2004 Ohio 1907 | Ohio Ct. App. | 2004
Lead Opinion
{¶ 2} The following facts were adduced at Thomas's jury trial. On July 20, 2002, Officer Matthew Craska of the Cleveland Police Department was working as an off-duty, part-time security guard at a Save A Lot grocery store in Cleveland That afternoon, the store's front-end manager, Zeda Luna, saw a man walk through a checkout line and out the door with two bags of groceries he had not paid for. Officer Craska was alerted to the situation, looked towards the door, and saw Thomas exiting with two plastic bags that appeared full.
{¶ 3} Officer Craska followed Thomas as he walked out of the store, across the street, and into a laundromat. Along the way, Officer Craska saw Thomas drop the bags on the sidewalk before crossing the street.
{¶ 4} Once inside the laundromat, Officer Craska saw Thomas pick up the phone. Officer Craska instructed Thomas to hang up the phone and step outside. Once outside, Officer Craska asked for identification which Thomas provided. Officer Craska then told Thomas to return to the store with him, but Thomas refused at first. Eventually, Officer Craska convinced Thomas to walk back to the store with him.
{¶ 5} When the two arrived back at the front door of the store, Thomas tried to run, whereupon Officer Craska tackled Thomas to the ground. Officer Craska testified he used non-deadly force on Thomas, including wrestling, takedown techniques, strikes, and punches. Officer Craska further testified at one point Thomas threw his head back and cut Craska on the side of his mouth. Officer Craska stated the cut was bleeding and it stung. Officer Craska also testified he sustained a scrape on his elbow and knee, and a small tear to the knee of his pants.
{¶ 6} When a zone car driven by Officer Hageman arrived, Thomas was handcuffed and placed in the car. Thomas did not have any receipt on him for the merchandise. The bags discarded by Thomas contained several packages of chicken and beef worth approximately $25. Officer Hageman observed the cut on Officer Craska's lip that was bleeding.
{¶ 7} Zeda Luna testified she went outside after Officer Craska, saw Thomas drop the bags, and watched Thomas struggling with Officer Craska. She further testified Thomas "cocked his head back, and his arms, and that's when he struck [Officer Craska]." Luna observed a scrape on Officer Craska's arm and a cut by his mouth.
{¶ 8} Ronzel White, a store manager, testified he observed Officer Craska walking Thomas back to the store, saw Thomas trying to get loose, and watched Thomas swing his head and arms back and hit Officer Craska in the mouth. White also observed Officer Craska's lip was busted and bleeding.
{¶ 9} There was also testimony that the store has cameras that would have videotaped the alleged shoplifting; however, a tape was never produced.
{¶ 10} Thomas was convicted of robbery in violation of R.C.
{¶ 11} Thomas has appealed his conviction and sentence raising six assignments of error. His first two assignments of error provide:
{¶ 12} "I. The evidence was insufficient to support a conviction for the offense of robbery, as alleged."
{¶ 13} "II. The conviction for the offense of robbery was against the manifest weight of the evidence."
{¶ 14} The sufficiency of the evidence produced by the state and weight of the evidence adduced at trial are legally distinct issues. State v. Thompkins (1997),
{¶ 15} While the test for sufficiency requires a determination of whether the state has met its burden of production at trial, a manifest weight challenge questions whether the state has met its burden of persuasion. Id. at 390. When a defendant asserts that his conviction is against the manifest weight of the evidence, an appellate court must 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. Thompkins,
{¶ 16} R.C.
"(A) No person, in attempting or committing a theft offense orin fleeing immediately after the attempt or offense, shall do anyof the following:
"* * *
"(2) Inflict, attempt to inflict, or threaten to inflictphysical harm on another. "(3) Use or threaten the immediate use of force againstanother."
{¶ 17} The offense of robbery is differentiated from theft by the element of force or harm. State v. Hughes, Cuyahoga App. No. 81768, 2003-Ohio-2307. In similar cases where a defendant has struggled with a security guard while resisting apprehension after a shoplifting incident, this court has consistently applied the "single continuous transaction" rule. See, e.g., Hughes, supra (defendant struck store employee attempting to apprehend him after he left the store without paying for several items);State v. Dunning (Mar. 23, 2000), Cuyahoga App. No. 75869 (defendant used force against security guard several blocks from store where theft occurred). We have determined such conduct, as part of a single continuous transaction committed by the defendant, constitutes sufficient evidence to establish the force or harm element of robbery in this context. Id.
