State v. RobinsonState v. Robinson
For Plaintiff-Appellee:
D. MICHAEL HADDOX
MUSKINGUM CO. PROSECUTOR
GERALD V. ANDERSON II
27 North Fifth St., P.O. Box 189
Zanesville, OH 43702-0189
For Defendant-Appellant:
JAMES ANZELMO
446 Howland Dr.
Gahanna, OH 43230
Delaney, J.
{¶1} Appellant Joshua A. Robinson appeals from the February 14, 2018 Entry of the Muskingum County Court of Common Pleas. Appellee is the state of Ohio.
FACTS AND PROCEDURAL HISTORY
{¶2} “The Flames” is referred to as an “after-hours bike club” in Muskingum County. Gene Taylor is the sergeant-at–arms of the club and works as security. Taylor‘s club name is “Rampage” and he was referred to as “Rampage” throughout the trial. Rampage was a reluctant witness for appellee. In the early morning hours of June 24, 2017, there were about 30 people in the club and Rampage was standing in the doorway. The club did not have security cameras.
{¶3} Justin Joseph, his cousin Courtney, and their friend Eva came into the club after they had been at several other bars. The three know appellant, but not well, and briefly spoke with him inside the club. All of the witnesses claimed there was no provocation for what happened next.
{¶4} Rampage saw appellant punch Justin Joseph. Rampage was familiar with appellant but did not know Joseph. He saw Joseph fall to the floor. Rampage went to assist Courtney and Eva in getting Joseph up off the floor but he was unconscious.
{¶5} From his perspective, Joseph only remembers going to the bar to buy drinks, and then later waking up in an ambulance during transport to a hospital in Columbus. He had no idea what happened to him or who struck him. The parties stipulated that Joseph‘s orbital bone was fractured and his mandible was fractured on both sides. The parties further stipulated his injuries were so severe that they required multiple surgeries, hospitalizations, and ongoing medical treatment.
{¶7} Eva also did not see the events that preceded Joseph falling to the ground. She helped Courtney get Joseph up and out of the club, but remained behind after they left. Eva was subsequently involved in an unrelated fight. She testified she was punched. There was also an unrelated shooting later that night at the club. Rampage testified police were called after the shooting, but had not been called after either of the earlier “bar fights,” including Joseph‘s assault.
{¶8} Several days after the assault, Courtney and Eva were in a local Dairy Mart and encountered appellant. Courtney confronted him and asked why he hit her cousin. Appellant replied it was a bar fight and to “send his condolences.” Eva testified that appellant said to her that he didn‘t do any of the shooting that night; Eva replied she knew that, but her problem was what he did to Joseph. Appellant said he couldn‘t change what happened and, again, he “sent his condolences.”
{¶9} Appellant was charged by indictment with one count of felonious assault pursuant to
{¶10} Appellant now appeals from the trial court‘s judgment entries of conviction and sentence.
{¶11} Appellant raises four assignments of error:
ASSIGNMENTS OF ERROR
{¶12} “I. ROBINSON‘S CONVICTION IS BASED ON INSUFFICIENT EVIDENCE, IN VIOLATION OF THE DUE PROCESS CLAUSE OF THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND SECTIONS 1 & 16, ARTICLE I OF THE OHIO CONSTITUTION.”
{¶13} “II. ROBINSON‘S CONVICTION IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE IN VIOLATION OF THE DUE PROCESS CLAUSE OF THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND SECTIONS 1 & 16, ARTICLE I OF THE OHIO CONSTITUTION.”
{¶14} “III. THE TRIAL COURT UNLAWFULLY ORDERED ROBINSON TO SERVE CONSECUTIVE SENTENCES, IN VIOLATION OF HIS RIGHTS TO DUE PROCESS, GUARANTEED BY SECTION 10, ARTICLE 1 OF THE OHIO CONSTITUTION AND THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION.”
ANALYSIS
I., II.
{¶16} Appellant‘s first two assignments of error are related and will be considered together. He argues his conviction upon one count of felonious assault is against the manifest weight and sufficiency of the evidence.1 We disagree.
{¶17} The legal concepts of sufficiency of the evidence and weight of the evidence are both quantitatively and qualitatively different. State v. Thompkins, 78 Ohio St.3d 380, 1997-Ohio-52, 678 N.E.2d 541, paragraph two of the syllabus. The standard of review for a challenge to the sufficiency of the evidence is set forth in State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991) at paragraph two of the syllabus, in which the Ohio Supreme Court held, “An appellate court‘s function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant‘s guilt beyond a reasonable doubt. 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.”
{¶18} In determining whether a conviction is against the manifest weight of the evidence, the court of appeals functions as the “thirteenth juror,” and after “reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility
{¶19} Appellant was convicted upon one count of felonious assault pursuant to
{¶20} Appellee presented direct and circumstantial evidence that appellant struck Joseph, knocking him to the ground and seriously injuring him. Rampage‘s uncontroverted testimony established appellant struck Joseph. Appellant‘s argument that commotion prevented Rampage from observing what occurred is speculative. His argument is premised solely upon the credibility of appellee‘s witnesses, or their alleged lack thereof. The weight of the evidence and the credibility of the witnesses are
{¶21} Appellant further argues his statements to Courtney and Eva several days later at Dairy Mart are not admissions. Even if we agree that appellant‘s statements were ambiguous, it was for the trier of fact to determine what evidentiary weight to give the statements, if any. Those statements are circumstantial evidence appellant assaulted Joseph and could reasonably be interpreted as admissions.
