State v. WardState v. Ward
Dated: February 7, 2011
BELFANCE, Judge.
{¶1} Appellant, Keith B. Ward, appeals his conviction from the Lorain County Court of Common Pleas. For the reasons that follow, this Court affirms in part, reverses in part, and remands.
BACKGROUND
{¶2} Keith B. Ward was indicted on September 9, 2009 and charged with one count of aggravated robbery, with two gun specifications and one repeat violent offender specification; two counts of having weapons under disability; and оne count of receiving stolen property, with two gun specifications. He was tried before a jury beginning on October 26, 2009. The trial court granted Mr. Ward‘s motion for acquittal for the receiving stolen property count and its attendant specifications. Mr. Ward was found guilty of the remaining counts of the indictment. The trial court sentenced him to a total of twenty years in prison.
INDICTMENT
{¶4} In his second assignment of error, Mr. Ward argues that the charge of aggravated robbery in count one of the indictment was duplicitous because it failed to specify the victim or victims of the alleged robbery and failed to specify what items were alleged to have been stolen. In response, the State argues that Mr. Ward has waived this argument because he did not object to the alleged defect in the indictment prior to trial. The State also argues that the indictment was not duplicitous because Mr. Ward‘s actions were part of a continuing course of conduct, thus, one robbery.
{¶5} Pursuant to
{¶6} In а recent decision, the Supreme Court of Ohio considered the requirement of juror unanimity in the context of a challenge to the trial court‘s jury instructions. State v. Gardner, 118 Ohio St.3d 420, 2008-Ohio-2787, at ¶2. Three justices agreed that jurors do not have to unanimously agree upon which underlying criminal offense a defendant intended to commit to support a conviction for aggravated burglary. Id. at ¶68. Although Gardner is not binding because a majority of the Court did not concur in thе analysis, we nonetheless note that Gardner is distinguishable from the instant matter in that the Court decided that the jurors need not agree on the particular way in which an element of a crime was satisfied. Id. at ¶¶67-68. Here, however, the facts support two distinct crimes—a meaningful factual distinction as acknowledged in Gardner. Id. at ¶50.
{¶7} In the case at bar, Mr. Ward did not request a bill of particulars specifying the facts underlying the alleged aggravated burglary charge. He also did not object to the indictment prior to trial. Pursuant to
{¶8} “Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the trial court.”
{¶9} The evidence at trial demonstrated that Brittany Beko and Tom Mоran were at the Azure Blue bar in Elyria, Ohio on July 29, 2009. Mr. Ward and his friend, Eddie Hildreth, were also drinking at the bar that night. All four sat near each other. At closing time, Ms. Beko placed her purse on the bar to her right. She also noticed that Mr. Ward was standing behind her to her right. Ms. Beko turned to her left to talk with Mr. Moran. When she turned back around, her purse was gone.
{¶10} A surveillance video played during the trial showed that Mr. Hildreth grabbed Ms. Beko‘s purse whilе her back was turned and tossed it to Mr. Ward who was standing on the opposite side of the bar by the exit. Mr. Ward left the bar, but Mr. Hildreth did not. The bouncer testified that he saw Mr. Ward walk out of the bar carrying the purse and a gun. The bartender went outside to find Mr. Ward and saw him with the purse and the gun sitting in a car outside of the bar. When she went back into the bar to call the police, Mr. Hildreth was taking money from
{¶11} The aggravated robbery charge in the indictment had two gun specifications attached to it. One specification alleged that Mr. Ward possessed a firearm during the commission of the theft offense and the other alleged that Mr. Ward displayed, brandished, used, or indicated pоssession of a firearm during the commission of the theft offense. During opening statements, the prosecutor stated:
“So, essentially, what you have here is two robberies. And we can only have one count, but we have [Mr. Ward] actually committing two robberies. The robbery with the purse with the gun, and we also have the robbery that he helps Eddie Hildreth take the money out of the cash register.”
