STATE OF OHIO v. VINCENT L. PHILLIPS
APPEAL NO. C-150376, TRIAL NO. B-1402743 | APPEAL NO. C-150378, TRIAL NO. B-1402743
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
June 29, 2016
2016-Ohio-4672
Criminal Appeals From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed in C-150376; Affirmed and Cause Remanded in C-150378
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Rachel Lipman Curran, Assistant Prosecuting Attorney, for Plaintiff-Appellee/Plaintiff-Appellant,
Timothy J. McKenna, for Defendant-Appellant/Defendant-Appellee.
{¶1} Following a jury trial, defendant-appellant/defendant-appellee Vincent L. Phillips appeals from his convictions for the attempted murder of a North College Hill police officer, with an accompanying specification for firing at a peace officer, carrying a concealed weapon, tampering with evidence, and receiving stolen property. Because we hold that the convictions were not against the manifest weight and sufficiency of the evidence adduced at trial, and because Phillips was not denied the effective assistance of trial counsel, we affirm the trial court‘s judgment in Phillips’ appeal.
{¶2} The state also appeals, challenging the trial court‘s failure to impose additional prison terms for one- and three-year firearm specifications that the jury had found Phillips guilty of committing. Because the trial court was required, as a matter of law, to impose an additional prison term for the one-year firearm-possession specification accompanying the tampering-with-evidence offense, we remand the matter to the trial court.
I. Encounter In The Alley
{¶3} In the late evening of May 20, 2014, North College Hill police officers Keith Ryan and Shaun Miller responded to complaints of a group of disorderly juveniles on the street. Phillips was one of the group. He had been drinking and was carrying a loaded and cocked semiautomatic pistol. As the officers approached the group to investigate, Phillips, then age 19, fled on foot. Officer Miller ordered Phillips to stop and then pursued him into a darkened alleyway.
{¶4} Officer Miller, with his Taser stun gun in his hand, was gaining ground on Phillips. When he was within 15 feet of Phillips, Officer Miller saw two separate muzzle flashes just ahead of him in the darkness. Numerous witnesses described
{¶5} Additional police officers, including an officer with a canine unit, responded and they quickly apprehended Phillips. He was hiding on a nearby garage roof. The canine unit discovered Phillips’ discarded pistol, still operable and ready to fire, about 70 feet from his hiding place.
{¶6} When Phillips was arrested he was informed of his Miranda rights to remain silent. But Phillips responded loudly, “Fuck North College Hill police.” He berated another North College Hill police officer, screaming, “Then fuck you; you ain‘t shit.” Phillips then yelled out, “North College Hill ain‘t shit. I wish I would have got that bitch ass cop.”
{¶7} Investigating officers found two spent casings near where Officer Miller had seen the muzzle flashes. They were determined to have been fired from Phillips’ pistol. A bullet hole was found in a garage near where Officer Miller had been just as Phillips had begun to fire. The investigators found gun residue on Phillips’ hands. The pistol had been stolen from a local gun shop.
{¶8} At the police station, Phillips had calmed himself and was cooperative, polite, and compliant with police requests. In a videotaped confession he admitted shooting at Officer Miller. He later clarified that he had shot only to effect his escape.
{¶9} The Hamilton County Grand Jury returned an indictment alleging five felony offenses: attempted murder and felonious assault, each with accompanying firearm-facilitation and peace-officer specifications, carrying a concealed weapon, tampering with evidence, with an accompanying firearm-possession specification, and receiving stolen property.
{¶10} At trial, Phillips testified in his own defense, claiming that he had been drunk and had fled from the police in fear that they would find his concealed pistol.
{¶11} The jury returned guilty verdicts on each offense and specification. The trial court received sentencing memoranda. The state urged a 26-year aggregate sentence be imposed. After receiving the memoranda, and hearing the arguments of counsel, the trial court imposed a five-year prison term for the attempted-murder offense charged in Count 1 of the indictment. It also imposed a seven-year prison term for the accompanying peace-officer specification—Specification 2—and ordered that term to be served consecutively to and prior to the term for the predicate felony offense. Because the trial court determined that felonious assault, as alleged in Count 2 of the indictment, was an allied offense of similar import to attempted murder, it did not impose a sentence for that offense or any of the accompanying specifications. The trial court also imposed a 12-month prison term for the carrying-a-concealed-weapon offense, and 18-month terms for the tampering-with-evidence offense under Count 4, and the receiving-stolen-property offense. Those prison terms were to be served concurrently with the prison term for attempted murder.
