2004 Ohio 6802 | Ohio Ct. App. | 2004
{¶ 3} Grant called 911 and described the man who robbed him to the operator. Within minutes, an officer arrived on the scene and Grant began describing the man to him as well. Another officer found a man fitting Grant's description near the scene while Grant was talking to the officer. That man was Wright. Grant heard that they had found a suspect on the first officer's radio. The officer then left to help capture the suspect, who had run away. The officers eventually found Wright in a local residence. The gun was never recovered.
{¶ 4} After arresting Wright, an officer brought him back to the scene of the crime. At this time, which was within an hour of the crime, Grant positively identified Wright as the man who robbed him. Grant saw that Wright was wearing the same distinctive clothing he was wearing at the time of the robbery.
{¶ 5} Since Wright was a minor at the time of the crime, the State filed a delinquency complaint in the Mahoning County Juvenile Court. That court transferred jurisdiction to the court of common pleas and the Mahoning County Grand Jury indicted Wright for aggravated robbery with a firearm specification.
{¶ 6} Wright moved to suppress Grant's identification of him as the offender, claiming the procedure used was so highly suggestive that there was a substantial likelihood of misidentification. After a hearing, the trial court denied this motion.
{¶ 7} The case proceeded to a jury trial. While seating the jury, the prosecutor exercised a peremptory strike against an African-American juror. Wright argued that the prosecutor was engaging in purposeful racial discrimination. The trial court disagreed and allowed the prosecutor to strike this juror.
{¶ 8} At the conclusion of the trial, the jury found Wright guilty of both aggravated robbery and the firearm specification. At the sentencing hearing, the trial court sentenced Wright to an eight-year term of imprisonment and ordered that term be served consecutive to and after a three-year term for the firearm specification.
{¶ 9} Wright argues seven assignments of error on appeal. We address those errors in a different order than which they were presented to us.
{¶ 11} "The trial court erred in permitting the government to use its peremptory challenge in a racially discriminatory manner, thereby denying Appellant equal protection under the law as guaranteed by the
{¶ 12} In this case, the prosecutor used a peremptory challenge over objection to excuse a prospective African-American juror. The State gave three race-neutral reasons for excusing this juror. Wright claims these reasons were merely pretextual and that the trial court erred when it found them legitimate.
{¶ 13} A prosecutor violates the Equal Protection Clause of the United States Constitution when she uses preemptory challenges to purposefully exclude members of a minority group because of their minority status. Batson v. Kentucky (1986),
{¶ 14} Courts analyze a Batson claim in three steps: 1) the opponent of the peremptory strike must make a prima facie case of racial discrimination; 2) the party making the peremptory challenge must present a racially neutral explanation for the challenge; and, 3) the trial court must decide whether the opponent has proved a purposeful racial discrimination. Batson
at 96-98. The party opposing the peremptory strike bears the burden of proving purposeful discrimination. Purkett v. Elem
(1995),
{¶ 15} In this case, the State concedes that Wright made a prima facie case of racial discrimination. But we would not need to address this issue even if the State did not concede the point. Since the prosecutor "offered a race-neutral explanation for the peremptory challenges and the trial court has ruled on the ultimate question of intentional discrimination, the preliminary issue of whether the defendant had made a prima facie showing becomes moot." Hernandez at 359; State v. White,
{¶ 16} A race-neutral explanation for a peremptory strike is simply "an explanation based on something other than the race of the juror." Id. at 360. "[T]he prosecutor's explanation need not rise to the level justifying exercise of a challenge for cause."Batson at 97. But it must relate to the particular case being tried and be both clear and reasonably specific. Id. at 98, footnote 20. A prosecutor cannot rebut the defendant's assertions of racial discrimination by general assertions of good faith. Id. at 98.