{¶ 18} In arguing that the evidence was insufficient to sustain a conviction of robbery, Thomas relies heavily on the fact that he had abandoned the groceries. Based on his claimed abandonment of the bags, Thomas argues that his use of force in this case was for the purpose of making an escape rather than for the purpose of depriving the store of merchandise. Thomas also argues the evidence failed to show he was "fleeing immediately after" as required for the offense since he had abandoned the groceries and walked away.
{¶ 19} While it may be true Thomas abandoned his criminal purpose as he was being chased across the street by Officer Craska, the theft offense had already occurred.1 The testimony presented at trial reflected that after Thomas was observed leaving the store without paying for the groceries, Officer Craska followed him across the street, returned to the store with Thomas, and was head-butted by Thomas. This evidence sufficiently established that Thomas, while fleeing from a theft or attempted theft, and as part of a continuous transaction, inflicted harm upon Officer Craska.
{¶ 20} Insofar as Thomas questions whether his actions constitute "fleeing," the mere fact that Thomas was walking does not mean that his actions did not constitute "fleeing." The term "flee" encompasses an "endeavor to avoid or escape from." Statev. Henderson (July 24, 1988), Hamilton App. Nos. C-960734, and C-961072, citing Marion v. Gilmore (May 24, 1978), Marion App. No. 9-77-22. Moreover, "fleeing" contemplates not only an offender actually running from the scene, but also an offender's attempt to avoid or escape from an antagonist. Henderson, supra.
{¶ 21} Given the evidence, and viewing the probative evidence and inferences reasonably drawn therefrom in the light most favorable to the prosecution, we conclude any rational trier of fact could have found all the essential elements of the offense beyond a reasonable doubt. Thus, Thomas's robbery conviction is sustained by sufficient evidence.
{¶ 22} Additionally, this court cannot say that the trial court's decision is against the manifest weight of the evidence. After reviewing the record, weighing the evidence and all reasonable inferences, and considering the credibility of the witnesses, we are not persuaded that the jury clearly lost its way and created such a manifest miscarriage of justice such that Thomas's conviction must be reversed and a new trial ordered.
{¶ 23} Because Thomas's conviction is supported by sufficient evidence and is not contrary to the manifest weight of evidence adduced at trial, Thomas's first and second assignments of error are overruled.
{¶ 24} Thomas's third assignment of error states:
{¶ 25} "The prosecution violated Mr. Thomas' constitutional rights under Article
{¶ 26} The prosecution is normally entitled to a certain degree of latitude in its concluding remarks. State v. Woodards
(1966),
{¶ 27} In this assignment of error, Thomas cites several comments made by the prosecutor during closing argument that he argues were prosecutorial misconduct unfairly prejudicing his right to a fair trial.
{¶ 28} Thomas first argues the prosecutor improperly cited the definition of flight in Webster's Dictionary. The actual comment by the prosecutor was as follows:
"* * * In part of her closing yesterday afternoon, defensecounsel indicated that the defendant didn't run, didn't sprintaway from the scene. Well, ladies and gentlemen, the word `flee,' as defined in Webster's New World Dictionary, firstdefinition, ` To go swiftly or escape.' Second definition, `Tovanish, to run away or try to escape from.'"
{¶ 29} The prosecutor's statement was in response to the defense's position that Thomas was not "fleeing" as required by the robbery statute. Defense counsel, in her closing argument, had stated:
"Now, fleeing. The prosecutor would have you believe thatfleeing just means moving along. He's walking. Is that fleeing,because he's walking? In my mind, fleeing, at minimum, is a brisktrot or something. But he's walking. The officer is even walking.Nobody is running."
{¶ 30} We find the prosecutor's use of the definition of the word "flee" was not improper. The word is not defined by the statute and the prosecutor informed the jurors of its regular meaning in direct response to defense counsel's own personal definition of the term.