{¶22} Appellant also points to alleged inconsistencies between Rampage‘s testimony at the instant trial and at a previous unrelated trial of the accused shooter. Defense trial counsel inferred Rampage testified in the earlier trial that he didn‘t know who was fighting in the hours before the shooting occurred, implying he did not identify appellant as the assailant. Upon our review of the record, however, appellee resolved the alleged inconsistency upon redirect, reiterating that the shooting had nothing to do with the assault on Joseph, and Rampage did immediately identify appellant as the assailant when first interviewed by law enforcement. We do not agree therefore that Rampage‘s testimony was inconsistent, but any inconsistencies in the witnesses’ accounts were for the trial court to resolve. State v. Dotson, 5th Dist. Stark No. 2016CA00199, 2017-Ohio-5565, ¶ 49. “The weight of the evidence concerns the inclination of the greater amount of credible evidence offered in a trial to support one side of the issue rather than the other.” State v. Brindley, 10th Dist. Franklin No. 01AP–926, 2002–Ohio–2425, ¶ 16.
{¶23} Appellant‘s arguments are premised upon the credibility of appellee‘s uncontroverted witness testimony. We defer to the trier of fact as to the weight to be
{¶24} Upon our review of the entire record, we conclude appellant‘s felonious assault conviction is supported by sufficient evidence and is not against the manifest weight of the evidence. Appellant‘s first and second assignments of error are overruled.
III.
{¶25} In his third assignment of error, appellant argues the trial court erred in ordering him to serve consecutive sentences. We disagree.
{¶26} As noted supra, the trial court imposed a prison term of 10 years on the R.V.O. specification consecutive with 8 years on the felonious assault. Contrary to appellant‘s position, this sentence does not implicate statutory guidelines for consecutive sentences. Pursuant to
{¶27} The sentence upon the R.V.O. specification is an enhancement of the underlying charge, not a separate sentence upon a separate offense. In State v. Robinson, 8th Dist. Cuyahoga No. 103559, 2016-Ohio-2931, at ¶ 21, the Eighth District Court of Appeals observed:
The [trial] court‘s order that the R.V.O.S. be served consecutively to the sentence on the base charge for each of these counts does not implicate[ ] the requirements of
R.C. 2929.14(C)(4) because the statute requires the statutory findings when the court imposes consecutive sentences for “multiple offenses.” A specification is not an element of the underlying offense nor a separate offense in itself. Instead, a specification is a sentencing provision that enhances the penalty for the associated predicate offense. State v. Moore, 8th Dist. Cuyahoga No. 101658, 2015–Ohio–1026, ¶ 18 (E.T. Gallagher, J., concurring in judgment only); State v. Noor, 10th Dist. Franklin No. 13AP–165, 2014–Ohio–3397, ¶ 51, fn. 2.
{¶28} In the instant case, the trial court‘s imposition of consecutive prison terms upon the R.V.O. specification and the underlying offense is not contrary to law. Appellant‘s third assignment of error is overruled.
{¶29} In his fourth assignment of error, appellant argues he received ineffective assistance of counsel because defense trial counsel did not request waiver of court costs. We disagree.
{¶30} Appellant argues defense trial counsel was ineffective in failing to move the trial court to waive costs, citing State v. Springer, 8th Dist. Cuyahoga No. 104649, 2017-Ohio-8861. Springer is in conflict with our decision in State v. Davis, 5th Dist. Licking No. 17-CA-55, 2017-Ohio-9445, at ¶ 27, in which this Court reviewed the same waiver-of costs issue and determined the following:
We find no merit in [a]ppellant‘s allegation that he received ineffective assistance of counsel as a result of his attorney failing to request that the trial court waive court costs. Because
R.C. 2947.23(C) grants appellant the ability to seek waiver of costs at any time, including after sentencing, [a]ppellant has not been prejudiced by the failure of his counsel to request a waiver at sentencing.
{¶31} This issue has been accepted for review by the Ohio Supreme Court upon our certification of a conflict. See State v. Ramsey, 5th Dist. Licking No. 17-CA-76, 2018-Ohio-2365, ¶ 47, motion to certify allowed, 153 Ohio St.3d 1502, 2018-Ohio-4288, 109 N.E.3d 1259, and appeal not allowed, 153 Ohio St.3d 1503, 2018-Ohio-4288, 109 N.E.3d 1259. We held in Ramsey that “[u]nless a decision is rendered on the issue to the contrary in the future, this Court will continue to abide by its decision in Davis.” Id.
{¶32} Accordingly, in conformity with Ramsey, we find appellant was not deprived of the effective assistance of trial counsel in violation of his rights under the Sixth and
{¶33} Appellant‘s fourth assignment of error is overruled.
CONCLUSION
{¶34} Appellant‘s four assignments of error are overruled and the judgment of the Muskingum County Court of Common Pleas is affirmed.
By: Delaney, J.,
Wise, John, P.J. and
Gwin, J., concur.