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Date: 08-15-2020
Case Style:
STATE OF OHIO v. LESLIE EVANS
Case Number: 108648
Judge: EILEEN T. GALLAGHER
Court: COURT OF APPEALS OF OHIO EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
Plaintiff's Attorney: Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Megan Helton and Eben McNair, Assistant
Prosecuting Attorneys
Defendant's Attorney:
Call 918-582-6422 for free help finding a great criminal defense lawyer.
Description:
 |
Defendant-appellant, Leslie Evans (“Evans”), appeals from his
convictions and sentence following a jury trial. He raises the following assignments
of error for review:
1. The trial court erred by failing to grant defense counsel’s motion to
sever Counts 18, 19, and 20 from the unrelated charges for the three
alleged robberies.
2. Evans’s convictions were not supported by sufficient evidence and
the trial court erred by denying his motions for acquittal.
3. The convictions were against the manifest weight of the evidence.
4. The trial court erred by admitting evidence in violation of Evid.R.
403 and 404(B).
5. The trial court erred by failing to merge all allied offenses of similar
import and by imposing separate sentences for allied offenses which
violated Evans’s state and federal rights to due process and protections
against double jeopardy.
6. Evans’s sentence is contrary to law because the record does not
support the imposition of consecutive sentences.
After careful review of the record and relevant case law, we affirm in
part, reverse in part, and remand for a limited resentencing hearing.
I. Procedural and Factual History
In January 2019, Evans and his codefendants, David Stewart
(“Stewart”) and Tisean Young (“Young”), were named in a 21-count indictment.
Evans was charged with five counts of aggravated robbery in violation of R.C.
2911.01(A)(1), with one- and three-year firearm specifications (Counts 1, 3, 5, 9, and
12); four counts of theft in violation of R.C. 2913.02(A)(1) (Counts 8, 11, 14, and 15);
three counts of robbery in violation of R.C. 2911.02(A)(2), with one- and three-year
firearm specifications (Counts 6, 10, and 13); two counts of petty theft in violation of
R.C. 2913.02(A)(1) (Counts 2 and 4); two counts of tampering with evidence in
violation of R.C. 2921.12(A)(1) (C0unts 16 and 20); and single counts of felonious
assault in violation of R.C. 2903.11(A)(2), with one- and three-year firearm
specifications (Count 7); having weapons while under disability in violation of R.C.
2923.13(A)(2), with a forfeiture specification (Count 18); carrying a concealed
weapon in violation of R.C. 2923.12(A)(2), with a forfeiture specification (Count 19);
and receiving stolen property in violation of R.C. 2913.51(A) (Count 21).
The indictment stemmed from allegations that Evans participated in
a series of aggravated robberies that occurred at a Dollar General store on
September 3, 2018 (the “Dollar General robbery”), a Family Dollar store on
September 30, 2018 (the “Family Dollar robbery”), and a CVS store on October 4,
2018 (the “CVS robbery”). The matter proceeded to a jury trial in April 2019, where
the following relevant evidence was adduced.
On October 4, 2018, two male suspects entered a CVS store located in
Cleveland, Ohio. Theresa Daniels (“Daniels”) testified that she and her daughter,
D.B., were shopping in the CVS when one of the suspects, who was wearing a blackhooded sweatshirt, forced the store customers to the back of the store to keep them
contained in one area. The suspect ordered D.B. to give him the two cell phones that
were in her possession. The suspect also threatened to shoot Daniels and D.B. if
they looked at him. D.B. testified that she “thought she was going to die, he was
going to kill us or something.” (Tr. 363.)
As the suspect in the black-hooded sweatshirt contained the store
customers, the second suspect, later identified as Evans, approached CVS store
employees with a brandished firearm. CVS store pharmacist, Michael Daloisio
(“Daloisio”), testified that the second suspect, who was wearing a green-hooded
sweatshirt, ordered him at gunpoint to open the narcotics safe in the pharmacy area.
Daloisio testified that he informed the suspect that he did not have the ability to
open the safe because it was on a timed lock. Daloisio stated that the suspect began
yelling at him and suddenly “smacked [him] with the gun.” (Tr. 515.) Daloisio fell
to the ground and was bleeding from his head. The suspect also took possession of
Daloisio’s wallet and cell phone. Daloisio testified that his wallet contained his
driver’s license, credit cards, gift cards, a key to his vehicle, and a key to his home.
During the subsequent police investigation, it was later learned that the suspect in
the green-hooded sweatshirt also took a cell phone from the store’s security guard,
Samuel Watkins (“Watkins”).
Detective Timothy Cramer (“Det. Cramer”), of the Cleveland Police
Department, responded to the CVS store as the robbery was ongoing. By the time
Det. Cramer and other responding officers entered the store, however, the two
suspects had successfully fled the scene without apprehension. Det. Cramer testified
that once the store was cleared, he spoke with the victims and recovered video
footage from the store’s surveillance camera system. The video footage was played
for the jury throughout Det. Cramer’s direct examination.
On October 9, 2018, Detective Glenn Detrick (“Det. Detrick”), of the
Cleveland Police Department, was patrolling a known crime area, when his partner
“observed a male, showing characteristics of an armed male standing in [a]
driveway.” (Tr. 439.) Det. Detrick explained that he believed the male was armed
because he was walking with “his hand down by his waist.” (Tr. id.) When Det.
Detrick “shined [a] light on the male,” the male changed his course of direction and
walked behind nearby bushes. When the male was eventually detained for further
investigation, a loaded firearm was located in the bushes where the detectives had
“lost sight of the male.” (Tr. 440.) The male, later identified as Evans, was arrested,
and his cell phone was confiscated. Evans’s involvement in the CVS robbery was not
known by the detectives at the time of his arrest.
In the course of the investigation into the CVS robbery, Cleveland
police detectives were able to track purchases made, or attempted to be made, with
Daloisio’s stolen credit cards. Detective Lisette Gonzalez (“Det. Gonzalez”), of the
Cleveland Police Department, testified that a purchase in excess of $400 was
attempted at a gun store by “an individual by the name of David Stewart.” In
addition, an attempted purchase was declined at an online clothing store. However,
a stolen credit card was successfully used to purchase food at a fast-food restaurant.
Det. Gonzales testified that investigators reviewed surveillance
footage from the fast-food restaurant, and identified the vehicle that was used to
purchase food with Daloisio’s stolen credit card. The vehicle was registered to
Evans’s mother, Latisha Edwards. Det. Gonzalez testified that she entered
Edwards’s name into the Cuyahoga County juvenile database and learned that Evans
was her son. Upon further investigation, Det. Gonzalez discovered that Evans had
been arrested by the gang-impact unit on October 9, 2018, and was wearing a greenhooded sweatshirt at the time of his detention. Det. Gonzales explained that this
was significant because the clothing worn by Evans at the time of his arrest “matched
the same clothing that was worn during [other] aggravated robberies within the
Fourth District.” (Tr. 467.)
On November 7, 2018, a search warrant was executed at Evans’s
home, where he lived with his mother and her boyfriend, codefendant Stewart.
During the search, the detectives located ammunition, Daloisio’s wallet, an ATM
bank card belonging to Daloisio, credit cards belonging to Daloisio, an unidentified
key, Watkins’s social security card, Watkins’s Medicare card, credit cards belonging
to Watkins, a black-hooded sweatshirt that matched the clothing worn by the one of
the suspects during the CVS robbery, and a green-hooded sweatshirt that matched
the clothing worn by the second suspect during the CVS robbery. (Tr. 491-492.) In
addition, certain items of clothing and a pair of shoes recovered from Evans’s home
were linked to the Family Dollar robbery. (Tr. 533.)
