2008 Ohio 4614 | Ohio Ct. App. | 2008
{¶ 2} In the early morning hours of August 28, 2006, the victim was reading in her bed when she heard some noises in her kitchen. She investigated but did not find anything out of place so she went back to bed and fell asleep. Later, she was awakened *2 when someone threw a blanket over her head and tied her hands behind her back. A male told her he wanted money. He then asked her for her bank card and her personal identification number. After she told him the number, the man tied her feet and hands together and had her stand up. As she hopped along, the man guided her to the bathroom where he had her lay face down in the bathtub. He told her to remain in the bathtub and he left. When she heard the man leave, she untied herself and ran out of the house. Outside, she called the police on her cell phone. While waiting for the police and hiding under a bush, she watched a man, driving her car, pull into her driveway. The man got out of her car and disappeared around the corner of her house. From a photo array, the victim identified appellant as the perpetrator.
{¶ 3} On September 12, 2006, appellant was indicted for burglarizing the victim's home and for the robbery and kidnapping of the victim. A jury found appellant guilty on all counts on April 6, 2007. He was sentenced to 27 years in prison. Appellant appeals setting forth the following assignments of error:
{¶ 4} "I. The trial court erred in denying defendant's motion in limine and allowing testimony of other acts into evidence at trial.
{¶ 5} "II. The trial court's failure to find kidnapping and aggravated robbery are allied offenses of similar import was erroneous and resulted in the wrongful conviction of a crime and increased loss of liberty.
{¶ 6} "III. The trial court erred in denying defendant's motion to suppress the photo identification of the defendant by the victim. *3
{¶ 7} "IV. The prosecution did not produce sufficient evidence of serious physical harm to convict Mr. Walker of aggravated robbery and this finding was against the manifest weight of the evidence.
{¶ 8} "V. The jury's finding that Mr. Walker was guilty of aggravated robbery, aggravated burglary and kidnapping was against the manifest weight of the evidence and should be overturned.
{¶ 9} "VI. Defendant was denied a fair trial because of ineffective assistance of counsel.
{¶ 10} "VII. The above errors, when taken together, deprived appellant of a fair trial as guaranteed by the due process clause of the constitution."
{¶ 11} In his supplemental brief, appellant sets forth a supplemental assignment of error for review:
{¶ 12} "I. Appellant's convictions for aggravated robbery under R.C.
{¶ 13} In his first assignment of error, appellant contends the court erred in denying his motion in limine.
{¶ 14} A motion in limine is a request "that the court limit or exclude use of evidence which the movant believes to be improper, and is made in advance of the actual *4
presentation of the evidence to the trier of fact, usually prior to trial. The motion asks the court to exclude the evidence unless and until the court is first shown that the material is relevant and proper." State v. Winston (1991),
{¶ 15} Appellant sought to exclude evidence that people in the victim's neighborhood had called 911 to report a suspicious man walking around houses and looking into windows. The calls were received on August 29, August 30 and August 31, 2006, just days after the burglary at the victim's home. One of the callers was able to give the license plate number of the car, a silver Ford Taurus that the suspicious man was driving. This information ultimately led to police using a picture of appellant in a photo array. The victim identified appellant from the photo array. Appellant contends this evidence was irrelevant because he was not charged with any crime regarding the above activity and the above activity is different from the acts he was convicted of committing at the victim's home.
{¶ 16} Generally, "[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith." *5
Evid. R. 404(B). However, such evidence may "be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." Id. Other acts forming a unique, identifiable plan of criminal activity are admissible to establish identity or any of the other enumerated purposes under Evid. R. 404(B). State v. Broom (1988),
{¶ 17} The state contends that the evidence demonstrated proof of opportunity, intent, preparation, plan, knowledge and absence of mistake. First, the activity was observed in the victim's neighborhood immediately after her home was burglarized. One of the callers lived only one street away from the victim. Second, further investigation revealed that at the home of one of the callers, a back window screen had been cut. The evidence in this case shows that appellant entered the victim's home through her back window, after cutting her screen.
{¶ 18} Based on the common features of the other acts evidence and the crimes at issue, we find that the evidence was relevant for purposes of proving motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Accordingly, the trial court did not err in denying appellant's motion in limine. Appellant's first assignment of error is found not well-taken. *6
{¶ 19} In his second assignment of error, appellant argues the trial court erred in sentencing him to separate sentences on the kidnapping and aggravated robbery charges. Appellant asserts the charges constitute allied offenses of similar import, pursuant to R.C.
