STATE OF OHIO v. SHAWN D. WOOD
C.A. CASE NO. 26134
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
January 15, 2016
[Cite as State v. Wood, 2016-Ohio-143.]
T.C. NO. 13CR178 (Criminal appeal from Common Pleas Court)
CHRISTOPHER A. DEAL, Atty. Reg. No. 0078510, 131 N. Ludlow Street, Suite 630, Dayton, Ohio 45402 Attorney for Defendant-Appellant
OPINION
Rendered on the 15th day of January, 2016.
DONOVAN, J.
{¶ 1} Defendant-appellant Shawn D. Wood appeals his conviction and sentence for aggravated murder, aggravated robbery, grand theft of a motor vehicle, and having a weapon while under disability. Wood filed a timely notice of appeal with this Court on March 17, 2014.
{¶ 2} The incident which forms the basis for the instant appeal occurred in mid-
Procedural History
{¶ 3} On March 5, 2013, Wood was indicted for one count of aggravated murder (while committing or attempting to commit aggravated robbery), in violation of
{¶ 4} At his arraignment on March 7, 2013, Wood stood mute, and the trial court entered a plea of not guilty on his behalf. On March 20, 2013, a trial date was set of July 29, 2013. Wood subsequently filed a motion to suppress on May 21, 2013, in which he sought the suppression of his phone records, DNA swabs taken from him by police, any statements he made to law enforcement officials after being taken into custody, and any pretrial identifications. A hearing was held on Wood‘s suppression motion over the following dates: June 2, 2013, July 3, 2013, and July 11, 2013. On July 16, 2013, the trial court issued a decision overruling the majority of Wood‘s motion to suppress. The sole portion of the suppression motion sustained by the trial court was the section pertaining to statements Wood made to police after he requested counsel.
{¶ 5} On July 26, 2013, defense counsel filed a motion requesting a continuance of the trial date in order to obtain an expert to refute the State‘s cellphone evidence. A time waiver was filed on July 29, 2013. Defense counsel signed the time waiver, but Wood refused to sign the document. Wood‘s motion for a trial continuance was nevertheless granted by the trial court in an entry issued on August 1, 2013. A new trial date was scheduled for January 27, 2014.
{¶ 6} Immediately prior to trial on January 27, 2014, Wood waived his right to a jury trial regarding the three counts of having weapons while under disability with which he was charged.1 Wood‘s jury trial began on the same day with respect to the remaining
Factual Background
{¶ 7} During the week of December 12, 2011, Turner and the AME choir were preparing for their annual Christmas performance and were scheduled to practice every day that week. The last time Turner attended choir practice, however, was on the evening of Tuesday, December 13, 2011. When he failed to attend choir practice on the evening of Wednesday, December 14, 2011, Shirley Thomaston, a close friend of Turner and a member of the choir, called him. Unable to reach Turner by telephone, Thomaston testified that she drove by his apartment in order to check on him. Although Thomaston could see that the lights were on in Turner‘s apartment, nobody came to the door when she honked her car horn. Thomaston also observed that Turner‘s vehicle, a gray Honda Accord sedan, was not in the parking lot. Thomaston testified that she found it very unusual that Turner would leave his apartment without turning off the lights because he was very determined about saving money on his electric bill. Thomaston testified that she left Turner‘s apartment complex and went home.
{¶ 8} After Turner failed to attend choir practice on the night of Thursday, December 15, 2011, several concerned individuals went to his apartment in an effort to
{¶ 9} Shortly thereafter, the police arrived and began their investigation. Turner had been shot once in the back of the head. When the police rolled Turner over, they found a spent bullet laying under his body and a second spent bullet near the end of the bed. No shell casings were found, nor was a weapon discovered in Turner‘s apartment. Two televisions were found to be missing from Turner‘s apartment, as well as various other electronic equipment. There were no signs of forced entry, and based on the manner in which the front door locked, the police concluded that whoever killed Turner had taken his keys and locked the door from the outside. The coroner who performed the autopsy testified that based on the condition of the body when found, Turner had been shot sometime between the night of December 13, 2011, and early on December 15, 2011.
{¶ 10} Utilizing Turner‘s phone records, the police were able to identify the appellant, Shawn Wоod, as the primary suspect in the shooting. Specifically, the records established that Turner and Wood had been in frequent contact with one another in the hours leading up to the time when Turner was last seen alive on the night of December
{¶ 11} Wood‘s cellphone records were also introduced at trial and established that his phone was in the area of Turner‘s apartment when the shooting was alleged to have occurred. Specifically, FBI Agent Kevin Horan tеstified that based on data provided by Wood‘s cellular service provider, his cellphone was in the vicinity of the AME church when the last three calls between Wood and Turner were exchanged on the night of December 13, 2011. The evidence also established that beginning at 10:26 p.m., when the last call that Turner made to Wood was ended, Wood‘s cellphone was either powered off or had its battery removed. However, at 6:31 a.m. on December 14, 2011, Wood‘s cellphone records establish that his phone had been turned back on because an incoming call came from his mother. Agent Horan testified that when this call was received, Wood‘s cellphone was in close proximity to Turner‘s apartment. Moreover, during the time that Wood‘s cellphone was being used in the vicinity of the apartment, Turner‘s neighbor, Betty Harrison, testified that she observed Turner‘s gray Honda Accord being driven away from his apartment building. However, because it was still dark outside, Harrison testified that she was unable to see who was driving the vehicle.