Based on the evidence seized from his residence, Evans was
interviewed by Det. Cramer about his involvement in the string of robberies.
Relevant to this appeal, Det. Cramer testified that Evans admitted to participating
in the CVS robbery. Evans confirmed that he was the suspect wearing a greenhooded sweatshirt by signing his name on a still image taken from the surveillance
footage of the CVS robbery.
Regarding his specific actions during the CVS robbery, Evans
admitted that he took a cell phone from the CVS security guard and subsequently
took the pharmacist’s wallet and cell phone. Evans indicated that he and Young
“dump[ed]” the stolen cell phones in a back yard as they fled the scene. (Tr. 533.)
Based on this information, the cell phones were recovered by officers several days
after Evans’s interview. Det. Cramer testified that Evans further acknowledged that
he used “a glock” during the CVS robbery, and that he subsequently sold the firearm
to an unknown individual for $250. (Tr. 531.)
Finally, Det. Cramer testified that he questioned Evans about the
circumstances of his arrest on October 9, 2018. In relevant part, Evans admitted
that he “ditched the firearm” that was recovered by detectives in the bushes. (Tr.
535.)
Codefendant Young testified on behalf of the state pursuant to the
terms of his plea agreement. He admitted to participating in the CVS robbery with
Evans and codefendant Stewart. Young stated that he and Evans were “brothers”
and grew up together in the same neighborhood. On October 4, 2018, Young
received a phone call from Evans, who urged Young to come to his house. When
Young arrived at Evans’s house, he was told that Stewart had orchestrated a plan for
Young and Evans to obtain a gun and complete a robbery at a pharmacy. Young
stated that he, Evans, and Stewart then left the house to obtain a gun from an
unidentified location. Once Evans was in possession of a gun, Stewart drove Evans
and Young to the CVS store. Young testified that he and Evans then went inside the
CVS store while Stewart remained in the vehicle.
During his testimony, Young reluctantly described the events of the
robbery as they unfolded on the surveillance video footage. Young confirmed that
he was the individual wearing a black-hooded sweatshirt. While Young declined to
identify Evans as the second suspect depicted in the video, he previously confirmed
that Evans was wearing a “green pullover” on the night of the CVS robbery. (Tr.
397.) Young testified that he was not in possession of a firearm and that his role in
the robbery was to be the lookout. Young explained that Stewart advised them to
take cash from the store registers and to go into the pharmacy if they had time.
Young testified that they were unable to get cash from the store registers, but did
take cell phones from female customers. After Young and Evans left the CVS store,
they ran to Evans’s home, which was located nearby.
Sergeant Christopher Mobley (“Sgt. Mobley”), of the Cleveland Police
Department, testified that he used a software extraction program to retrieve
information from Evans’s cell phone. Sgt. Mobley testified that he recovered a text
message that was sent to Evans’s phone on October 3, 2019, which read, “You think
we will actually get it for a whole night so we can go on a robbing spree?” The text
message was sent from a phone number associated with codefendant Stewart. Sgt.
Mobley testified that he also extracted several images from Evans’s cell phone. The
images were taken on October 1, 2018, and October 4, 2018. Sgt. Mobley described
the individual in the images as “an African American male wearing an olive green
hoodie.” (Tr. 381.)
At the close of the state’s case, the charges relating to Evans’s alleged
participation in the Dollar General robbery were dismissed. (Counts 1 and 2).
Thereafter, defense counsel moved for a judgment of acquittal on the remaining
counts pursuant to Crim.R. 29. The trial court denied defense counsel’s motion, and
the defense rested without presenting its own witnesses. Defense counsel then
renewed the Crim.R. 29 motion, which the trial court denied.
At the conclusion of the trial, the jury found Evans not guilty of the
charges relating to the Family Dollar robbery. (Counts 3 and 4.) The jury also found
Evans not guilty of Count 9, which pertained to the aggravated robbery charge
involving the CVS-robbery victim, D.B. In addition, while the jury found Evans
guilty of robbery as charged in Count 10 of the indictment, the firearm specifications
attached to the offense were answered in the negative. (Tr. 682.) Evans was found
guilty of all remaining counts and specifications.
At the sentencing hearing, the trial court determined that the
aggravated robbery and robbery offenses charged in Counts 5 and 6 were allied
offense of similar import. (Tr. 695; 699.) In addition, the court found that the
aggravated robbery and robbery offenses charged in Counts 12 and 13 were allied
offenses of similar import. (Tr. 699.) The state elected to pursue with sentencing
on the aggravated robbery offenses.
Following a discussion on the record, the trial court sentenced Evans
to 11 years in prison on the aggravated robbery offense charged in Count 5, to run
consecutively with the attached three-year firearm specification; six years in prison
on the felonious assault offense charged in Count 7, to run consecutively with the
attached three-year firearm specification; six months in prison on the theft offense
charged in Count 8; two years in prison on the robbery offense charged in Count 10;
six months in prison on the theft offense charged in Count 11; six years in prison on
the aggravated robbery offense charged in Count 12; six months in prison on the
theft offense charged in Count 14; six months in prison on the theft offense charged
in Count 15; 36 months in prison on the tampering with evidence offense charged in
Count 16; 36 months in prison on the having weapons while under disability offense
charged in Count 18; 18 months in prison on the carrying a concealed weapons
offense charged in Count 19; 36 months in prison on the tampering with evidence
offense charged in Count 20; and 12 months in prison on the receiving stolen
property offense charged in Count 21.
Upon consideration, the trial court determined that it was necessary
to impose consecutive sentences. The court expressed that the aggregate 14-year
prison term imposed on Count 5, the two-year prison term imposed on Count 10,
and the six-year prison term imposed on Count 12, would run consecutively. (Tr.
714.) In addition, the trial court ordered the three-year firearm specification
attached to Count 7 to run consecutively with the firearm specification attached to
Count 5 pursuant to R.C. 2929.14(B)(1)(g).1 (Tr. 712.) The remaining terms of
imprisonment were ordered to run concurrently. At the conclusion of the
sentencing hearing, the trial court inaccurately expressed that Evans’s aggregate
sentence was 23 years in prison, as opposed to the 25-year prison term imposed by
the court on the record. (Tr. 718.)
1 The trial court expressed that the three-year firearm specification attached to
Count 12 would merge with the firearm specifications attached to Counts 5 and 7. (Tr.
713.)
On May 8, 2019, the trial court issued a sentencing journal entry.
Consistent with the court’s statements during the sentencing hearing, the
sentencing journal entry imposed an aggregate 25-year prison term, and expressed
that the prison terms imposed on Counts 5, 10, and 12 were ordered to run
consecutively pursuant to R.C. 2929.14(C)(4). However, in contrast to the
statements made on the record, the sentencing entry mistakenly ran the firearm
specification attached to Count 6, as opposed to the firearm specification attached
to Count 7, consecutive to the three-year firearm specification attached to Count 5.2
In addition, the sentencing journal entry mistakenly stated that Evans was found
guilty of the firearm specifications attached to Count 10.
On June 18, 2019, the trial court issued a nunc pro tunc journal entry
to correct purported clerical errors. Once again, the corrected journal entry reflected
an aggregate 25-year prison term. In the attempt to correct certain clerical errors,
however, the journal entry omitted all references to the jury’s verdict on Count 10.3
In addition, the corrected journal entry specified that the three-year firearm
specification attached to Count 5 would run “consecutive to all other counts,” but
that “all other gun specs [were] to be served concurrently.” Thus, inconsistent with
2 This was undoubtedly a clerical error because the trial court had merged Counts
5 and 6 for the purposes of sentencing.
3 The original sentencing order complied with the substantive requirements of
Crim.R. 32(C), was a final order for purposes of R.C. 2505.02, and was appealed by Evans.
