STATE OF OHIO, Plaintiff-Appellee v. DENNIS H. KENNEDY, Defendant-Appellant
Appellate Case No. 2017-CA-100
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT CLARK COUNTY
December 14, 2018
[Cite as State v. Kennedy, 2018-Ohio-4997.]
Trial Court Case No. 2015-CR-0643C (Criminal Appeal from Common Pleas Court)
Rendered on the 14th day of December, 2018.
ANDREW P. PICKERING, Atty. Reg. No. 0068770, Assistant Prosecuting Attorney, Clark County Prosecutor‘s Office, 50 East Columbia Street, Suite 449, Springfield, Ohio 45502 Attorney for Plaintiff-Appellee
ALEX KOCHANOWSKI, Atty. Reg. No. 0090940, 6302 Kincaid Road, Cincinnati, Ohio 45213 Attorney for Defendant-Appellant
WELBAUM, P.J.
Facts and Course of Proceedings
{¶ 2} On December 8, 2015, the Clark County Grand Jury returned an indictment charging Kennedy with one count of improperly handling a firearm in a motor vehicle in violation of
{¶ 3} The charges arose from allegations that on the night of September 22, 2015, Kennedy and Aaron Roberts fired several gunshots at two Springfield, Ohio, residences
{¶ 4} Kennedy pled not guilty to the charges and the matter proceeded to a jury trial. At trial, the State presented 24 witnesses and submitted over 100 exhibits in support of the charges against Kennedy. In his defense, Kennedy presented no witnesses, but offered five exhibits, two of which were admitted into evidence. After the State rested its case, Kennedy moved the trial court for a Crim.R. 29 dismissal of all the charges. The trial court denied Kennedy‘s motion. Following closing arguments and jury instructions, the jury deliberated and found Kennedy guilty of all the charges and specifications, excluding the charge for tampering with evidence.
{¶ 5} Prior to sentencing, Kennedy filed a motion requesting the trial court to merge all of his offenses and firearm specifications or, alternatively, to impose minimum, concurrent sentences. The trial court denied Kennedy‘s motion and thereafter sentenced Kennedy to eight years in prison for each count of improperly discharging a firearm at or into a habitation. The trial court also sentenced Kennedy to 18 months in prison for improperly handling a firearm in a motor vehicle, and it ordered Kennedy to serve a mandatory three-year prison term for each of the two firearm specifications. The
{¶ 6} Kennedy now appeals from his conviction, raising two assignments of error for review.
First Assignment of Error
{¶ 7} Under his First Assignment of Error, Kennedy contends there was insufficient evidence to support his conviction and that his conviction was against the manifest weight of the evidence. We disagree.
{¶ 8} “A sufficiency of the evidence argument disputes whether the State has presented adequate evidence on each element of the offense to allow the case to go to the jury or sustain the verdict as a matter of law.” State v. Wilson, 2d Dist. Montgomery No. 22581, 2009-Ohio-525, ¶ 10, citing State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). “When reviewing a claim as to sufficiency of evidence, the relevant inquiry is whether any rational factfinder viewing the evidence in a light most favorable to the state could have found the essential elements of the crime proven beyond a reasonable doubt.” (Citations omitted.) State v. Dennis, 79 Ohio St.3d 421, 430, 683 N.E.2d 1096 (1997). “The verdict will not be disturbed unless the appellate court finds that reasonable minds could not reach the conclusion reached by the trier-of-fact.” (Citations omitted.) Id.
{¶ 9} In contrast, “[a] weight of the evidence argument challenges the believability of the evidence and asks which of the competing inferences suggested by the evidence is more believable or persuasive.” (Citation omitted.) Wilson at ¶ 12. When evaluating
{¶ 10} Because the trier of fact sees and hears the witnesses at trial, we must defer to the factfinder‘s decisions whether, and to what extent, to credit the testimony of particular witnesses. State v. Lawson, 2d Dist. Montgomery No. 16288, 1997 WL 476684, *4 (Aug. 22, 1997). However, we may determine which of several competing inferences suggested by the evidence should be preferred. A judgment of conviction should be reversed as being against the manifest weight of the evidence only in exceptional circumstances. Martin at 175.
