State v. WrightState v. Wright
DECISION AND JUDGMENT
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Julia R. Bates, Lucas County Prosecuting Attorney, and Evy M. Jarrett, Assistant Prosecuting Attorney, for appellee.
Laurel A. Kendall, for appellant.
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OSOWIK, J.
I. Introduction
{¶ 1} Appellant, Justin Wright, appeals the judgment of the Lucas County Court of Common Pleas, sentencing him to a total of 50 years to life in prison following a jury
A. Facts and Procedural Background
{¶ 2} On July 11, 2019, appellant was indicted in case No. CR19-2202 on one count of aggravated murder in violation of
{¶ 3} On July 18, 2019, appellant was indicted in case No. CR19-2244 on one count of improperly handling firearms in a motor vehicle in violation of
{¶ 4} On July 31, 2019, appellant appeared before the trial court for arraignment in case No. CR19-2202. He entered a plea of not guilty to the charged offenses and the matter proceeded through pretrial motion practice and discovery. On October 21, 2019, appellant filed a “Motion to Join in Co-Defendant’s Motion to Suppress Identification.” In his motion, appellant argued that law enforcement improperly administered an unduly suggestive photo array to Carr’s friend and roommate, David Zeller, resulting in Zeller’s identification of appellant as the shooter.
{¶ 5} On November 19, 2019, the matter proceeded to a hearing on appellant’s motion to suppress. At the outset of the hearing, appellant’s trial counsel addressed speedy trial concerns, and acknowledged that appellant was not entitled to receive credit for confinement under the triple count provisions of the speedy trial statute because, although he was being confined while he awaited trial, he was charged under two
{¶ 6} During the hearing, appellant called the two Toledo Police Department detectives that were assigned to investigate the shooting at issue in this case, namely Matthew Kozlaker and Danielle Mooney. For its part, the state called Zeller. Upon hearing the testimony provided by these witnesses and the arguments of the parties, the trial court agreed with appellant that the photo array was improperly administered, granted the motion to suppress, and excluded Zeller’s identification from the record.
{¶ 7} Thereafter, on January 3, 2020, appellant filed a motion to dismiss, in which he asserted his constitutional right to a speedy trial and argued that he was not brought to trial within the appropriate timeframe under
{¶ 8} In response, the state argued that appellant was not eligible under the triple count provision of
{¶ 9} Upon consideration of the parties’ arguments, the trial court issued its decision denying appellant’s motion to dismiss on February 7, 2020. In its decision, the trial court agreed with the state and found that appellant “faces two separate and unrelated criminal cases, with charges having no factual or temporal relationship with each other.” Thus, the trial court held that the triple count provision of
{¶ 10} While appellant’s motion to dismiss was pending, on January 31, 2020, appellant filed a second motion to suppress. In his second motion, appellant argued that statements he made to law enforcement during questioning on July 9, 2019, should be suppressed because he was too intoxicated at the time he made them to understand and waive his Miranda rights. In response, the state noted that appellant was informed of his Miranda rights prior to questioning and executed a signed waiver of those rights, and urged that appellant was not too intoxicated to understand the rights he was waiving prior to making his statements.
{¶ 12} Mooney and Kozlaker each testified that appellant did not appear to be intoxicated or under the influence of any illicit drugs at the time of his post-arrest interview. They went on to indicate that appellant’s eyes were neither bloodshot nor glassy, his speech was not slurred, and they did not detect an odor of alcohol or marijuana on his person. Moreover, Mooney testified that appellant’s motor functions were unimpaired and his responses to questioning were appropriate. Therefore, the notion that appellant might have been intoxicated during the interview “never occurred to [Mooney].” Moreover, Kozlaker testified that appellant “appeared normal to me.”
{¶ 13} At the conclusion of the foregoing testimony, the trial court took the matter under advisement. Three days later, the trial court issued its decision on appellant’s second motion to suppress, in which the trial court reviewed the testimony presented by Mooney and Kozlaker as well as the video recording of the interview, and found no indication that appellant was suffering any sort of impairment “of the type and gravity which would call into question his ability to reason.” Thus, the trial court denied appellant’s motion.
{¶ 15} Five days later, the state filed its response, in which it advanced its own understanding of the procedural history of the case and the tolling events that took place since appellant’s arrest. The state accounted for the tolling events it identified and credited appellant with 9 days under the triple count provision of
{¶ 16} The trial court issued its decision on appellant’s second motion to dismiss on October 19, 2020. In its decision, the trial court agreed with the state and summarily denied appellant’s motion. On the same day the trial court denied appellant’s second motion to dismiss, the matter proceeded to a five-day jury trial.
{¶ 18} Upon entering the apartment, Mohler observed Carr lying on a couch in the living room, gasping for air. Mohler noticed that Carr had been shot in the chest and abdomen. He initiated chest compressions and remained with Carr until paramedics arrived on the scene. He subsequently learned that Carr had a loaded revolver on his person, which he removed from the living room and placed onto the dining room table for safe keeping.
{¶ 19} As he went about the apartment to secure the scene, Mohler noticed several pieces of evidence, including five spent shell casings and an ammunition magazine, which he preserved for subsequent analysis by detectives within the Scientific Investigations Unit (“SIU“). Mohler also noticed bullet holes in the walls of the apartment, drug paraphernalia, drug scales, and a marijuana cigarette inside the
{¶ 20} After clearing the apartment, Mohler exited to the rear and went out to the alley that runs behind the building. Mohler then waited on the scene until detectives arrived to continue the investigation. While waiting, Mohler noticed several vehicles that were parked in the rear of the apartment. Behind one of the vehicles, an SUV, Mohler found a nine millimeter Taurus semi-automatic handgun lying on the ground. At the time, Mohler suspected that this handgun may have been involved in the shooting, since he had retrieved a magazine from inside the apartment and this firearm was missing its magazine. This firearm was later retrieved by the SIU and entered into evidence at trial.
