State v. RobinsonState v. Robinson
Appearances:
Michael C. O‘Malley, Cuyahoga County Prosecuting Attorney, and Mallory Buelow, Assistant Prosecuting Attorney, for appellee.
Flowers & Grube, Louis E. Grube, and Melissa A. Ghrist, for appellant.
MARY EILEEN KILBANE, J.:
{¶ 1} Defendant-appellant Charles Robinson, Jr. (“Robinson“), appeals from his convictions following a jury trial and raises five assignments of error. For the following reasons, we affirm.
{¶ 2} On July 5, 2017, attorney James Hungerford (“Hungerford“) arrived at his law office in Cleveland, Ohio and discovered the front glass door broken, the office ransacked, and his notary stamp and an envelope with cash and undeposited checks missing. Hungerford reported the break-in to the police and installed a board to temporarily replace the broken glass door.
{¶ 3} On July 6, 2017, Hungerford arrived at work around 9:00 a.m. and found his office had been ransacked again overnight. Notably, two U.S. Bank checkbooks — one from Hungerford‘s personal account and one from his business account — had been stolen.
{¶ 4} At 9:10 a.m. on that same date, Robinson cashed a check in the amount of $461 written from Hungerford‘s business account at U.S. Bank‘s West 98th Street branch (“West 98th Street branch“). Several hours later, Robinson attempted to cash two checks at U.S. Bank‘s West 25th Street branch (“West 25th Street branch“) — one written from Hungerford‘s personal account in the amount of $340 and one written from his business account in the amount of $505. On the memo line of all checks was written “office repairs.” The checks were written from the checkbooks stolen from Hungerford‘s office the previous day.
{¶ 5} When Robinson attempted to cash the two checks at the West 25th Street branch, the bank teller noted the checks each totaled over $200 and were not drawn on Robinson‘s own account and, therefore, the branch‘s protocol required
{¶ 6} As part of her fraud review, Green compared Hungerford‘s signature that was available through the bank‘s imaging with the signatures on the two checks presented by Robinson. Green did not believe the checks provided by Robinson were signed by Hungerford. Green also noted that Robinson cashed a check written from Hungerford‘s business account earlier that day at the West 98th Street branch. Green found it unusual that Robinson cashed a check at 9:10 a.m. and within a few hours, presented at another bank branch to cash two additional checks from Hungerford‘s accounts.2
{¶ 7} As part of her fraud review, Green contacted Hungerford and inquired about the checks presented by Robinson. Hungerford stated he did not know Robinson, Robinson never performed office repairs for him, and Hungerford
{¶ 8} On February 14, 2018, based upon the three checks drawn from Hungerford‘s accounts and made payable to Robinson and Robinson‘s actions with those checks, a Cuyahoga County Grand Jury indicted Robinson on three counts of forgery in violation of
{¶ 9} Under the same indictment, the grand jury indicted William Genco (“Genco“) on one count of breaking and entering, two counts of theft, one count of vandalism, and one count of forgery. The evidence against Genco included DNA blood evidence collected at Hungerford‘s office following the July 5, 2017 incident. The state charged Genco for breaking and entering at Hungerford‘s office and stealing his checkbooks. The charges against Robinson and Genco stemmed from the same course of conduct but represented separate offenses.
{¶ 10} On March 1, 2018, the court issued a capias for Robinson. On May 1, 2020, the court obtained custody of Robinson, Robinson pleaded not guilty to the indictment, and the court released Robinson on bond. The court conducted numerous pretrials on this matter, and Robinson indicated his desire to proceed to trial. On October 29, 2020, Robinson failed to appear in court and the court issued another capias. Upon Robinson‘s court appearance on November 10, 2020, the court recalled the capias. On July 28, 2021, the case proceeded to a jury trial.
{¶ 12} The court sentenced Robinson to serve five years of community-control on the forgery charges with various conditions and ordered a $1,000 fine on the theft charge.
{¶ 13} On October 6, 2021, Robinson filed a timely notice of appeal raising the following five assignments of error for our review:
Assignment of Error I: The trial court erred by failing to grant the motion for judgment of acquittal as to the crimes of forgery and theft because the state presented insufficient evidence to sustain a guilty verdict.
Assignment of Error II: The trial court erred by denying defendant‘s motion for mistrial.
Assignment of Error III: The trial court erred by granting the state‘s motion to exclude evidence of the co-defendant‘s guilty plea and convictions.
Assignment of Error IV: The trial court committed plain error by permitting the state to rely on facts not in evidence during closing arguments.
Assignment of Error V: Cumulatively prejudicial errors rendered the trial unfair to the defendant.