The prosecutor further stаted that the State‘s theory was that Mr. Ward and Mr. Hildreth committed the robbery of the purse in order to divert attention so that they could steal the cash from the register. During closing argument, the prosecutor stated that although two items were stolen, the thefts were one continuous action. Throughout closing, the State referred to the events of July 30, 2009 both as two separate robberies and as one continuоus act. In his summation to the jury, Mr. Ward‘s counsel stated that the State‘s original theory was that Mr. Ward stole Ms. Beko‘s purse; however, during the course of the trial the State had adjusted its theory to allege that Mr. Ward participated in a series of thefts amounting to a continuing course of conduct that constituted the aggravated robbery charge. The jury instructions did not specify
{¶12} Given the evidence, the State‘s сharacterization of that evidence, and the jury instructions, it is clear that the jury could have been confused as to whether Mr. Ward was being prosecuted for taking the purse, for helping Mr. Hildreth steal from the register, for both individually, or for both as one continuous act. Despite the jury‘s ability to agree that Mr. Ward was guilty of aggravated robbery, each member of the panel may not have based his or her dеcision on the same set of facts.
{¶13} The two gun specifications to the aggravated robbery charge added to the confusion. Although the State presented evidence that Mr. Ward was carrying the gun and the purse when he left the bar, it is debatable whether he used or displayed the gun during the commission of that offense. On the other hand, the State presented evidence that he both possessed and usеd the gun to aid in the theft of money from the register.
{¶14} Moreover, counsel for Mr. Ward stated that he understood the charges to relate only to the theft of the purse. The indictment did not give Mr. Ward adequate notice of the crime he was alleged to have committed and raised the possibility for confusion among the jurors. See Smith, at *1, citing Tanner, 471 F.2d at 139. The trial court could have severed the aggravated robbery count intо two counts based on the facts of the case. See
SUFFICIENCY
{¶15} Mr. Ward argues in his first assignment of error that some of his convictions were not based on sufficient evidence. Specifically, he contends that the sentencing entries admitted into evidence were not properly authenticated, thus the evidence was insufficient to support his convictions for having weapons under disability and to demonstrate that he was a repeat violent offender. He also asserts that the State failed to demonstrate operability of the firearm, thus his convictions for the firearm specifications and having weapons under disability must be reversed.
{¶16} Although Mr. Ward attacks the sufficiency of the repeat violent offender and firearms specifications attached to the aggravated robbery, we have determined above that that the aggravated robbery indictment was defective. “‘[A] specification is, by its very nature, ancillary to, and completely dependent upon, the existence of the underlying criminal charge or charges to which the specification is attached.‘” State v. Evans, 113 Ohio St.3d 100, 2007-Ohio-861, at ¶15, quoting State v. Nagel (1999), 84 Ohio St.3d 280, 286. Because the specifications were ancillary to the robbery charge, we will not address Mr. Ward‘s sufficiency argument with respect to the specifications. However, we will address his argument with respect to sufficiency as to his separate convictions for having weapons under disability.
{¶17} “Whether a conviction is supported by sufficient evidenсe is a question of law that this Court reviews de novo.” State v. Williams, 9th Dist. No. 24731, 2009-Ohio-6955, at ¶18, citing State v. Thompkins (1997), 78 Ohio St.3d 380, 386. The relevant inquiry is whether the prosecution has met its burden of production by presenting sufficient evidence to sustain a conviction. Thompkins, 78 Ohio St.3d at 390 (Cook, J., concurring). In reviewing the evidence,
Sentencing Entries
{¶18} An offender is guilty of having weapons under disability if, inter alia, he knowingly carries or uses a firearm or dangerous ordnance and has previously been convicted of a felony offense of violence and/or certain offenses involving a “drug of abuse.”
{¶19} Mr. Ward argues that the judgment entries accepted into evidence were not properly authenticated and should not have bеen admitted into evidence. Therefore, without this evidence, the State‘s evidence was not sufficient to establish Mr. Ward was guilty of having weapons under disability. Mr. Ward also suggests that the evidence presented did not clearly indicate that he was the individual identified in the entries.