{¶ 21} As its second witness, the state called SIU detective Kristi Eycke. Eycke was one of the detectives that arrived at Carr’s apartment on the morning of the murder. During her ensuing investigation, Eycke took several photographs and drew a diagram of the layout of the apartment. These items were admitted into the record at trial and published to the jury without objection. They establish the location of the aforementioned spent shell casings (subsequently identified as nine millimeter casings), bullet holes, and ammunition magazine, as well as the presence of blood on a doorway inside the apartment and on the exterior side of the back door.
{¶ 22} Based upon her retrieval of spent shell casings in the living room and kitchen, Eycke was able to ascertain that whoever fired those shots did so from the living
{¶ 23} In addition to the foregoing, Eycke testified that the revolver Mohler recovered from Carr’s person was loaded with five rounds, all of which were unfired. Furthermore, the magazine recovered from the apartment was fully loaded with nine millimeter rounds.
{¶ 24} For its third witness, the state called Shayne Jackson. Jackson, an acquaintance of both Carr and appellant, was present at Carr’s apartment on the morning of the shooting. According to Jackson, he went over to Carr’s apartment with three other friends, Tom Wright, Israel Wright, and Joshua Taylor.1 Jackson indicated that the group went over to Carr’s apartment to “hang out.”
{¶ 25} Upon arriving at the apartment, Jackson noticed that Carr and his roommate, David Zeller, were already inside. Jackson and his friends went into the living room and sat down. Meanwhile, Carr and Zeller were seated on the couch in the same room. The group proceeded to play video games, drink alcohol, and smoke marijuana together.
{¶ 27} Approximately one hour after appellant arrived at the apartment, another individual in possession of a firearm gained access to the apartment through the back door and entered the living room through the kitchen. This individual said “nobody move,” and began pacing around the living room. Appellant’s friend then began removing items from everyone’s pockets. Jackson specified that appellant’s friend stole his wallet and mobile phone. Meanwhile, appellant was standing in the room with a cocked firearm in his hand.
{¶ 28} Apparently frustrated that the group was not fully compliant, appellant asked if they thought he was playing a game. Thereafter, appellant fired a shot toward the living room wall. Panicked, the group attempted to flee toward the back door to exit
{¶ 29} Jackson and Israel ultimately fled the apartment and hid behind a nearby fence. Five minutes later, the two men returned to the apartment, at which time they discovered that Joshua had been shot.
{¶ 30} Police arrived shortly thereafter, and Jackson stayed to provide a statement to the officers who arrived on the scene. He also spoke with officers at the Toledo Safety Building, where he was shown a photo array and identified appellant as the shooter. Early in his testimony, Jackson stated that he knew appellant, having met him “a few weeks” prior to the shooting.
{¶ 31} Following Jackson’s testimony, the state called detective Jeff Quigley for its fourth witness. During his brief testimony, Quigley indicated that he was the blind administrator who administered the photo array to Jackson. He testified that he administered the photo array in accordance with standard procedures and he verified that Jackson identified appellant as the shooter.
{¶ 32} As its fifth witness, the state called lieutenant Phil Cook of the Toledo Police Department. As a communications coordinator, Cook retrieved the recording of the 911 call that was made in this case. At trial, he authenticated the recording, which was then admitted into the record and published for the jury along with the incident report associated with the call.
{¶ 34} Hudson also identified a “partial exit wound” on Carr’s right lower back where the projectile that entered at Carr’s chest almost escaped. Hudson was able to retrieve two projectiles from Carr’s right lower back, and he noted at trial that one of the projectiles was “very well-preseved. It’s a jacketed bullet.”
{¶ 35} Following Hudson’s testimony, the state called David Cogan as its seventh witness. As the laboratory administrator at the Toledo Police Department’s forensic laboratory, Cogan performs firearm examinations and drug analyses. After he was certified as an expert in the field of forensic firearm and projectile analysis, Cogan testified that he conducted a forensic examination of the shell casings recovered from Carr’s residence following the shooting. In particular, Cogan examined two shell casings that were recovered from the kitchen and five shell casings that were recovered from the living room. Upon examination, he determined that the five shell casings from the living
{¶ 36} The state called Martin, one of appellant’s alleged co-conspirators, as its eighth witness. Martin testified that he had known appellant for two months at the time of the shooting. On the night of the shooting, Martin was with appellant at Dewey Edwards’ apartment.2 He and appellant decided to pick Eaton up from work at Cinco De Mayo restaurant in Holland. On the way to pick up Eaton, the group met up with Roberts, who went along with appellant and Martin to pick Eaton up. Thereafter, the four men went back to Edwards’ apartment, stopping to drop off blankets to Roberts’ daughter along the way.
{¶ 37} From Edwards’ apartment, the four men used Edwards’ vehicle to travel to East Toledo to go to Carr’s residence. Martin was driving. Upon arriving, Martin parked
{¶ 38} Appellant indicated that he wanted to “get some pills.” Consequently, the four men left Carr’s residence, went to purchase drugs at a house on Arden Place, and stopped at a Sunoco gas station in East Toledo before returning to Carr’s residence. At the gas station, appellant exited the vehicle and the others remained inside the vehicle. While the group was waiting for appellant to return, Martin overheard Roberts and Eaton discussing the idea of a robbery at Carr’s residence.