Legal Analysis
I. Sufficiency of the Evidence
{¶ 14} In his first assignment of error, Robinson argues that the trial court improperly denied his
{¶ 15} According to
{¶ 16} With a sufficiency inquiry, an appellate court does not review whether the state‘s evidence is to be believed but whether, if believed, the evidence admitted
A. Forgery by Uttering
{¶ 17} The jury convicted Robinson of forgery by uttering in violation of
(A) No person, with purpose to defraud, or knowing that the person is facilitating a fraud, shall do any of the following: * * * (3) Utter, or possess with purpose to utter, any writing that the person knows to have been forged.
{¶ 18} The evidence shows that on July 5, 2017, Hungerford‘s personal and business checkbooks were stolen by Genco. At approximately 9:10 a.m. on July 6, 2017, Robinson cashed a check written from Hungerford‘s business account at the West 98th Street branch. Later that same day, between noon and 2:00 p.m., Robinson attempted to cash two additional checks at the West 25th Street branch. All three checks were written from Hungerford‘s stolen checkbooks, were made
{¶ 19} Further, the evidence shows that the West 25th Street branch was a high-risk branch where Green observed fraud daily. The bank trained Green on security including compliance with bank regulations and fraud. Green testified that another man accompanied Robinson, and she found the way the men whispered to one another suspicious. Robinson appeared “antsy” and anxious to leave the bank; Robinson asked Green why it was taking so long to complete his transaction. Robinson was “agitated and a little bit upset” when Green returned Robinson‘s driver‘s license but retained the checks and informed him she could not cash the two checks presented by Robinson.
{¶ 20} The evidence further shows that Officer Beverly Fraticelli (“Fraticelli“) of the Cleveland Division of Police was assigned to investigate the breaking and entering at Hungerford‘s office and the subsequent attempt to cash Hungerford‘s stolen checks. Fraticelli interviewed Hungerford and U.S. Bank representatives and obtained a photo of Robinson attempting to cash checks at the West 98th branch on July 6, 2017. Based upon her investigation, Fraticelli concluded Genco stole the checkbooks from Hungerford‘s law office, Robinson cashed one of the stolen checks at the West 98th Street branch, and Robinson attempted to cash two checks at the West 25th Street branch.
{¶ 22} Robinson also argues that Green‘s observations that Robinson was “antsy” and anxious to leave the bank and the fact that he cashed a check earlier in the day were insufficient evidence to demonstrate Robinson‘s knowledge that the three checks were forged. Robinson relies on State v. Shabazz, 8th Dist. Cuyahoga No. 100021, 2014-Ohio-1828, where the court found that evidence of the defendant talking amongst a group and looking in the direction of the individual who was subsequently shot and killed was insufficient evidence to support an aggravated murder conviction.
{¶ 23} “Proof of guilt may be made by circumstantial evidence, real evidence, and direct evidence, or any combination of the three, and all three have equal probative value.” Brook Park v. Gannon, 2019-Ohio-2224, 137 N.E.3d 701, ¶ 24 (8th Dist.), quoting State v. Zadar, 8th Dist. Cuyahoga No. 94698, 2011-Ohio-1060, ¶ 18, citing State v. Nicely, 39 Ohio St.3d 147, 529 N.E.2d 1236 (1988). Here, the evidence presented by the state goes beyond Green simply observing Robinson‘s
{¶ 24} Viewing the evidence in the light most favorable to the state, any rational trier of fact could have found that Robinson knew the checks were not drafted by Hungerford and Robinson knew the checks were forged when he attempted to cash them, satisfying the elements of
B. Theft
{¶ 25} The jury convicted Robinson of theft in violation of
(A) No person, with purpose to deprive the owner of property or services, shall knowingly obtain or exert control over either the property or services in any of the following ways: * * * (3) By deception * * *
Deception is defined under
knowingly deceiving another or causing another to be deceived by any false or misleading representation, by withholding information, by preventing another from acquiring information, or by any other conduct, act, or omission that creates, confirms, or perpetuates a false impression in another, including a false impression as to law, value, state of mind, or other objective or subjective fact.
The jury found Robinson guilty of theft when he cashed the $461 check from Hungerford‘s business account.
{¶ 27} Viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found that Robinson knew the check in the amount of $461 was not written by Hungerford when Robinson cashed it and, therefore, Robinson‘s acts satisfied the elements of
{¶ 28} Robinson‘s first assignment of error is overruled.
II. Motion for Mistrial
{¶ 29} In his second assignment of error, Robinson argues that the trial court erred when it denied his motion for mistrial. Specifically, he contends the assistant prosecuting attorney‘s reference to Robinson‘s decision not to testify at trial caused prejudicial error necessitating a mistrial.