{¶ 13} Kurrek further testified that on the night of December 15, 2011, Wood called again and asked him to go shopping. When he came to pick Kurrek up, Wood was driving Turner‘s gray Honda Accord. Kurrek testified that Wood also had several credit cards belonging to Turner. Wood asked Kurrek if he would use Turner‘s credit cards to purchase Christmas gifts for Wood‘s sons in exchange for heroin. Kurrek agreed, and Wood drove him to several stores where he purchased several toys. Kurrek testified that Wood stayed in the car while he went into the stores and bought the gifts. Kurrek testified that at the third store he entered, he was informed that all of the credit cards belonging to Turner had been maxed out. At that point, Wood took Kurrek back home. On December 20, 2011, Turner‘s gray Honda Accord was found abandoned by police only two blocks from Wood‘s mother‘s residence at 610 Groveland Avenue in Dayton, Ohio. The police who found the vehicle noted that the stеering column had not been “peeled” or otherwise tampered with, which is usually the case when cars are stolen. This indicated to the police that whoever had taken the vehicle and later abandoned it had the key to the vehicle.
{¶ 14} After Turner‘s death, Wood gained permission to stay for a short time in the basement of his friend‘s girlfriend, lesha Young. Young testified that at some point after Christmas in 2011, she went down to the basement to do laundry and observed a revolver
{¶ 15} The State also presented the testimony of Cora Williams who testified that in mid-January of 2012, she was at the home of her heroin dealer, Joseph Ramey, when Wood arrived there. Williams testified that Wood looked unusually unkempt and fidgety. Upon arriving, Wood immediately went down to the basement to speak privately with Ramey. Williams testified that she eavesdropped on the two men‘s conversation during which she overheard Wood say, “I put two in the motherf*****. Can you help me?”
{¶ 16} Wood was arrested by Moraine Police Officer Michael Cornely on December 20, 2012, approximately one year after the shooting of Turner. When the police first made contact with him, Wood gave the police a false name. Officer Cornely eventually identified Wood and took him into custody. When he was taken into custody, Wood asked Officer Cornely to make arrangements to give his mother his cellphone, saying, “[I am] going to be going away for a very long time.”
{¶ 17} As previously discussed, Wood was found guilty on all counts and sentenced to life in prison without the possibility of parole, plus an additional twenty-three years.
{¶ 19} Wood‘s first assignment of error is as follows:
{¶ 20} “THE TRIAL COURT‘S DECISION TO CONTINUE THE JURY TRIAL FROM JULY 26, 2013 UNTIL JANUARY 27, 2014 RESULTED IN A VIOLATION OF APPELLANT‘S CONSTITUTIONAL RIGHT TO A SPEEDY TRIAL.”
{¶ 21} In his first assignment, Wood contends that the trial court erred when it granted his request for a continuance in order to locate an expert witness to refute evidence from the State rеgarding his cellphone records. Specifically, Wood argues that when the continuance was granted, his right to a speedy trial was violated pursuant to
{¶ 22} Initially, we note that neither Wood nor his counsel raised his right to a speedy trial before the trial court. “[A]ppellate courts of this state have consistently held that a defendant cannot raise a speedy trial issue for the first time on appeal but must initially raise such an issue at or prior to commencement of trial in accordance with
{¶ 23} Assuming, however, the speedy trial issue was properly before us, Wood‘s argument would still fail. In Ohio,
{¶ 24} To the extent Wood argues that his statutory right to a speedy trial was violated pursuant to
{¶ 25} We note that Wood contends that he never consented to the motion for a continuance filed on July 26, 2013. Wood also points out that he refused to sign the time waiver that was executed by his trial counsel. Nevertheless, it is well-established that defense counsel may request a continuance in order to obtain more time to prepare for the case without the defendant‘s agreement, and the defendant is bound thereby. State
{¶ 26} Lastly, Wood raises a constitutional challenge with respect to his right to speedy trial. We note, however, that Wood did not raise this issue below, but even if he had, we find no constitutional speedy-trial violation resulting from the trial court‘s decision granting defense counsel‘s July 26, 2013, motion for a continuance of the trial date.
{¶ 27} The right to a speedy trial is guaranteed by the
{¶ 28} As previously stated, defense counsel did not need Wood‘s consent to file the сontinuance motion nor the waiver of speedy trial time. Furthermore, considering the
{¶ 29} Wood‘s first assignment of error is overruled.
{¶ 30} “THE CONVICTION OF ALL COUNTS WERE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AND THERE WAS INSUFFICIENT EVIDENCE TO SUPPORT THE CONVICTION BECAUSE THERE WAS NO EVIDENCE THAT THE APPELLANT MURDERED, ROBBED, BURGLED OR ASSAULTED THE VICTIM, COREY TURNER, NOR WAS THERE SUFFICIENT EVIDENCE THAT THE APPELLANT WAS EVER IN POSSESSION OF A FIREARM IN VIOLATION OF [R.C.] 2923.13.”
