006-Ohio-2109, 847 N.E.2d 1174. Apart from recitations of law relating to speedy trial issues, Huber makes no substantive argument on the merits of the motion to dismiss. In fact, he even fails to set forth relevant dates. We therefore disregard that aspect of this assignment of error. See
D
{¶ 10} Huber complains that he was denied due process of law because the state failed to provide complete discovery of statements made by codefendants Teter and Derrick Jones.
{¶ 11} Teter did not make any statements, nor did the state intend to call Teter as a witness, so the state had nothing to give the defense.
{¶ 12} The state provided Jones‘s oral statement in compliance with
II
{¶ 13} Huber next complains about several trial errors: (a) the court restricted his cross-examination of a witness; (b) the court erred by amending a count to a lesser included offense after the state conceded, in a motion for judgment of acquittal, that there was no evidence to support the higher
A
{¶ 14} Huber complains that the court improperly restricted his cross-examination of a police detective in two ways. The first instance arose when Huber asked the detective whether he had spoken to a police sergeant about a conversation the sergeant had with Huber and whether the sergeant had spoken to Huber about a burglary that occurred in Huber‘s neighborhood. The court properly refused to allow the detective to answer because the questions were designed to produce inadmissible hearsay. See
{¶ 15} The second instance involved a questioning of Huber by the detective, again about an alleged burglary that occurred in Huber‘s neighborhood.
{¶ 16} The court did not err by sustaining the state‘s objections to these questions because the uncharged burglary referred to by Huber had no apparent relevancy to the offenses charged in this case, nor has Huber in this appeal offered any basis in support of relevancy.
B
{¶ 17} At the close of evidence, Huber requested a
{¶ 18}
C
1
{¶ 19} Huber asked the court to instruct the jury on robbery as a lesser included offense of aggravated robbery, but the court denied that request. There was no abuse of discretion in doing so. The court need only instruct on a lesser included offense if, under any reasonable view of the evidence, it is possible for the trier of fact to find the defendant not guilty of the greater offense and guilty of the lesser offense. State v. Wilkins (1980), 64 Ohio St.2d 382, 389, 415 N.E.2d 303. The evidence showed that Huber and his codefendants abducted the victim at knife point, with Jones holding the knife against the victim‘s throat. Even though the victim suffered no serious physical harm as a result, evidence that the knife had been held against the victim‘s throat was sufficient to prove the brandishing element of aggravated robbery as charged under
2
{¶ 20} Huber also complains that the court erred by incompletely instructing the jury on aiding and abetting because it omitted telling the jury that an aider and abettor had to possess the same culpable mental state as that required for the crime. Huber did not object to the court‘s jury instruction, so he waived all but plain error. See
3
{¶ 21} We likewise find no plain error in the court‘s failure to instruct the jury on the consent element of theft. Huber has not shown that the court‘s failure to separately charge the jury on every element of theft resulted in a manifest injustice or that he was prejudiced by the omission. See State v. Price, 8th Dist. No. 90308, 2008-Ohio-3454, reopening disallowed,
4
{¶ 22} Finally, we find no plain error resulting from the court‘s failure to instruct the jury that it could not consider codefendant Jones‘s guilty plea as evidence against Huber because the court instructed the jury that the testimony of an accomplice “should be viewed with grave suspicion and weighed with great caution.” See State v. Cochran, 11th Dist. No. 2006-G-2697, 2007-Ohio-345, at ¶38-39.
D
{¶ 23} Huber next argues that the court erred by denying his motion for judgment of acquittal on the attempted felonious assault and aggravated robbery charges. He maintains that he was merely present on the scene when the offenses occurred and did not actively assist or participate in their commission.