{¶ 31} “A mistrial should not be ordered in a criminal case merely because some error or irregularity has intervened, unless the substantial rights of the accused or the prosecution are adversely affected[.]” State v. Reynolds, 49 Ohio App.3d 27, 550 N.E.2d 490 (2d Dist.1988), paragraph two of the syllabus. A trial court should declare a mistrial “only when the ends of justice so require and a fair trial is no longer possible.” State v. Franklin, 62 Ohio St.3d 118, 127, 580 N.E.2d 1 (1991), citing Illinois v. Somerville, 410 U.S. 458, 462-463, 93 S.Ct. 1066, 35 L.Ed.2d 425 (1973). “Thus, the essential inquiry on a motion for mistrial is whether the substantial rights of the accused or the prosecution are adversely or materially affected.” State v. Wilson, 8th Dist. Cuyahoga No. 92148, 2010-Ohio-550, ¶ 13, quoting State v. Goerndt, 8th Dist. Cuyahoga No. 88892, 2007-Ohio-4067, ¶ 21.
{¶ 32} In the instant case, Robinson argues that the state improperly commented upon Robinson‘s decision to remain silent at trial. During closing arguments, the assistant prosecuting attorney referenced Robinson‘s choice not to testify at trial while she addressed the elements of forgery by uttering:
THE STATE: The offense states that no person shall knowingly utter, and in this case utter means to hand over a check, that he knows to be forged. He doesn‘t have to forge that check himself. So who did in this case is irrelevant.
That being said, the element of knowledge, yes, the defendant did not get up on the stand and say that he had no knowledge. In fact, it would be difficult to prove —
DEFENSE COUNSEL: Objection.
THE COURT: Sustained.
Tr. 494-495.
{¶ 33} Robinson‘s counsel moved for a mistrial, which the trial court denied. The trial court promptly delivered this curative instruction:
Ladies and gentlemen, the prosecutor made remarks as to the defendant‘s failure to testify. You are instructed that the defendant has an absolute constitutional right not to testify.
His decision not to do so may not be held against him. You are not to read anything whatsoever into his decision not to testify.
You are to draw no conclusions as to his guilt or innocence by his decision not to testify. You are to disregard the remarks of the prosecutor as to that point.
Is that clearly understood? The jury is indicating that it is.
Tr. 498.
{¶ 34} There is no question that the state improperly referenced Robinson‘s decision to remain silent during trial. The Ohio Supreme Court stated in State v. Thompson, 33 Ohio St.3d 1, 4, 514 N.E.2d 407 (1987), that
[c]omments by prosecutors on the * * * refusal to testify by defendants have always been looked upon with extreme disfavor because they raise an inference of guilt from a defendant‘s decision to remain silent. In
effect, such comments penalize a defendant for choosing to exercise a constitutional right. Prosecutors must therefore take care not to equate the defendant‘s silence to guilt.
Yet,
even where courts have assumed error from the introduction of a statement regarding a defendant‘s exercise of the right to remain silent, the admission of such a statement will not automatically be grounds for reversal. [If it] is clear that absent the objectionable testimony, no juror could have entertained a reasonable doubt as to the defendant‘s guilt because of the relative strength of the other evidence introduced at trial, then the admission of such testimony constitutes harmless error. State v. Thomas, 8th Dist. Cuyahoga No. 78570, 2002-Ohio-4026, ¶ 29, citing State v. Motley, 21 Ohio App.3d 240, 486 N.E.2d 1259 (10th Dist.1985).
State v. McMiller, 8th Dist. Cuyahoga No. 103962, 2016-Ohio-5844, ¶ 46.
{¶ 35} Here, when the assistant prosecuting attorney made her reference to Robinson‘s silence, defense counsel objected, and the court held a sidebar. After the sidebar, the trial court provided a curative instruction. There is a presumption that a jury follows the court‘s instructions, including curative instructions. Treesh, 90 Ohio St.3d at 480, 739 N.E.2d 749. However, that presumption may be rebutted with a showing that the improper statement could not have been ignored and that serious prejudice likely occurred. Greer v. Miller, 483 U.S. 756, 766, 107 S.Ct. 3102, 97 L.Ed.2d 618 (1987), fn. 8.
{¶ 36} Robinson contends that the only evidence introduced at trial to establish the element of knowledge was Robinson‘s “antsy appearance during his second, prolonged visit to a bank on the same day.” Robinson argues that the curative instruction failed to remedy the prejudice caused by the assistant
{¶ 37} “‘Overwhelming evidence of guilt’ is evidence that clearly demonstrates guilt beyond a reasonable doubt.” State v. Croskey, 8th Dist. Cuyahoga No. 107772, 2019-Ohio-2444, ¶ 21. The state presented evidence that demonstrated Robinson had three checks from Hungerford‘s stolen checkbooks. Robinson never performed work for Hungerford, and Hungerford never wrote a check to Robinson yet the checks held by Robinson indicated Hungerford wrote them in payment of Robinson‘s performance of office repairs. The checks were written from checkbooks stolen less than twenty-four hours prior to Robinson‘s attempts to cash the checks. Robinson cashed one check and presented the other two checks with the intention of cashing them. We find the evidence showed that Robinson knew the checks were fraudulent and his intent was to cash the checks to his advantage and, therefore, demonstrated Robinson‘s guilt beyond a reasonable doubt.