{¶ 11} As previously noted, Kennedy was convicted of one count of improperly handling a firearm in a motor vehicle in violation of
{¶ 12} Kennedy was also convicted of two counts of improperly discharging a firearm at or into a habitation in violation of
{¶ 13} Kennedy contends the State‘s evidence was insufficient to support his conviction for the aforementioned offenses and specifications because the State failed to prove that he was involved in the shootings on Pine Street and South Center Boulevard or that he was present inside the get-away vehicle with a loaded firearm. We find no merit to Kennedy‘s claims.
{¶ 14} At trial, the State presented Aaron Roberts, who testified that he and Kennedy discharged firearms at the Pine Street and South Center Boulevard residences on the night in question. Roberts indicated that he and Kennedy engaged in such conduct because gunshots were fired at them earlier in the night while they were on Kenton Street. Roberts testified that he believed Gary Strodes and Michael Johnson were the individuals who fired shots at him and Kennedy.
{¶ 15} After the shooting on Kenton Street, Roberts testified that Krista Jones arrived in a red SUV and transported him and Kennedy to Kennedy‘s residence on Columbus Road, where they loaded two semi-automatic rifles. Once the rifles were loaded, Roberts testified that he and Kennedy returned to Jones‘s SUV to go “shoot up some houses.” Trial Trans. Vol. II (Oct. 4, 2017), p. 264.
{¶ 17} After reloading their firearms, Roberts testified that Jones drove him and Kennedy to Woodward Avenue where he and Kennedy exited the SUV and walked to Michael Johnson‘s residence on South Center Boulevard. Roberts testified that he and Kennedy fired several gunshots at Johnson‘s residence and then ran back to the SUV on Woodward. From there, Roberts testified that Jones drove him and Kennedy to York Street where Roberts noticed they were being followed. According to Roberts, a police chase ensued shortly thereafter.
{¶ 18} Roberts testified that the police chase led them out of Springfield and into the town of South Charleston. Upon reaching South Charleston, Roberts testified that their SUV hit stop sticks placed in the road by police. After hitting the stop sticks, Roberts testified that he threw his firearm out the SUV‘s window and that Kennedy did the same. According to Roberts, Kennedy then said “let me out, let me out, let me out.” Trial Trans. Vol. II (Oct. 4, 2017), p. 270. In response, Roberts claimed that he leaned forward from where he was sitting in the front-passenger seat of the SUV and opened the front passenger door so that Kennedy could jump out of the two-door vehicle. After Kennedy fled the vehicle, Roberts testified that he and Jones stayed inside the SUV, where they were arrested.
{¶ 20} A firearm examiner from the Ohio Bureau of Criminal Investigation (“BCI“) testified that both firearms identified by Roberts were operable. A forensic ballistics expert from BCI also testified that all the shell casings collected near the Pine Street and South Center Boulevard residences were fired from the two firearms identified by Roberts. A DNA analyst from BCI further testified that a mixture of Roberts‘s and Kennedy‘s DNA was discovered on one of the firearms, and that Kennedy and Roberts were the major contributors of DNA on that firearm. Although the DNA testing on the second firearm was inconclusive, the DNA analyst testified that the inconclusive result simply meant that there was not enough data to include Roberts and Kennedy as DNA contributors. The analyst, however, testified that he could not rule out the possibility that Roberts‘s and Kennedy‘s DNA were present on the firearm.
{¶ 21} In addition to the testimony concerning the firearms, a criminal intelligence analyst from BCI testified regarding precision location data obtained from Kennedy‘s cell phone.1 The analyst testified that the cell phone in question received service from
cellular towers located in the area of the shootings at Kenton Street, Pine Street, and South Center Boulevard near the time that each of the shootings occurred. The cell phone data also indicated that Kennedy‘s cell phone received service from cellular towers that were located near South Charleston during the time the police were chasing the SUV into South Charleston.
{¶ 22} Kennedy claims the foregoing evidence was insufficient to support his conviction because the only direct evidence linking him to the offenses was the testimony of Roberts. Kennedy claims Roberts‘s testimony should have been discredited because it was biased. Kennedy claims Roberts‘s testimony was biased because Roberts entered a plea agreement with the State that reduced his charges. According to Kennedy, the only remaining evidence against him was circumstantial, which Kennedy claims was insufficient to convict him because it failed to exclude any reasonable theory of innocence.
