State v. SingfieldState v. Singfield
Dated: November 10, 2009
WHITMORE, Judge.
{¶1} Defendant-Appellant, Phillip Singfield, appeals from his convictions and sentence in the Summit County Court of Common Pleas. This Court affirms.
I
{¶2} At approximately 1:30 a.m. on July 26, 2008, Staci Smith and her cousin, Natea Proctor, drove to a bar on Newton Street. Smith parked her vehicle in the bar‘s lot, and she and Proctor remained in the vehicle to eat some food that they had just purchased. While they were eating, a man approached the vehicle and asked the women for a light. Subsequently, the man produced a handgun and threatened to shoot the women while he demanded their purses. Smith and Proctor handed over their purses, and the man walked away, entered a nearby car, and drove off. Smith and Proctor went to the bar and called 911 to report the incident. Both Smith and Proctor providеd the police with descriptions of their assailant.
{¶4} On October 3, 2008, a grand jury indicted Singfield on the following counts: (1) two counts of aggravated robbery, in violation of
{¶5} On December 22, 2008, Singfield filed a motion to modify his sentence, arguing that his firearms specifications were allied offenses for which the trial court should not have imposed separate sentences upon him. Thе trial court held a hearing on the motion and issued another oral sentence. The trial court: (1) merged Singfield‘s sentences for his two counts of robbery with firearm specifications with his counts for theft and petty theft; (2) increased his two aggravated robbery sentences by one year each and ordered them to run consecutively for a total period of ten years; (3) issued three year sentences on each of the two firearm specifications
{¶6} Singfield appealed, and this Court affirmed the judgment of the trial court in part and reversed it in part. State v. Singfield, 9th Dist. No. 24576, 2009-Ohio-4172. In reversing in part, this Court reversed Singfield‘s convictions for aggravated robbery and their attendant specifications because his indictment did not include the mens rea of recklessness with regard to aggravated robbery‘s deadly weapon element. Id. at ¶17-18. On August 27, 2009, the State filed an application for reconsideration. On October 7, 2009 we granted the State‘s application, vacated our decision, and reinstated Singfield‘s appeal. Singfield‘s reinstated appeal is now before this Court, raising three assignments of error for our review.
II
Assignment of Error Number One
“APPELLANT SINGFIELD‘S INDICTMENT WAS DEFECTIVE UNDER THE OHIO CONSTITUTION, ARTICLE I, SECTION 10 AS THE STATE FAILED TO INCLUDE A MENTAL CULPABILITY ELEMENT FOR AGGRAVATED ROBBERY IN THE INDICTMENT OR AT TRIAL.”
{¶7} In his first assignment of error, Singfield argues that his two convictions for aggravated robbery shоuld be reversed because neither he, nor the jury, was made aware of the mens rea element applicable to that offense. Specifically, he argues that the omission amounts to structural error. We disagree.
{¶8} “When an indictment fails to charge a mens rea element of a crime and the defendant fails to raise that defect in the trial court, the defendant has not waived thе defect in
{¶9} A person cannot be guilty of an offense unless they possess “the requisite degree of culpability for each element” of that offense.
{¶10}
“No person, in attempting or committing a theft offense, *** shall *** [h]ave a deadly weapon on or about the offender‘s person or under the offender‘s control and either display the weapon, brandish it, indicate that the offender possesses it, or use it[.]”
Singfield‘s indictment essentially tracked
Assignment of Error Number Two
“APPELLANT SINGFIELD‘S CONVICTIONS WERE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE IN VIOLATION OF SECTION 3(B)(3), ARTICLE IV OF THE OHIO CONSTITUTION, THUS CREATING A MANIFEST MISCARRIAGE OF JUSTICE BECAUSE THE GREATER WEIGHT OF THE EVIDENCE DEMONSTRATED THAT APPELLANT SINGFIELD DID NOT COMMIT THE OFFENSES.”
{¶11} In his second assignment of error, Singfield argues that his convictions for aggravated robbery and having a weapon while under disability are against the manifest weight of the evidence. We disagree.
{¶12} When considering a manifest weight argument, the Court:
“[M]ust review 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 trier of fact clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.” State v. Otten (1986), 33 Ohio App.3d 339, 340.