{¶ 20} "(A) Where the same conduct by defendant can be construed to constitute two or more allied offenses of similar import, the indictment or information may contain counts for all such offenses, but the defendant may be convicted of only one."
{¶ 21} The elements of kidnapping, as defined in R.C.2905.01(A)(2), are as follows:
{¶ 22} "(A) No person, by force, threat, or deception, or, in the case of a victim under the age of thirteen or mentally incompetent, by any means, shall remove another from the place where the other person is found or restrain the liberty of the other person, for any of the following purposes:
{¶ 23} "(2) To facilitate the commission of any felony or flight thereafter"
{¶ 24} The elements of aggravated robbery, as defined in R .C. 2911.01(A)(1), are as follows:
{¶ 25} "(A) No person, in attempting or committing a theft offense, as defined in section
{¶ 26} "(3) Inflict, or attempt to inflict, serious physical harm on another." *7
{¶ 27} We recognize that when a person commits the crime of robbery, he must, by the very nature of the crime, restrain the victim for a sufficient amount of time to complete the robbery. State v. Logan
(1979),
{¶ 28} "Where the restraint or movement of the victim is merely incidental to a separate underlying crime, there exists no separate animus sufficient to sustain separate convictions; however, where the restraint is prolonged, the confinement is secretive, or the movement is substantial so as to demonstrate a significance independent of the other offense, there exists a separate animus as to each offense sufficient to support separate convictions."
{¶ 29} Here, there exists a separate animus as to each offense. The victim was first robbed and then taken to a different room where her feet and hands were tied, significantly delaying her escape. See, also,State v. Williams, 8th Dist. No. 85327,
{¶ 30} In his third assignment of error, appellant contends that the court erred in denying his motion to suppress evidence of his pretrial identification. Specifically, appellant contends that he was identified from a suggestive and unreliable photo array. *8
{¶ 31} When considering a motion to suppress, the trial court assumes the role of the trier of fact and is therefore in the best position to resolve factual questions and evaluate the credibility of a witness.State v. Mills (1992),
{¶ 32} Due process requires suppression of an out-of-court identification if the confrontation procedure was "unnecessarily suggestive of the suspect's guilt and the identification was unreliable under all the circumstances." State v. Davis (1996),
{¶ 33} Even if the out-of-court confrontation procedure was unduly suggestive, however, the identification does not violate due process and is therefore admissible if the identification is reliable given the "totality of the circumstances." State v. Moody (1978),
{¶ 34} Appellant finds fault in the photo array for the following reasons: (1) the victim did not view the photos until four days after the incident, (2) all of the men in the photo array had facial hair despite the fact that the victim did not mention facial hair in describing the perpetrator, (3) appellant's picture, identifying him as a suspect, was circulating in the victim's neighborhood at the time of the photo array, and (4) the victim only saw the perpetrator's face for 15 seconds.
{¶ 35} At the suppression hearing, the victim testified that she saw appellant's face from approximately 30 feet away when he exited her car. Although it was dark, the car's dome light was briefly on. The victim testified that she does not need glasses to see distance. When the police showed her the photo array, she testified she immediately knew appellant was the man who broke into her house days ago. She also testified that at *10 the time, she was unaware that appellant's picture had been circulating in her neighborhood.
{¶ 36} Detective Kim Violanti of the Toledo Police Department testified that she showed the photo array to the victim based on the victim's description of an African American man, in his thirties, with a bald head or a very close haircut. Detective Violanti testified that the victim looked at each of the photos and upon viewing appellant's photo, she had a physical response that the detective described as "a moment of recognition." The victim then unequivocally identified appellant as the perpetrator.
{¶ 37} The photo array in the present case contained photos of six African American men with features similar to appellant and all, including appellant, exhibiting some facial hair. We find nothing so suggestive about the composition of the photo array that there is a substantial likelihood of misidentification. While the victim only briefly viewed the perpetrator, she did so no doubt for the sole purpose of later identifying him. Given the trauma experienced by the victim, four days is not so long between the incident and her identification. These factors taken together with the fact that the victim never hesitated in identifying appellant lead us to conclude that the photo array and presentation was admissible since the evidence was neither unduly suggestive nor unreliable. Appellant's third assignment of error is found not well-taken.