{¶ 39} Upon returning to Carr’s residence, appellant and Eaton entered. Again, Martin and Roberts initially remained in the vehicle. According to Martin, he and Roberts were smoking Black and Mild cigarettes and text messaging on their mobile phones. Martin was messaging his brother. In Martin’s text messages, which were admitted into the record at trial, he informed his brother that he was “hitting a lick.” Martin explained at trial that to “hit a lick is to rob someone, steal from someone, break in someone’s stuff, stuff like that. Basically take from others.”
{¶ 40} Approximately five to ten minutes after appellant and Eaton entered Carr’s residence, Roberts exited the vehicle. He stood next to the car for a moment with his mobile phone in his hand. Martin glanced over at Roberts’ phone and noticed a text message directing Roberts to “come in now” and informing him that there were six
{¶ 41} Martin stated that he heard gunshots coming from inside the residence within minutes of Roberts entering. He then witnessed “four people run out the house, out the alley and then Adrian Eaton, Dominique Roberts, * * * and Justin Wright came outside the house.” At this point, Martin noticed that Wright was helping Roberts to the vehicle and Eaton was running toward the vehicle. Once the three men were inside the vehicle, Martin drove away. The vehicle ran out of fuel and stalled as the group was driving over the Craig Street Bridge toward the downtown area.
{¶ 42} After the vehicle stalled, the four men exited the vehicle. Martin testified that he walked across the bridge, heading toward downtown. Appellant and Eaton followed him, but Roberts walked in the opposite direction, toward East Toledo.
{¶ 43} While walking across the bridge, Martin called 911 to report that Roberts had been shot. Thereafter, appellant asked Martin to call Edwards. After he had Edwards on the phone, Martin passed the phone to appellant, who asked Edwards to report that his vehicle was stolen.
{¶ 44} Once Martin, appellant, and Eaton were across the bridge, Edwards and his neighbor, Leonard Austin, arrived in Austin’s black pickup truck to pick them up. From there, the five men went to the Greenbelt Place apartments, where Edwards and Austin dropped off Martin, appellant, and Eaton. Shortly thereafter, Martin decided to return to
{¶ 45} Following Martin’s testimony, the state called Edwards as its ninth witness. Edwards indicated that he had known appellant, Martin, and Eaton prior to the shooting in this case. He described appellant as “like my god-nephew” and indicated that appellant used to live with him. Edwards further explained that Martin lived in the upstairs apartment above his residence.
{¶ 46} On the afternoon of July 5, 2019, Edwards rode along with Eaton to Cinco de Mayo restaurant, where he dropped Eaton off and drove himself back home. Edwards was expecting to pick Eaton up from work at the end of Eaton’s shift, but appellant and Martin offered to do so instead. According to Edwards, appellant and Martin left in his vehicle at around 9 p.m. Thereafter, Edwards took his medication, which makes him drowsy, and he fell asleep.
{¶ 47} Later in the evening, Edwards awoke to a phone call from appellant, who informed Edwards that his vehicle was stolen. Appellant directed Edwards to “call it in” and said he would call Edwards back. When appellant called Edwards again, he asked Edwards to come pick him up. Edwards agreed, woke Austin up, and departed from his residence with Austin. Eventually, Edwards picked up appellant, Martin, and Eaton on Bush Street in Toledo.
{¶ 49} For its eleventh witness, the state called officer Richard Eckel of the Toledo Police Department. Eckel and his partner were on duty on July 6, 2019, when they received a call from dispatch informing them of a shooting victim near the Craig Street Bridge. Because they were near that location, the officers responded to the scene, where they discovered Roberts holding his groin and exclaiming that he had been shot. Eckel investigated the area but was unable to locate any shell casings to substantiate Roberts’ claim that he was shot in that area. Further, Eckel was unable to corroborate other statements made by Roberts as to how he was shot.
{¶ 50} Following Eckel’s testimony, the state called officer Michelle Sterling of the Toledo Police Department for its twelfth witness. Sterling testified that she retrieved a bullet from St. Vincent’s hospital on July 8, 2019. Sterling indicated that the bullet was recovered from Roberts’ scrotum. After retrieving the bullet from the hospital, she took it to the Safety Building and booked it into evidence.
{¶ 52} Shaner proceeded to the address, found appellant hiding inside the bathroom of the apartment, and took appellant into custody. Soon thereafter, the informant called Shaner to notify him of a nine millimeter SCCY handgun and a mobile phone that she found inside her bathroom, which Shaner later retrieved.3
{¶ 53} As its fourteenth witness, the state called Zeller, who was present at the time of the shooting on July 6, 2019. Zeller testified as to the chain of events that transpired in Carr’s residence on the morning of the shooting, largely corroborating Jackson’s earlier testimony.
{¶ 54} Notably, Zeller testified that, approximately one-half hour after appellant returned to Carr’s residence, “another gentleman showed up” with a firearm in hand and attempted to rob those present by ordering everyone to empty their pockets. Zeller
{¶ 55} For its fifteenth witness, the state called detective Martin Rocha of the Toledo Police department’s scientific investigations unit. On July 8, 2019, Rocha received a request from Shaner to assist in the collection of evidence related to this case. Rocha proceeded to the informant’s residence. When he entered the bathroom in which appellant was discovered and arrested, Rocha found a firearm and mobile phone lying atop the vanity. Rocha photographed the items as he found them, and then transported the items to the Toledo Safety Building for further analysis. Once at the Safety Building, Rocha checked the items for fingerprints (he found none), swabbed the items for DNA, and then booked them into evidence.
