State v. RobinsonState v. Robinson
John F. Potts, for appellant.
* * * * *
DECISION AND JUDGMENT
HANDWORK, J.
{¶ 1} Appellant, Clifford A. Robinson III, appeals his convictions and sentence for possession of crack cocaine, trafficking of crack cocaine, and having a weapon under disability. For the following reasons, we affirm the judgment of the Lucas County Court of Common Pleas as it relates to Robinson‘s convictions, and reverse its judgment as it relates to Robinson‘s sentence.
{¶ 3} On November 29, 2010, Robinson filed a motion in limine to prevent the state from disclosing the name and nature of his prior conviction. As part of his motion, Robinson offered to stipulate that he “was under a disability as defined by
{¶ 4} The state called four Toledo police officers and one Lucas County Sheriff‘s deputy to the stand, whose collective testimony is summarized as follows. Sometime prior to December 10, 2008, Detective Israel Garrett of the Toledo Police Department‘s Vice/Narcotics Unit “received information from a confidential informant of drugs being
{¶ 5} On December 17, 2008, Garrett facilitated a controlled purchase at the premises, utilizing a confidential informant. Garrett observed as the informant entered the premises, stayed for approximately three to five minutes, and came back with marijuana. Over Robinson‘s objection, Garrett then testified that when the confidential informant returned after the controlled buy, the informant indicated that “the drugs were being sold by Cliff, that sold the drugs to him.” On cross-examination, Garrett admitted that the confidential informant also indicated there were two other black males present in the residence during the controlled purchase of the marijuana.
{¶ 6} On December 18, 2008, Garrett obtained a search warrant for 1259 Vance to search for evidence of drug trafficking. On December 19, 2008, Detectives Garrett and Moore, along with Officer Raymond Espinosa and Sergeant Joe Heffernan, also members of the vice/narcotics unit, executed the warrant. Upon entering the premises, they found Robinson alone in the house watching television by the front door. Upon searching Robinson, the detectives found $10 in cash on his person and $499 in his wallet, which
{¶ 7} In the bathroom, detectives located two baggies of crack cocaine packaged along with empty plastic bags behind a loose panel at the bottom right corner of the rear wall. One of the baggies contained 27.05 grams of crack cocaine and the other 1.96 grams, for a total weight of 29.1 grams. In the bedroom, they found two separate plastic baggies containing what later proved to be counterfeit crack cocaine, one of which was tucked inside a boot and the other inside a tennis shoe; a Hi-Point 9mm semiautomatic pistol along with two loaded magazines between the bed mattresses; and numerous photographs in which Robinson appeared. The detectives seized only one of the photographs, which was date-stamped November 8, 2008. They also found torn corners of plastic sandwich bags with residue in the bedroom and throughout the house.
{¶ 8} The state presented three exhibits to demonstrate Robinson‘s occupancy or residency at 1259 Vance. The first is a money order issued by MoneyGram Payment Systems on August 15, 2008, which was seized from Robinson‘s wallet during the search. The face of the MoneyGram contains preprinted lines for the purchaser‘s signature and address, above which is respectively handwritten “Clifford Robinson” and “1259 Vance.” Sergeant Heffernan admitted on cross-examination that Robinson‘s wallet also contained a state identification card, which was not seized. The second exhibit is a booking sheet generated by the Lucas County Sheriff‘s Department, which
{¶ 9} Robinson, in his defense, elicited testimony from four witnesses, specifically Pamela Walker, his mother, Kelly Hughes, his sister, and Anthony Adams and Tremaine Willis, two friends that frequent 1259 Vance. Collectively, these witnesses related that Robinson has always lived or resided with his mother or other family members at 2017 Forest Avenue, that he receives mail at that address, that he does not live or sleep at 1259 Vance, that crack cocaine is not used or sold at the Vance residence, and that the only illicit activity in which they had known Robinson to engage was gambling. Further, aside from an individual named David Parker who stayed there at some point in 2008, no one has actually lived at 1259 Vance. Instead, the residence is a neighborhood open house where, at any given time, up to 50 people congregate to gamble, smoke marijuana, and watch sports on television. The front door is always unlocked, the bedroom has no door, and personal items and pictures of many different people have been left there. Robinson
{¶ 10} On cross-examination, the prosecutor inquired as to each witness‘s awareness of Robinson‘s prior conviction for possession of crack cocaine. In its general charge to the jury, the trial court gave limiting instructions as to the proper use of Robinson‘s prior conviction and the booking sheet.
