State v. MaderaState v. Madera
JUDGMENT: AFFIRMED IN PART, REVERSED IN PART AND REMANDED
John T. Castele
1310 Rockefeller Building
614 West Superior Avenue
Cleveland, OH 44113
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
BY: Gregory Mussman
Assistant Prosecuting Attorney
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, OH 44113
SEAN C. GALLAGHER, A.J.:
{¶ 1} Appellant Jonathan Madera appeals his conviction by the Cuyahoga County Court of Common Pleas. For the reasons stated herein, we affirm in part, reverse in part, and remand.
{¶ 2} On December 2, 2008, a Cuyahoga County grand jury indicted Madera on two counts of aggravated robbery and two counts of felonious assault. A jury trial commenced on June 1, 2009. The state called five
{¶ 3} An unknown author once said, “The first thing in the human personality that dissolves in alcohol is dignity.” The facts in this case highlight that view. On November 9, 2008, Madera, his brother Jose (a.k.a. “Manny“), Gould, and Soto went together to a bar in Lakewood, Ohio, around midnight. They drank and socialized until closing at 2:00 a.m. Gould testified he drank approximately six to eight beers and six to eight mixed vodka drinks. He further testified that he had taken Vicodin and ecstasy earlier in the evening. The Maderas and Soto were also drinking.
{¶ 4} Outside the bar, there was a confrontation involving Gould, some other men, and Madera and his brother. The Maderas insisted Gould not have anything to do with these other men because the Maderas did not like them. Eventually the Maderas, Gould, and Soto got in Gould‘s car and drove to the Maderas’ house on Bunts Road.1 Gould and Soto both testified that an argument between Gould and the Maderas continued during the car ride.
{¶ 5} Gould testified that all four men went into the Maderas’ house. Gould entered the house behind the others, and the men continued arguing. Gould testified Madera told him that all Gould cared about was money. Gould stated, “I took my money out, I took some money out of my pocket and
{¶ 6} Afterwards, the men sat on the couch, and everything seemed fine for a short period of time. Ultimately the men began arguing again, and Gould testified Madera told him repeatedly to leave the house. Gould responded that he would not leave until all his money was returned to him, as he noticed he did not have all the money he came with.
{¶ 7} A physical brawl began between the men. Gould testified, “I can‘t remember who hit who first but I know we [Gould and Manny] was [sic] grappling * * *.” The fight escalated with Gould knocking over a 55-gallon fish tank, and Madera responding by hitting Gould repeatedly with a decorative sword. Gould testified that after a few minutes of Madera hitting him with the sword, he made his way out of the house and drove to his brother‘s house. Gould was transported via EMS to a local hospital, where he was treated for serious lacerations on his head and arms, as well as other cuts and bruises.
{¶ 8} Soto‘s testimony corroborated most of Gould‘s version of the facts. Soto testified that the Maderas told Gould from the outset not to come inside, but that Gould followed them upstairs and entered uninvited. Soto stated that Gould threw his money all over the floor, telling Madera “hey,
{¶ 9} At the close of the state‘s case, Madera made a Crim.R. 29 motion, which the court denied. The defense rested. The court denied Madera‘s renewed Crim.R. 29 motion.
{¶ 10} The jury returned guilty verdicts on all four counts of the indictment. The court merged Counts 1 and 2 and sentenced Madera to three years for aggravated robbery; it merged Counts 3 and 4 and sentenced Madera to three years for felonious assault. The sentences were to run concurrent. Madera was advised of postrelease control and was ordered to pay restitution in the amount of $1,100.
{¶ 11} Madera filed a timely notice of appeal, raising three assignments of error for our review.
{¶ 12} “I. The state produced insufficient evidence to sustain the defendant‘s conviction for aggravated robbery.”
{¶ 14} When an appellate court reviews a claim of insufficient evidence, “‘the relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt.‘” State v. Leonard, 104 Ohio St.3d 54, 2004-Ohio-6235, 818 N.E.2d 229, ¶ 77, quoting State v. Jenks (1991), 61 Ohio St.3d 259, 574 N.E.2d 492, paragraph two of the syllabus. The weight to be given the evidence and the credibility of the witnesses are primarily for the trier of fact. State v. Tenace, 109 Ohio St.3d 255, 2006-Ohio-2417, 847 N.E.2d 386, ¶ 37.
{¶ 15} Madera was convicted of aggravated robbery.
{¶ 17} In order to prove aggravated robbery, the state must prove that a theft offense occurred. Gould‘s and Soto‘s conflicting testimony raise doubts on this particular question. Both witnesses agree that Gould voluntarily relinquished his money; no one threatened him into giving up his cash. We further question whether Gould relinquished all claim to his money once he gave it up and told Madera to “take the money.” On the basis of the facts before us, the record is insufficient to support a finding that Madera committed a theft offense.
{¶ 18} Even if there had been sufficient evidence to establish Madera committed a theft offense, that fact coupled with felonious assault does not necessarily result in an aggravated robbery conviction. Madera argues that even if he kept some of Gould‘s money and he inflicted serious physical harm, the two acts were not done contemporaneously or in conjunction with each other, and therefore the elements of aggravated robbery have not been met.
{¶ 19} In State v. Ballard (1984), 14 Ohio App.3d 59, 469 N.E.2d 1334, this court held as follows: “Under
{¶ 20} There is no evidence that Madera used force or the threat of force when he picked up Gould‘s money from the floor and put it in his pocket. This leaves the question of whether Madera used force while attempting to flee immediately thereafter. This question poses its own difficulties in that Madera never fled the scene; instead, Gould left after several minutes of fighting. Nonetheless, we consider the Ohio Supreme Court‘s opinion in State v. Thomas, 106 Ohio St.3d 133, 2005-Ohio-4106, 832 N.E.2d 1190.