{¶ 31} In his second assignment of error, Wood argues that the State failed to adduce any evidence during trial that he “murdered, robbed, burgled, or assaulted victim Corey Turner, nor was there sufficient evidence that [he] ever possessed a firearm in violation of § 2923.13.” Accordingly, Wood argues that none of his convictions are supported by sufficient evidence. Wood also asserts that his convictions are against the manifest weight of the evidence.
{¶ 32} “In reviewing a claim of insufficient evidence, ‘[t]he relevant inquiry is whether, after reviewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt.‘” (Citations omitted). State v. Crowley, 2d Dist. Clark No. 2007 CA 99, 2008-Ohio-4636, ¶ 12.
{¶ 34} The credibility of the witnesses and the weight to be given to their testimony are matters for the trier of facts to resolve. State v. DeHass, 10 Ohio St.2d 230, 231, 227 N.E.2d 212 (1967). “Because the factfinder *** has the opportunity to see and hear the witnesses, the cautious exercise of the discretionary power of a court of appeals to find that a judgment is against the manifest weight of the evidence requires that substantial deference be extended to the factfinder‘s determinations of credibility. The decision whether, and to what extent, to credit the testimony of particular witnesses is within the peculiar competence of the factfinder, who has seen and heard the witness.” State v. Lawson, 2d Dist. Montgomery No. 16288, 1997 WL 476684 (Aug. 22, 1997).
{¶ 35} This court will not substitute its judgment for that of the trier of facts on the issue of witness credibility unless it is patently apparent that the trier of fact lost its way in arriving at its verdict. State v. Bradley, 2d Dist. Champaign No. 97-CA-03, 1997 WL 691510 (Oct. 24, 1997).
{¶ 37} Specifically, the evidence adduced by the State circumstantially established that on the night of December 13, 2011, Wood arranged to meet Turner at his apartment. Once there, Wood shot and killed Turner with a revolver-tyрe handgun. Wood then ransacked Turner‘s apartment, stealing two televisions, various electronic equipment, and credit cards belonging to the decedent. Wood also stole Turner‘s gray Honda Accord sedan. Wood, through the help of an acquaintance, used Turner‘s credit cards to buy Christmas gifts for his two sons. Significantly, two witnesses testified that they observed Wood with a revolver handgun in the days leading up to and following Turner‘s murder. Turner‘s vehicle was also found abandoned by police only a short distance away from the residence Wood shared with his mother. Wood also made several statements implicating himself in Turner‘s murder.
{¶ 38} Circumstantial evidence and direct evidence have equivalent probative value. State v. Jenks, 61 Ohio St.3d 259, 272, 574 N.E.2d 492 (1991); State v. Reynolds, 2d Dist. Montgomery No. 19780, 2003-Ohio-7245, ¶ 17. Consequently, a
{¶ 39} In the hours leading up to Turner‘s death, his and Wood‘s phone records establish that they exchanged severаl phone calls, including one call witnessed by a cashier at a gas station when Turner was overheard telling Wood in an agitated tone of voice, “I said I‘ll be there.” The phone records further establish that Wood called Turner approximately one hour later at his home. Turner then called Wood approximately twenty minutes later at 10:21 p.m. Wood‘s cellphone records establish that his phone was in the area of Turner‘s apartment during the time frame when the shooting was alleged to have occurred. Significantly, beginning at 10:26 p.m., when the last call that Turner made to Wood was ended, Wood‘s cellphone was either powered off or had its battery removed.
{¶ 40} When Wood‘s phone was turned back on, at 6:31 a.m. on December 14, 2011, an incoming call came from his mother. Agent Horan testified that when this call was received, Wood‘s cellphone was in close proximity to Turner‘s apartment. Moreover, during the time that Wood‘s cellphone was being used in the vicinity of the apartment, Turner‘s neighbor, Betty Harrison, testified that she observed Turner‘s gray Honda Accord being driven away from the apartment building.
{¶ 42} Both Kurrek and lesha Young testified that they observed Wood in the possession of a revolver in the days preceding and then following Turner‘s murder. The police also found two spent bullets but no shell casings at the murder scene. Thus, the jury could reasonably infer that the person who shot Turner used a revolver rather than a semi-automatic handgun. After hearing that the police would be arriving at Young‘s house where he was temporarily staying, Wood immediately gathered his possessions and left the premises. Wood also instructed the mother of his two sons to kiss them for him because he was wanted by the police and would not be seeing the children anymore.
{¶ 43} The State also presented the testimony of Cora Williams, who overheard Wood tell Joseph Ramey, “I put two in the motherf*****. Can you help me?” From this statement, the jury could reasonably infer that Wood was describing his involvement in Turner‘s murder. Moreover, the details of Turner‘s death and the evidence found at the crime scene were not made public. Therefore, the jury could infer that only the actual killer would know that two shots were fired. After being arrested by Moraine police on December 20, 2012, Wood asked Officer Cornely to make arrangements to give his
{¶ 44} Construing the evidence presented in a light most favorable to the State, as we must, we conclude that a rational trier of fact could find all of the essential elements of the crimes for which Wood was indicted and found guilty to have been proven beyond a reasonable doubt. Wood‘s convictions for the instant offenses were therefore supported by lеgally sufficient evidence.