{¶ 11} On December 1, 2010, the jury returned a verdict of guilty on all counts, and the trial court proceeded immediately to sentencing. At the sentencing hearing, the trial court merged the first two counts (possession and trafficking) as allied offenses of similar import, imposed a mandatory prison term of five years on the trafficking count, and imposed a concurrent sentence of three years on the weapon-under-disability count. However, in its judgment entry file-stamped December 6, 2010, the trial court imposed a concurrent sentence of five years on the weapon count.
{¶ 12} Robinson now appeals his conviction and sentence, raising nine assignments of error.
I. Sufficiency and Manifest Weight of the Evidence
{¶ 13} In his first three assignments of error, Robinson asserts:
I: Defendant‘s conviction for Possession of Crack Cocaine is not supported by the evidence and is against the manifest weight of the evidence.
II: Defendant‘s conviction for Aggravated Trafficking in Crack Cocaine is not supported by the evidence and is against the manifest weight of the evidence. III: Defendant‘s conviction of having a Weapon Under Disability is not supported by the evidence and is against the manifest weight of the evidence.
{¶ 14} Although claims involving the sufficiency and weight of the evidence are often raised together, we have recognized that they “are conceptually distinct and invoke disparate standards of appellate review.” State v. Cronin, 6th Dist. No. S-09-032, 2010-Ohio-4717, ¶ 23. A challenge to the sufficiency of evidence supporting a criminal conviction raises a question of law, “that is, whether the state has met its burden of production.” Id. See also State v. Harry, 12th Dist. No. CA2008-01-0013, 2008-Ohio-6380, ¶ 43. In reviewing a sufficiency-of-the-evidence claim, our function
is to examine the evidence submitted 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. State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus, superseded by state
constitutional amendment on other grounds as stated in State v. Smith, 80 Ohio St.3d 89, 102, fn. 4, 684 N.E.2d 668 (1997).
{¶ 15} In determining whether a conviction is against the manifest weight of the evidence, we do not view the evidence in a light most favorable to the state. Instead, we sit as a “thirteenth juror” and scrutinize “the factfinder‘s resolution of the conflicting testimony.” State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997). In this regard, our task is to examine the entire record, weigh the evidence and all reasonable inferences, consider the credibility of witnesses, and determine “‘whether in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.‘” Id. at 387, quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).
A. Possession
{¶ 16} Although Robinson‘s first assignment of error states that his conviction for possession of crack cocaine is both unsupported by and against the manifest weight of the evidence, his supporting arguments are trained exclusively on the issue of sufficiency. He compares this case to several other cases in which possession convictions were reversed for insufficient evidence, relying most heavily on this court‘s decision in State v. Joyner, 6th Dist. No. L-09-1058, 2010-Ohio-2794. He argues that he was not in close proximity to the bathroom where the crack cocaine was found, that the crack cocaine was not in plain view, that no drugs or drug paraphernalia were found on his person, that he
{¶ 17}
{¶ 18} Constructive possession, as with the essential elements of any crime, may be proved entirely by circumstantial evidence. Absent a defendant‘s admission, the elements of constructive possession, including knowledge of the item purportedly possessed, can be inferred from a totality of the surrounding facts and circumstances. See
{¶ 19} In Joyner, police executed a search warrant at a residence where a confidential informant had previously purchased drugs. When police entered the residence, they found cocaine on a plate in the living room. At the time, a woman was standing in the living room and appellant was on the stairwell leading down to the living room. Nothing suggested that the house was appellant‘s residence, and appellant was not in close proximity to the drugs. We reversed appellant‘s conviction for cocaine possession, finding that the “mere presence of appellant in the residence where illegal drugs were found is, without more, insufficient to establish constructive possession.” Joyner, 6th Dist. No. L-09-1058, 2010-Ohio-2794, ¶ 13.