A weight of the evidence challenge indicates that a greater amount of credible evidence supports one side of the issue than supports the other. State v. Thompkins (1997), 78 Ohio St.3d 380, 387. Further, when reversing a conviction on the basis that the conviction was against the manifest weight of the evidence, the appellate court sits as the “thirteenth juror” and disagrees with the factfinder‘s resolution of the conflicting testimony. Id. Therefore, this Court‘s “discretionary
{¶13} Once again,
“No person, in attempting or committing a theft offense, *** shall *** [h]ave a deadly weapon on or about the offender‘s person or under the offender‘s control and either display the weapon, brandish it, indicate that the offender possesses it, or use it[.]”
{¶14} At trial, Singfield stipulated that he was previously convicted of attempted robbery, a felony offense of violence for purposes of
{¶15} Smith testified that she and Proctor arrived at the parking lot оf a bar on Newton Street at approximately 1:00 a.m. and remained in the vehicle to eat the food that they had just purchased. She further testified that at about 1:30 a.m. a man approached the passenger‘s side of
{¶16} Smith testified that weeks after the foregoing incident she saw her assailant on two separate occasions. First, Smith saw her assailant while riding the bus. Smith recognized him by sight and by sound because she heard him speak to a nearby bus passenger in his raspy voice. Smith testified that she immediately became “nervous, shaking, [and] sweаting” when she saw the man. Smith reported the sighting to the police after she exited the bus. Second, Smith saw her assailant walking down a street near her house. Smith testified that the man greeted her when he walked by such that she heard his raspy voice again. Thereafter, Smith followed the man while calling the police on her cell phone. Police arrested the man, later identified as Singfield, shortly thereafter.
{¶17} Proctor also testified that she and Smith were eating food in a parked vehicle sometime after 1:00 a.m. when a man approached the passenger‘s side of the vehicle and asked for a light. According to Proctor, she exited the vehicle to give the man a light and he pointed a gun at her. Proctor testified that Smith had exited the driver‘s side of the vehicle and was in the process of walking around the passenger‘s side when the man pointed his gun. The man then demanded their purses, took the purses, and left. Proctor testified that she was in a state of shock
{¶18} Detective James Phister testified that he interviewed Smith and Proctor shortly after they were attacked on July 26, 2008. Detective Phister testified that Smith described her аssailant as being a black male, 27 to 33 years of age, 5‘8” to 5‘9” tall, and 250 to 275 pounds with a very raspy voice. He specified that Smith said that the suspect “was so fat that he actually had rolls in his head.” As to Proctor, Detective Phister testified that her description of the suspect was “very close” to Smith‘s description. Specifically, Proctor described the suspect as being a black male, 27 to 33 years of age, 5‘7” to 5‘9” tall, and 200 to 235 pounds with a raspy voice. Detective Phister testified that Singfield was “slightly taller” than Smith and Proctor described, but otherwise matched their description.
{¶19} Singfield argues that his convictions are against the manifest weight of the evidence because Smith and Proctor varied in their exact description of the events and the physical description of their assailant. Singfield notes that Smith and Proctor each claimed to have been the one to get out of their vehicle to offer their assailant a light on the night of the incident and disagreed as to the lighting conditions of the parking lot where the crime occurred. The record reflects that both witnesses were focused on the gun that their assailant used during his attack. Considering the stressfulness of the situation, it would not be surрrising for the victims to be confused about certain details of their attack. Moreover, Detective Phister testified
{¶20} As to Singfield‘s alibi evidence, Singfield‘s mother, Stephanie Singfield, and his friends, LaShawn Pryor and Byron Jackson, testified that Singfield attended a party at his mother‘s house on the night of July 25, 2008 through the early morning hours of July 26, 2008 when the attack on Smith and Proctor occurred. Each witness admitted, however, that Singfield was not in their sight the entire time they were at the party, and Pryor testified that she was “pretty lit up” that night. Further, Stephanie Singfield admitted that her home was only 1.78 miles away from the bar and parking lot where Smith and Proctor were attacked. Based on the foregoing, we cannot conclude that the jury erred in rejecting Singfiеld‘s alibi evidence and concluding that he was the individual who assailed Smith and Proctor with a handgun. Singfield‘s argument that his convictions for aggravated robbery and having a weapon under disability are against the manifest weight of the evidence lacks merit.