{¶ 21} In Thomas, the defendant struck an off-duty police officer (“Craska“) shortly after the defendant committed a theft offense. Id. In reversing Thomas‘s conviction for robbery, the supreme court stated: “It is readily apparent to us that the evidence was insufficient to show that Thomas was ‘fleeing immediately after’ a theft when he inflicted harm on Craska. When Thomas and Craska neared the store, having walked together from the laundromat, Thomas was not ‘fleeing immediately’ after a theft. There was a delay or lapse of time between the theft offense and the attempt to flee, so that Thomas‘s actions upon his return with Craska to the store‘s front door were not ‘immediately after’ the theft offense within the meaning of
{¶ 22} According to Gould‘s testimony, after he threw his money on the ground and Madera put some of it in his pocket, Gould sat on the couch for a period of time, and then he and Madera began arguing again. The argument escalated into a physical altercation between Gould and Jose, but Gould testified he could not remember who threw the first punch. The mere fact that Gould fought with Jose and not Madera first, lends further support to the delay between the theft offense and Madera‘s use of force.
{¶ 23} Under these specific facts, we find that the lapse in time between the theft and the use of force by Madera on Gould is sufficient to justify reversal of Madera‘s convictions for aggravated robbery. There was enough delay between the two actions that they could not be considered contemporaneous nor part of “a single continuous transaction.” See State v. McDonald (Dec. 6, 2001), Cuyahoga App. No. 78939.
{¶ 24} We find there was insufficient evidence that Madera committed aggravated robbery. Madera‘s first assignment of error is sustained, and his convictions for aggravated robbery are reversed.
{¶ 26} “II. The defendant‘s convictions were against the manifest weight of the evidence.”2
{¶ 27} “III. The trial court ought to have instructed the jury as to the law of criminal trespass in order for the jury to properly consider whether or not the victim was lawfully present in the home of the defendant and the failure to do so constituted plain error.”
{¶ 28} Madera argues that the jury lost its way in convicting him of felonious assault. Specifically, he argues that he was acting in self-defense and defense of his brother when he hit Gould with the sword. He also argues that Gould was trespassing on his property, which gave Madera the right to use force to remove him from the house.
{¶ 29} In reviewing a claim challenging the manifest weight of the evidence, the question to be answered is whether “there is substantial evidence upon which a jury could reasonably conclude that all the elements have been proved beyond a reasonable doubt. In conducting this review, we must examine the entire record, weigh the evidence and all reasonable inferences, consider the credibility of the witnesses, and determine whether
{¶ 30}
{¶ 31} Madera does not specifically dispute that the state presented evidence on all elements of felonious assault. Gould‘s testimony, in addition to Madera‘s statement to the police, shows that Madera knowingly caused Gould serious physical harm when he hit Gould repeatedly with a sword, causing lacerations to his head and arms.
{¶ 32} Instead, Madera argues that he was acting in self-defense and defense of another when Gould attacked him and Jose. In support of this defense, he argues that under the Castle Doctrine, the state failed to rebut the presumption that Gould was unlawfully in the house. Madera also argues that it was plain error for the court not to give an instruction on criminal trespass. His theory is that once he asked Gould to leave his house and Gould refused, Gould is guilty of criminal trespass, thereby authorizing Madera to use force to remove him from the house under the Castle Doctrine.
{¶ 34} This statute creates a rebuttable presumption, and the burden to prove the charged individual was not acting in self-defense falls on the state. See
{¶ 35} It is Madera‘s position that he asked and then demanded Gould leave the house, and when he refused, Madera was within his right to use force to expel him. The state argues that it met its burden to rebut the presumption Madera acted in self-defense by proving by a preponderance of the evidence that Gould was lawfully present in Madera‘s home.
{¶ 37} The jury found that Gould was lawfully present in the Maderas’ house. Thus, the jury rejected Madera‘s Castle Doctrine claim. The evidence showed that Gould had been a frequent guest of the Maderas, and had on prior occasions spent the night there. The Maderas had known Gould for ten years. Gould entered the house shortly after the other three men when they came home from the bar; he was permitted to stay. Gould testified the Maderas never asked him not to come inside, and that he was only asked to leave immediately before the physical altercation began.
{¶ 39} We find the state successfully rebutted the presumption that Gould was not lawfully present in the Maderas’ house. The jury did not lose its way in finding Madera‘s actions were not self-defense or defense of his brother.
{¶ 40} Similarly, the court did not commit plain error in failing to give an instruction on criminal trespass.3 Madera failed to request a jury instruction on criminal trespass, thus waiving all but plain error on appeal. State v. Grant (1993), 67 Ohio St.3d 465, 472, 620 N.E.2d 50. “Plain errors
{¶ 41} The trial court properly instructed the jury on self-defense, even though the jury ultimately rejected it. We find the overlap in the language on self-defense and that contained in
{¶ 42} Madera‘s second and third assignments of error are overruled.
Judgment affirmed in part and reversed in part. Case remanded for the trial court to vacate the aggravated robbery convictions.
It is ordered that appellant and appellee share the 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.
SEAN C. GALLAGHER, ADMINISTRATIVE JUDGE
CHRISTINE T. MCMONAGLE, J., and COLLEEN CONWAY COONEY, J., CONCUR