{¶ 56} After Rocha finished his testimony, the state called detective Ben Cousino of the Toledo Police department for its sixteenth witness. On July 6, 2019, Cousino responded to the Craig Street Bridge after he was informed that an abandoned vehicle located there may have been involved in the shooting that took place at Carr’s residence.
Upon arrival, Cousino photographed the interior and exterior of the vehicle, a silver Chevrolet Impala that was owned by Edwards. Cousino then retrieved a black ski mask from inside the vehicle. Additionally, Cousino discovered a black Cinco de Mayo Restaurant tee shirt on the ground near the vehicle, which he photographed and retrieved.{¶ 57} From the Craig Street Bridge, Cousino traveled to an impound lot where one of the SUVs from Carr‘s residence was being held. Cousino testified that he processed the vehicle, including the blood found thereon, and then proceeded to Carr‘s residence. At the residence, Cousino took additional photographs and retrieved a projectile from behind the living room couch. Cousino located additional blood stains on a driveway at a neighboring residence. He then attended Carr‘s autopsy, at which he secured Carr‘s clothing and two projectiles that were recovered from Carr‘s body. Cousino left the autopsy and went back to the Craig Street Bridge after he was notified that a construction worker found a SCCY firearm magazine on the ground alongside the bridge in the vicinity of the abandoned vehicle. Cousino photographed the magazine and retrieved it, emptying the four rounds from the magazine as he secured it.
{¶ 58} Thereafter, Cousino returned to the impound lot and further processed the silver Chevrolet Impala. Cousino recovered a state identification card belonging to appellant from the vehicle. Additionally, Cousino discovered a plastic bag containing several nine millimeter cartridges inside the center console. He removed a portion of the rear seat that appeared to be stained with blood for further DNA analysis. Further,
{¶ 59} After calling the foregoing witnesses, the state recalled Kozlaker to the stand. While investigating the shooting at Carr‘s residence, Kozlaker spoke with appellant, who confessed to shooting Carr with the SCCY handgun. Further, Kozlaker reviewed text messages that were extracted from appellant‘s mobile phone. In these messages, appellant and Roberts discussed their plan to commit a robbery and shoot two of the men inside Carr‘s residence. Moments after the final text message was sent, Carr called 911 and informed the dispatcher that appellant shot him.
{¶ 60} Following Kozlaker‘s testimony, the state rested. Appellant then moved for an acquittal under
{¶ 61} In his testimony, appellant acknowledged that he was present in Carr‘s residence at the time of the shooting. According to appellant, he was at the residence in order to “purchase one gun and trade another.”
{¶ 62} When asked to describe his behavior during the moments leading up to the shooting, appellant testified: “I snort another line of coke off the table and I go to roll up another Backwoods. I have my head down so I can‘t really say for sure where or how it happened, but I heard multiple gunshots. And from where I‘m sitting, it sounded like
{¶ 63} On cross examination, appellant stated: “I have never denied the fact that I shot Tyler.” However, appellant insisted that the shooting was accidental and he was only trying to defend himself.
{¶ 64} At the conclusion of his testimony, appellant rested. Appellant then renewed his
{¶ 65} At sentencing, the state was asked to elect whether to proceed on the aggravated murder charge or the lesser included offense of felony murder. The state chose the former. Thereafter, the trial court sentenced appellant to 25 years to life in prison for aggravated murder, 8 years to 12 years for aggravated robbery, and 8 years to 12 years for aggravated burglary. The court then ordered those sentences to be served consecutively, and consecutive to each three-year sentence associated with the three attendant firearm specifications.
B. Assignments of Error
{¶ 67} On appeal, appellant assigns the following errors for our review:
- The trial court abused its discretion when it denied Wright‘s motion to suppress statements.
- The trial court abused its discretion when it allowed statements by a co-defendant as a hearsay exception.
- The trial court abused its discretion when it denied Wright‘s motion for acquittal pursuant to
Crim.R. 29 as to aggravated burglary. - The trial court abused its discretion by failing to dismiss Wright‘s case on the basis of a speedy trial violation.
- The trial court abused its discretion by failing to merge Wright‘s sentences on the basis of allied offenses of similar import, or in the alternative, by failing to order concurrent sentences to a sentence of 25 years to life.
{¶ 68} For ease of discussion, we will address appellant‘s assignments of error out of order.
A. Denial of Appellant‘s Motion to Suppress
{¶ 69} In appellant‘s first assignment of error, he argues that the trial court erred in denying his January 31, 2020 motion to suppress, in which he argued that the statements he made during an interview with Mooney and Kozlaker on July 9, 2019, should be suppressed because he was too intoxicated at the time he made them to understand and waive his Miranda rights.
{¶ 70} Our review of the trial court‘s denial of appellant‘s motion to suppress “presents a mixed question of law and fact.” State v. Wesson, 137 Ohio St.3d 309, 2013-Ohio-4575, 999 N.E.2d 557, ¶ 40, quoting State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8. We must accept the trial court‘s factual findings if they are supported by competent credible evidence, and “independently determine, without deference to the conclusion of the trial court, whether the facts satisfy the applicable legal standard.” Wesson at ¶ 40, quoting Burnside at ¶ 8.