Assignment of Error Number Three
“THE TRIAL COURT ERRED WHEN IT RESENTENCED APPELLANT SINGFIELD TO A GREATER PERIOD OF INCARCERATION THAN ORIGINALLY IMPOSED WITHOUT ARTICULATING REASONS FOR THE INCREASED PENALTY AS REQUIRED BY THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDENT (sic) AND IN VIOLATION OF OHIO LAW.”
{¶21} In his third assignment of error, Singfield argues that the trial court committed plain error when it imposed longer sentence terms upon him for each of his aggravаted robbery
{¶22} In State v. Baker, 119 Ohio St.3d 197, 2008-Ohio-3330, the Ohio Supreme Court held that:
“A judgment of conviction is a final appealable order under
R.C. 2505.02 when it sets forth (1) the guilty plea, the jury verdict, or the finding of the court upon which the conviction is based; (2) the sentence; (3) the signature of thе judge; and (4) entry on the journal by the clerk of court.” Baker at syllabus.
Because “a court speaks only through its journal entries[,] *** ‘where there has been no journalization of the sentence, a sentence announced in open court may be amended without formal journal entry.‘” State v. Overstreet, 9th Dist. No. 21367, 2003-Ohio-4530, at ¶8, quoting State v. Ismail (Aug. 21, 1991), 9th Dist. No. 15007, at *1. “Courts may increase sentences when the sentence does not constitute a final order.” Overstreet at ¶8, quoting State v. Teets (Sept. 20, 2000), 9th Dist. No. 3022-M, at *1.
{¶23} Singfield argues that the sentence the trial court imposed upon him on December 16, 2008 was final such that the trial court had no authority to resentence him to increased terms on his aggravated robbery convictions. The record reflects, however, that the trial court did not journalize Singfield‘s sentence until after it “resentenced” him. On December 16, 2008, the trial court orally imposed a fourteen year sentence on Singfield, consisting of three years for each of his two gun specifications and four years for each of his two aggravated robbery convictions. The trial court did not journalize its sentence. On December 19, 2008, the trial court held another sentencing hearing and agreed to “resentence” Singfield in response to his argument that his gun specifications were allied offenses. The trial court orally imposеd a fourteen year sentence, this time consisting of three years for his gun specifications, five years for each of his
{¶24} On December 29, 2008, the trial court journalized two separate sentencing entries. One sentencing entry embodied the court‘s December 16, 2008 sentence and the other embodied the court‘s December 19, 2008 sentence. Singfield argues that the court‘s December 16, 2008 entry was time stamped at 12:23 p.m. and the court‘s December 19, 2008 entry was time stamped at 12:25 p.m. Accordingly, he argues that his original sentence became final two minutes before his “resentencing” such that the trial court could not increase his sentence without first establishing the absence of a retaliatory motive for doing so. Upon this Court‘s review of the docket, it appears that Singfield‘s two sentencing entries were time stamped at the exact same time. Thе record only contains photocopies of the sentencing entries. Singfield has not provided this Court with his original sentencing entries or otherwise explained why the originals are not available. On both photocopies, the last digit of the time stamp is partially illegible. It appears, however, that both time stamps read “2008 DEC 29 PM 12:25.” Without more than the photocopies, we find no merit in Singfield‘s assertiоn that the entries were time stamped two minutes apart. See State v. Dunn, 9th Dist. No. 03CA0037, 2004-Ohio-2249, at ¶55 (“As in any appeal, Defendant bears the burden of ensuring that the record on appeal is complete.“).
{¶25} It is unclear why the trial court journalized the sentencing entry pertaining to Singfield‘s December 16, 2008 oral sentence when the trial court had already conducted another hearing, altered Singfield‘s sentence, and prеpared another sentencing entry. At the very least, however, the journal entry pertaining to Singfield‘s October 16, 2008 oral sentence was not
III
{¶26} Singfield‘s assignments of error are overruled. The judgment of the Summit County Court of Common Pleas is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute thе journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22(E). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
BETH WHITMORE
FOR THE COURT
CONCURS
CARR, J.
CONCURS, SAYING:
{¶27} I concur in the majority‘s judgment, but I would analyze the first assignment of error solely under State v. Lozier, 101 Ohio St.3d 161, 2004-Ohio-732.
APPEARANCES:
J. DEAN CARRO, Appellate Review Office, School of Law, The University of Akron, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant Prosecuting Attorney, for Appellee.