The omission of Count 10 in the nunc pro tunc order did not impair the jurisdiction of
this court. Although the omission must be corrected by an additional nunc pro tunc entry,
it will not constitute a new order from which a new appeal may be taken. State v. Lester,
130 Ohio St.3d 303, 2011-Ohio-5204, 958 N.E.2d 142, syllabus.
R.C. 2929.14(B)(1)(g) and the court’s statements on the record during the
sentencing hearing, the corrected sentencing journal entry imposed a prison term
on a single three-year firearm specification.
Evans now appeals from his convictions and sentence.
II. Law and Analysis
A. Motion for Severance
In his first assignment of error, Evans argues the trial court erred by
failing to grant defense counsel’s motion to sever Counts 18, 19, and 20 from the
remaining charges. Counts 18, 19, and 20 stemmed from the events leading to
Evans’s arrest on October 9, 2018, including the discovery of a gun that was alleged
to have been discarded by Evans before his detainment.
Under Crim.R. 8(A), which governs the joinder of offenses, two or
more offenses may be charged together if the offenses “are of the same or similar
character, * * * or are based on two or more acts or transactions connected together
or constituting parts of a common scheme or plan, or are part of a course of criminal
conduct.”
The law favors joining multiple offenses in a single trial if the
requirements of Crim.R. 8(A) are satisfied. State v. Lott, 51 Ohio St.3d 160, 163, 555
N.E.2d 293 (1990); State v. Ferrell, 8th Dist. Cuyahoga No. 100659, 2014-Ohio4377, ¶ 38. If it appears, however, that the defendant would be prejudiced by the
joinder, a trial court may grant a severance. Crim.R. 14; State v. Diar, 120 Ohio
St.3d 460, 2008-Ohio-6266, 900 N.E.2d 565, ¶ 95. The defendant bears the burden
of proving prejudice and that the trial court abused its discretion in denying
severance. Diar at ¶ 95.
The state can refute a defendant’s claim of prejudice by joinder of
multiple offenses in two ways (1) a showing that the evidence of each crime is simple
and direct, or (2) evidence of the other crimes would be admissible even if the counts
were severed. State v. Anderson, 2017-Ohio-931, 86 N.E.3d 870, ¶ 25 (8th Dist.),
citing Lott at 163. When the evidence is “simple and direct,” an accused is not
prejudiced by joinder regardless of the nonadmissibility of evidence of the crimes as
other acts under Evid.R. 404(B). Lott at 163. Thus, if the state can meet the
requirements of the “joinder test,” it need not meet the requirements of the stricter
“other acts test.” State v. Peterson, 8th Dist. Cuyahoga Nos. 100897 and 100899,
2015-Ohio-1013, ¶ 66, citing State v. Franklin, 62 Ohio St.3d 118, 122, 580 N.E.2d 1
(1991).
“Simple and direct” evidence means that the evidence of each crime
is “so clearly separate and distinct as to prevent the jury from considering evidence
of [some crimes] as corroborative of the other.” State v. Belle, 8th Dist. Cuyahoga
Nos. 107046 and 107300, 2019-Ohio-787, ¶ 25, citing State v. Quinones, 11th Dist.
Lake No. 2003-L-015, 2005-Ohio-6576, ¶ 48. Evidence is “simple and direct” if the
trier of fact is capable of segregating the proof required for each offense. Id., citing
State v. Gravely, 188 Ohio App.3d 825, 2010-Ohio-3379, 937 N.E.2d 136, ¶ 39 (10th
Dist.). “Ohio appellate courts routinely find no prejudicial joinder where the
evidence is presented in an orderly fashion as to the separate offenses or victims
without significant overlap or conflation of proof.” State v. Echols, 8th Dist.
Cuyahoga No. 102504, 2015-Ohio-5138, ¶ 16, citing State v. Lewis, 6th Dist. Lucas
Nos. L-09-1224 and L-09-1225, 2010-Ohio-4202, ¶ 33.
In this case, defense counsel filed a motion for relief from prejudicial
joinder, arguing that Evans would “suffer unfair prejudice” and would be denied a
fair trial if the counts associated with his October 9, 2018 arrest were tried together
with the counts stemming from the alleged robberies. Following a discussion on the
record, the court denied the motion to sever. (Tr. 19.)
On appeal, Evans reiterates the arguments set forth in his pretrial
motion. He contends that joinder of the offenses stemming from his arrest on
October 9, 2018, resulted in unfair prejudice because it “depicted [him] to the jury
as a person who handles firearms and is associated with gangs being under
investigation or arrested by the gang unit.”
After careful consideration, we find no information in the record to
suggest Evans was prejudiced by the joinder of offenses. Contrary to Evans’s
position, there is no indication that the evidence pertaining to his arrest on October
9, 2018, was confusing or improperly used to corroborate the charges stemming
from the alleged robberies. The testimony regarding each incident was presented in
an orderly fashion without significant overlap or conflation of proof. The
convictions were premised on distinct evidence, including testimony from separate
investigating detectives. In fact, the record establishes that the jury was sufficiently
able to segregate the evidence regarding each offense, as evidenced by their finding
of not guilty on Counts 3, 4, and 9. See State v. Lee, 8th Dist. Cuyahoga No. 104682,
2017-Ohio-1449, ¶ 19 (the evidence was “simple and direct” as reflected by the jury
acquitting the defendant of offenses relating to one of the several shootings); State
v. Nitsche, 2016-Ohio-3170, 66 N.E.3d 135, ¶ 95 (8th Dist.) (defendant could not
show prejudice from joinder as he was acquitted of one charge); State v. Banks,
2015-Ohio-5413, 56 N.E.3d 289, ¶ 66-68 (8th Dist.) (defendant was unable to show
prejudice for the court’s refusal to sever his offenses because he was acquitted of
some charges).
Because the evidence supporting each offense was simple and direct,
we find the trial court did not abuse its discretion in denying Evans’s motion to sever.
Evans’s first assignment of error is overruled.
B. Sufficiency of the Evidence
In his second assignment of error, Evans argues the trial court erred
by denying his motion for acquittal pursuant to Crim.R. 29. He contends his
convictions are not supported by sufficient evidence.
Crim.R. 29(A) provides for an acquittal “if the evidence is insufficient
to sustain a conviction of such offense or offenses.” A sufficiency challenge
essentially argues that the evidence presented was inadequate to support the jury
verdict as a matter of law. State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d
541 (1997). ‘“The relevant question is whether, after viewing the evidence in the light
most favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.”‘ State v. Getsy, 84 Ohio
St.3d 180, 193, 702 N.E.2d 866 (1998), quoting Jackson v. Virginia, 443 U.S. 307,
99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
It is well established that the elements of an offense may be proven by
direct evidence, circumstantial evidence, or both. See State v. Durr, 58 Ohio St.3d
86, 568 N.E.2d 674 (1991). Direct evidence exists when “a witness testifies about a
matter within the witness’s personal knowledge such that the trier of fact is not
required to draw an inference from the evidence to the proposition that it is offered
to establish.” State v. Cassano, 8th Dist. Cuyahoga No. 97228, 2012-Ohio-4047,
¶ 13. Circumstantial evidence, on the other hand, is evidence that requires “the
drawing of inferences that are reasonably permitted by the evidence.” Id. See also
State v. Hartman, 8th Dist. Cuyahoga No. 90284, 2008-Ohio-3683, ¶ 37
(“[C]ircumstantial evidence is the proof of facts by direct evidence from which the
trier of fact may infer or derive by reasoning other facts in accordance with the
common experience of mankind.”).
Circumstantial and direct evidence are of equal evidentiary value.