{¶ 45} Furthermore, having reviewed the record, we find no merit in Wood‘s manifest-weight challenge. It is well-settled that evaluating witness credibility is primarily for the trier of fact. State v. Benton, 2d Dist. Miami No. 2010-CA-27, 2012-Ohio-4080, ¶ 7. Here the jury quite reasonably could have credited the extensive testimony provided by the State‘s witnesses, applied said evidence and all reasonable inferences to the elements of the offenses, and thereafter, found Wood guilty. Having reviewed the entire record, we cannot clearly find that the evidence weighs heavily against conviction, or that a manifest miscarriage of justice has occurred.
{¶ 46} Wood‘s second assignment of error is overruled.
{¶ 47} “THE OFFENSES THAT OCCURRED AT 381 FOREST PARK DRIVE SHOULD MERGE INTO A SINGLE SENTENCE.”
{¶ 48} In his third assignment, Wood argues that the trial court erred when it failed to merge all of the offenses for which he was convicted into a single sentence for aggravated murder. As previously discussed, Wood was found guilty of the following charges, to wit: two counts of aggravated murder (Counts I and II); two counts of
{¶ 49} At sentencing, the trial court merged Counts I and II, and the State elected to proceed to sentencing on Count II. The trial court also merged Counts III and IV, and the State elected to proceed to sentencing on Count IV. The trial court merged Count V into Count VI, and then merged Count VI into Count II (aggravated murder). The trial court merged Counts VII and VIII into Count II, as well. Finally, the trial court merged Counts X, XI, and XII, and the State elected to proceed to sentencing on Count XII.
{¶ 50} Therefore, Wood was ultimately sentenced on Count II (aggravated murder); Count IV (aggravated robbery); Count IX (grand theft of a motor vehicle); and Count XII (having a weapon while under disability).
{¶ 51}
(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.
(B) Where the defendant‘s conduct constitutes two or more offenses of dissimilar import, or where his conduct results in two or more offenses of the same or similar kind committed separately or with a separate animus as to еach, the indictment or information may contain counts for all such
offenses, and the defendant may be convicted of all of them.
{¶ 52} “When determining whether two offenses are allied offenses of similar import subject to merger under
* * * [T]he question is whether it is possible to commit one offense and commit the other with the same conduct, not whether it is possible to commit one without committing the other. * * * If the offenses correspond to such a degree that the conduct of the defendant constituting commission of one offense constitutes commission of the other, then the offenses are of similar import.
If the multiple offenses can be committed by the same conduct, then the court must determine whether the offenses were committed by the same conduct, i.e., “a single act, committed with a single state of mind.” * * *
If the answer to both questions is yes, then the offenses are allied offenses of similar import and will be merged.
Conversely, if the court determines that the commission of one offense will never result in the commission of the other, or if the offenses are committed separately, or if the defendant has separate animus for each offense, then, according to
R.C. 2941.25(B) , the offenses will not merge.(Citations and quotations omitted.)
{¶ 53} The Ohio Supreme Court recently clarified the applicable standard when
Rather than compare the elements of two offenses to determine whether they are allied offenses of similar import, the analysis must focus on the defendant‘s conduct to determine whether one or more convictions may result, because an offense may be committed in a variety of ways and the offenses committed may have different import. No bright-line rule can govern every situation.
As a practical matter, when determining whether offenses are allied offenses of similar import within the meaning of
{¶ 54} Most recently in State v. McGail, 2d Dist. Miami No. 2014-CA-27, 2015-Ohio-5384, we stated the following:
noted above, considers a defendant‘s conduct, his animus, and the import or significance of his offenses. Applying Ruff, the Earley court concluded that misdemeanor OVI and felony aggravated vehicular assault “are offenses of dissimilar import and significance that are to be punished cumulatively.” Earley at ¶ 20. For purposes of our analysis here, we note that a defendant bears the burden of establishing entitlement to merger, and we review a trial court‘s ruling on the issue de novo. State v. LeGrant, 2d Dist. Miami No. 2013-CA-44, 2014-Ohio-5803, ¶ 15.[T]he Ohio Supreme Court addressed the allied-offense issue again in State v. Earley, Slip Opinion No. 2015-Ohio-4615. There the majority characterizеd the analysis in its earlier Johnson lead opinion as “largely obsolete.” Id. at ¶ 11. The Earley court instead embraced Ruff, which, as
***
McGail, at ¶ 51 & 60.