{¶ 23} In crafting this argument, Kennedy relies on State v. Kulig, 37 Ohio St.2d 157, 309 N.E.2d 897 (1974), which was expressly overruled by State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991). Accord State v. Winton, 2d Dist. Montgomery No. 27043, 2017-Ohio-6908, ¶ 43. Per Jenks, “[w]hen the state relies on circumstantial
{¶ 24} That said, it was the province of the jury to determine whether Roberts‘s testimony was credible. The State presented the testimony of several law enforcement officers, expert witnesses, and other individuals who corroborated Roberts‘s testimony regarding his and Kennedy‘s conduct on the night in question. The DNA evidence discovered on one of the firearms and the cell phone location data also supported the finding that Kennedy was present during the offenses in question. Therefore, based on the facts and circumstances here, we find it was certainly reasonable for the jury to believe Roberts‘s testimony.
{¶ 25} At this juncture, we note that, as part of this assignment of error, Kennedy argues in his reply brief that the cell phone location data was inadmissible because it was obtained without a warrant in violation of his Fourth Amendment rights, pursuant to the United States Supreme Court‘s recent decision in Carpenter v. United States, __ U.S. __, 138 S.Ct. 2206, 201 L.Ed.2d 507 (2018). The court in Carpenter held that the government‘s acquisition of cell-site records constitutes a Fourth Amendment search. Id. at paragraph one of the syllabus. The court noted that, “even though the Government will generally need a warrant to access [cell-site location information], case-specific exceptions—e.g., exigent circumstances—may support a warrantless search.”
{¶ 26} The issue of whether the cell phone location data used at Kennedy‘s trial was obtained in violation of Kennedy‘s Fourth Amendment rights was never argued before the trial court, as Kennedy never moved to suppress the data. “It is settled law that issues raised for the first time on appeal and not having been raised in the trial court are not properly before this court and will not be addressed.” State v. Schneider, 2d Dist. Greene No. 95-CA-18, 1995 WL 737910, * 1 (Dec. 13, 1995). While Carpenter was decided after Kennedy‘s conviction, there was nothing prohibiting Kennedy from moving the trial court to suppress the cell phone location data on Fourth Amendment grounds. Furthermore, “[a]n appellant may not use a reply brief to raise new issues or assignments of error.” State v. Murnahan, 117 Ohio App.3d 71, 82, 689 N.E.2d 1021 (2d Dist.1996), citing
{¶ 27} Regardless, even if we were to review the issue and conclude that the cell phone location data was obtained without a warrant in violation of Kennedy‘s Fourth Amendment rights, such an error would be harmless beyond a reasonable doubt because, even without the cell phone location data, there was overwhelming evidence to convict Kennedy of the offenses in question. See State v. Williams, 6 Ohio St.3d 281, 290, 452 N.E.2d 1323 (1983), quoting Harrington v. California, 395 U.S. 250, 254, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969) (“evidence * * * improperly admitted in derogation of a criminal defendant‘s constitutional rights * * * is harmless ‘beyond a reasonable doubt’ if the remaining evidence alone comprises ‘overwhelming’ proof of defendant‘s guilt“). Accord State v. Jenkins, 2d Dist. Montgomery No. 27701, 2018-Ohio-3697, ¶ 16.
{¶ 29} We further find that Kennedy‘s conviction was not against the manifest weight of the evidence. At trial, the State presented testimony from 24 witnesses and introduced over 100 exhibits, all of which the jury could have reasonably credited to conclude that Kennedy was guilty of the offenses and specifications at issue. Therefore, due to the abundance of evidence implicating Kennedy in the alleged offenses, the jury did not clearly lose its way or create a manifest miscarriage of justice in finding him guilty.
{¶ 30} Kennedy‘s First Assignment of Error is overruled.
Second Assignment of Error
{¶ 31} Under his Second Assignment of Error, Kennedy contends the trial court erred by failing to merge his offenses and firearm specifications at sentencing. Kennedy
Merger
{¶ 32} As previously noted, Kennedy contends the trial court should have merged his offenses and firearm specifications at sentencing. With regard to Kennedy‘s offenses, Ohio‘s allied offense statute,
(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.