{¶ 31} A term which is not defined by a statute is accorded its common, ordinary meaning. Cleveland v. GSX Chemical Servicesof Ohio, Inc. (May 7, 1992), Cuyahoga App. No. 60512. Furthermore, R.C.
{¶ 32} Thomas next claims the prosecutor improperly cited a statutory definition of "resisting arrest." During defense counsel's closing argument, she commented that "[b]ut for [Thomas's] resisting arrest, he wouldn't be sitting here." The prosecutor commented in his closing argument that one of the elements of robbery was "inflicted physical harm, or [attempt] to inflict physical harm." The prosecutor then misstated that "causing physical harm to a police officer isn't one of the elements of resisting arrest. You have to do that by force or recklessly." In concluding this point, the prosecutor stated defense counsel had in essence admitted that her client caused physical harm to the police officer.
{¶ 33} We find that these comments were improper. Thomas had not been charged with resisting arrest, and therefore it was not appropriate law to apply to the case. Moreover, the prosecutor improperly applied elements of resisting arrest to the offense of robbery and his comments included misstatements of law. The prosecutor also improperly suggested defense counsel had admitted her client caused physical harm. Nevertheless, the court reminded the jury that closing arguments are not evidence and instructed the jury on the law for the offense of robbery and its required elements. We determine the prosecutor's comments did not unfairly prejudice Thomas's right to a fair trial. State v. Potter, supra.
{¶ 34} Lastly, Thomas claims the prosecutor made an improper insinuation that defense counsel knew her client was guilty. Specifically, Thomas refers to the following comment by the prosecutor:
"And more importantly, defense counsel, in her closingargument, she didn't tell you that this tape would exonerate herclient. She just said, ` Well, there is no tape. There is notape, and because of that, you should find my client not guilty.'That's essentially what she told you. So she doesn't even tellyou that it's going to exonerate her client."
{¶ 35} We note initially that the defendant failed to object to this alleged improper comment about which he now complains. Therefore, he has waived all but plain error. State v. Slagle
(1992),
{¶ 36} Thomas's third assignment of error is overruled.
{¶ 37} Thomas's fourth assignment of error states:
{¶ 38} "The trial court erred by imposing consecutive sentences when it failed to make findings required by R.C.
{¶ 39} R.C.
{¶ 40} In addition, R.C.
{¶ 41} Thus, a trial court is required to make at least three findings under R.C.
{¶ 42} In this case the trial court set forth the required findings on the record. The court stated:
"THE COURT: * * * All right. The Court's going to consider allthe purposes in 2929, purposes of sentencing, and the relevantfactors therein. "First, we want to punish the offender here for the crime hecommitted, and to protect the public from future crimes of thedefendant. "In the past he's had what we call glorified shopliftings, andthen he fought with the store owners. Here he's fighting with thepoliceman in uniform, threatening the policeman, being combative,and trying to hurt the policeman, and causing some physical harmto him.
"* * *
"Now, the Court also has to consider whether recidivism islikely. Well, of course it is. To conclude anything else, itwould be foolish. Same type of conduct over and over. * * * "So it would be silly to think recidivism isn't likely, and itwould be endangering the public. So prison is necessary here, andprison is the answer and it's required anyhow by our findingshere, certainly consistent with the sentencing purposes here. "And the only sentence that I could think of that would giveyou adequate punishment, give you a message, and keep you off thestreet, because I don't think you could be rehabilitated,frankly. I think you're a career criminal, is seven years LCI,with credit for time served. Anything else would not adequatelyprotect the public."
{¶ 43} The court proceeded to sentence Thomas in a separate case and instructed that the sentences in the two cases would run consecutively.
{¶ 44} Our review of the record reflects the trial court made the three required findings. First, the court found recidivism was likely and the sentence was necessary to protect the public. Second, the court reviewed Thomas's conduct and the danger he posed and found the sentence provided an adequate punishment. Third, the court commented on Thomas's criminal history and lack of rehabilitation and determined the sentence was necessary to protect the public.
{¶ 45} While the trial court's findings did not mimic the exact language of R.C.
{¶ 46} We also find that the trial court sufficiently set forth the reasons for imposing consecutive sentences pursuant to R.C.