{¶ 17} When an appellate court reviews a Batson claim, it must avoid combining Batson's second and third steps into one.Purkett at 768. When conducting the second step of theBatson, "the issue is the facial validity of the prosecutor's explanation." Hernandez at 360. "The second step of this process does not demand an explanation that is persuasive, or even plausible." Purkett at 767-768. The persuasiveness of the justification only becomes relevant at the third stage of the analysis. Id. at 768. Accordingly, when " evaluating the race neutrality of an attorney's explanation, a court must determine whether, assuming the proffered reasons for the peremptory challenges are true, the challenges violate the Equal Protection Clause as a matter of law." Hernandez at 359. For the purposes of Batson's second step, it does not matter whether the stated reason applied equally between the preempted jurors and the ones actually seated. See Miller-El v. Cockrell (2003),
{¶ 18} In this case, the State gave three reasons for peremptorily striking the juror in question: 1) the juror believed the State had to prove its case beyond a shadow of a doubt, rather than beyond a reasonable doubt; 2) the juror believed that circumstantial evidence alone could not prove the State's case; and, 3) the juror was biased against police for failing to adequately investigate a robbery at her house. These reasons are all race-neutral reasons. See State v. Prade
(2000),
{¶ 19} Wright claims the trial court was clearly erroneous when it determined that the prosecutor's preemptive strike was not a purposeful racial discrimination. This issue is "a pure issue of fact, subject to review under a deferential standard."Hernandez at 364. "Since the trial judge's findings in the context under consideration here largely will turn on evaluation of credibility, a reviewing court ordinarily should give those findings great deference." Batson at 98, footnote 21.
{¶ 20} Wright claims that the record conclusively demonstrates the prosecutor's explanations were only pretextual. But Wright is incorrect.
{¶ 21} Wright argues that the State's first explanation is nothing more than an attempt to misconstrue the juror's position in order to justify a race based challenge. He contends that the juror's reference to "beyond a shadow of a doubt" was describing the level of proof she needed to disbelieve an officer's testimony, not the level of proof she would need to convict a defendant of a crime. He also contends that this juror was not the only juror confused by the example the prosecutor used to distinguish between direct and circumstantial evidence.
{¶ 22} These arguments are incorrect. The prosecutor used a hypothetical to clarify the prospective juror's views about proof issues. According to the hypothetical, the circus is in town and has elephants. A person goes to their backyard and sees the fence knocked over, giant footprints, and peanut shells. The news reports that an animal has escaped from the circus. The prosecutor asked the jurors if they felt this was proof beyond a reasonable doubt that an elephant escaped from the circus and caused the damage. The juror at issue gave a response which raised concerns about the standard of proof this juror would use and demonstrated this juror's discomfort with relying solely on circumstantial evidence when deciding the case. No other juror expressed the same difficulties with these concepts. The prosecutor's concerns about this juror were legitimate.
{¶ 23} The same holds true for the prosecutor's final explanation for preemptively striking this juror. The juror stated that her house had been broken into, that her neighbors said it was kids in the neighborhood, and that the police did not follow-up on her complaint. She stated that the poor investigation made her "somewhat angry." As Wright correctly points out, other jurors had also been crime victims and were critical of the police. But one juror was critical of the police in New York City. He stated that he believed Ohio police were "definitely" different from those in New York City. The other juror who was the victim of a crime had a police officer in his family. The prosecutor may have reasonably believed there was no need to ask follow-up questions relating to that crime. The only prospective juror who expressed a bias against the local police was Juror Armour.
{¶ 24} For these reasons, the trial court did not clearly err when it found that the State was not engaged in purposeful racial discrimination when it peremptorily struck this juror. The juror expressed her belief that the State should be held to a higher standard of proof. She found it difficult to make a definitive factual finding based on circumstantial evidence. And she expressed anger with the local police from an investigation into a break-in in her house. Wright's second assignment of error is meritless.
{¶ 26} "The trial court erred when it denied Appellant's motion to suppress improperly suggestive pretrial identification which violated Appellant's due process rights in contravention of
{¶ 27} In this case, Wright was convicted largely because Grant identified him as the perpetrator. He now claims the trial court erred when it denied his motion to suppress Grant's pretrial identification. According to Wright, his actual description did not match Grant's initial description of the suspect and the procedure the police used to obtain the identification was inherently suggestive. In response, the State argues that a variety of factors demonstrate that Grant's initial identification of Wright was reliable.