{¶ 20} In this case, Robinson was not merely present in the house when the search warrant was executed. According to the state‘s evidence, Robinson was the only one present in a very small house that he listed on various documents as his place of residence, his wallet was laying out in the open, and his photographs were found in a small bedroom where counterfeit crack cocaine and torn corners of plastic baggies with
{¶ 21} Moreover, having examined the record and considered the credibility of the witnesses, we are not persuaded that the evidence weighs heavily against a conviction on this count. While Robinson‘s witnesses testified that he neither sleeps nor lives at 1259 Vance, and that the home is essentially a community open house, we cannot say that the jury lost its way in disbelieving their testimony. A jury could certainly conclude that the greater amount of credible evidence supported the prosecution‘s case. Thus, Robinson‘s conviction for knowingly possessing crack cocaine is not against the manifest weight of the evidence.
{¶ 22} Accordingly, Robinson‘s first assignment of error is not well-taken.
B. Trafficking
{¶ 23} With regard to his trafficking conviction, Robinson‘s arguments under the second assignment of error are also limited to the sufficiency of the evidence. According to Robinson, “[t]he evidence presented to support [his] conviction on Count Two [of the indictment] is not merely insufficient, it is non-existent.” Essentially, Robinson argues that the state presented no evidence that he engaged in any of the conduct proscribed under
{¶ 25} In this case, the detectives testified that in searching the premises, they found 29.1 grams of crack cocaine packaged along with empty plastic bags, numerous corners of torn plastic baggies with residue inside, $499 in cash in Robinson‘s wallet, more than one cellular phone, and a total of 56.09 grams of counterfeit crack cocaine. They also testified that from their experience, each of those items is indicative of drug trafficking. This evidence is sufficient to establish the elements of drug trafficking
{¶ 26} Accordingly, Robinson‘s second assignment of error is not well-taken.
C. Weapon Under Disability
{¶ 27} In regard to his conviction for having a weapon while under disability, Robinson raises the same arguments regarding the element of possession that he advanced in his first assignment of error, and we reject them for the same reasons. In so doing, we agree with appellee that the salient facts in this case are similar to those considered by this court in Munn, supra, 6th Dist. No. L-08-1363, 2009-Ohio-5879, ¶ 48 and 50, and by the Fifth District Court of Appeals in State v. Brack, 5th Dist. No. 2010CA00061, 2011-Ohio-2949, ¶ 26 and 27.
{¶ 28} Accordingly, Robinson‘s third assignment of error is not well-taken.
II. Admissibility of Evidence
A. Statement by Confidential Informant
{¶ 29} In his fourth assignment of error, Robinson asserts:
It constituted error to admit into evidence out-of-court statements attributed to a confidential informant that illegal drugs had been purchased from a person named “Cliff” at the location at which the search warrant was executed.
{¶ 30} In this assignment of error, Robinson challenges the admissibility of Detective Garrett‘s testimony regarding what the confidential informant told him after the
{¶ 31} It is well-established that extrajudicial statements made by an out-of-court declarant are properly admissible to explain the actions of a witness, and particularly to explain the conduct of a police officer during the course of a criminal investigation. To the extent that such statements are offered and used to establish a foundation for the officer‘s subsequent conduct, rather than for the truth of the matter asserted, they are not hearsay. State v. Davis, 116 Ohio St.3d 404, 2008-Ohio-2, 880 N.E.2d 31, ¶ 117; State v. Skatzes, 104 Ohio St.3d 195, 2004-Ohio-6391, 819 N.E.2d 215, ¶ 98; State v. Thomas, 61 Ohio St.2d 223, 232, 400 N.E.2d 401 (1980); State v. Aaron, 6th Dist. No. OT-10-043, 2011-Ohio-6309, ¶ 17; State v. Rossbach, 6th Dist. No. L-09-1300, 2011-Ohio-281, ¶ 130; State v. Ector, 6th Dist. No. L-10-1002, 2010-Ohio-6515, ¶ 59-60; Munn, supra, 6th Dist. No. L-08-1363, 2009-Ohio-5879, ¶ 26.