{¶ 71} Prior to a custodial interrogation, the
{¶ 73} “An accused‘s signed waiver form is strong proof that such waiver was valid.” State v. Nields, 93 Ohio St.3d 6, 14, 752 N.E.2d 859 (2001), citing State v. Clark, 38 Ohio St.3d 252, 261, 527 N.E.2d 844 (1988); North Carolina v. Butler, 441 U.S. 369, 373, 99 S.Ct. 1755, 60 L.Ed.2d 286 (1979). “However, if a defendant challenges the validity of the waiver, the state bears the burden of demonstrating, by a preponderance of the evidence, that the waiver was knowingly, intelligently, and voluntarily made.” State v. Velliquette, 2020-Ohio-4855, 160 N.E.3d 414, ¶ 19 (6th Dist.), citing Wesson at ¶ 34.
{¶ 74} The determination of whether a defendant‘s waiver satisfies the Miranda standard involves a two-step analysis:
First, the relinquishment of the right must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception. Second, the waiver must have been made with a full awareness of both the nature of the right being abandoned
and the consequences of the decision to abandon it. Only if the “totality of the circumstances surrounding the interrogation” reveal both an uncoerced choice and the requisite level of comprehension may a court properly conclude that the Miranda rights have been waived.
Moran v. Burbine, 475 U.S. 412, 421, 106 S.Ct. 1135, 89 L.Ed.2d 410 (1986), quoting Fare v. Michael C., 442 U.S. 707, 725, 99 S.Ct. 2560, 61 L.Ed.2d 197 (1979).
{¶ 75} Appellant‘s argument on appeal does not challenge the first step – he does not contend that his statements were the product of police intimidation, coercion, or deception. Instead, appellant argues that he was unaware of the nature of his rights and the consequences of waiving those rights because he was intoxicated at the time of the waiver.
{¶ 76} To support his argument, appellant references the video recording of the interview that was admitted during the suppression hearing. Appellant claims the recording demonstrates his “deportment during most of the first part of the interview * * *, as well as his apparent excessive fatigue in the remainder of the interview.” He specifically notes his difficulty in removing his jacket, crying and shaking during the first 30 minutes of the interview, and apparent fatigue as indicators of his intoxicated condition.
{¶ 77} At the suppression hearing below, the trial court observed the video recording of appellant‘s interview with Mooney and Kozlaker, and also heard testimony
{¶ 78} Upon our review of the record and consideration of the totality of the circumstances, we find that the video recording of the interview and the officers’ testimony at the suppression hearing constitutes competent credible evidence that supports the trial court‘s factual findings concerning appellant‘s awareness at the time of his execution of the written Miranda waiver. The observations provided by Mooney and Kozlaker at the suppression hearing are confirmed by the video, in which appellant does not look as though he is intoxicated at the time of the interview. Appellant appears to be in control of his mental faculties and fully aware of the nature of the rights he was waiving and the consequences of that waiver.
{¶ 79} In his brief, appellant states: “When asked if he is ok, [appellant] shakes his head ‘no.‘” Appellant interprets this response as indicative of intoxication, but the response actually belies appellant‘s appreciation of the gravity of the charges he is facing and his awareness of the proceedings.
B. Denial of Appellant‘s Speedy Trial Argument
{¶ 81} In his fourth assignment of error, appellant argues that the trial court abused its discretion in denying his motion to dismiss on speedy trial grounds.
{¶ 82} The right to a speedy trial is guaranteed by the United States and Ohio Constitutions. State v. Adams, 43 Ohio St.3d 67, 68, 538 N.E.2d 1025 (1989). “In reviewing a denial of a motion to dismiss based on an appellant‘s right to a speedy trial, we apply a de novo standard of review.” State v. Smith, 6th Dist. Lucas No. L-14-1224, 2016-Ohio-150, ¶ 7, citing State v. Browand, 9th Dist. Lorain No. 06CA009053, 2007-Ohio-4342, ¶ 10.
{¶ 83} Ohio‘s speedy trial protections are set forth in
{¶ 85} The triple-count provision applies “only to those defendants held in jail in lieu of bail solely on the pending charge.” State v. MacDonald, 48 Ohio St.2d 66 (1976), paragraph one of the syllabus. “Thus, when a defendant awaits trial on separate unrelated cases, the triple-count provision does not apply.” State v. Sydnor, 4th Dist. Scioto No. 10CA3359, 2011-Ohio-3922 ¶ 19, citing State v. Ladd, 56 Ohio St.2d 197, 203, 383 N.E.2d 579 (1978).
{¶ 86} Appellant argues that the triple count provision should apply in this case because the state arraigned him on both the present charges and the firearms charges on the same day, the cases proceeded together through litigation, and the trial court sentenced him as to both sets of charges on the same day. While it may be true that the two cases share a common litigation history, there is nothing in the record to demonstrate that the charges in the present action, which arose from the shooting at Carr‘s residence on July 6, 2019, were in any way related to the firearms charges that arose from law
{¶ 87} Notwithstanding the purported shared litigation history of appellant‘s two cases, the triple count provision does not apply here because the cases relate to different criminal incidents. Sydnor at ¶ 23. As stated succinctly by the court in Sydnor, “This is not a situation where multiple charges arise from a single criminal incident and share a common litigation history. Therefore, the triple-count provision does not apply.” Id. at ¶ 26.
{¶ 88} Having found that the triple count provision is largely inapplicable in this case (except as stated in the following paragraph), we will proceed to consider whether appellant was brought to trial within the 270-day time period set forth in
{¶ 89} Appellant was arrested and held in custody on the present charges on July 8, 2019. Nine days later, appellant requested a continuance of his arraignment, which tolled the speedy trial clock. While awaiting arraignment, on July 18, 2019, appellant was indicted in case No. CR19-2244. Thus, the triple count provision applies to the first nine days of appellant‘s pretrial confinement, leaving 243 days remaining on the clock. Under
{¶ 91} Thereafter, on October 21, 2019, appellant filed his first motion to suppress. “The time period within which a defendant must be brought to trial is tolled from the day of the filing of a motion to suppress until the day the trial court rules on the motion, pursuant to
{¶ 92} On January 3, 2020, appellant filed a motion to dismiss on speedy trial grounds. While the motion was pending, appellant filed his second motion to suppress.