{¶20} Mr. Ward has not separately challenged the propriety of the admission of the judgment entries in a separate assignment of error. To the extent that Mr. Ward asserts that the State‘s evidence was insufficient to sustain his conviction because evidence was improperly admitted, that argument is not well taken. The Supreme Court of Ohio has held that when
{¶21} Mr. Ward additionally argues that the evidence was insufficient to allow the factfinder to conclude that he was the offender indentified in the 1991 and 2008 judgment entries.
“Whenever in any case it is necessary to prove a prior conviction, a certified copy of the entry of judgment in such prior conviction together with evidence sufficient to identify the defendant named in the entry as the offender in the case at bar, is sufficient to prove such prior conviction.”
The judgment entries of Mr. Ward‘s prior convictions entered into evidence were certified copies. With respect to the identity requirement of
Operability
{¶23} An offender is guilty of having weapons under disability if the offender has been convicted of “any felony offense of violence” or “illegal possession, use, sale, administration, distribution, or trafficking in any drug of abuse[]” and subsequently knowingly acquires, has, carries, or uses any firearm or dangerоus ordnance.
{¶24} To the extent that Mr. Ward argues in his first assignment of error that his convictions for weapons under disability were based on insufficient evidence, we overrule the assignment of error. Our resolution of Mr. Ward‘s second assignment of error has rendered his argument with respect to the repeat violent offender and firearm specifications moot.
MANIFEST WEIGHT
{¶25} Mr. Ward also argues in his first assignment of error that his convictions for aggravated robbery and weapons under disаbility were against the manifest weight of the evidence. In light of our conclusion that Mr. Ward‘s indictment was duplicitous because it
{¶26} For the most part, Mr. Ward argues sufficiency and manifest weight in tandem. He does not specifically attack the credibility of the witnesses; rather, he asserts that the State did not meet its burden of production. See Thompkins, 78 Ohio St.3d at 386-387 (sufficiency concerns whether the evidence was adequate to support the verdict, while manifest weight is a question of whether the greatеr amount of credible evidence supports the verdict). Without pointing to specific evidence in the record, see
{¶27} Many of the witnesses who were in the bar the night of the robbery did testify that they had been drinking, hоwever, the evidence did not demonstrate that any of the witnesses was severely impaired or incapable of comprehending or remembering the incident. Additionally, one of the officers who responded to the scene testified that when he apprehended Mr. Ward, he had a gun on the ground at his feet.
{¶28} With respect to Mr. Ward‘s second contention, the testimony was not inconsistent. Both witnesses who saw Mr. Ward carrying and displaying the gun gave consistent descriptions of the firearm and Mr. Ward‘s use of it. Upon review of the record, we conclude that Mr. Ward‘s weapons under disability convictions were not against the manifest weight of the evidence. We overrule Mr. Ward‘s first assignment of error with regard to the manifest weight of the evidence.
{¶29} In his third assignment of error, Mr. Ward alleges that the prosecutor committed misсonduct during the trial that violated his right to a fair trial. Our resolution of Mr. Ward‘s second assignment of error has rendered his third assignment of error moot. As such, we decline to address it. See
CONCLUSION
{¶30} Mr. Ward‘s first assignment of error is overruled as it relates to sufficiency and manifest weight of the evidence supporting the weapons under disability convictions and we do not reach the remainder of his assignment of error. We sustain Mr. Ward‘s seсond assignment of error. We decline to address Mr. Ward‘s third assignment of error. The judgment of the Lorain County Court of Common Pleas is affirmed in part, reversed in part, and the matter is remanded for proceedings consistent with this opinion.
Judgment affirmed in part, reversed in part, and cause remanded.
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 Lorain, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to
Immediately upon the filing hereof, this document shall constitute the 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.
Costs taxed equally to both parties.
EVE V. BELFANCE
FOR THE COURT
DICKINSON, P. J.
CARR, J.
CONCUR
APPEARANCES:
PAUL GRIFFIN, Attorney at Law, for Appellant.
DENNIS P. WILL, Prosecuting Attorney, and MARY SLANCZKA, Assistant Prosecuting Attorney, for Appellee.