{¶ 47} In this case, the trial court detailed its reasons for imposing consecutive sentences throughout its findings. The trial court referred to Thomas's past "glorified shopliftings" in which he fought with store owners. The court also reasoned that in the present case Thomas had fought with a policeman in uniform, was combative, and caused physical harm. The court found recidivism was likely and expressed the view that Thomas was a career criminal. The court also expressed the belief that Thomas could not be rehabilitated. These reasons were all related to the findings on the record.
{¶ 48} Upon our review of the record, we find the trial court complied with the sentencing statutes and did not err in imposing a sentence that ran consecutive with a sentence imposed in a separate case. Thomas's fourth assignment of error is overruled.
{¶ 49} Thomas's fifth assignment of error states:
{¶ 50} "The trial court failed to adequately ensure that its total sentence was proportionate to sentences being given to similarly situated offenders who have committed similar offenses."
{¶ 51} R.C.
{¶ 52} We have previously recognized that R.C.
{¶ 53} Our review of the record does not demonstrate that the trial court failed to consider the objectives set forth in R.C.
{¶ 54} Nevertheless, Thomas argues that the trial court did not compare the sentence imposed with other sentences imposed for similar crimes committed by similar offenders. We have previously recognized that consistency in sentencing does not require uniform results. State v. Turner, Cuyahoga App. No. 81449, 2003-Ohio-4933. As we stated in Turner, "[t]here is no grid under Ohio law under which identical sentences must be imposed for various classifications of offenders. Instead, Ohio law offers a range of sentences so that divergent factors may be considered. * * * `The task of the appellate court is to examine the available data not to determine if the trial court has imposed a sentence that is in lockstep with others, but whether the sentence is so unusual as to be outside the mainstream of local judicial practice.'" Id. quoting State v. Ryan, Hamilton App. No. C-020283, 2003-Ohio-1188.
{¶ 55} On balance, we find that the record adequately demonstrates that the trial court considered the objectives of R.C.
{¶ 56} Thomas's sixth assignment of error states:
{¶ 57} "Under the
{¶ 58} Thomas correctly argues that the trial court failed to notify him at the sentencing hearing, as required by R.C.
{¶ 59} The state concedes that the trial court failed to inform appellant that post-release control was part of his sentence. Nonetheless, it relies on this court's decision inState v. Johnson, Cuyahoga App. No. 80459, 2002-Ohio-4581, for the proposition that the case should be remanded for resentencing.
{¶ 60} While we recognize there is a split of authority on this issue, we find that the appropriate action is to remand the case for resentencing. R.C.
{¶ 61} Due to the mandatory nature of post-release control in this case, its omission by the trial court makes the sentence statutorily incorrect. We therefore must vacate the sentence and remand the matter for resentencing in compliance with R.C.
{¶ 62} Conviction affirmed, sentence vacated, remanded for resentencing.
Sweeney, P.J., concurs. Timothy E. McMonagle, J., concurs in part and dissents inpart. (see attached concurring and dissenting opinion.)
Dissenting Opinion
{¶ 64} I concur with the majority's resolution of appellant's first, second and third assignments of error and, therefore, concur in affirming appellant's conviction. However, I disagree with the majority in their resolution of appellant's remaining assignments of error, which upholds the trial court's decision to impose consecutive sentences but, nonetheless, vacates that sentence and remands for resentencing in order for the trial court to inform appellant that post-release control would be part of his sentence.
{¶ 66} Here, the trial court addressed the need to protect the public from future crime and the likelihood of recidivism given appellant's past criminal history, which is quite extensive. These findings and their rationale, however, do not obviate the mandate that the trial court make an additional finding that consecutive sentences are "not disproportionate" to the seriousness of appellant's conduct and then state the rationale behind that finding.