State v. Santiago, 8th Dist. Cuyahoga No. 95333, 2011-Ohio-1691, ¶ 12. “Although
there are obvious differences between direct and circumstantial evidence, those
differences are irrelevant to the probative value of the evidence.” Cassano at ¶ 13,
citing State v. Treesh, 90 Ohio St.3d 460, 485, 739 N.E.2d 749 (2001). In some
cases, circumstantial evidence may be “‘more certain, satisfying and persuasive than
direct evidence.’” Lott, 51 Ohio St.3d 160, at 167, 555 N.E.2d 293, quoting Michalic
v. Cleveland Tankers, Inc., 364 U.S. 325, 330, 81 S.Ct. 6, 5 L.Ed.2d 20 (1960).
In this case, Evans was convicted on two counts of aggravated robbery
in violation of R.C. 2911.01(A)(1), with one- and three-year firearm specifications;
two counts of robbery in violation of R.C. 2911.02(A)(2), with one- and three-year
firearm specifications; one count of robbery in violation of R.C. 2911.02(A)(2),
without firearm specifications; one count of felonious assault in violation of R.C.
2903.11(A)(2), with one- and three-year firearm specifications; four counts of theft
in violation of R.C. 2913.02(A)(1); two counts of tampering with evidence in
violation of R.C. 2921.12(A)(1); one count of carrying concealed weapons in violation
of R.C. 2923.12(A)(2); one count of receiving stolen property in violation of R.C.
2913.51(A); and one count of having weapons while under disability in violation of
R.C. 2923.13(A)(2).
We separately address the sufficiency of the evidence supporting each
conviction and the attached firearm specifications.
1. Firearm Specifications (Counts 5, 6, 7, 12, and 13)
We begin our analysis by addressing Evans’s challenge to the
evidence supporting his firearm specifications. The determination of whether Evans
was in possession of a firearm during the CVS robbery on October 4, 2018, is
relevant to our assessment of the underlying offenses.
In this case, Evans was found guilty of the one-and three-year firearm
specifications attached to the aggravated robbery, robbery, and felonious assault
offenses charged in Counts 5, 6, 7, 12, and 13 of the indictment. On appeal, Evans
argues the state did not present sufficient evidence to support the specifications
because “there was no firearm recovered from, or related to, the October 4, 2018,
CVS robbery.”
R.C. 2941.141(A) governs the one-year firearm specification and
requires the jury to find that “the offender had a firearm on or about the offender’s
person or under the offender’s control while committing the offense.” R.C.
2941.145(A) governs the three-year firearm specification and requires the jury to
find that “the offender had a firearm on or about the offender’s person or under the
offender’s control while committing the offense and displayed the firearm,
brandished the firearm, indicated that the offender possessed the firearm, or used it
to facilitate the offense.”
A “firearm” is “any deadly weapon capable of expelling or propelling
one or more projectiles by the action of an explosive or combustible propellant.”
R.C. 2923.11(B)(1). It includes an unloaded firearm, and any firearm that is
inoperable but that can readily be rendered operable. Id.
In Thompkins, 78 Ohio St.3d 380, 678 N.E.2d 541, the Ohio Supreme
Court elaborated on the requisite proof to sustain a firearm specification:
A firearm enhancement specification can be proven beyond a
reasonable doubt by circumstantial evidence. In determining whether
an individual was in possession of a firearm and whether the firearm
was operable or capable of being readily rendered operable at the time
of the offense, 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.
Id. at paragraph one of the syllabus.
“Thus, with respect to operability of a firearm in cases where no shots
are fired and the firearm is not recovered, circumstantial evidence, such as the
representations and actions of the gun operator, are of crucial importance.” State v.
Lavette, 8th Dist. Cuyahoga No. 106169, 2019-Ohio-145, ¶ 57, citing State v. Fulton,
8th Dist. Cuyahoga No. 96156, 2011-Ohio-4259, ¶ 34; State v. Ware, 9th Dist.
Summit No. 22919, 2006-Ohio-2693, ¶ 13.
In this case, Daloisio testified that an individual with a gun entered
the CVS store and ordered him to hand over his wallet and cell phone. The suspect
then ordered Daloisio to open the narcotics safe at gunpoint. When Daloisio was
unable to comply with the suspect’s demands, the suspect struck Daloisio’s head
with his gun. The incident was captured by the store’s surveillance cameras. The
surveillance footage depicts an individual, wearing a greed-hooded sweatshirt, enter
the CVS store and immediately remove a gun from his pocket. The suspect in the
green-hooded sweatshirt is seen pointing a gun at the store’s security guard and
Daloisio during the robbery. Once in police custody, Evans admitted his
involvement in the CVS robbery. He identified himself as the suspect wearing the
green-hooded sweatshirt, and signed a still image of him entering the CVS store on
October 4, 2018. Det. Cramer testified that Evans further acknowledged that the
gun he used during the CVS robbery was “a Glock.”
Based upon these facts, we find the firearm specifications were
supported by sufficient evidence. Unquestionably, Evans facilitated the underlying
offenses while brandishing a gun in a threatening manner. As recognized by this
court, “[t]he implicit threat while brandishing the gun so as to threaten [the victims]
is sufficient to establish its operability.” See State v. Cummings, 8th Dist. Cuyahoga
No. 106458, 2018-Ohio-4214, ¶ 22 (finding sufficient evidence supporting firearm
specification where the defendant ordered the victim to empty his pockets while
pointing a gun at the victim’s chest). Accordingly, we find that Evans possessed,
displayed, and brandished a firearm while committing the offenses pursuant to R.C.
2941.145(A). We also find that Evans had a firearm on his person and under his
control while committing the offenses pursuant to R.C. 2941.141(A).
While Evans notes that neither “D.B. nor her mother claimed to have
seen a gun or weapon,” we reiterate that Evans was found not guilty of the firearm
specifications attached to offenses pertaining to D.B. Moreover, while Young did
not expressly state that Evans possessed a firearm during the robbery, he described
Evans’s acquisition of a firearm on the night of the robbery, and corroborated Det.
Cramer’s testimony that Evans was the individual wearing the green-hooded
sweatshirt in the surveillance video.
2. Theft (Counts 8, 11, 14, and 15)
Counts 8, 11, 14, and 15 charged Evans with theft in violation of R.C.
2913.02(A)(1). The charges stemmed from separate acts committed against
Daloisio, D.B., and Watkins during the CVS robbery on October 4, 2018.
A theft occurs when any person, “with purpose to deprive the owner
of property or services, * * * knowingly obtain[s] or exert[s] control over either the
property or services” without consent, or beyond the scope of consent, or by
deception, threat, or intimidation. R.C. 2913.02(A)(1).
A person acts purposely when it is the person’s specific intention to
cause a certain result, or, when the gist of the offense is a prohibition
against conduct of a certain nature, regardless of what the offender
intends to accomplish thereby, it is the offender’s specific intention to
engage in conduct of that nature.
R.C. 2901.22(A).
A person acts knowingly, regardless of purpose, when the person is
aware that the person’s conduct will probably cause a certain result or
will probably be of a certain nature. A person has knowledge of
circumstances when the person is aware that such circumstances
probably exist.
R.C. 2901.22(B).
“‘Deprive’ means to do any of the following:
(1) Withhold property of another permanently, or for a period that
appropriates a substantial portion of its value or use, or with purpose
to restore it only upon payment of a reward or other consideration;
(2) Dispose of property so as to make it unlikely that the owner will
recover it;
(3) Accept, use, or appropriate money, property, or services, with
purpose not to give proper consideration in return for the money,
property, or services, and without reasonable justification or excuse for
not giving proper consideration.
R.C. 2913.01(C).