{¶ 32} In Munn, the defendant was charged with a single count of having a weapon while under disability in violation of
In this case, the statements of the informant were not admitted for the truth of the matter asserted, i.e., that appellant was in possession of a weapon. Rather, the informant told the detective that he had seen appellant who had shown him some guns, including a “camouflage sniper rifle and body armor” in a residence at 31 Pearl Street, Toledo, Ohio. As a result, the statements were admitted merely to explain why the police sought a search warrant for that address and investigated where appellant was currently living. Therefore, the trial court did not err in permitting the detective to testify as to the statements made by the confidential informant. Id. at ¶ 27.
{¶ 33} As Robinson correctly points out, however, our decision in Munn did not address the issue of admissibility under Evid.R. 403(A). In State v. Maurer, 15 Ohio St.3d 239, 263, 473 N.E.2d 768 (1984), the Ohio Supreme Court explained that when an out-of-court statement “is offered for some purpose other than to prove the truth of the
{¶ 34} In this case, the confidential informant‘s out-of-court statement that he purchased marijuana from a person named “Cliff” should have been excluded under Evid.R. 403(A). The content of the informant‘s statement carried a danger of unfair prejudice to Robinson and confusion by the jury, as it implicated Robinson in the trafficking of marijuana from the premises. While the statement did not directly connect Robinson with the crime charged, which is trafficking in crack cocaine, it nevertheless contained a potentially prejudicial accusation of criminality. On the other hand, the
{¶ 35} Having found that the informant‘s statement was improperly admitted, we must now determine whether the error was harmless or prejudicial. “Error in the admission of evidence in criminal proceedings is harmless if there is no reasonable possibility that the evidence may have contributed to the accused‘s conviction.” State v. Bayless, 48 Ohio St.2d 73, 357 N.E.2d 1035 (1976), paragraph seven of the syllabus, vacated in part on other grounds, 438 U.S. 911 (1978). A finding of harmless error is not appropriate unless there is “either overwhelming evidence of guilt or some other indicia that the error did not contribute to the conviction.” State v. Rahman, 23 Ohio St.3d 146, 151, 492 N.E.2d 401 (1986), quoting State v. Ferguson, 5 Ohio St.3d 160, 166, 450 N.E.2d 265 (1983), fn. 5. In making the determination, “the appellate court must read the record and decide the probable impact of the error on the minds of the average jury.” State v. Young, 5 Ohio St.3d 221, 226, 450 N.E.2d 1143 (1983).
{¶ 36} Having examined the record, we cannot say that the admission of the informant‘s statement had any effect on the outcome of the trial. Read in its full context, the testimony regarding the informant‘s statement was made in the midst of Detective
{¶ 37} Contrary to Robinson‘s assertions, the record discloses that the state presented substantial evidence, independent of the informant‘s statement, to prove the essential elements of trafficking in crack cocaine. Although the evidence presented by
{¶ 38} Accordingly, Robinson‘s fourth assignment of error is not well-taken.
B. Prior Conviction
{¶ 39} In his fifth assignment of error, Robinson maintains:
It constituted error to admit evidence of Defendant‘s prior conviction for Possession of Crack Cocaine.
{¶ 40} Robinson‘s arguments under this assignment of error are directed at two distinct uses of his prior conviction. First, Robinson challenges the admission of his prior conviction to prove the element of disability under
1. Disability
{¶ 41} Robinson contends that in light of his proffered stipulation to being under a disability for purposes of
{¶ 42} We note initially that while two current members of the Ohio Supreme Court have expressed their opinion on this issue, the other five have not. We also note that the Ohio Supreme Court has recently granted a motion for leave to file a delayed appeal from the Twelfth District‘s decision in State v. Jones, 12th Dist. No. CA2011-05-044, 2012-Ohio-1480 (132 Ohio St.3d 1530, 2012-Ohio-4381, 974 N.E.2d 1208), which declined to extend the reasoning in Old Chief to the prior-conviction element under
{¶ 43} The Eighth, Ninth, and Twelfth Appellate Districts have declined to adopt the reasoning of Old Chief, finding it clearly inapposite to Ohio‘s statute. See Jones at ¶ 17-18; State v. Peasley, 9th Dist. No. 25062, 2010-Ohio-4333, ¶ 12; State v. Johnson, 8th Dist. No. 91900, 2009-Ohio-4367, ¶ 22-23; State v. Russell, 12th Dist. No. CA-98-02-018, 1998 WL 778312, *3-4 (Nov. 9, 1998). Our analysis confirms that the high court‘s opinion in Old Chief is carefully tailored to the peculiarities of the federal statute.