{¶ 67} Although the record contains references to appellant's conduct as it relates to the conviction for robbery, the record does not reflect any discussion of appellant's conduct as it relates to the separate case whose sentence was to run consecutive to the instant case. Apparently, this separate case, number CR-432932, contained charges against appellant for forgery and theft for which appellant was convicted and sentenced to concurrent nine-month terms of imprisonment to run consecutive to the seven-year term of imprisonment in the instant case. The record in case number CR-432932 is not before us, however. Without knowing what the particular conduct involved, there is nothing in the record before this court from which I can discern that this conduct warranted the imposition of consecutive sentences even if the trial court had undertaken a perfunctory analysis before imposing sentence. See State v. Glass, Cuyahoga App. No. 81275, 2003-Ohio-1505, at ¶ 26; see, also, State v.Hicks, Cuyahoga App. No. 82574, 2003-Ohio-6902, ¶ 15.
{¶ 68} Although I disagree with the majority's discussion included under appellant's fourth assignment of error, I find it unnecessary to address this assigned error in light of the majority's decision to vacate appellant's sentence and remand for resentencing. I render the aforementioned opinion in response to the majority's decision to address it in the event the trial court, finds it unnecessary to address this aspect of appellant's sentence on remand
{¶ 70} As this court has previously determined, because the mandate of consistency in sentencing is directed to the trial court, it is the trial court's responsibility to insure consistency among the sentences it imposes. See State v. Lyons,
Cuyahoga App. No. 80220, 2002-Ohio-3424, at ¶ 30; see, also,State v. Stern (2000),
{¶ 71} The majority in this case concludes that as long as the trial court's comments at the sentencing hearing reflect that the court considered "this aspect of the statutory purpose in fashioning the appropriate sentence," the mandate for consistency has been satisfied. I disagree.
{¶ 72} This mandate is set forth in R.C.
{¶ 73} "A sentence imposed for a felony shall be reasonably calculated to achieve the two overriding purposes of felony sentencing set forth in division (A) of this section, commensurate with and not demeaning to the seriousness of the offender's conduct and its impact upon the victim, and consistent with sentences imposed for similar crimes committed by similar offenders." (Emphasis added.)
{¶ 74} Written in the conjunctive, the sentence imposed by the trial court must not only be reasonably calculated to achieve the overriding purposes of felony sentencing, inter alia, but it must also be "consistent with sentences imposed for similar crimes committed by similar offenders." The majority relies on the trial court's comments regarding appellant's extensive criminal history in its effort to justify statutory compliance. A trial court is not relieved of its obligation to abide by the directives imposed by statute merely because an offender has an illustrious criminal history. When analyzed in this manner, the majority absolves the trial court of failing to take into account whether that same sentence was consistent with sentences imposed on similarly situated offenders. Merely because the trial court may have complied with part of R.C.
{¶ 75} Notwithstanding this statutory mandate, I recognize that trial courts are limited in their ability to address the consistency mandate and appellate courts are hampered in their review of this issue by the lack of a reliable body of data upon which they can rely. Despite the directive set forth in R.C.
{¶ 76} Although in the past I have found that the failure of a trial court to engage in any consistency analysis required a remand for resentencing, I have since been persuaded by recent arguments to find otherwise when a criminal defendant has failed to present any argument, however minimal, regarding sentences imposed for similar offenders. See State v. Armstrong, Cuyahoga App. No. 81928,
{¶ 77} As in Armstrong, appellant did not submit any evidence of sentences imposed upon similar offenders. Reiterating, I am mindful of the burden placed not only upon trial courts but upon counsel in arguing and defending arguments regarding consistency. Nonetheless, until some framework is in place from which an appellate court can meaningfully review these sentences in compliance with the sentencing statute's mandates, it is not unreasonable for a criminal defendant to at least submit some evidence, however minimal, for the trial court to consider — at least until such a time that a better system is in place that tracks consistency in sentencing.
{¶ 78} Consequently, as pertains to appellant's fifth assignment of error, it is my opinion that the majority reached the right conclusion for the wrong reason and I, therefore, concur in judgment only.
{¶ 80} Because the sentence in this case is being vacated and remanded for resentencing, any error associated with appellant's sentence is now moot as the trial court, on remand, will have the opportunity to resentence appellant in compliance with R.C. Chapter 2929 and, furthermore, advise appellant appropriately as to whether post-release control is part of his sentence.
This cause is remanded to the lower court for further proceedings consistent with this opinion.
It is, therefore, ordered that said appellant and appellee share costs herein taxed.
The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Cuyahoga County Court of Common Pleas to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