{¶ 55} As noted above, the counts for aggravated burglary and felonious assault
{¶ 56} AGGRAVATED ROBBERY
{¶ 57} This court applied Johnson in State v. Jackson, 2d Dist. Montgomery No. 24460, 2012-Ohio-2335, a case in which the defendant argued, among other things, that the trial court erred in failing to merge his murder and aggravated robbery offenses. In applying Johnson, we concluded that “it is possible to commit murder and aggravated robbery with the same conduct.” Id. at ¶ 140. We then examined whether the defendant did in fact commit the two offenses with the same conduct and the same animus, stating the following:
Several courts have held that, where the force used to effectuate an aggravated robbery is far in excess of that required to complete the robbery, or where the circumstances suggest that a separate intent to kill existed, the offenses of aggravated robbery and murder do not merge. See [State v. Diggle, 3d Dist. Auglaize No. 2-11-19, 2012-Ohio-1583, ¶ 16] (evidence of prior conflict with victim and defendant‘s use of force in excess of that required to complete robbery found to demonstrate separate animus for murder); State v. Ruby, 6th Dist. Sandusky No. S-10-028, 2011-Ohio-4864, ¶ 61 (beating of elderly, disabled victims demonstrated separate animus for aggravated robbery and attempted murder, because the beating far exceeded that necessary to effectuate the robbery); State v. Tibbs, 1st Dist. Hamilton No. C-100378, 2011-Ohio-6716, ¶ 48 (shooting victim in face and head from close range during course of aggravated robbery demonstrated a specific intent to kill).
{¶ 58} In light of these cases, we concluded in Jackson that the trial court could have reasonably determined that the defendant‘s use of force exceeded that necessary to complete the robbery or that the defendant had a separate intent to kill given that the victim was shot multiple times, with one shot being directly in the victim‘s head. Id. at ¶ 141.
{¶ 59} In the instant case, the evidence established that Wood shot Turner in the back of the head, killing him. This degree of force suggests the use of force in excess of that required to effectuate the robbery. As we found was the case in Jackson, the trial court here could have reasonably concluded that Wood‘s use of force exceeded that necessary to complete the robbery or that he had a separate intent to kill Turner. Thus, the trial court did nоt err in refusing to merge the aggravated murder and the aggravated robbery.
{¶ 60} GRAND THEFT OF A MOTOR VEHICLE
{¶ 61} We note that at sentencing, defense counsel acknowledged that his conviction for grand theft did not merge with any of his other convictions. Irrespective of defense counsel‘s concession at sentencing, it is apparent that the trial court did not err when it failed to merge Wood‘s conviction for grand theft of a motor vehicle with his conviction for aggravated murder.
{¶ 62} In the instant case, Wood committed the aggravated murder when he shot
{¶ 63} HAVING A WEAPON WHILE UNDER DISABILITY
{¶ 64} Finally, Wood argues that the trial court erred when it failed to merge his conviction for aggravated murder with his conviction for having a weapon while under disability. At sentencing, defense counsel acknowledged that his three convictions for having a weapon while under disability merged with each other but did not merge with any of his other convictions. Upon review, Wood‘s argument on appeal that his conviction for weapons under disability merges with the aggravated murder is without merit.
{¶ 65} Recently, in State v. Skapik, 2015-Ohio-4404, ¶ 19 (2d Dist.), we found that even assuming that a defendant‘s initial act of stealing firearms simultaneously constituted the offenses of theft and having weapons while under disability, the conduct for the two offenses was different. In Skapik, we noted that the
{¶ 66} Here, Kurrek testified that he observed Wood in possession of a revolver-type firearm in the days immediately preceding Turner‘s murder. Additionally, Young testified that she observed Wood in possession of a revolver when he was temporarily staying in her basement following Turner‘s murder. Thus, the evidence adduced at trial supports the conclusion that Wood possessed the firearm in the days preceding and following Turner‘s murder. Similar to the defendant in Skapik, Wood‘s conduct in possessing the firearm before and after Turner‘s murder constituted separate conduct, and established a separate animus, thereby supporting a distinct separate weapons-under-disability conviction. The trial court did not err when it failed to merge Wood‘s conviction for aggravated murder with his conviction for having weapons while under disability.
{¶ 67} Wood‘s third assignment of error is overruled.
{¶ 68} “THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT SENTENCED APPELLANT TO LIFE IN PRISON WITHOUT THE POSSIBILITY OF PAROLE PLUS TWENTY-THREE ADDITIONAL YEARS IN PRISON AND ORDERED THAT A MAJORITY OF THE COUNTS BE SERVED CONSECUTIVELY.”
{¶ 70} Before imposing a consecutive sentence, a trial court is required to find that: (1) “consecutive service is necessary to protect the public from future crime or to punish the offender“; (2) “consecutive sentences are not disproportionate to the seriousness of the offender‘s conduct and to the danger the offender poses to the public“; and (3) any of the following:
- The offender committed one or more of the multiple offenses while the offender was awaiting trial or sentencing, was under a sanction imposed pursuant to
section 2929.16 ,2929.17 , or2929.18 of the Revised Code, or was under post-release control for a prior offense. - At least two of the multiple offenses were committed as part of one or more courses of conduct, and the harm caused by two or more of the multiple offenses sо committed was so great or unusual that no single prison term for any of the offenses committed as part of any of the courses of conduct adequately reflects the seriousness of the offender‘s conduct.
- The offender‘s history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender.