{¶ 33} ” ’ [W]hen determining whether offenses are allied offenses of similar import within the meaning of
{¶ 34} As to the question of import and significance, “two or more offenses of dissimilar import exist within the meaning of
{¶ 35} We review allied-offense determinations de novo. State v. Harmon, 2017-Ohio-8106, 98 N.E.3d 1238, ¶ 59 (2d Dist.), citing State v. Williams, 134 Ohio St.3d 482, 2012-Ohio-5699, 983 N.E.2d 1245, ¶ 28. De novo appellate review means that this court independently reviews the record and affords no deference to a trial court‘s decision. State v. Walker, 10th Dist. Franklin No. 06AP-810, 2007-Ohio-4666, ¶ 10.
{¶ 36} As previously discussed, Kennedy was convicted of two separate counts of improperly discharging a firearm at or into a habitation with a firearm specification attached to each count. One of the counts was for gunshots fired at a residence on Pine Street and the other count was for gunshots fired at a residence on South Center Boulevard. The offenses were dissimilar in import and significance because each shooting produced separate victims that suffered separate, identifiable damage to their respective homes. The record also indicates that the shootings occurred separately in time and distance. The record further indicates that the motivation behind the shootings
{¶ 37} The improper discharge counts and the count for improperly handling a firearm in a motor vehicle were also not allied offenses subject to merger. This is because the harm or danger that arose from carrying a loaded firearm in a motor vehicle was separate and distinct from the harm or danger that arose from discharging a firearm at or into a habitation. See State v. Pope, 2017-Ohio-1308, 88 N.E.3d 584, ¶ 34-35 (2d Dist.) (holding that OVI and improper handling offenses were not allied offenses subject to merger because the offenses involved separate harm).
{¶ 38} In State v. Johnson, 10th Dist. Franklin Nos. 16AP-860, 16AP-868, and 16AP-869, 2017-Ohio-9286, the trial court declined to merge certain offenses at sentencing, including two counts of improperly discharging a firearm at or into a habitation and one count of improperly handling a firearm in a motor vehicle. Id. at ¶ 15-16. The offenses stemmed from the defendant‘s driving to an individual‘s house, getting out of his vehicle, firing shots into the house, and then driving to another individual‘s house, where the defendant once again got out of his vehicle and fired shots into that house. Id. at ¶ 2. The Tenth District held that, because the defendant‘s improper handling offense occurred both before and after the defendant discharged his firearm at the residences, the improper handling offense and improper discharge offenses were ” ‘not alike in their significance and their resulting harm.’ ” Id. at ¶ 21, quoting Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, at ¶ 21. We agree.
{¶ 39} With regard to Kennedy‘s two firearm specifications, the Supreme Court of
{¶ 40} As to the question of whether Kennedy‘s two firearm specifications should have merged with each other, we look to
{¶ 41} ” ’ Same act or transaction’ means a series of continuous acts bound together by time, space and purpose, and directed toward a single objective.” State v. Nowden, 2d Dist. Clark No. 07CA0120, 2008-Ohio-5383, ¶ 77, citing State v. Wills, 69 Ohio St.3d 690, 635 N.E.2d 370 (1994). In determining whether felonies are committed as part of the same act or transaction, “[t]he test is not whether there was a separate animus for each offense; the appropriate consideration is whether the defendant ‘had a common purpose in committing multiple crimes’ and engaged in a ‘single criminal adventure.’ ” State v. Like, 2d Dist. Montgomery No. 21991, 2008-Ohio-1873, ¶ 40, quoting State v. Adams, 7th Dist. Mahoning No. 00 CA 211, 2006-Ohio-1761, ¶ 54, 57. (Other citation omitted.)
{¶ 43} For the foregoing reasons, Kennedy‘s merger argument lacks merit.