{¶ 93} On March 27, 2020, in response to the coronavirus pandemic, the General Assembly tolled all statutory time limitations in criminal cases set to expire between March 9, 2020 and July 30, 2020. See
{¶ 94} In In re Disqualification of Fleegle, 161 Ohio St.3d 1263, 2020-Ohio-5636, 163 N.E.3d 609, the Ohio Supreme Court stated the following concerning the reasonableness of continuing cases due to the pandemic:
And as all Ohio judges have been advised, trial judges have the authority to continue trials for defendants on a case-by-case basis without violating speedy-trial requirements. The Ohio Attorney General has opined that
courts may suspend jury trials to prevent the spread of the coronavirus and they may do so consistent with state and federal speedy-trial obligations. 2020 Ohio Atty. Gen. Ops. No. 2020-002. Specifically, R.C. 2945.72(H) provides that speedy-trial time may be extended by “the period of any reasonable continuance granted other than upon the accused‘s own motion“; continuing a trial because of a pandemic state of emergency is “reasonable.”
{¶ 95} Likewise, we have held that delays associated with the coronavirus pandemic toll the speedy trial clock. See State v. Wright, 6th Dist. Lucas No. L-21-1101, 2022-Ohio-143, ¶ 37 (“Pursuant to
{¶ 96} Thereafter, on September 3, 2020, appellant filed his second motion to dismiss, again tolling the speedy trial clock until the trial court denied the motion 46 days later on October 19, 2020. The jury trial in this matter commenced on the same day the trial court denied appellant‘s second motion to dismiss.
{¶ 97} In total, 467 days elapsed between appellant‘s arrest on July 8, 2019, and the commencement of trial on October 19, 2020. Because nine of those days qualify
{¶ 98} Accordingly, appellant‘s fourth assignment of error is not well-taken.
C. Admission of Evidence as Hearsay Exception
{¶ 99} In appellant‘s second assignment of error, he asserts that the trial court abused its discretion in allowing Martin to testify, over his objection, concerning a conversation between Eaton and Roberts at the gas station. Specifically, appellant argues that such testimony constituted inadmissible hearsay that should have been excluded.
{¶ 100} Although the trial court generally has broad discretion regarding the admissibility of evidence, such discretion must be “exercised in line with the rules of procedure and evidence.” Rigby v. Lake Cty., 58 Ohio St.3d 269, 271, 569 N.E.2d 1056 (1991). Indeed, “[w]hile there is discretion to admit or exclude relevant evidence, there is no ‘discretion’ to admit hearsay.” State v. Richcreek, 196 Ohio App.3d 505, 2011-Ohio-4686, 964 N.E.2d 442, ¶ 29 (6th Dist.). As such, we have stated that “an appellate
{¶ 101}
{¶ 102} The specific evidence of which appellant complains was admitted over appellant‘s objection during the course of Martin‘s testimony. Prior to the challenged testimony, the following discussion was held outside the presence of the jury:
[PROSECUTOR]: Thank you. Your Honor, at this point the State would intend to proceed with questions of Mr. Martin relating to the conversation between Adrian Eaton and Dominique Roberts that occurred at the gas station as well as communications made by Dominique Roberts while he was sending text messages on the outside of 1324 Ironwood communicating with the defendant Justin Wright on the inside of the building.
It‘s the State‘s position that these would be admissible as co-conspirator statements. At this stage, the State feels that it has presented a prima facie case of a conspiracy that these individuals, particularly Eaton, Roberts and Wright, acted in concert with one another to commit the offenses of at minimum robbery. Specifically we received testimony from Shayne Jackson that if believed would indicate that Adrian Eaton and Justin Wright were inside the apartment when Dominique Roberts entered, tapped one of Shayne‘s friends on the head with a gun and said nobody move. That subsequent to that, Adrian Eaton stood up and began taking property from Shayne and Shayne‘s friends.
The State would note that after saying nobody move, that Dominique Roberts did not appear to react negatively to Adrian Eaton moving and doing things in furtherance of the robbery.
We also received testimony from Shayne Jackson that Justin Wright stood and got a gun and said, do you think this is a game, before beginning to fire bullets. And that after the shooting started, Adrian Eaton, Justin Wright and Dominique Roberts all appeared to leave together.
When we combine this with what we have learned from Mr. Martin, that everybody arrived together and that Dominique Roberts entered the
apartment with this firearm drawn, the State feels that the evidence presented is sufficient to make a prima facie case of conspiracy. If believed, the jury would be entitled to infer that these individuals were working together to commit this robbery offense and that as such, statements that they made to each other in furtherance of that offense would be admissible, they would be non-hearsay statements because co-conspirator statements are defined as non-hearsay and they would not violate the Confrontation Clause. * * * THE COURT: Thank you. Would you like to respond, [defense counsel]?
[DEFENSE COUNSEL]: Judge, there was testimony elicited and taken that a crime occurred. It doesn‘t extend to the fact that there was a conspiracy that it occurred. Much of the information that was given could be questionable and it is to be weighed by the jury.
{¶ 103} Upon reviewing the evidence relied upon by the state, the trial court agreed that there was sufficient evidence to establish the existence of a conspiracy. Applying
Q. So Mr. Martin, a moment ago I said we would come back to the conversation at the gas station. I‘d like to go back to that. So you said after you left Ironwood the first time, you went to Arden Place and then to the gas station. Do I have that sequence correct?