{¶ 28} Appellate review of a motion to suppress presents mixed issues of law and fact. State v. Jedd (2001),
{¶ 29} Decisions dealing with the admissibility of evidence are left to the trial court's sound discretion. State v.Tibbetts,
{¶ 30} We note that both Wright and the State cite to pages in the trial transcript when discussing this assignment of error. This is improper. The record contains a transcript of the hearing on Wright's motion to suppress. This contains the evidence before the trial court at the time it ruled on the motion to suppress. When ruling on this assignment of error, we are limited to reviewing the evidence in that transcript. See State v.Gonzales,
{¶ 31} Unreliable identification testimony must be excluded under the Due Process Clause. State v. Myers,
{¶ 32} "[R]eliability is the linchpin in determining the admissibility of identification testimony." Manson v.Brathwaite (1977),
{¶ 33} When the suspect approached Grant that morning, Grant was trying to start his wife's car, which was stalled. The suspect asked Grant for the time and Grant told him it was about five after seven. The suspect then took out a pistol and told Grant to give him the car. At this time, the suspect was standing less than a foot away from Grant. Grant noticed that the pistol was a black revolver. Grant told the suspect that the car wouldn't start. The suspect then told him that the gun wasn't real and walked away.
{¶ 34} Grant called 911 after the suspect walked away. He described the suspect as "[a] black male, brown short pants, a print shirt, black and brown print shirt, and a baseball cap." At one point, Grant also described the suspect as "a tall, black fellow. He was wearing a black kind of like a jacquard print, like Florida shirt, short pants and a baseball cap." A police officer responded "[j]ust about right away. It looked like they were in the area." As he was speaking to the officer, other officers reported over the radio that they spotted a suspect and the officer he was speaking to left. About ten to fifteen minutes later, the officer returned with Wright in the back seat of his cruiser and Grant positively identified Wright as the man who robbed him.
{¶ 35} Based on this testimony, we conclude the trial court did not abuse its discretion when it denied Wright's motion to suppress Grant's identification. Grant had an opportunity to observe Wright at the time of the crime and described both Wright and the weapon in a reasonably specific amount of detail. Grant was given the opportunity to identify Wright within, at the most, fifteen to twenty minutes after the crime. Grant was certain that Wright was the individual that robbed him. Finally, while there was no testimony regarding whether Grant's description of Wright was accurate, the police found Wright based solely on Grant's description and Grant was certain Wright was the same man who had robbed him minutes before. These factors all demonstrate that Grant's identification of Wright was reliable. Wright's first assignment of error is meritless.
{¶ 37} "The trial court erred when it gave the flight jury instruction which created an improper mandatory presumption of guilt in violation of Appellant's rights as guaranteed by the
{¶ 38} Wright contends there was no evidence he fled. Thus, he claims the trial court erred when giving a jury instruction on flight. He further argues that the trial court's jury instruction on flight improperly created a presumption in favor of guilt. Thus, he claims his conviction must be reversed. Wright is incorrect. It is undisputed that Wright fled from the police after struggling with the officer when he was first stopped. Much of the officers' testimony describes the search for Wright after he fled. The record supports a jury instruction on flight.
{¶ 39} The trial court gave the following instruction to the jury:
{¶ 40} "In this case, there was evidence that the defendant fled from the vicinity of the crime following the alleged aggravated robbery of the vehicle of James Grant, and again following the apprehension by the Campbell Police Department. Fleeing from the vicinity of a crime does not, in and of itself, raise a presumption of guilt or a guilty connection with the crime. That is, you are instructed that you may not presume the defendant guilty from such evidence. You may, however, infer a consciousness of guilt regarding the evidence of the defendant's alleged flight. A defendant's flight and related conduct can be considered as evidence of consciousness of guilt and, thus, of guilt itself."