{¶12} But the trial court ordered that the remaining specifications, including the three-year firearm-facilitation specification, Specification 1 to Count 1, and the single firearm-possession specification accompanying the tampering-with-evidence offense charged in Count 4, would “merge” with the seven-year prison term imposed for the peace-officer specification to the attempted-murder offense “for the purpose of sentencing.” The aggregate prison term was 12 years.
{¶13} Both Phillips and the state appealed from the trial court‘s judgment of conviction. We consolidated the appeals for briefing and resolution.
{¶14} Raising three assignments of error, Phillips challenges the convictions, though not the sentences, entered below.
a. Sufficiency and weight-of-the-evidence claims
{¶15} In two interrelated assignments of error, Phillips challenges the weight and the sufficiency of the evidence adduced at trial to support his conviction for attempted murder, and the accompanying peace-officer specification. Although Phillips extends his arguments here to also challenge the felonious-assault offense, the trial court did not enter a judgment of conviction on that charge. Moreover, Phillips does not advance any argument attacking the weight or the sufficiency of the evidence supporting his convictions on the remaining charges. See State v. Sanders, 1st Dist. Hamilton Nos. C-140579 and C-140580, 2015-Ohio-5232, ¶ 41 (holding that alleged errors not argued in the appellate brief are deemed waived).
{¶16} Phillips was convicted of attempted murder under
{¶17} Our review of the entire record fails to persuade us that the jury, acting as the trier of fact, clearly lost its way and created such a manifest miscarriage of justice that the convictions must be reversed and a new trial ordered. See State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997). We can find no basis in this record to conclude that this is that “exceptional case in which the evidence
{¶18} The jury was entitled to reject Phillips’ explanation, made to the jury at trial, that he had fled from the police because he was drunk and carrying a firearm, that he had tried to unload the weapon while fleeing, and that while he was doing so, the weapon accidentally discharged twice. He denied having any intent to harm Officer Miller. And he couldn‘t recall making any threatening statements about the police officers after his arrest. Phillips’ theory of defense rested largely on his trial testimony and his characterization that there was little evidence to corroborate the state‘s contention that he had acted purposely in attempting to murder Officer Miller.
{¶19} The state presented ample evidence to support the convictions, including Phillips’ own statement to the arresting and investigating officers that he had shot at Officer Miller, a peace officer, and that he had wished that he “would have gotten that bitch ass cop.” The state also introduced substantial physical and testimonial evidence that Phillips had been carrying a loaded and cocked firearm, that he had fled when confronted by the police, that he had disappeared into an alley pursued by Officer Miller, and that two distinct gunshots were heard moments later. Officer Miller testified that as he closed to within 15 feet of Phillips he saw two bright muzzle flashes and then took cover. Two spent cartridges were recovered from the site of the muzzle flashes. The bullets passed close to Officer Miller. One likely struck a nearby garage located in the opposite direction from which Phillips had said he was pointing the weapon when it accidentally discharged.
{¶20} Police officers located Phillips minutes later hiding on the roof of a nearby garage. A police canine unit located his discarded pistol under a tree about 70 feet away. Contrary to Phillips’ assertion that he had partially disassembled the weapon, it was found fully loaded, with the magazine still in the pistol grip. Phillips’
{¶21} While there may have been some inconsistencies in some of the witnesses’ testimony, these inconsistencies did not significantly discredit their testimony. As the weight to be given the evidence and the credibility of the witnesses were for the jury, sitting as the trier of fact, to determine, in resolving conflicts and limitations in the testimony, the jury could have found that Phillips had purposely attempted to murder a peace officer. See
{¶22} When reviewing the legal sufficiency of the evidence to support a criminal conviction, we must examine the evidence admitted at trial in the light most favorable to the prosecution and determine whether the evidence could have convinced any rational trier of fact that the essential elements of the crime were proven beyond a reasonable doubt. See State v. Conway, 108 Ohio St.3d 214, 2006-Ohio-791, 842 N.E.2d 996, ¶ 36; see also Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). In deciding if the evidence was sufficient, we neither resolve evidentiary conflicts nor assess the credibility of the witnesses, as both are functions reserved for the trier of fact. See State v. Campbell, 195 Ohio App.3d 9, 2011-Ohio-3458, 958 N.E.2d 622 (1st Dist.).