A. Yes.
Q. When you got to the gas station, did anyone get out of the car?
A. Yes.
Q. Who was that?
A. Justin Wright.
Q. And where did Justin Wright go?
A. He walked up to the window of the gas station.
Q. And who stayed in the car?
A. It was me, Adrian Eaton and Dominique Roberts.
Q. And were Dominique Roberts and Adrian Eaton talking?
A. Yes.
Q. Could you hear what they were talking about?
A. Yes.
Q. What were they talking about?
A. Dominique – [DEFENSE COUNSEL]: Objection, Your Honor. Your Honor, I would just renew my objection based on hearsay.
THE COURT: Thank you and the objection‘s overruled.
Q. So Mr. Martin, what were they talking about?
A. Adrian had turned around and asked Dominique, he said something and then Dominique said why didn‘t we rob them, we was just there.
Q. And what happened then?
A. And then Justin had came, got back to the car.
Q. Mr. Martin, when was the first time that evening that you heard about a robbery happening?
A. At the gas station.
{¶ 105} Here, appellant asserts, as he did before the trial court, that the foregoing testimony was inadmissible hearsay. The state responds by arguing that Eaton‘s statement (“why didn‘t we just rob them, we was just there“) constituted a statement by appellant‘s co-conspirator and thus Martin‘s testimony about the statement was non-hearsay under
{106} Pursuant to
{107} To establish independent proof of a conspiracy, the prosecution must provide proof: “(1) of the existence of a conspiracy; (2) of the defendant‘s participation in the conspiracy; (3) of the declarant‘s participation in the conspiracy; (4) that the statement was made during the course of the conspiracy; and (5) that the statement was made in furtherance of the conspiracy.” (Citation omitted.) State v. Baker, 137 Ohio App.3d 628, 653, 739 N.E.2d 819 (12th Dist.2000). “A prima facie case is made where the evidence introduced is sufficient to support, but not compel, a particular conclusion, and which only furnishes evidence that the jury may consider and weigh, but need not
{108} Here, the state introduced the testimony of several witnesses prior to calling Martin to testify. One of these witnesses, Jackson, provided testimony that is especially relevant to the issue before us. Jackson testified that he was present at Carr‘s apartment on the morning of the shooting, and he recounted the fact that appellant arrived at the apartment at the same time as Eaton. Jackson stated that Roberts subsequently entered the apartment with a firearm in hand, said “nobody move,” and began pacing around the living room. Meanwhile, Eaton began removing items from everyone‘s pockets, including Jackson‘s wallet and mobile phone. At the same time, appellant was standing in the room with a cocked firearm in his hand. Eventually, appellant fired his weapon after he became visibly frustrated and asked Jackson and his friends if they thought he was playing a game.
{109} Martin‘s testimony also supports the conclusion that appellant was engaged in a conspiracy to commit a robbery at Carr‘s residence with Roberts and Eaton. Eaton and appellant ignored Roberts’ statement directing everyone not to move, and instead helped to facilitate the robbery initiated by Roberts by raiding the pockets of the other men and, in appellant‘s case, standing by with a firearm in his hand and ensuring compliance with Roberts’ instructions. This evidence was supplemented by Martin‘s earlier testimony in which he implicated himself as part of the conspiracy by stating that
{110} From the foregoing testimony, a reasonable fact finder could conclude that appellant, Martin, Eaton, and Roberts were co-conspirators in the robbery that took place at Carr‘s residence. Further, the timing of Eaton‘s statement, right before the group returned to Carr‘s residence to commit the robbery, plainly establishes that the statement was made during the course of the conspiracy and in furtherance of the conspiracy. Thus, the state made a prima facie showing of a conspiracy prior to soliciting testimony from Martin regarding statements he overheard from the conversation between Eaton and Roberts at the gas station.
{111} In light of the state‘s prima facie showing, we find that the trial court properly found Martin‘s testimony admissible under
D. Denial of Appellant‘s Crim.R. 29 Motion
{112} In appellant‘s third assignment of error, he argues that the trial court erred in denying his
{113} Appellate review of a disputed denial of a
{114} Here, appellant‘s sufficiency argument is limited to his conviction for aggravated burglary under
(A) No person, by force, stealth, or deception, shall trespass in an occupied structure or in a separately secured or separately occupied portion of an occupied structure, when another person other than an accomplice of the offender is present, with purpose to commit in the structure or in the separately secured or separately occupied portion of the structure any criminal offense, if any of the following apply:
* * *
(2) The offender has a deadly weapon or dangerous ordnance on or about the offender‘s person or under the offender‘s control.
{115} In his brief, appellant acknowledges that he entered Carr‘s residence with a firearm in his possession. Further, there is no dispute that appellant shot Carr while inside the residence. However, appellant argues that the state‘s evidence was insufficient to establish that he was a trespasser in Carr‘s residence on the morning of the shooting.
{116} As used in the aggravated burglary statute,
“Deception” means knowingly deceiving another or causing another to be deceived by any false or misleading representation, by withholding information, by preventing another from acquiring information, or by any other conduct, act, or omission that creates, confirms, or perpetuates a false impression in another, including a false impression as to law, value, state of mind, or other objective or subjective fact.