{¶ 71} Before imposing sentence, the trial court stated that it had specifically considered Wood‘s presentence investigation report, which revealed a lengthy felony criminal record dating back to 1998. On April 2, 1998, Wood was convicted of kidnapping, attempt to commit rape, and carrying a concealed weapon. Wood served seven years in prison and was designated a sex offender. On May 14, 2007, Wood was convicted of possession of cocaine, and he was sentenced to five years of community control supervision. On June 14, 2007, Wood was convicted of failure to register as a sex offender. He was initially sentenced to five years of community control supervision, but after absconding, his community control was revoked, and he was sentenced to one year in prison. On February 26, 2009, Wood was convicted of trafficking in heroin in the vicinity of a school for which he was sentenced to one year in prison. Finally, on August 26, 2013, Wood was convicted of failure to verify, and he was sentenced to one year in prison. Wood was released on December 19, 2013, to post-release control with active supervision. Undoubtedly, Wood‘s prior felony convictions weighed heavily in the trial court‘s calculus in determining whether to impose consecutive sentences.
{¶ 72} Moreover, the record clearly establishes that the trial court made all of the requisite findings to support the imposition of consecutive sentences. (Tr. 1352, Vol.VI). When imposing consecutive sentences, the trial court stated the following:
The Court has imposed consecutive sentencing and must find the following. The Court finds that consecutive sentencing is necessary to protect the public from future crime by you and also it is necessary to punish you. Consecutive sentencing is not disproportionate to the seriousness of
your conduct and to the danger that you pose to the public. In addition, your history of criminal conduct demonstrates that consecutive sentencing is necessary to proteсt the public from future crime by you.
{¶ 73} In light of the foregoing, we find that the record supports the trial court‘s imposition of consecutive sentences.
{¶ 74} Wood‘s fourth assignment of error is overruled.
{¶ 75} “THE PRETRIAL PHOTO IDENTIFICATION OF THE APPELLANT BY PASTOR EARL HARRIS WAS IMPERMISSIBLY SUGGESTIVE AND/OR UNRELIABLE [sic] THUS SHOULD HAVE BEEN SUPPRESSED.”
{¶ 76} In his final assignment, Wood argues that the trial court erred when it overruled his motion to suppress as it related to his pre-trial identification by Pastor Earl Harris from the AME Church. Wood asserts that since Harris was not shown several photos in a spread, but only one photo, the procedure leading to identification was unreliable and impermissibly suggestive and should have been suppressed.
{¶ 77} As this Court has previously noted:
“Appellate courts give great deference to the factual findings of the trier of facts. (Internal citations omitted). At a suppression hearing, the trial court serves as the trier of fact, and must judge the credibility of witnesses and the weight of the evidence. (Internal citations omitted). The trial court is in the best position to resolve questions of fact and evaluate witness credibility. (Internal citations omitted). In reviewing a trial court‘s decision on a motion to suppress, an appellate court accepts the trial court‘s factual
findings, relies on the trial court‘s ability to assess the credibility of witnesses, and independently determines whether the trial court applied the proper legal standard to the facts as found. (Internal citations omitted). An appellate court is bound to accept the trial court‘s factual findings as long as they are supported by competent, credible evidence.” State v. Hurt, Montgomery App. No. 21009, 2006-Ohio-990, ¶ 16.
State v. Purser, 2d Dist. Greene No. 2006 CA 14, 2007-Ohio-192, ¶ 11.
{¶ 78} To warrant suppression of identification testimony, the accused bears the burden of showing that the identification procedure was “so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification” and that the identification itself was unreliable under the totality of the circumstances. Manson v. Brathwaite, 432 U.S. 98, 106, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977); Neil v. Biggers, 409 U.S. 188, 199, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972); Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968).
{¶ 79} In State v. Sherls, 2d Dist. Montgomery No. 18599, 2002 WL 254144 (Feb. 22, 2002), this Court addressed the issue of suggestive photographic confrontations:
In many cases, and in almost all cases in which the criminal offender is not known to his victim or other eyewitnesses and is not arrested at the time of the crime, those who witness the crime are asked to identify the perpetrator for purposes of police investigation through some form of confrontation. This confrontation may be in the form of a “lineup,” a one-on-one “show up,” or from a photograph or series of photographs displayed to the witness. When any of these systems of confrontation suggest, due to
the manner or mode of their presentation, that one individual is more likely than others to be the perpetrator of the crime, that fact increases the likelihood of misidentification and violates the right to due process of law of a defendant so identified. Identification testimony that has been tainted by an unduly or unnecessarily suggestive out-of-court confrontation may be suppressed on that basis. However, even when a confrontation is unnecessarily or unduly suggestive, the identification testimony derived from the confrontation is not inadmissible solely for that reason. Reliability of the testimony is the linchpin in determining its admissibility. So long as the identification possesses sufficient aspects of reliability, there is no violation of due process.
Reliability is determined from the totality of the circumstances. These circumstances include the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the cоnfrontation. Against these factors is to be weighed the corrupting effect of the suggestive identification itself.