{¶ 38} We find that given the curative instruction and the evidence introduced at trial, Robinson has failed to show he suffered any material prejudice by the state‘s reference to Robinson‘s choice to remain silent. Consequently, the trial court did not abuse its discretion when it denied Robinson‘s motion for mistrial.
III. Exclusion of Codefendant‘s Convictions
{¶ 40} Robinson argues that the trial court erred when it granted the state‘s motion in limine to exclude any trial testimony about Genco‘s convictions. Specifically, Robinson argues that Genco‘s convictions were important background information from which the jurors could have inferred that Robinson did not know he was passing bad checks that were stolen by Genco. The state argues that introduction of Genco‘s convictions could have misled the jury to find Genco responsible for the commission of the crimes alleged against Robinson where the facts and law might lead to a different conclusion.
{¶ 41} A trial court has broad discretion when it determines the admissibility of evidence. State v. Shepherd, 8th Dist. Cuyahoga No. 81926, 2003-Ohio-3356, ¶ 18, citing Sage, 31 Ohio St.3d 173, 510 N.E.2d 343, at paragraph two of the syllabus. A trial court‘s ruling on the admissibility of evidence will not be overturned absent an abuse of discretion. Shepherd.
{¶ 42} Further, under
{¶ 43} The state charged the codefendants with separate offenses. While neither party mentioned Genco‘s convictions at trial, Officer Fraticelli testified that the state indicted Genco for breaking and entering into Hungerford‘s offices and the
{¶ 44} The trial court determined that absent testimony of Genco‘s convictions, the jury could still find Robinson guilty of the alleged charges and, therefore, exclusion of Genco‘s convictions would not create undue prejudice to Robinson. State v. Hurst, 10th Dist. Franklin No. 14AP-687, 2015-Ohio-2656, ¶ 12. Further, the trial court found introduction of the convictions could mislead the jury: “I believe it might be misleading to the jury and it might very well lead them to find [Genco] entirely responsible for the commission of a crime where the facts and the law might lead to a different conclusion but for their knowledge of the conviction of [Genco].” Tr. 264.
{¶ 45} The trial court did not abuse its discretion when it applied the
{¶ 46} Defendant‘s third assignment of error is overruled.
IV. Prosecutorial Misconduct During Closing Statement
{¶ 47} At the trial-court level, Robinson did not object to the claimed error raised in his fourth assignment of error. Therefore, review of that claim is limited to plain error. State v. Frazier, 8th Dist. Cuyahoga No. 104596, 2017-Ohio-470, ¶ 8,
{¶ 48}
{¶ 49} In closing arguments, as the assistant prosecuting attorney discussed the elements of forgery, she stated Robinson wrote the check in the amount of $505 that he attempted to cash at the West 25th branch. The record is absent of any trial evidence that established Robinson wrote or endorsed that check prior to its presentment at the West 25th Street branch. Therefore, the state erred when it commented that Robinson‘s handwriting was on the check.
{¶ 51} Robinson‘s fourth assignment of error is overruled.
V. Cumulative Error
{¶ 52} In his final assignment of error, Robinson argues that the cumulative effect of the prejudicial errors rendered his trial unfair.
{¶ 53} Under the doctrine of cumulative error, reversal of a conviction is required when the cumulative effect of errors at trial deprived the defendant of his constitutional right to a fair trial even though each error, individually, did not constitute cause for reversal. State v. Garner, 74 Ohio St.3d 49, 64, 656 N.E.2d 623 (1995). Yet, the courts find the doctrine of cumulative error inapplicable where the alleged errors are harmless or nonexistent. State v. El, 8th Dist. Cuyahoga No. 105089, 2017-Ohio-8165, ¶ 16, quoting State v. Allen, 8th Dist. Cuyahoga No. 102385, 2016-Ohio-102, ¶ 53, citing State v. Brown, 100 Ohio St.3d 51, 2003-Ohio-5059, 796 N.E.2d 506, ¶ 48.
{¶ 54} Because we found no merit to Robinson‘s first four assignments of error, his fifth assignment of error is overruled.
{¶ 55} For the foregoing reasons, the trial court‘s judgment is affirmed.
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.
A certified copy of this entry shall constitute the mandate pursuant to
MARY EILEEN KILBANE, JUDGE
SEAN C. GALLAGHER, A.J., and EMANUELLA D. GROVES, J., CONCUR