{117} Relying upon his claim that Carr invited him into the residence, appellant insists that he could not be considered a trespasser. On the contrary, “[m]erely because one has permission to enter a residence does not negate the trespass element where the defendant gained permission by lying to the resident about why he wishes to enter.” In re J.M., 7th Dist. Jefferson No. 12 JE 3, 2012-Ohio-5283, ¶ 17. A similar argument was considered and rejected by the court in J.M., where the defendant gained entrance into a home by falsely claiming that he needed to use the restroom. Id. at ¶ 18.
{119} At trial in the present case, the state‘s evidence included testimony from Jackson, which established that appellant and Eaton were granted permission to reenter Carr‘s residence in order to purchase marijuana from Carr. The fact that appellant and Eaton did not depart from the residence after the purchase of marijuana was complete suggests that appellant‘s desire to purchase marijuana was only a pretext that appellant used to gain entrance into the residence.
{120} For his part, appellant testified at trial that he was at Carr‘s residence at the time of the shooting in order to “purchase one gun and trade another.” This stated purpose is also inconsistent with appellant‘s conduct after Roberts entered the residence and stated “nobody move.” At this point, appellant stood up, drew his firearm, and acted as an enforcer who was seemingly operating in concert with Roberts and Eaton to facilitate the group‘s criminal conduct.
{122} Accordingly, appellant‘s third assignment of error is not well-taken.
E. Sentencing Issues
{123} In his fifth assignment of error, appellant argues that the trial court erred in failing to merge all of his convictions as allied offenses of similar import.
{124} Whether offenses are allied offenses of similar import is a question of law that this court reviews de novo. State v. Roberson, 2018-Ohio-1955, 113 N.E.3d 204, ¶ 12 (6th Dist.).
{125} Ohio‘s multiple-count statute,
(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 each, the indictment or information may contain counts for all such offenses, and the defendant may be convicted of all of them.
{126} In State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, the Ohio Supreme Court set forth the following three-part test to determine whether a defendant can be convicted of multiple offenses:
As a practical matter, when determining whether offenses are allied offenses of similar import within the meaning of
R.C. 2941.25 , courts must ask three questions when defendant‘s conduct supports multiple offenses: (1) Were the offenses dissimilar in import or significance? (2) Were they committed separately? and (3) Were they committed with separate animus or motivation? An affirmative answer to any of the above will permit separate convictions. The conduct, the animus, and the import must all be considered.
{127} Here, appellant was sentenced separately for (1) aggravated murder in violation of
{128} In chronological order, appellant committed aggravated burglary first. This offense was completed upon appellant‘s armed entry into Carr‘s residence with Eaton with the purpose to commit a theft offense therein. The burglary was complete at the moment appellant entered the apartment by deception, since in order to commit aggravated burglary, “one does not have to actually commit any criminal offense; rather [appellant] simply had to trespass with the purpose to commit a criminal offense.” State v. Lane, 12th Dist. Butler No. CA2013-05-074, 2014-Ohio-562, ¶ 16. Thereafter, appellant committed the offense of aggravated robbery when he pulled his weapon and assisted Eaton in stealing Jackson‘s wallet and mobile phone. Finally, appellant committed the offense of aggravated murder when he decided to shoot and kill Carr. Because these offenses were committed by separate conduct that occurred at separate moments in time, they are not allied offenses of similar import. Therefore, we find no merit to appellant‘s argument that the trial court should have merged these offenses at sentencing.
{129} Alternatively, appellant contends that the trial court imposed a “needlessly duplicative and arguably gratuitous” sentence when it ordered his individual sentences to
{130} Finally, as we noted in our recitation of the facts, the parties have entered a joint “stipulated notice of conceded error” informing the court that the trial court‘s “judgment entry in this case does not include an aggregate minimum and maximum sentence as required by
{131}
(B) The court imposing a prison term on an offender under division (A)(1)(a) or (2)(a) of section
2929.14 of the Revised Code for a qualifying felony of the first or second degree shall determine the maximum prison term that is part of the sentence in accordance with the following:* * *
(2) If the offender is being sentenced for more than one felony, if one or more of the felonies is a qualifying felony of the first or second degree, and if the court orders that some or all of the prison terms imposed are to be served consecutively, the court shall add all of the minimum terms imposed on the offender under division (A)(1)(a) or (2)(a) of section 2929.14 of the Revised Code for a qualifying felony of the first or second degree that are to be served consecutively and all of the definite terms of the felonies that are not qualifying felonies of the first or second degree that are to be served consecutively, and the maximum term shall be equal to the total of those terms so added by the court plus fifty per cent of the longest minimum term or definite term for the most serious felony being sentenced.
{132} Here, the trial court ordered appellant to serve two indefinite sentences of 8 to 12 years (for aggravated robbery and aggravated burglary), and ordered those sentences to be served consecutively to one another and consecutive to the sentence of 25 years to life for aggravated murder. Notably, the trial court did not calculate an aggregate minimum and maximum sentence as required under
{133} In light of the foregoing, we find no merit to appellant‘s arguments concerning the trial court‘s handling of merger or consecutive sentencing. However, we find that the trial court erred at sentencing when it failed to include the required aggregate minimum and maximum sentencing range in appellant‘s sentence. On this limited basis, we find appellant‘s fifth assignment of error well-taken.
III. Conclusion
{134} In light of the foregoing, the judgment of the Lucas County Court of Common Pleas is affirmed, in part, and reversed, in part, and this matter is remanded to the trial court for the limited purpose of calculating and imposing the
Affirmed, in part,
and reversed, in part.
Christine E. Mayle, J.
Myron C. Duhart, P.J.
CONCUR.
JUDGE
JUDGE
JUDGE
This decision is subject to further editing by the Supreme Court of Ohio‘s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court‘s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.