{¶ 45} In a sharply divided 5-4 decision, the high court held that the judgment entry, to the extent it revealed the name and character of defendant‘s prior offense, should have been excluded pursuant to
{¶ 46} It is clear, however, that the court‘s conclusion hinged on the singularly broad definition of the prior-conviction element contained in the federal statute. At the threshold, the court found that even if no evidentiary alternative was available, evidence
{¶ 47} The court then compared the evidentiary alternatives offered by the government and the defendant and found them to have equivalent probative value in proving the prior-conviction element of the statute. In so doing, the court again laid stress on the particularly broad category of offenses covered by the statute:
The statutory language in which the prior-conviction requirement is couched shows no congressional concern with the specific name or nature of the prior offense beyond what is necessary to place it within the broad category of qualifying felonies * * *. As a consequence, although the name of the prior offense may have been technically relevant, it addressed no detail in the definition of the prior-conviction element that would not have been covered by the stipulation or admission.” Id. at 186.
{¶ 48} Further emphasizing the point, the court observed that the prior-conviction element of statute does not make “distinctions among generic felonies,” but covers crimes “ranging from possession of short lobsters * * * to the most aggravated murder.” (Citation omitted.) Id. at 190. The court then concluded:
Given these peculiarities of the element of felony-convict status * * *, there is no cognizable difference between the evidentiary significance of an admission and of the legitimately probative component of the official record the prosecution would prefer to place in evidence. (Emphasis added.) Id. at 191.
{¶ 49} Unlike the federal statute at issue in Old Chief, the Ohio statute does not contain a single and practically all-encompassing definition of the prior-conviction element. While
{¶ 50} Clearly, the language and structure of
2. Impeachment
{¶ 51} Robinson also argues that the prejudicial effect of the trial court‘s refusal to accept his stipulation and exclude the name of his prior offense “was very far reaching in the instant case,” as the prosecution “gratuitously used [this] evidence in its cross examination of defense witnesses.” However, it is well-established that the prosecution may impeach a defendant‘s character witness with evidence of the defendant‘s prior convictions. See, e.g., State v. Thomas, 12th Dist. No. CA2010-10-099, 2012-Ohio-2430, ¶ 54; State v. Ogletree, 8th Dist. No. 84446, 2004-Ohio-6297, ¶ 45; State v. Crawley, 8th Dist. No. 70687, 1997 WL 232623, *3-4 (May 8, 1997); State v. Bailey, 8th Dist. No. 51968, 1987 WL 9620, *3 (Apr. 9, 1987).
{¶ 52} Here, Robinson‘s witnesses testified that they had known Robinson for all or most of their lives, that they were familiar with his activities and associations, that Robinson had a gambling problem and frequented 1259 Vance only to gamble, and that they never saw or heard about crack cocaine being used or sold at the Vance residence. In addition, Robinson‘s first witness, Pamela Walker, was asked by defense counsel if she thought that Robinson had made mistakes in his life, if she considered him a perfect son, if she had been disappointed with him at times, and if his gambling problem was one of those things that frustrated or disappointed her. Robinson‘s sister testified it was not surprising that her brother had $500 in cash on his person, since he is a good gambler.
{¶ 53} The testimony of these witnesses did not simply relay the fact that Robinson and others frequented the Vance residence “to watch sports, play video games, socialize, and gamble,” as Robinson suggests. The clear import and general design of this testimony was to also depict Robinson as a known gambler who had no inclination toward or association with the use or sale of crack cocaine. Thus, defense counsel placed Robinson‘s character in issue, and the prosecutor was permitted to rebut the testimony of these witnesses with evidence of Robinson‘s prior conviction.
{¶ 54} Accordingly, Robinson‘s fifth assignment of error is not well-taken.
C. Prior Arrest and Post-Arrest Silence
{¶ 55} In his sixth assignment of error, Robinson contends:
It constituted error to admit evidence of Defendant‘s post arrest silence and Defendant‘s prior arrest on charges that were dismissed.