Ohio’s complicity statute provides that “[n]o person, acting with the
kind of culpability required for the commission of an offense, shall * * * [a]id or abet
another in committing the offense.” R.C. 2923.03(A)(2).
To support a conviction for complicity by aiding and abetting, “the
evidence must show that the defendant supported, assisted, encouraged, cooperated
with, advised, or incited the principal in the commission of the crime, and that the
defendant shared the criminal intent of the principal.” State v. Johnson, 93 Ohio
St.3d 240, 245-246, 754 N.E.2d 796 (2001). Aiding and abetting may be inferred
from the circumstances surrounding the crime, including “presence,
companionship, and conduct before and after the offense is committed.” Id. at 245,
quoting State v. Pruett, 28 Ohio App.2d 29, 34, 273 N.E.2d 884 (4th Dist.1971). See
also State v. Sanders, 8th Dist. Cuyahoga No. 106744, 2018-Ohio-4603, ¶ 11. When
an individual acts to aid or abet a principal in the commission of an offense, the
individual and principal are equally guilty and the individual is prosecuted and
punished as if he were a principal offender. R.C. 2923.03(F).
In this case, the indictment alleged that Evans purposefully deprived
the victims of their property without their consent. Specifically, the indictment
alleged that Evans knowingly obtained and/or exerted control over (1) Daloisio’s
“cell phone and/or wallet and/or wallet contents” (C0unt 8), (2) Daloisio’s credit
cards or services (Count 15), (3) D.B.’s cell phone or services (Count 11), and (4)
Watkins’s cell phone or services (Count 14).
Viewing the evidence in the light most favorable to the state, we find
a rational trier of fact could have found the theft offenses proven beyond a
reasonable doubt. In this case, the evidence presented at trial established that Evans
and Young entered the CVS store together and purposefully deprived Daloisio, D.B.,
and Watkins of their personal property. The subject property was obtained in a
threatening manner, establishing the lack of consent, and the perpetrators fled the
store with possession of the subject property, thereby demonstrating their intent to
permanently withhold the property from each victim. Det. Cramer testified that
Evans admitted his role in the CVS robbery and identified himself as the individual
wearing a green-hooded sweatshirt during the incident.
While Evans did not directly deprive D.B. of her personal property,
the jury could reasonably conclude that Evans aided and abetted Young in the
commission of the crime.4 Young’s testimony established that he and Evans entered
the CVS store together, with a shared criminal intent. Under these circumstances,
we find a reasonable factfinder could infer that Evans “supported, assisted,
encouraged, cooperated with, advised, or incited [Young] in the commission of the
crime” against D.B.
Finally, although Evans notes that Watkins did not testify at trial, Det.
Cramer testified that Evans admitted that he took a cell phone from the store’s
security guard during the CVS robbery. Det. Cramer explained that the police report
identified Watkins as the security guard Evans was referring to during his interview.
Furthermore, Watkins’s personal property was discovered inside Evans’s home
during the subsequent investigation.
4 Evans does not dispute the jury’s determination that he was complicit in the acts
committed against D.B. by codefendant Young. See R.C. 2923.03(F).
Based on the foregoing, we find the state presented sufficient
evidence that Evans committed the theft offenses against Daloisio and Watkins, and
was complicit in the theft offense committed against D.B.
3. Aggravated Robbery (Counts 5 and 12)
Evans’s aggravated robbery convictions stem from acts committed
against Daloisio and Watkins on October 4, 2018. R.C. 2911.01(A)(1) states, in
relevant part:
No person, in attempting or committing a theft offense, as defined in
section 2913.01 of the Revised Code, or in fleeing immediately after the
attempt or offense, shall * * * [h]ave a deadly weapon on or about the
offender’s person or under the offender’s control and either display the
weapon, brandish it, indicate that the offender possesses it, or use it[.]
Pursuant to R.C. 2913.02(A)(1), a “theft offense” includes a violation
of R.C. 2913.02(A)(1), as charged in Counts 8, 14, and 15.
The term “deadly weapon” is defined by R.C. 2923.11(A) as “any
instrument, device, or thing capable of inflicting death, and designed or specially
adapted for use as a weapon, or possessed, carried, or used as a weapon.” See R.C.
2911.01(D)(1). “Proof of the existence of a deadly weapon does not require that the
state actually come into possession of the weapon — the fact required to be proved
may be inferred from other evidence.” State v. Smith, 8th Dist. Cuyahoga No.
107899, 2019-Ohio-4671, ¶ 15, quoting State v. Hawkins, 8th Dist. Cuyahoga No.
53026, 1987 Ohio App. LEXIS 9612, *5 (Nov. 12, 1987), citing State v. Boyce, 21
Ohio App.3d 153, 154, 486 N.E.2d 1246 (10th Dist. 1985).
For the reasons previously discussed, we find Evans’s aggravated
robbery convictions are supported by sufficient evidence. At trial, codefendant
Young described the events leading up to the commission of the CVS robbery,
including Evans’s successful acquisition of a firearm from an unidentified person on
the night of the robbery. Once inside the CVS store, Evans brandished the firearm
and, ultimately, took possession of Daloisio and Watkins’s personal property. As
stated, the manner in which Evans used the firearm during the commission of the
underlying theft offenses supported an inference that the firearm was operable.
Daloisio testified that he observed the gun in Evans’s possession, and Evans is
observed pointing a gun directly at Daloisio and Watkins on the surveillance video
footage. While Watkins did not testify at trial, Evans confessed to taking the security
guard’s cell phone, and further admitted that he committed the CVS robbery while
in possession of “a Glock.”
Viewing this evidence in a light most favorable to the state, we find
the essential elements of the aggravated robbery offenses were proven beyond a
reasonable doubt.
4. Robbery (Counts 6, 10, and 13)
Evans was also convicted on three counts of robbery in violation of
R.C. 2911.02(A)(2). Counts 6, 10, and 13 correlated to acts committed against
Daloisio, Watkins, and D.B. In order to substantiate each robbery charge in this
case, the state was required to demonstrate beyond a reasonable doubt that Evans
“in attempting or committing a theft offense or in fleeing immediately after the
attempt or offense, * * * [i]nflicted, attempted to inflict, or threatened to inflict
physical harm on another.” R.C. 2911.02(A)(2). The term “physical harm” includes
“any injury * * * regardless of its gravity or duration.” R.C. 2901.01(A)(3).
An implied threat of physical harm is sufficient to support a
conviction under R.C. 2911.02(A)(2). Regarding the circumstances presented in this
case, the Ohio Supreme Court has recognized that:
One cannot display, brandish, indicate possession of, or use a deadly
weapon in the context of committing a theft offense without conveying
an implied threat to inflict physical harm. It is the very act of
displaying, brandishing, indicating possession, or using the weapon
that constitutes the threat to inflict harm because it intimidates the
victim into complying with the command to relinquish property
without consent.
State v. Evans, 122 Ohio St.3d 381, 2009-Ohio-2974, 911 N.E.2d 889, ¶ 23.
On appeal, Evans restates that his robbery conviction relating to
Watkins is not supported by sufficient evidence because Watkins did not testify at
trial. He makes no specific arguments regarding the robbery offense committed
against D.B. or Daloisio.
After careful review, we find Evans’s robbery convictions are
supported by sufficient evidence. As discussed, the state presented sufficient
evidence that Evans committed the underlying theft offenses against Daloisio,
Watkins, and D.B., by depriving them of their personal property without their
consent. In effectuating the offenses against Daloisio and Watkins, Evans
brandished a firearm, thereby conveying an implicit threat of physical harm. In
addition, the record reflects that codefendant Young took possession of D.B.’s cell
phone and expressly threatened to shoot her. Thus, “in attempting or committing a
theft offense or in fleeing immediately after the attempt or offense,” Young did
threaten to inflict physical harm on another. Certainly, the evidence in this case
established that Evans was complicit in Young’s commission of the robbery offense
against D.B.