Consecutive and Minimum Sentences
{¶ 44} Kennedy also contends that the trial court erred by imposing consecutive sentences and by failing to impose minimum, concurrent sentences. We review felony sentences in accordance with the standard set forth in
{¶ 45}
The appellate court may increase, reduce, or otherwise modify a sentence that is appealed under this section or may vacate the sentence and remand the matter to the sentencing court for resentencing. The appellate court‘s standard for review is not whether the sentencing court abused its discretion. The appellate court may take any action authorized by this
division if it clearly and convincingly finds either of the following: (a) That the record does not support the sentencing court‘s findings under division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of section 2929.14, or division (I) of section 2929.20 of the Revised Code, whichever, if any, is relevant;
(b) That the sentence is otherwise contrary to law.
{¶ 46} Pursuant to the plain language of
{¶ 47} In this case, the trial court made findings under one of the relevant statutes referred to in
(a) The offender committed one or more of the multiple offenses while the offender was awaiting trial or sentencing, was under a sanction imposed
pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised Code, or was under post-release control for a prior offense. (b) At least two of the multiple offenses were committed as part of one or more courses of conduct, and the harm caused by two or more of the multiple offenses so committed was so great or unusual that no single prison term for any of the offenses committed as part of any of the courses of conduct adequately reflects the seriousness of the offender‘s conduct.
(c) The offender‘s history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender.
{¶ 48} ” ’ [A] trial court is required to make the findings mandated by
{¶ 49} The record in this case establishes that the trial court made all the required consecutive-sentence findings at the sentencing hearing and in the sentencing entry. See Sentencing Trans. (Oct. 31, 2017), p. 18; Judgment Entry of Conviction (Nov. 27, 2017), Docket No. 57, p. 3. Specifically, the trial court stated the following at the sentencing hearing:
The Court finds that consecutive sentences [are] necessary to protect the public from future crime and to punish the Defendant and that the consecutive sentences are not disproportionate to the seriousness [of] his conduct and to the danger he poses to the public. The Court also finds that the Defendant committed one or more multiple acts while he was awaiting trial or sentencing. As indicated, he was under bond for two cases at the time.
The Court further finds that at least two of the multiple offenses were committed as part of the normal courses of conduct and the harm caused by the two or more multiple offenses so committed was so great or unusual that no single prison term for any of the offenses committed as part of the course of conduct or courses of conduct adequately reflects the seriousness of the Defendant‘s conduct. And the Defendant‘s history of criminal conduct demonstrates consecutive sentences are necessary to protect the public from future crime by the defendant.
Sentencing Trans., p. 18.
{¶ 51} We also do not find that the trial court erred in failing to impose minimum, concurrent sentences. “The trial court has full discretion to impose any sentence within the authorized statutory range, and the court is not required to make any findings or give reasons for imposing maximum or more than minimum sentences.” (Citation omitted.) State v. Nelson, 2d Dist. Montgomery No. 25026, 2012-Ohio-5797, ¶ 62. Accord State v. Terrel, 2d Dist. Miami No. 2014-CA-24, 2015-Ohio-4201, ¶ 14. A sentence “is not contrary to law [if it falls] within the statutory range [and the trial court] expressly state[s]
{¶ 52} Here, the trial court expressly stated at the sentencing hearing and in its sentencing entry that it considered the purposes and principles of sentencing in
{¶ 53} An appellate court may vacate or modify any sentence that is not clearly and convincingly contrary to law only if the appellate court finds by clear and convincing evidence that the record does not support the sentence. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, at ¶ 23. We find no such evidence here. As previously noted, the record indicates that Kennedy‘s conduct placed several people in severe danger and caused extensive property damage. Kennedy also committed the offenses in question while he was out on bond for a charge that involved the same type of conduct, i.e., improperly handling a firearm in a motor vehicle. The record also indicates that Kennedy had a fairly extensive criminal record and that he had not responded favorably to prior sanctions. Because we do not find by clear and convincing evidence that the record does not support Kennedy‘s sentence, his sentence will not be disturbed by this court on appeal.
{¶ 54} For the foregoing reasons, Kennedy‘s arguments concerning his sentences
{¶ 55} Kennedy‘s Second Assignment of Error is overruled.
Conclusion
{¶ 56} Having overruled both of Kennedy‘s assignments of error, the judgment of the trial court is affirmed.
HALL, J. and TUCKER, J., concur.
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Andrew P. Pickering
Alex Kochanowski
Hon. Richard J. O‘Neill