{¶ 56} The disputed testimony originated during defense counsel‘s cross examination of Detective Garrett:
Q. You indicated to the jury that * * * in the course of your investigation you look[ed] at other reports from that location, being 1259 Vance; correct?
A. Yes, sir.
Q. Had there been prior reports of activity there?
A. Yes, sir. Q. Have there been prior raids of that location?
A. Yes, sir.
Q. Had there been prior arrests as a result of raids performed at that location?
A. Yes, sir.
Q. Um, and were people taken into custody from prior raids at that location?
A. Yes, sir.
* * *
Q. Were there multiple defendants associated with those cases?
A. On one of them I‘m sure it was.
Q. Okay. Throughout the investigation of this case did you look at that person as suspect?
A. Well, that person wasn‘t there, for one; and for two, Clifford Robinson didn‘t want to talk to me about anything. So I could not investigate.
Q. I‘m not talking about Cliff. I‘m talking about a prior suspect that was arrested relative to drug activity at 1259 Vance.
A. Well –
Q. Did you do any follow up?
A. One of the prior arrests was made, there was a another suspect along with Clifford Robinson where the drugs could not be placed on either one of them because the drugs were found outside the residence. And again, as I arrested Clifford Robinson, to give him opportunity to clear himself and talk to me, he did not want to name anybody else. MR. MARKS: Objection.
A. Well he asked me did I investigate.
THE COURT: Already. Go ahead, Mr. Marks.
{¶ 57} On redirect examination, the prosecutor questioned Detective Garrett about the prior case, eliciting additional testimony that crack cocaine was involved, that the case was dismissed, and that unlike the present case, no drugs were found inside the premises where Robinson and his co-defendant were located.
{¶ 58} Robinson argues that the “trial court‘s failure to sustain Defendant‘s objection to the improper references to Defendant‘s post arrest silence and Detective Garrett‘s description of Defendant‘s prior arrest constituted error.” He also contends that the prejudicial impact of this evidence was exacerbated because the trial court gave no curative instruction in regard to post-arrest silence and the prosecutor used the prior arrest in cross-examining a defense witness. We are not convinced.
{¶ 59} First, it was Robinson‘s trial counsel, not the prosecutor, who initiated the testimony of which Robinson now complains. Detective Garrett did not testify on direct examination about Robinson‘s post-arrest silence or prior arrest, and the jury would not
{¶ 60} Second, defense counsel did not object to Detective Garrett‘s redirected testimony in regard to the prior arrest, as Robinson contends. Indeed, it does not appear from the above-quoted colloquy that defense counsel‘s initial objection during cross examination was directed at the issue of Robinson‘s prior arrest. In any event, an objection to Garrett‘s further testimony on redirect would not have been properly sustained. Robinson‘s counsel clearly opened the door to this testimony on cross examination by suggesting that persons known through previous arrests to be associated with drug activity at 1259 Vance should have been considered suspects in this case.
{¶ 61} Finally, for the reasons already expressed in addressing Robinson‘s fifth assignment of error, the prosecutor‘s use of the prior arrest in cross-examining one of the defense‘s witnesses was not improper. See, e.g., State v. Sims, 3 Ohio App.3d 321, 323-324, 445 N.E.2d 235 (8th Dist.1981).
{¶ 62} Accordingly, Robinson‘s sixth assignment of error is not well-taken.
D. Contemporaneous Limiting Instructions
{¶ 63} Robinson‘s seventh assignment of error reads:
It constituted plain error not to give contemporaneous limiting instructions restricting evidence received for limited purposes to its proper scope.
{¶ 64} In this assignment of error, Robinson refers to the evidence of his prior conviction for possession of crack cocaine and the extrajudicial statement made by the confidential informant after the controlled purchase of marijuana. According to Robinson, the trial court was obligated to give a limiting instruction at the time the evidence was received. We disagree.
{¶ 65} First, as to the informant‘s statement, we have already determined that this evidence should have been excluded, but that the error had no prejudicial impact on the jury under the circumstances of this case.