Viewing this evidence in a light most favorable to the state, we find
the essential elements of the robbery offenses were proven beyond a reasonable
doubt.
5. Felonious Assault (Count 7)
Evans was convicted of felonious assault in violation of R.C.
2903.11(A)(2), which states that “[n]o person shall knowingly * * * [c]ause or
attempt to cause physical harm to another * * * by means of a deadly weapon or
dangerous ordnance.” The offense correlated to the acts committed against
Daloisio.
A firearm that is used as a bludgeon constitutes a deadly weapon.
State v. Jackson, 92 Ohio St.3d 436, 440, 751 N.E.2d 946 (2001). In Jackson, the
Ohio Supreme Court held that testimony that the defendant had struck the victim
over the head with his handgun, causing her to fall to her knees bleeding, was
sufficient to establish “the essential elements of the crime of felonious assault under
R.C. 2903.11(A)(2) in that a firearm used as a bludgeon is ‘capable of inflicting
death.’” Id., quoting State v. Gaines, 46 Ohio St.3d 65, 68, 545 N.E.2d 68 (1989).
See, e.g., State v. Keil, 5th Dist. Richland No. 16CA28, 2017-Ohio-593, ¶ 33-35
(defendant committed felonious assault when he hit victim in the head with a
handgun, causing a laceration).
In this case, Daloisio testified that the suspect struck him on the head
with a gun, causing Daloisio to bleed from his head. The perpetrator, who was
wearing a green-hooded sweatshirt, was later identified as Evans. The incident was
captured by the store’s surveillance cameras. Viewed in a light most favorable to the
state, this evidence was sufficient to establish that Evans feloniously assaulted
Daloisio in violation of R.C. 2903.11(A)(2).
6. Tampering with Evidence (Counts 16 and 20)
Tampering with evidence is defined in R.C. 2921.12(A)(1), which
states:
No person, knowing that an official proceeding or investigation is in
progress, or is about to be or likely to be instituted, shall * * * (1) Alter,
destroy, conceal, or remove any record, document, or thing, with
purpose to impair its value or availability as evidence in such
proceeding or investigation[.]
The Ohio Supreme Court has explained that there are three elements
to the tampering with evidence offense:
(1) the knowledge of an official proceeding or investigation in progress
or likely to be instituted, (2) the alteration, destruction, concealment,
or removal of the potential evidence, [and] (3) the purpose of impairing
the potential evidence’s availability or value in such proceeding or
investigation.
State v. Straley, 139 Ohio St.3d 339, 2014-Ohio-2139, 11 N.E.3d 1175, ¶ 11.
R.C. 2921.12(A)(1) requires a person to act with purpose, meaning
that the person has a specific intention to cause a certain result. State v. Skorvanek,
182 Ohio App.3d 615, 2009-Ohio-1709, 914 N.E.2d 418, ¶ 21 (9th Dist.). When
determining whether the defendant acted purposely, a defendant’s state of mind
may be inferred from the surrounding circumstances. State v. Rock, 3d Dist. Seneca
No. 13-13-38, 2014-Ohio-1786. Therefore, the state must demonstrate that the
defendant knew that an investigation was likely at the time of concealing the
evidence. Knowledge that a criminal investigation is imminent is based upon a
reasonable person standard. State v. Workman, 2015-Ohio-5049, 52 N.E.3d 286,
¶ 51 (3d Dist.).
In this case, Counts 16 and 20 alleged that Evans violated R.C.
2921.12(A)(1) by tampering with (1) the cell phones taken during the CVS robbery
on October 4, 2018, and (2) the firearm recovered in the bushes at the time of his
arrest on October 9, 2018. On appeal, Evans argues that the state failed to “prove
that any cell phones were destroyed, concealed or removed to impair their value or
availability as evidence in a proceeding or investigation.” Similarly, Evans contends
that there is no evidence that the firearm recovered at the time of his arrest was
“placed in the bushes to tamper with it as evidence.” We find no merit to Evans’s
position.
Regarding the CVS robbery, Det. Cramer testified that he responded
to a radio broadcast and arrived at the scene of the robbery as it was ongoing. As
the police entered the store, however, Evans and Young fled through the back of the
building. Evans and Young ran into a neighborhood located behind the CVS and
“jump[ed] a few fences.” At that time, Evans “dumped” the cell phones in a back
yard as he ran. Det. Cramer explained that the police knew this based on
information gathered from Evans and Young during the subsequent police
investigation. The information provided by Evans and Young allowed the police to
recover the tossed cell phones several days later.
With respect to the discovery of a firearm on October 9, 2018, Det.
Detrick was patrolling a high crime area when his sergeant reported observing an
individual, later identified as Evans, who was “showing characteristics” of being
armed. Det. Detrick testified that when he located the individual believed to be
carrying a firearm, he shined his flash light on the individual for further observation.
At that time, the individual turned the corner and walked “behind some bushes
between two properties.” (Tr. 440.) Det. Detrick testified that the individual was
eventually detained for further investigation in the front yard of a nearby property.
When the detectives “searched the area in the bushes where [they] lost sight of the
male * * * [they] found a gun in the bushes.” (Tr. id.) Det. Detrick noted that the
firearm was dry. He explained that this was significant because “it had rained the
night before and earlier in the day, and the gun was dry — so it wasn’t like it had
been there for a while.” Finally, Det. Cramer confirmed that Evans had admitted
during his interview “that he had, in fact, ditched the firearm that was recovered by
[the] detectives.” (Tr. 535.)
Viewing the evidence in a light most favorable to the prosecution, we
conclude that a rational trier of fact could have found, beyond a reasonable doubt,
that a reasonable person in Evans’s position would have known that an official
investigation was in progress or likely to be instituted at the time he tossed the cell
phones on October 4, 2018, and the firearm on October 9, 2018. The police were
dispatched to the scene of the CVS robbery as the incident was ongoing, and Det.
Cramer testified that the store’s security alarm was “going off very loudly” as Evans
and Young fled through the back of the building. Under these circumstances, it was
reasonable to infer that the defendants understood there was a strong likelihood that
the police would arrive to investigate the robbery. Similarly, the evidence
established that on October 9, 2018, Evans changed his course of direction, and
walked directly behind nearby bushes once the detectives shined a flashlight on him.
Under these circumstances, it was reasonable for the trier of fact to conclude that
Evans immediately walked behind the bushes, where the firearm was recovered,
because he understood that an investigative stop was likely to be initiated.
We further find a rational trier of fact could have found proven
beyond a reasonable doubt that Evans concealed the subject property with the
specific intention of impairing its availability as evidence in the investigation. For
purposes of R.C. 2921.12(A)(1), “[a] defendant’s act of removing contraband from
his or her person can constitute concealment or removal if done to avoid discovery.”
State v. Straley, 2d Dist. Clark No. 2012-CA-34, 2013-Ohio-510, ¶ 9, citing State v.
Colquitt, 2d Dist. Clark No. 98-CA-71, 1999 Ohio App. LEXIS 4436, *5 (Sept. 24,
1999). Moreover, circumstantial evidence can be relied on to establish that a
defendant has purposely impaired the availability of evidence. State v. McGee, 1st
Dist. Hamilton No. C-150496, 2016-Ohio-7510, ¶ 28.
Here, Evans’s specific intent to conceal the cell phone for the purpose
of impairing its availability can be inferred from his act of intentionally dumping the
stolen cell phone in a backyard as he fled the scene of the robbery. The stolen
property was removed from Evans’s person and discarded in an area where it likely
would not have been discovered during the police investigation into the CVS
robbery, had Evans not informed the detectives of its location.