{¶ 41} Appellate courts have approved similar jury instructions. In State v. Taylor,
{¶ 42} And in State v. Green, 7th Dist. No. 01 CA 54, 2003-Ohio-3074, we recently dealt with a similar issue. In that case, the trial court instructed the jury that "[f]light, in and of itself, does not raise a presumption of guilt, but unless satisfactorily explained, it tends to show a consciousness of guilt or a guilty connection with the crime." Id. at ¶ 28. We concluded this was the same instruction addressed in Taylor and found the appellant's argument to the contrary meritless.
{¶ 43} The jury instruction in this case is indistinguishable from those given in Taylor and Green. The trial court cautioned the jury that flight does not create a presumption of guilt, but can be considered as evidence of consciousness of guilt. Thus, the trial court's instruction is proper. Wright's fifth assignment of error is meritless.
{¶ 45} "The verdict reached by the jury was against the manifest weight of the evidence and the evidence was insufficient to support the verdict, thus denying Appellant's due process rights per
{¶ 46} "Appellant's conviction of the firearm specification was contrary to law as the government failed to prove beyond a reasonable doubt that the weapon was operable."
{¶ 47} As the Ohio Supreme Court has stated, arguments concerning the "sufficiency of the evidence" should not be confused with those addressing the "manifest weight of the evidence." See State v. Thompkins,
{¶ 48} In contrast, when reviewing whether a conviction was against the manifest weight of the evidence, we must "examine whether the evidence produced at trial `attains the high degree of probative force and certainty required of a criminal conviction.'" State v. Tibbetts,
{¶ 50} "No person, in attempting or committing a theft offense, as defined in section
{¶ 51} When challenging the sufficiency and weight of the evidence supporting his conviction for aggravated robbery, Wright does not argue that the fact that someone attempted to commit a theft offense while having a dangerous weapon or ordnance under his control. Instead, Wright argues that there was insufficient evidence that he was the person who committed the crime and that the jury's finding to the contrary is against the manifest weight of the evidence.
{¶ 52} Wright cannot make a colorable argument that his conviction was not supported by sufficient evidence. Grant testified that someone came up to him, pulled out a gun, and demanded that Grant give him the car. At trial, Grant positively identified Wright as the person who robbed him. He had "no question in his mind" that Wright was the same person. Clearly, when this testimony is viewed in the light most favorable to the State, this testimony was sufficient to prove that Wright was the person who committed this aggravated robbery.
{¶ 53} In his manifest weight argument, Wright claims that Grant's identification of him as the offender does not prove beyond a reasonable doubt that he was the one who committed this crime. In support of this argument, Wright points to differences between the clothing he was wearing and the clothing described by Grant.
{¶ 54} Grant testified that the man who robbed him was wearing "brown Khaki shorts, a black and brown shirt with a baseball cap, beige brown shorts, like a beige color." He later stated that he remembered the man had "khaki pants, beige pants, the brown and black colored shirt, and the baseball cap." On redirect examination, Grant again described the man who robbed him as wearing "brown, beige shorts, like khaki shorts, a printed brown shirt with black in it, and a baseball cap." Grant told the 911 operator that the man was a "taller black dude" who was wearing "brown cap, brown baseball cap, a print shirt, and brown shorts." And he told the police officer on the scene that the man wore "a brown cap, beige shorts, and a printed shirt."
{¶ 55} The officer who first reported to the scene testified that Grant described the robber as "a younger black male wearing a brown cap, printed button-down shirt, and khaki pants" and that the man had a slender build. When that officer found Wright, he was wearing "a brown hat, printed-down shirt — button-down shirt, and khaki pants." The officer further testified that he did not see any other men wearing khaki shorts, a printed shirt, and a brown hat that morning.
{¶ 56} Another one of the arresting officers described Wright as wearing "long shorts, dark-colored pants, and a dark-colored button-up shirt, short sleeve, with like a print on it." The description that officer received of the suspect was "a black male wearing tan shorts, brown baseball cap, and short-sleeve button-down with print on it."