{¶23} Here, the record reflects substantial, credible evidence from which the triers of fact could have reasonably concluded that all elements of attempted murder and the peace-officer specification had been proved beyond a reasonable doubt, including that Phillips had purposely fired two gunshots at a pursuing police officer
{¶24} Phillips’ first and second assignments of error are overruled.
b. Ineffective-assistance claim
{¶25} Phillips next argues that he was denied the effective assistance of counsel for various claimed deficiencies by his trial counsel, including his failure to employ a crime-scene reconstructionist at trial, and his withdrawal of the motion to suppress Phillips’ statements made to police after the shooting. The arguments must fail.
{¶26} To prevail on a claim of ineffective assistance of trial counsel, Phillips must show, first, that trial counsel‘s performance was deficient and, second, that the deficient performance was so prejudicial that he was denied a reliable and fundamentally fair proceeding. See Lockhart v. Fretwell, 506 U.S. 364, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993); see also Strickland v. Washington, 466 U.S. 668, 689, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), paragraphs two and three of the syllabus. A reviewing court will not second-guess trial strategy and must indulge a strong presumption that counsel‘s conduct fell within the wide range of reasonable professional assistance. See State v. Mason, 82 Ohio St.3d 144, 157-158, 694 N.E.2d 932 (1998).
{¶27} In light of Officer Miller‘s statements about his pursuit of Phillips and the other testimonial and physical evidence from the crime scene, it is unclear how the absence of testimony from a crime-scene reconstructionist rendered the trial unreliable. Also, the likelihood of success on Phillips’ motion to suppress statements made after receiving a Miranda warning was low.
{¶28} Phillips’ trial counsel worked to discredit the state‘s theory of the case and to highlight inconsistencies in the witnesses’ testimony. He vigorously argued
III. The State‘s Appeal On Sentencing
{¶29} The state has also appealed from the judgment of conviction. See
{¶30} A specification “is merely a sentencing provision that requires an enhanced penalty upon certain findings,” and is “contingent upon an underlying felony conviction.” State v. Ford, 128 Ohio St.3d 398, 2011-Ohio-765, 945 N.E.2d 498, ¶ 16. The key to the following analysis is recognizing the primary distinction between the three types of specifications that the jury found Phillips guilty of: the one-year firearm-possession specification, the three-year firearm-facilitation specification, and the seven-year peace-officer specification. The first two specifications are described in
{¶31} In its presentence memorandum and at the sentencing hearing, the state urged the trial court to impose these specifications and to order that they be served consecutively. Therefore, under
{¶32} The state notes that the trial court determined that the felonious-assault offense charged in Count 2 of the indictment was an allied offense of similar import to the attempted-murder offense charged in Count 1. See
{¶33} We begin with the state‘s contention that the trial court was required to impose an additional three-year prison term to the sentence for attempted murder because the jury had found Phillips guilty of Specification 1 to that offense—a firearm-facilitation specification. The specification, under
{¶34}
[I]f an offender who is convicted of or pleads guilty to a felony also is convicted of or pleads guilty to a specification of the type described in section * * * 2941.145 of the Revised Code, the court shall impose on the offender one of the following prison terms:
* * *
(ii) A prison term of three years if the specification is of the type described in section 2941.145 of the Revised Code * * *.
(Emphasis added.)