As discussed further below, the state also presented sufficient
circumstantial evidence that Evans was responsible for the discarded firearm that
was discovered in the bushes. His specific intent to conceal the firearm for the
purpose of impairing its availability can be inferred from his act of willingly
removing the firearm from his person and tossing it in nearby bushes as the police
approached him. In an effort to prevent its discovery, the firearm was placed in an
area so “as not to be discernible by ordinary observation by those near enough to see
it if it were not concealed.” See State v. Davis, 15 Ohio App.3d 64, 64-65, 472 N.E.2d
751 (1st Dist.1984), quoting State v. Pettit, 20 Ohio App.2d 170, 173-174, 252 N.E.2d
325 (4th Dist.1969). See also State v. Simes, 8th Dist. Cuyahoga No. 103672, 2016-
Ohio-7300 (upholding a tampering with evidence conviction where the defendant
concealed or removed the knife by taking it outside of the residence and throwing it
in the bushes with the purpose of impairing its availability in the investigation).
Based on the foregoing, we find Evans’s tampering with evidence
convictions were supported by sufficient evidence.
7. Carrying a Concealed Weapon (Count 19)
Evans was convicted for committing one count of carrying a
concealed weapon in violation of R.C. 2923.12(A)(2), which provides that “[n]o
person shall knowingly carry or have, concealed on the person’s person or concealed
ready at hand, any of the following: [a] handgun other than a dangerous ordnance.”
In order for a weapon to be concealed it must be “so situated as not to be discernible
by ordinary observation by those near enough to see it if it were not concealed.”
State v. Davis, 15 Ohio App.3d 64, 64-65, 472 N.E.2d 751 (1st Dist.1984).
In challenging the evidence supporting his conviction, Evans
contends that there is no physical evidence linking him to the firearm discovered by
the arresting detectives. Evans further notes that the firearm was not found “on his
person or ready at hand.”
We find no merit to Evans’s argument. As stated, Det. Detrick
testified that he and his partner approached Evans based on their observations and
belief that Evans was carrying a firearm in his waistband. Det. Detrick could not
observe a firearm, but explained that Evans was exhibiting signs of a person possibly
carrying a firearm. Ultimately, the detectives detained Evans “for further
investigation” and searched the area in the bushes where they lost sight of Evans. At
that time, a discarded firearm was discovered in the bushes. Det. Detrick estimated
that the firearm had not been in the bushes very long because the firearm was dry
despite the rainy weather. We agree that the prosecution did not present physical
evidence directly linking Evans to the firearm. As stated, however, Evans admitted
to Det. Cramer that he had “ditched” the firearm recovered by the detectives on
October 9, 2018.
Collectively, we find the state presented sufficient circumstantial
evidence that Evans had a handgun concealed on his person. Because Det. Detrick
could not see the handgun at the time he shined his flashlight on Evans, the jury
could reasonably infer that Evans had the weapon concealed on or about his person
before walking to the location where the weapon was carefully discarded and soon
after discovered. See, e.g., State v. Crossley, 2d Dist. Clark No. 2015-CA-60, 2016-
Ohio-3196, ¶ 17 (affirming the defendant’s carrying a concealed weapon conviction).
8. Receiving Stolen Property (Count 21)
Evans was convicted of receiving stolen property in violation of R.C.
2913.51(A), which provides:
No person shall receive, retain, or dispose of property of another
knowing or having reasonable cause to believe that the property has
been obtained through commission of a theft offense.
The charge stemmed from the discovery of Daloisio’s credit cards and
wallet inside Evans’s home during the execution of the search warrant. On appeal,
Evans argues there was insufficient evidence to support the receiving stolen
property conviction because Evans “did not receive the property of Daloisio.”
Rather, “he is accused of taking [the property of Daloisio].” He further suggests that
the property was in codefendant Stewart’s possession at the time it was discovered.
After careful consideration, we find Evans’s reliance on the
“receiving” portion of the statute to be misplaced. R.C. 2913.51(A) explicitly
prohibits a person from not only receiving stolen property, but from retaining it.
“Retain” is defined as “to continue to hold, have, use, recognize, etc., and to keep.”
State v. Steward, 4th Dist. Washington No. 02CA43, 2003-Ohio-4082, ¶ 10.
Regarding this element of the offense, this court has explained that:
Possession of stolen property for purpose of the receiving stolen
property statute may be constructive as well as actual. Constructive
possession exists when an individual knowingly exercises dominion
and control over an object, even though that object may not be within
his immediate physical possession. Knowledge of illegal goods on
one’s property is sufficient to show constructive possession.
(Emphasis added.) In re S.C., 8th Dist. Cuyahoga No. 100396, 2014-Ohio-3905,
¶ 19, citing State v. Hankerson, 70 Ohio St.2d 87, 90, 434 N.E.2d 1362 (1982),
syllabus.
In this case, the inventory list completed at the time the search
warrant was executed at Evans’s home reflects that a “brown leather wallet
containing the [social security] card for Michael Daloisio” and a “black leather wallet
containing miscellaneous cards [belonging] to Michael Daloisio and Samuel
Watkins” were discovered in a room designated “Room No. 6.” State’s exhibit No.
132. Det. Gonzalez and Det. Cramer each testified that Room No. 6 correlated to a
“hallway closet” located inside the home. (Tr. 504; 545.)
Under these circumstances, we find a reasonable juror could infer
that Evans had constructive possession of the stolen items at the time the search
warrant was executed in November 2018. The wallet and credit cards were located
in an area of the home that was readily accessible to Evans. In addition, the evidence
demonstrated that Evans understood the illegal goods were on his property, as he
personally brought the stolen items into his home after fleeing the CVS store.
Evans’s retention of the property, with knowledge that it was obtained through
commission of a theft offense, constituted a violation of R.C. 2913.51(A). Testimony
that codefendant Stewart attempted to use the stolen credit cards to purchase items
at a gun store does not diminish our conclusion that Evans was in constructive
possession of the items discovered inside the hallway closet. Accordingly, we find
Evans’s receiving stolen property conviction was supported by sufficient evidence.
9. Having Weapons While Under Disability (Count 18)
Evans was convicted of having a weapon while under disability in
violation of R.C. 2923.13(A)(2), which provides:
(A) Unless relieved from disability under operation of law or legal
process, no person shall knowingly acquire, have, carry, or use any
firearm or dangerous ordnance, if any of the following apply:
* * *
(2) The person is under indictment for or has been convicted of any
felony offense of violence or has been adjudicated a delinquent child for
the commission of an offense that, if committed by an adult, would
have been a felony offense of violence.
Evans does not raise an argument concerning the sufficiency of the
evidence supporting his weapons disability conviction. However, we reiterate that
Evans admitted to Det. Cramer that he discarded the firearm recovered by the
detectives on October 9, 2018. In order to discard the firearm, Evans inherently had
possession of a firearm while under disability.5 Accordingly, we find Evans’s having
weapons while under disability conviction was supported by sufficient evidence.
Based on the foregoing, we find the trial court did not err in denying
defense counsel’s Crim.R. 29 motion for acquittal. Evans’s second assignment of
error is overruled.
C. Manifest Weight of the Evidence
In his third assignment of error, Evans argues his convictions are
against the manifest weight of the evidence. Evans reiterates the arguments raised
in his challenge to the sufficiency of the evidence, and suggests that the state failed
to present credible evidence linking him to the CVS robbery and the firearm
discovered by detectives on October 9, 2018.