{¶ 38} In his fourth assignment of error, appellant contends that his conviction for aggravated robbery is against the manifest weight of the evidence. Specifically, appellant contends that the state failed to prove the element of serious physical harm. *11
{¶ 39} To determine whether a verdict is against the manifest weight of the evidence the appellate court "weighs the evidence and all reasonable inferences, and considers the credibility of witnesses."State v. Thompkins (1997),
{¶ 40} The elements of aggravated robbery, a violation of R.C.
{¶ 41} "No person, in attempting or committing a theft offense, as defined in section
{¶ 42} "* * *
{¶ 43} "Inflict, or attempt to inflict, serious physical harm on another."
{¶ 44} R.C.
{¶ 45} "(a) Any mental illness or condition of such gravity as would normally require hospitalization or prolonged psychiatric treatment;
{¶ 46} "(b) Any physical harm that carries a substantial risk of death;
{¶ 47} "(c) Any physical harm that involves some permanent incapacity, whether partial or total, or that involves some temporary, substantial incapacity; *12
{¶ 48} "(d) Any physical harm that involves some permanent disfigurement or that involves some temporary, serious disfigurement;
{¶ 49} "(e) Any physical harm that involves acute pain of such duration as to result in substantial suffering or that involves any degree of prolonged or intractable pain."
{¶ 50} The victim testified that appellant tied the rope to her wrists and ankles so tight that her capillaries were broken, leaving her ligature marks. She also testified that after appellant bound her, she was in fear for her life. While it is true that the victim's injuries did not require medical treatment, we note that unlike the felonious assault statute, the aggravated robbery statute does not require the defendant to actually cause serious physical harm. It is enough for aggravated robbery if the defendant attempts to cause serious physical harm. See State v. Sharp, 8th Dist. No. 87709,
{¶ 51} In his fifth assignment of error, appellant contends his convictions for aggravated robbery, aggravated burglary and kidnapping are against the manifest weight of the evidence. Appellant contends that the admission of irrelevant evidence confused the jury and led them to unjustly convict him. The irrelevant evidence to which appellant refers is the admission of the victim's identification of appellant based on the photo array and the admission of other acts evidence which was the subject of appellant's motion in *13 limine. Having already determined that this evidence was relevant and admissible, we find appellant's fifth assignment of error not well-taken.
{¶ 52} In his sixth assignment of error, appellant contends he was denied effective assistance of counsel. Two objective factors must be proven to establish ineffective assistance of counsel. Strickland v.Washington (1984),
{¶ 53} Appellant first contends that his counsel was ineffective in failing to adequately prepare for the testimony of defense witness, Charna Holston. Holston was the owner of the Taurus appellant was seen driving in August 2006, and she is the mother of appellant's child. She testified that appellant did not use her car in August 2006, and the only time she saw appellant in August 2006, was on August 29. On cross-examination, the state produced a taped interview that the police conducted with Holston *14 wherein she states that "to the best of her knowledge," appellant did not use her car in August 2006. She also states that she saw appellant on August 25 and 29, 2006. Appellant contends that his counsel should have procured this taped interview before trial to be better prepared for Holston's inconsistent testimony.
{¶ 54} The inconsistencies in Holston's testimony are relatively minor compared to the evidence against appellant in this case. Appellant's counsel, in fact, encouraged the state to play the tape of the interview for the jury which the state did. We can only assume that counsel's conduct with regard to the tape amounted to a trial strategy, and as such, we are disinclined to find counsel's representation ineffective.
{¶ 55} Appellant also contends that his counsel was ineffective in failing to argue at sentencing that aggravated robbery and kidnapping are allied offenses. Finally, appellant contends his counsel was ineffective in failing to object at trial to the admission of evidence regarding the 911 phone calls. These arguments appellant contends his counsel should have raised have already been rejected in appellant's prior assignments of error. Appellant's sixth assignment of error is found not well-taken.