{¶ 57} The third officer on the scene was told to look for "a black male subject wearing a printed shirt, khaki or tan colored shorts" and "a ball cap." He saw a man fitting that description and that man was eventually arrested. This officer described Wright's shirt as "a Hawaiian-type shirt" with "grays and oranges, maybe some tan colors. I'm not positive. It's been two years ago since I seen the shirt. I know it was a printed shirt." This officer felt that Wright's clothing was "distinctive" and that the shirt was "indescribable." Finally, when this officer brought Wright to Grant so Grant could identify him, Grant testified that Wright was wearing the same clothes as the man who robbed him.
{¶ 58} Given this evidence, it was not against the manifest weight of the evidence for the jury to conclude that Wright was the man who committed this crime. The various descriptions of what he was wearing differ slightly (khaki shorts vs. brown shorts, the descriptions of Wright's shirt), but these differences all fall within the range of what one would expect when different people are describing the same thing. And most importantly, Grant testified that Wright was wearing the same clothes in the police cruiser that he was wearing when he robbed Grant a few minutes earlier. Thus, Wright's arguments in his sixth assignment of error are meritless.
{¶ 60} In Gaines, the Ohio Supreme Court distinguished between a "deadly weapon", necessary to convict someone for aggravated robbery under R.C.
{¶ 61} The State can prove that the weapon was operable or could readily have been rendered operable at the time of the offense in a variety of ways without admitting the firearm allegedly employed in the crime into evidence. Gaines at 69.
{¶ 62} "When determining whether a firearm is capable of expelling or propelling one or more projectiles by the action of an explosive or combustible propellant, the trier of fact may rely upon circumstantial evidence, including, but not limited to, the representations and actions of the individual exercising control over the firearm." R.C.
{¶ 63} Testimony as to gunshots, smell of gunpowder, bullets, or bullet holes, may establish that the weapon was operable.Gaines at 69; see e.g., State v. Christian (Aug. 27, 1999), 7th Dist. No. 97 CA 171. Thus, in Gaines, the Ohio Supreme Court found the evidence insufficient to support a firearm specification when the only testimony about the weapon concerned its appearance and the witnesses' subjective belief that it was operable. Id.
{¶ 64} The Ohio Supreme Court later modified Gaines inState v. Murphy (1990),
{¶ 65} The Ohio Supreme Court addressed this subject again inThompkins. In that case, it held that "the trier of fact may consider all relevant facts and circumstances surrounding the crime, which include any implicit threat made by the individual in control of the firearm" when determining whether a weapon was operable. Id. at paragraph one of the syllabus. Thus, a defendant who told a clerk that he was committing a "holdup", pointed a gun at the clerk, and told the clerk to be "quick, quick" could be convicted of a firearm specification since these actions contained an implicit threat to discharge the weapon. Id. at 383-384.
{¶ 66} "[P]roof of the operability of a firearm can be established by circumstantial evidence, which can consist of the brandishing of a firearm by the defendant and the implicit threat to shoot it." Id. at 385. To hold otherwise would mean "an individual who commits a holdup with a real gun could possibly avoid a firearm specification conviction simply by not saying anything and by not discharging the firearm at the time of the offense. In our judgment, such a result would eviscerate the underlying purposes of the penalty-enhancement provisions of R.C.
{¶ 67} Since Thompkins, courts have routinely found sufficient evidence to support a firearm specification when the defendant brandished a firearm and implicitly threatens to fire it by pointing it at the victim. See State v. Sanders (1998),
{¶ 68} In State v. Haskins, 6th Dist. No. E-01-016, 2003-Ohio-0070, the appellate court also found that there was sufficient evidence based on the circumstantial evidence. In that case, the victim never saw a firerarm, but the defendant threatened to pull one out of his pocket if she did not give him the money. "Although no firearm was actually visible to the victim or found, the effect on the hearer was that appellant had a firearm and threatened to use it. Thus, we conclude that appellant's explicit threat, when construed most strongly in favor of the state, provides sufficient evidence from which any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt." Id. at ¶ 47; see also State v. Gamble, 2nd Dist. No. 2001 CA 61, 2002-Ohio-3289 (The defendant committed a robbery while physically brandishing a gun and both of the victims were frightened by it and felt threatened and afraid).