The foregoing due process concerns are implicated only if and when a confrontation is unnecessarily or unduly suggestive. That prospect usually arises when the witness has been shown but one subject, whether in a “show-up” * * * or a single photograph * * *. Similarly, if the witness is shown
pictures or photographs of several persons in which the photograph of one recurs or is in some way emphasized, undue suggestion may occur. However, even when the confrontation process is unduly or unnecessarily suggestive, the later identification testimony should not be excluded so long as the identification itself is reliable.
Id. at *3, 4.
{¶ 80} At the motion to suppress hearing, Montgomery County Sheriff‘s Detective Brad Daugherty testified that as part of the investigation into Turner‘s death, he reviewed the victim‘s phone records. From the phone records, Det. Daugherty became aware that Turner had been in contact with Wood in the days and hours leading up to the homicide. Det. Daugherty also recovered a voicemail message that Wood left for Turner in which he stated that he was aсross the street from “the church.” Det. Daugherty assumed that “the church” mentioned by Wood was the AME Church because that was the only church with which Turner was known to be associated.
{¶ 81} At that point in his investigation, Det. Daugherty was simply following leads in the murder case. On January 6, 2012, Det. Daugherty went to the AME Church in order to speak with Harris and show him a photograph of Wood to see if he had any connection to the church. Regarding his discussion with Harris, Det. Daugherty provided the following testimony:
The State: * * * I want to direct your attention to the date of January 6, 2012[.] And can you share with us, did you have occasion to show the photograph in State‘s [Ex.] 10 to an individual by the name of Earl Harris?
Det. Daugherty: Yes.
Q: And what was the purpose of showing Mr. Harris the single photograph on that particular day? A: The victim in this case, Corey Turner, was a — the choir director and Christmas play director at this — the Greater Allen Church in Dayton. Earl Harris is the pastor of that church so I took Shawn Wood‘s picture over to show him to see if he recognized Shawn Wood as attending the church.
Q: When you showed Pastor Harris the photograph, Detective, was anyone present with you and the pastor when you showed him the photo?
A: I think Detective Steele wаs with me, but there was no — no — no one else like no lay people at the time.
Q: And when you showed the pastor the photograph, did you give him any instructions? Did you say anything to him specifically?
A: I just said have you ever seen this guy at the church or do you recognize this guy?
Q: Okay. And what, if any, response did he give you?
A: He indicated that it appeared to be — he said that a gentleman had came in the Sunday before so we‘re talking like I believe December 10th, had came into the church asking for money and the reason he remembered this particular individual is because they were in the finance room counting the offering that had came in that day and this guy walked into the room where they were counting the offering. And the — the pastor said he was kind of alarmed because there was quite a bit of money out on the table that they were counting and this guy just kind of waltzes in there. So he said he
believes that is the same guy that he saw on that day. Q: After you showed — did you make any requests that Pastor Harris mark the photo in any way?
A: No. * * *
{¶ 82} Initially, we note that Harris was not a witness to Turner‘s murder, nor does the record contain any evidence which establishes that Det. Daugherty said anything to Harris to suggest that Wood was the perpetrator. Det. Daugherty showed Harris a single photograph of Wood and simрly asked him if he recognized the man. We conclude that only showing Harris one photograph of a suspect in the homicide was inherently suggestive.3
{¶ 83} Nevertheless, even if the single photo was unduly suggestive, the circumstances of this case indicate that Harris’ identification of Wood was itself sufficiently reliable. At the suppression hearing, Harris provided the following testimony regarding his brief encounter Wood:
The State: Now, on the particular day of December the 11th of 2011, was there anything out of the ordinary that occurred on that particular day that makes you recall that Sunday, as opposes to any other given Sunday?
Harris: One of the [church] officers came to the door * * * to tell me that there was someone at the door that needed to see me. And then as I moved toward the door, this other person [Wood] really kind of moved past him
right and — and right to that door, that first door. Q: That door to your office?
A: To my office, yes.
Q: Is that a normal scenario?
A: No, it isn‘t. * * * Normally, when persons do that, and it doesn‘t happen that often, normally, they stay back in the foyer where, you know, everybody else is kind of gathered.
* * *
Q: And did you have a conversation with this person at the time?
A: I did, and the gentleman was telling me that he was in need of some help, that he — that one of the members had given him somе money. Apparently, he had identified Phyllis Caldwell who was a retired teacher, who‘s a member of the congregation, and he mentioned her by name, so that kind of caught my attention. * * * And that she had given him ten dollars or something like, but that he needed some more — he need some more help.
* * *
Q: Okay. Okay. Did this person have anything on their head, wearing any kind of hat, or anything of that nature?
A: No.
Q: Okay. How long do you think your conversation with this individual lasted?
A: Certainly not more than two minutes.
Q: Okay. Were you in a well-lit area of the church standing there kind of at
your office door? A: Yes, once you come into the office and past that threshold it‘s fluorescent lights.
Q: You‘re putting your hands up, like the lights here in the courtroom?
A: Yes.
Q: Okay. And were you face to face with this person having this conversation?
A: Yes.
Q: And by face to face —
A: And it —
Q: — how many feet do you think were in between you?