{¶ 66} Second, Ohio law does not require the trial court to issue contemporaneous limiting instructions where none are requested. “Where no request for such instruction is made at the time such evidence is received, it has been held to be an error of omission and, therefore, nonprejudicial if the trial court covers the matter properly and adequately in the general charge.” State v. Crafton, 15 Ohio App.2d 160, 165, 239 N.E.2d 571 (5th Dist.1968). See also State v. Kidd, 2d Dist. No. 96-CA-62, 1997 WL 381179, *11 (July 11, 1997); State v. Jones, 2d Dist. No. 14592, 1995 WL 259189, *7 (May 3, 1995). See also Schaim, supra, 65 Ohio St.3d at 61, 600 N.E.2d 661, fn. 9 (rejecting argument that plain error occurs where the trial court fails to sua sponte give a limiting instruction on the use of other-acts evidence).
{¶ 68} Accordingly, Robinson‘s seventh assignment of error is not well-taken.
III. Effective Assistance of Counsel
{¶ 69} In his eighth assignment of error, Robinson alleges:
Defendant‘s constitutional rights to effective assistance of counsel were violated by the cumulative effect of trial counsel‘s omissions to object and/or request limiting instructions during the course of the trial.
{¶ 70} Robinson argues that his trial counsel was constitutionally ineffective because he failed to make timely objections or requests for limiting instructions in regard to the evidence that forms the subject matter of his previous four assignments of error. Specifically, he contends that the following actions or inactions by counsel, considered separately or cumulatively, amount to prejudicial deficient performance: (1) failure to interpose timely objections to the admission of his prior arrest and conviction, the statement attributed to the confidential informant, and the reference to his post-arrest silence, (2) failure to request limiting and contemporaneously limiting instructions with regard to his prior arrest and the informant‘s statement, (3) failure to request contemporaneous limiting instructions with regard to the booking sheet and upon each
{¶ 71} In order to prevail on an ineffective assistance of counsel claim, a defendant must satisfy the two-part test enunciated in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674:
First, the defendant must show that counsel‘s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel‘s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.
{¶ 72} Under Ohio law, a properly licensed attorney is presumed competent. Vaughn v. Maxwell, 2 Ohio St.2d 299, 301, 209 N.E.2d 164 (1965). There is “‘a strong presumption that counsel‘s conduct falls within the wide range of reasonable professional assistance.‘” State v. Bradley, 42 Ohio St.3d 136, 142, 538 N.E.2d 373 (1989), quoting Strickland, supra at 689. Trial tactics and strategies do not constitute ineffective assistance merely because they appear questionable or ineffective in retrospect. State v. Clayton, 62 Ohio St.2d 45, 49, 402 N.E.2d 1189 (1980). “A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel‘s challenged conduct, and to evaluate the
{¶ 73} Applying these standards in light of our previous evidentiary findings, we cannot conclude that counsel was constitutionally ineffective. First, there is no improperly admitted evidence to which Robinson‘s trial counsel failed to object. The only evidence improperly admitted was the informant‘s statement to Garrett following the controlled buy, and trial counsel interposed a timely and lengthy objection to the admission of this evidence.
{¶ 74} Second, defense counsel‘s selective use of limiting instructions in this case fell entirely within the permissible gambit of strategic choices. A competent attorney could well have considered the repetitive array of limiting and contemporaneously limiting instructions that Robinson now proposes to be counterproductive. The references to Robinson‘s post-arrest silence and the informant‘s statement were isolated, and counsel could reasonably have preferred not to draw further attention to these matters. Also, considering that nonexclusive control and coincidental presence were the mainstay of the defense, it was not unreasonable for counsel to consider a limiting instruction on the proper use of Robinson‘s prior arrest as doing more harm than good. See State v. Bankston, 2d Dist. No. 24192, 2011-Ohio-6486, ¶ 28; State v. Barnes, 11th Dist. No. 92512, 2010-Ohio-1659, ¶ 69; State v. Kinney, 4th Dist. No. 07CA2996, 2008-Ohio-4612, ¶ 20; State v. Essinger, 3d Dist. No. 5-03-15, 2003-Ohio-6000, ¶ 34.