{¶ 24} We determine whether the evidence is sufficient to sustain a verdict by examining the evidence in the light most favorable to the prosecution and determining whether any rational trier of fact could have
{¶ 25} Viewed in the state‘s favor, the evidence showed that Huber, Teter, and Jones were neighbors. They were “chilling” when Teter said, “let‘s hit a lick.” They went walking and Teter telephoned a pizza parlor and ordered a pizza for delivery. When the victim, a pizza delivery driver, arrived, he exited his car and went to take the pizza out of an insulated bag. Teter came up behind the victim and put him in a neck-lock. He then held a knife against the victim‘s neck and ordered him to drop to his knees. He told the victim to “give me all your money.” At that point, both Jones and Huber approached the victim. They took what little money the victim had and ordered him into the back seat of his car, telling him “you‘re going to go for the ride of your life.” The victim said he sat between Huber and Teter, and that Teter still held him in a neck-lock with the knife pressed against this throat. As they drove, Jones asked “where is your money at?” The victim told them his money was in the bank. At this point, Teter told the victim to undress. As the victim did so, Teter handed the clothing to Huber, who searched them for anything of value. Huber then climbed into the front seat of the car. Huber refused to allow the victim to use a walk-up automated
{¶ 26} We reject Huber‘s assertion that there was insufficient evidence to convict him of attempted felonious assault because he did not hold the knife to the victim‘s throat. The jury found Huber guilty of attempted felonious assault as an aider and abettor on substantial proof that he supported, assisted, encouraged, cooperated with, advised, or incited Teter in the commission of the crime, and that he shared the criminal intent of the principal.
{¶ 27} For the same reasons, we reject Huber‘s argument that he did nothing to attempt to inflict physical harm for purposes of aggravated robbery as charged under
{¶ 28} Finally, there was sufficient evidence to show that Huber restrained the victim‘s liberty to prove kidnapping under
III
{¶ 29} The remaining assignments of error relate to sentencing issues.
A
B
{¶ 31} The court sentenced Huber to six years on each count of aggravated robbery and merged them into one, six-year sentence. The court ordered a six-year sentence on the kidnapping count and a three-year sentence on the attempted felonious assault count. Those sentences were all ordered to be served consecutively for a total prison term of 15 years.
{¶ 32} Huber first complains that the court should not have sentenced him to six-years on each of the aggravated robbery counts and merged them,
{¶ 33} Huber next complains that the kidnapping and attempted felonious assault counts should have each merged into the single aggravated robbery conviction, leaving just a single sentence for aggravated robbery under
{¶ 34} In State v. Winn, 121 Ohio St.3d 413, 2009-Ohio-1059, 905 N.E.2d 154, the syllabus states: “The crime of kidnapping, defined by
{¶ 35} We agree that the kidnapping and aggravated robbery convictions were committed with the same animus. The defendants restrained the victim for the sole purpose of forcing him to withdraw money from his bank account. By refusing to let the victim use a walk-up automated teller machine lest he run away, Huber contributed to the victim‘s further confinement, all in the name of committing the aggravated robbery. The court erred by not merging the kidnapping and aggravated robbery offenses.
{¶ 36} Felonious assault and aggravated robbery are not allied offenses. See State v. Howell, 8th Dist. No. 92827, 2010-Ohio-3403, at ¶32; State v. Stone, 8th Dist. No. 92949, 2010-Ohio-3308, at ¶23 (collecting cases). It follows that an attempt to commit felonious assault would likewise not be an allied offense with aggravated robbery.
C
{¶ 37} Huber next complains that the court erred by ordering him to serve all of his sentences consecutively, apparently arguing that the United States Supreme Court decision in Oregon v. Ice (2009), 555 U.S. 160, 129 S.Ct. 711, 714, 172 L.Ed.2d 517, reimposed the judicial fact-finding that had been struck down in paragraph four of the syllabus to State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470. We reject this argument on authority of State v. Bates, 118 Ohio St.3d 174, 2008-Ohio-1983, 887 N.E.2d 328, at ¶18, in which the Ohio Supreme Court stated that: “The severance *
{¶ 38} We also conclude that the court did not abuse its discretion by imposing consecutive sentences. Among the purposes and principles of sentencing stated in
Judgment affirmed in part, reversed in part, and remanded for resentencing for proceedings consistent with this opinion.
It is ordered that the parties bear their own costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to the Cuyahoga County Court of Common Pleas to carry this judgment into execution.
MELODY J. STEWART, JUDGE
KENNETH A. ROCCO, P.J., CONCURS; ANN DYKE, J., CONCURS IN JUDGMENT ONLY