{¶ 56} In his seventh assignment of error, appellant contends that all of the errors combined resulted in his unfair trial. "Separately harmless errors may violate a defendant's right to a fair trial when the errors are considered together. State v. Madrigal (2000),
{¶ 57} Appellant's supplemental assignment of error centers around the Supreme Court of Ohio's recent decisions in State v. Colon,
{¶ 58} "[t]he mental state of the offender is a part of every criminal offense in Ohio, except those that plainly impose strict liability. SeeState v. Lozier,
{¶ 59} The state of Ohio did not dispute the fact that Colon's indictment was defective for failing to charge an essential element of the crime of robbery, that is, that the physical harm was recklessly inflicted. It was the state's contention, however, that because Colon did not raise the issue before his trial, he waived the argument that his indictment was defective. The Supreme Court of Ohio disagreed.
{¶ 60} The court found the defective indictment to be "structural error." Colon I, ¶ 20.
{¶ 61} "Structural errors are constitutional errors that defy analysis by `harmless error' standards because they affect the framework in which the trial proceeds, rather than just being error in the trial process itself. (Citation omitted) Structural error permeates the entire conduct of a trial so that the trial cannot reliably serve its function as a means for determining guilt or innocence. Arizona v. Fulminante (1991),
{¶ 62} The Colon I court concluded:
{¶ 63} "A defendant has a constitutional right to grand jury indictment and to notice of all the essential elements of an offense with which he is charged. The state must meet its duty to properly indict a defendant, and we will not excuse the state's error at the cost of a defendant's longstanding constitutional right to a proper indictment. When a defective indictment so permeates a defendant's trial such that the trial court cannot reliably serve its function as a vehicle for determination of guilt or innocence, the defective indictment will be held to be structural error." Id. ¶ 44.
{¶ 64} The court further found that a defendant who fails to raise the issue of an indictment omitting the mens rea element of a crime in the trial court does not waive the defect. ¶ 45.
{¶ 65} In Colon II, before the court on a motion for reconsideration, the court clarified that its ruling in Colon I was to be applied prospectively, meaning, it is applicable only to those cases pending on the date Colon I was announced. ¶ 5. More importantly, for purposes of this case, the court emphasized that the holding of Colon I is based on a set of unique facts and that a situation in which a court will need to apply a structural error analysis to a defective indictment will be a rare situation. ¶ 6-7. Such a situation is one in which "* * * multiple errors at the trial follow the defective indictment." The court identified the following multiple errors in Colon's trial: (1) he had no notice that the mens rea element to the crime of robbery was recklessness, (2) the state did not attempt to prove the element of recklessness, and (3) the trial court did not *18 instruct the jury on a mens rea element of recklessness and in fact, (4) the state in closing argument treated robbery as a strict liability offense.
{¶ 66} In his supplemental assignment of error, citing Colon I, appellant contends that his convictions for aggravated robbery, pursuant to R.C.
{¶ 67} "* * * [appellant], on or about the 28th day of August, 2006, * * * in attempting or committing a theft offense as defined in R.C.
{¶ 68} As in Colon I, appellant's indictment omits a mens rea element for the offenses of aggravated robbery and aggravated burglary. The trial court in this case did, *19 however, instruct the jury on a mens rea element for both aggravated robbery and aggravated burglary, namely, "knowingly."
{¶ 69} The Tenth District Court of Appeals recently applied ColonI and Colon II in State v. Hill, 10th Dist. No. 07AP-889,
{¶ 70} The Hill court reached a different conclusion with regard to Hill's conviction for aggravated robbery pursuant to R.C.
{¶ 71} "[A]s an intermediate appellate court, we are therefore reluctant to expansively construe Colon I's holding to statutes not considered by Colon I, especially *20
since Colon II emphasized that the syllabus in Colon I is confined to the facts in that case. See, generally, James A. Keller, Inc. v.Flaherty (1991),
{¶ 72} Finding the pertinent facts in this case indistinguishable fromState v. Hill, supra, we find appellant's supplemental assignment of error not well-taken and Colon I and Colon II inapplicable as appellant was not indicted for the offense of robbery in violation of R.C.
{¶ 73} On consideration whereof, the judgment of the trial court is affirmed. Appellant is ordered to pay the costs of this appeal pursuant to App. R. 24. Judgment for the clerk's expense incurred in preparation of the record, fees allowed by law, and the fee for filing the appeal is awarded to Lucas County.
JUDGMENT AFFIRMED.
A certified copy of this entry shall constitute the mandate pursuant to App. R. 27. See, also, 6th Dist. Loc. App. R. 4. *21
*1Arlene Singer, J., William J. Skow, J., Thomas J. Osowik, J., Concur.