{¶ 75} Finally, while counsel‘s decision to open the door to testimony about Robinson‘s prior arrest may appear questionable in hindsight, it was part of a legitimate trial strategy to cast doubt on Robinson‘s culpable presence inside the premises when the drugs were found. See, e.g., State v. H.H., 10th Dist. No. 10AP-1126, 2011-Ohio-6660, ¶ 25; State v. Hankison, 4th Dist. No. 09CA3326, 2010-Ohio-4617, ¶ 136; State v. Reed, 10th Dist. No. 08AP-20, 2008-Ohio-6082, ¶ 23-24. “Counsel chose a strategy that proved ineffective, but the fact that there was another and better strategy available does not amount to a breach of an essential duty to his client.” Clayton, supra, 62 Ohio St.2d at 49, 402 N.E.2d 1189.
{¶ 76} Accordingly, Robinson‘s eighth assignment of error is not well-taken.
IV. Sentencing Disparity
{¶ 77} In his final assignment of error, Robinson asserts:
It constituted error to journalize a sentence that is different from the sentence originally pronounced in open court.
{¶ 78} Robinson argues that the variance between the concurrent sentence of three years on the weapon-under-disability count, as pronounced at the sentencing hearing, and the concurrent sentence of five years on the same count, as subsequently imposed by the trial court‘s journal entry, constitutes a violation of
{¶ 80} In this case, the trial court announced at the sentencing hearing that it was imposing a three-year term of imprisonment for the offense of having a weapon under disability to be served concurrently with a mandatory term of five years on the trafficking count. In its judgment entry, the trial court imposed a concurrent sentence of five years for the offense of having a weapon under disability. Because the modification of Robinson‘s sentence was not made in his presence, the judgment entry reflecting that modification is, to that extent, invalid.
{¶ 81} The state argues that a remand for resentencing is not required in this case, because the modification did not change or increase the total period of actual incarceration. In other words, since the sentences run concurrently, Robinson‘s total time in prison will be five years regardless of whether he receives a three-year or a five-year
{¶ 82} In any event, judgment entries imposing different sentences than were pronounced in open court have been held invalid, even when they did not change or increase the period of actual incarceration. Thus, in State v. Kovach, 7th Dist. No. 08-MA-125, 2009-Ohio-2892, the defendant was sentenced in open court to concurrent terms of two years for attempted burglary and possessing criminal tools, but the sentence was subsequently modified in an amended judgment entry to concurrent terms of two years for the attempted burglary and 12 months for possessing criminal tools. The modification of defendant‘s sentence did not change the total time of actual imprisonment and actually decreased the prison term on the latter count. Nevertheless, the court held, “Because the sentence in the court‘s amended sentencing entry is not the same sentence that the court imposed at the sentencing hearing, the amended sentencing entry was improper.” Id. at ¶ 29.
{¶ 83} In State v. Zelinko, 6th Dist. No. L-05-1345, 2006-Ohio-5106, this court held that even a downward modification of the sentence cannot be made in absentia. In that case, the trial court announced at the sentencing hearing that it was imposing a sentence of 60 days, with 55 days suspended, on a single count of domestic violence. In its written judgment, however, the trial court imposed a sentence of 30 days, with 25 days
{¶ 84} Accordingly, Robinson‘s ninth assignment of error is well-taken and the matter must be remanded for resentencing on the weapon-under-disability count. However, in the event that the judgment entry‘s stated five-year term on that count was merely a clerical mistake, it may be corrected by a nunc pro tunc entry to reflect the three-year concurrent term imposed on that count at the sentencing hearing.
{¶ 85} For the foregoing reasons, the judgment of the Lucas Court of Common Pleas is affirmed as it relates to Robinson‘s convictions, and reversed as it relates to Robinson‘s sentence. The cause is remanded to that court for resentencing in accordance with this decision. Costs of this appeal are assessed equally against the parties pursuant to
Judgment affirmed in part and reversed in part.
C.A. No. L-10-1369
A certified copy of this entry shall constitute the mandate pursuant to
Peter M. Handwork, J. _______________________________
JUDGE
Arlene Singer, P.J. _______________________________
Stephen A. Yarbrough, J. JUDGE
CONCUR. _______________________________
JUDGE
This decision is subject to further editing by the Supreme Court of Ohio‘s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court‘s web site at: http://www.sconet.state.oh.us/rod/newpdf/?source=6.