A: Three or four feet and —
Q: Okay.
{¶ 84} Based on the totality of the circumstances, we agree with the trial court that Harris’ pre-trial identification of Wood as the man who sought financial assistance at the church on December 11, 2011, was inherently reliable. Therefore, the trial court did not err in denying Wood‘s motion to suppress as it related to Harris’ pre-trial identification testimony.
{¶ 85} When Harris spoke to Wood in his church office on December 11, 2011, the men stood face to face in a well-lit area and were no more than three to four feet from one another. Wood and Harris spoke for about two minutes in the early afternoon, and there was nothing obstructing Harris’ view of Wood while they conversed. In reviewing the circumstances surrounding Harris’ identification of Wood in this case, we agree with
{¶ 86} Wood‘s fifth and final assignment of error is overruled.
{¶ 87} All of Wood‘s assignments of error having been overruled, the judgment of the trial court is affirmed.
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FAIN, J., concurs.
WELBAUM, J., concurring.
{¶ 88} I concur with most of the majority opinion, but write separately to express my disagreement with one point that the majority discusses. Specifically, at ¶ 81-83, the majority concludes that showing Pastor Harris only one photograph of a suspect in the homicide was unduly suggestive, but that Harris’ identification was sufficiently reliable. I agree that the identification was reliable. However, we do not need to reach this determinаtion, because the process used was not unduly suggestive of Wood‘s guilt.
{¶ 89} “When a witness has been confronted with a suspect before trial, due process requires a court to suppress her identification of the suspect if the confrontation was unnecessarily suggestive of the suspect‘s guilt and the identification was unreliable under all the circumstances.” State v. Waddy, 63 Ohio St.3d 424, 438, 588 N.E.2d 819 (1992), citing Neil v. Biggers, 409 U.S. 188, 199, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972). (Other citation omitted.) “Under Neil‘s two-pronged test, the first question is whether the
{¶ 90} In the usual situation, victims or witnesses to crimes are shown photographs to see if they can identify the perpetrator, and the process is later challenged in court because it was unnecessarily suggestive. If the process is found to be suggestive, then the court focuses on whether the identification was, nonetheless, reliable.
{¶ 91} In the case before us, however, Detective Daugherty was simply pursuing leads and did not suggest that Wood was the perpetrator of a crime. Instead, the detective wanted to know if the pastor recognized Wood as having attended the church. Furthermore, there is no indication that Pastor Harris was a witness to any crime. As a result, the identification process was not suggestive of Wood‘s guilt.
{¶ 92} After Daugherty asked if Harris recognized “this guy,” Harris said yes, and further explained that the person had come to the church about three weeks earlier asking for money. Again, the display of one photo of Wood was not suggestive in violation of the due process clause, because due process requires a court to suppress an identification of the suspect only “if the confrontation was unnecessarily suggestive of the defendant‘s guilt * * *.” (Emphasis added.) Waddy at 438.
{¶ 93} To rule that the identification is suggestive under these circumstances means that police would have to construct photo spreads when they are conducting routine investigations to gather information about crimes. In my opinion, that is an unwarranted extension of Biggers.
{¶ 94} For example, in State v. Carter, 5th Dist. Stark No. 2002CA00125, 2003-Ohio-1313, the police made still photographs of a robbery from a video-tape and showed
{¶ 95} In the trial court and on appeal, the defendant challenged the photographic lineup as having been unduly suggestive. Id. at ¶ 40. If the reasoning in the majority opinion is applied to the circumstances in Carter, the defendant would also have argued that the identification by the police officers who saw his photo, or the publication of the photo in the newspaper, which also led to his arrest, was unduly suggestive. However, he did not challenge these procedures, presumably because this type of preliminary police investigation is commonplace. If the majority opinion is read to require photographic arrays whenever leads are being followed, crime investigations will be unreasonably hampered. This is not the point of Biggers and its progeny.
{¶ 96} “The practice of showing only one photograph to a potential eyewitness is not encouraged; however, such measures have been shown to be both reliable and necessary.” State v. Bryant, 5th Dist. Delaware No. 12CAA120088, 2013-Ohio-4446, ¶ 33, citing State v. Battee, 72 Ohio App.3d 660, 595 N.E.2d 977 (11th Dist.1991). With respect to the first prong of the Biggers test, “[t]he issue * * * is whether the identification procedure used was so impermissibly suggestive as to give rise to a very substantial likelihood of misidentification.” (Citations omitted.) State v. Moon, 2d Dist. Montgomery No. 25061, 2013-Ohio-395, ¶ 30.
{¶ 97} The key word in this context is “eyewitness.” Typically, identification procedures take on critical significance when a defendant is being identified by a victim or an eyewitness to the crime.
{¶ 98} If the police fail to comply with the statutory requirements in
{¶ 99} Again, Pastor Harris was not an eyewitness to a crime. There is no indication in the record that he observed Wood at or near the scene of the murder. To the contrary, Harris simply saw Wood at the church a few days before the murder. Accordingly, there is no need to apply Biggers to this case.
{¶ 100} For the reasons stated, I very respectfully disagree, in part, with the
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