{¶35} While the jury returned a guilty verdict on the firearm-facilitation specification accompanying Count 1, the trial court did not impose a sentence for this specification. The state notes that the usual definition of conviction includes both a finding of guilt and the imposition of a sentence. E.g.,
{¶37} Since the jury had determined that Phillips was guilty of attempted murder and the attendant three-year firearm-facilitation specification through its verdicts, the state maintains that, the trial court was required to impose the additional three-year prison term upon Phillips under
{¶38} But here, the trial court actually imposed a seven-year mandatory prison term, under Specification 2 to the same attempted-murder offense. See
{¶39} But other provisions of
{¶40} Thus, we hold that a trial court that imposes a seven-year prison term for a peace-officer specification cannot also impose a three-year prison term for a firearm-facilitation specification for the same offense. See State v. Berecz, 4th Dist. Washington No. 08CA48, 2010-Ohio-285, ¶ 63 (applying identical language in former
{¶41} Since the trial court‘s failure to impose an additional three-year prison term was not clearly and convincingly contrary to law, the trial court did not err in failing to do so. See
b. The trial court was required to impose a one-year prison term for the firearm-possession specification
{¶42} The state next challenges the trial court‘s failure to impose an additional one-year prison term to the sentence imposed for tampering with evidence as alleged in Count 4 of the indictment. The trial court imposed an 18-month prison term for the predicate felony offense. While the court ordered that term to be served concurrently with the 12-year aggregate term imposed for attempted murder, there is no requirement in
{¶43} As the state argues, the trial court‘s obligation to impose a mandatory one-year prison term is found in
[I]f an offender who is convicted of or pleads guilty to a felony also is convicted of or pleads guilty to a specification of the type described in section 2941.141 * * * of the Revised Code, the court shall impose on the offender one of the following prison terms:
* * *
(iii) A prison term of one year if the specification is of the type described in section 2941.141 of the Revised Code that charges the offender with having a firearm on or about the offender‘s person or under the offender‘s control while committing the felony.
{¶44} It is clear from the record that the trial court failed to comply with this mandate, and we can find no specific statutory provision, as we did above, excusing the court from this obligation. There was no indication in the court‘s sentencing entry, or at the sentencing hearing, that the court intended to or actually did impose any period of confinement for the firearm-possession specification to Count 4. The sentencing entry simply states that “* * * SPECIFICATION #1 TO COUNT #4 [IS] MERGED WITH SPECIFICATION #2 TO COUNT #1 FOR THE PURPOSE OF SENTENCING.” This use of courthouse shorthand is not sufficient to demonstrate that the trial court complied with its obligation under
c. No requirement that the one-year firearm-possession specification be imposed consecutively to any other prison term
{¶46} The state next argues that the trial court was required to impose the one-year prison term for the firearm-possession specification to be served consecutively not only to the 18-month sentence for tampering with evidence, but also to the seven-year peace-officer specification imposed under Count 1.
{¶47} The state first maintains that under
{¶48} The state next asserts that
{¶49}
{¶50} But the language of
{¶51} This is particularly so where the General Assembly has provided that guidance in other statutory enactments. As noted above,
{¶52} The statute provides, in its entirety, that
If a mandatory prison term is imposed upon an offender pursuant to division (B)(1)(f) of this section, the offender shall serve the mandatory prison term so imposed consecutively to and prior to any prison term imposed for the underlying felony under division (A), (B)(2), or (B)(3) of this section or any other section of the Revised
Code, and consecutively to any other prison term or mandatory prison term previously or subsequently imposed upon the offender.
{¶53} Unlike the other consecutive-sentencing provisions of
{¶54} But, as the Parker court noted, the trial court can exercise its discretion and order a firearm-possession specification, not imposed for the same offense, to be served consecutively to the term for the peace-officer specification, if the court deems it warranted and the sentence is not otherwise contrary to law. See id. at ¶ 17.
{¶55} Since the trial court was required to impose the additional prison term for the one-year firearm-possession specification, but was not required to order that it be served consecutively to the term for the seven-year peace-officer specification, upon remand the trial court shall impose the mandatory term and then exercise its discretion as to whether to impose that term consecutively to any other. See
IV. Conclusion
{¶56} Having overruled each of Phillips’ assignments of error, in the appeal numbered C-150376, and having sustained the state‘s assignment of error, in part, in its appeal numbered C-150378, we affirm the trial court‘s judgment and remand the cause to the trial court with instructions that it impose a one-year prison term for the firearm-possession specification accompanying Count 4. The term for the firearm-possession specification is to be served consecutively to and prior to the 18-month prison term imposed for the tampering-with-evidence offense in that count. It lies within the trial court‘s discretion as to whether to impose the term for that specification consecutively to the seven-year prison term imposed for the peace-officer specification under Count 1.
Judgment accordingly.
DEWINE and MOCK, JJ., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.