{¶ 69} The facts in this case are, for the most part, similar to the ones described above. Wright pointed a gun at Grant's face while robbing him. Grant, a man with ten years of military experience and who was familiar with guns, "was quite sure" the gun was a real gun. He saw that the gun was a revolver and that it had bullets in the cylinder. These facts appear sufficient to support a firearm specification conviction.
{¶ 70} The only fact that distinguishes this case from those mentioned above is that after Grant told Wright that the car would not start, Wright told Grant that the gun was not real. But that the fact that Wright made this statement does not render the facts that would normally support a firearm specification conviction insufficient. If we held otherwise, then a defendant could brandish a weapon, point it at a victim, and demand money, but not be found guilty of the firearm specification if the defendant simply stated that the gun was not real after the defendant committed the robbery. This result "would eviscerate the underlying purposes of the penalty-enhancement provisions of R.C.
{¶ 72} "Appellant was denied his right to a fair trial in violation of the
{¶ 73} Wright claims that the cumulative affect of each of the alleged errors addressed above deprive him of his right to a fair trial. The State responds by claiming that no errors occurred, so multiple errors could not accumulate.
{¶ 74} Although a particular error might not constitute prejudicial error in and of itself, a conviction may be reversed if the cumulative effect of the errors deprives appellant of a fair trial, despite the fact that each error individually does not constitute cause for reversal. State v. DeMarco (1987),
{¶ 76} "The trial court abused its discretion when it imposed more then the minimum sentence without making factual findings to support the sentence as required by Ohio Revised Code
{¶ 77} According to Wright, the trial court could not sentence him to more than the minimum without making a finding under R.C.
{¶ 78} When reviewing a felony sentence, we may only vacate, increase, reduce, or otherwise modify a sentence if we clearly and convincingly find either that the record does not support the sentencing court's findings or that the sentence is otherwise contrary to law. R.C.
{¶ 79} When sentencing an offender, the trial court must consider several aspects of the sentencing statutes. First, it must follow the overriding purposes of felony sentencing, namely, to protect the public from future crime by the offender and others and to punish the offender. R.C.
{¶ 80} If an offender has not previously served a prison term, the trial court may only impose a sentence beyond the minimum term when it specifically finds on the record that the shortest prison term either would demean the seriousness of the offender's conduct or would not adequately protect the public from future crime by the offender. R.C.
{¶ 81} Wright was convicted of aggravated robbery, a first degree felony. The minimum sentence for this crime is three years. R.C.
{¶ 82} The State first argues that the trial court did not need to make either of the findings required by R.C.
{¶ 83} R.C.
{¶ 84} "(1) A stated prison term; (2) A term in a prison shortened by, or with the approval of, the sentencing court pursuant to section
{¶ 85} Time served with the Department of Youth Services does not qualify as a prison term under any of these definitions. Thus, according to the plain language of the statute, the time Wright served with the Department of Youth Services is not a "prison term" for the purposes of R.C.
{¶ 86} In its sentencing entry, the trial court specifically found that Wright "poses the greatest likelihood of recidivism." This finding is clearly sufficient under R.C.
{¶ 87} R.C.
{¶ 88} Although these facts may have supported a finding that a minimum prison term would not adequately protect the public from future crime by the offender, the trial court did not make that finding before announcing Wright's sentence. Nevertheless, Wright's attorney requested a stay of sentence afterward. When denying that motion, the trial court stated that Wright's "history shows that the only way you can protect the public from the crimes he has committed is to keep him incarcerated." Accordingly, the trial court made the required finding at the sentencing hearing even though it did not do so before announcing the sentence.
{¶ 89} There is nothing in R.C. Chapter
{¶ 90} "Except as provided in division (C), (D)(1), (D)(2), (D)(3), or (G) of this section, in section
{¶ 91} Thus, the trial court did not violate R.C.
{¶ 92} Each of Wright's assignments of error are meritless. Accordingly, the judgment of the trial court is affirmed.
Waite, P.J., concurs.
Donofrio, J., concurs.