A manifest weight challenge questions whether the state met its
burden of persuasion. State v. Bowden, 8th Dist. Cuyahoga No. 92266, 2009-Ohio3598, ¶ 12. A reviewing court “‘weighs the evidence and all reasonable inferences,
considers the credibility of witnesses and determines whether in resolving conflicts
in the evidence, the jury clearly lost its way and created such a manifest miscarriage
of justice that the conviction must be reversed and a new trial ordered.’” Thompkins,
78 Ohio St.3d 380, at 387, 678 N.E.2d 541, quoting State v. Martin, 20 Ohio App.3d
172, 175, 485 N.E.2d 717 (1st Dist.1983). A conviction should be reversed as against
5 Defense counsel stipulated to the authenticity of the certified records of Evans’s
juvenile adjudication for domestic violence which, if committed by an adult, would have
been an offense of violence.
the manifest weight of the evidence only in the most “exceptional case in which the
evidence weighs heavily against the conviction.” Id.
After careful review of the record, weighing the strength and
credibility of the evidence presented and the inferences to be reasonably drawn
therefrom, we find Evans’s convictions are not against the manifest weight of the
evidence. Contrary to Evans’s position on appeal, the trier of fact was presented
ample evidence that established Evans’s active participation in the CVS robbery on
October 4, 2018, and his possession of the firearm discovered on October 9, 2018.
Significantly, Evans admitted that he participated in the CVS robbery, identified
himself as the perpetrator wearing the green-hooded sweatshirt in a still image
taken from the surveillance video, and confirmed that he ditched a handgun in
bushes just prior to being detained by patrolling detectives. The state further
presented the testimony of codefendant Young, who described Evans’s actions prior
to the robbery, verified that Evans obtained a firearm to complete the robbery,
confirmed that Evans was wearing a green-hooded sweatshirt on the night of the
incident, and stated that he and Evans entered the CVS together with criminal
intent. Young’s testimony was corroborated by the surveillance video footage, which
captured Evans brandish a firearm and point it at store employee’s during the
commission of the offenses. Finally, the state presented an itemized inventory list
of the evidence recovered from Evans’s home during the police investigation,
including clothing that was believed to be worn by the suspects during the CVS
robbery, and the personal property of Daloisio and Watkins.
Under the foregoing circumstances, we are unable to conclude that
the jury lost its way and created such a manifest miscarriage of justice that a new
trial should be ordered. Evans’s third assignment of error is overruled.
D. Other-Acts Evidence
In his fourth assignment of error, Evans argues the trial court
committed reversible error by admitting evidence in violation of Evid.R. 403 and
404(B).
The admission of evidence lies within the broad discretion of a trial
court, and a reviewing court should not disturb evidentiary decisions in the absence
of an abuse of discretion that has created material prejudice. State v. Noling, 98
Ohio St.3d 44, 2002-Ohio-7044, 781 N.E.2d 88, ¶ 43.
Pursuant to Evid.R. 404(B), “[e]vidence of other crimes, wrongs, or
acts is not admissible to prove the character of a person in order to show action in
conformity therewith.” In general, “[e]vidence that [a defendant] committed a
crime other than the one for which he is on trial is not admissible when its sole
purpose is to show the accused’s propensity or inclination to commit crime or that
he acted in conformity with bad character.” State v. Williams, 134 Ohio St.3d 521,
2012-Ohio-5695, 983 N.E.2d 1278, ¶ 15. However, evidence of other crimes,
wrongs, or acts may be admissible “for other purposes, such as proof of motive,
opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or
accident.” Evid.R. 404(B).
To determine whether other acts evidence is admissible, the court
conducts a three step analysis (1) the court considers whether the other acts evidence
is relevant to making any fact that is of consequence to the determination of the
action more or less probable than it would be without the evidence (Evid.R. 401);
(2) the court considers whether evidence of the other crimes, wrongs, or acts is
presented to prove the character of the accused in order to show activity in
conformity therewith or whether the other acts evidence is presented for a legitimate
purpose, such as those stated in Evid.R. 404(B); and (3) finally, the court considers
whether the probative value of the other acts evidence is substantially outweighed
by the danger of unfair prejudice. Williams at ¶ 20.
Similar to Evid.R. 404(B), the General Assembly has promulgated
R.C. 2945.59, which provides:
In any criminal case in which the defendant’s motive or intent, the
absence of mistake or accident on his part, or the defendant’s scheme,
plan, or system in doing an act is material, any acts of the defendant
which tend to show his motive or intent, the absence of mistake or
accident on his part, or the defendant’s scheme, plan, or system in
doing the act in question may be proved, whether they are
contemporaneous with or prior or subsequent thereto,
notwithstanding that such proof may show or tend to show the
commission of another crime by the defendant.
Both the statute and the rule “codify the common law with respect
to evidence of other acts of wrongdoing,” and “preclude admission of other acts
evidence to prove a character trait in order to demonstrate conduct in conformity
with that trait.” Williams at ¶ 16.
In this case, defense counsel sought to exclude a text message
purportedly sent from codefendant Stewart to Evans’s cell phone on October 3,
2018. (Tr. 368.) The text message stated, “You think we will actually get it for the
whole night so we can go on a robbing spree.” In addition, defense counsel sought
to exclude certain images that were recovered from Evans’s cell phone during the
police investigation into the October 4, 2018 CVS robbery. (Tr. id.) Defense counsel
maintained that the evidence was not permitted under Evid.R. 404(B) and,
alternatively, “should be excluded under Evid.R. 403,” as “its probative value is
substantially outweighed by the danger of unfair prejudice.” (Tr. id.) Following a
discussion on the record, the trial court permitted the state to introduce the text
message and the images depicting Evans wearing a sweatshirt. However, the images
of Evans in possession of a firearm were excluded. (Tr. 371.)
On appeal, Evans argues the trial court abused its discretion by
permitting the state to introduce the disputed evidence in violation of the Ohio Rules
of Evidence. Evans contends the “isolated text [message], without further context,
is too speculative to merit admission pursuant to Evid.R. 403 and the danger of
unfair prejudice is obvious.” Evans further suggests “the photos of Evans wearing a
particular sweatshirt are not probative of whether he was the individual seen on the
CVS [surveillance] videos.”
Relevant to the arguments posed by Evans, this court has stated as
follows:
Evid.R. 404(B) only applies to limit the admission of so-called “other
acts” evidence that is “extrinsic” to the crime charged. State v.
Stallworth, 11th Dist. Lake No. 2013-L-122, 2014-Ohio-4297, ¶ 37. In
other words, “Evid.R. 404(B) does not apply when the acts are intrinsic
as opposed to extrinsic, i.e., the acts are part of the events in question
or form part of the immediate background of the alleged act which
forms the basis for the crime charged.” State v. Crew, 2d Dist. Clark
No. 2009 CA 45, 2010-Ohio-3110, ¶ 99. Thus, “evidence of other
crimes or wrongs may be admitted when such acts are so inextricably
intertwined with the crime as charged that proof of one involves the
other, explains the circumstances thereof, or tends logically to prove
any element of the crime charged.” State v. Davis, 64 Ohio App.3d 334,
341, 581 N.E.2d 604 (12th Dist.1989), citing State v. Wilkinson, 64
Ohio St.2d 308, 415 N.E.2d 261 (1980); State v. Long, 64 Ohio App.3d
615, 582 N.E.2d 626 (9th Dist.1989).
State v. Jones, 8th Dist. Cuyahoga Nos. 103290 and 103302, 2018-Ohio-498, ¶ 140.
After careful consideration, we are unable to conclude that the trial
court abused its discretion by permitting the state to introduce the challenged
evidence. In our view, the test message and images recovered from Evans’s phone
do not constitute prohibited other acts evidence, as contemplated under Evid.R.
404(B) or R.C. 2945.59. Rather, the evidence was inextricably intertwined with the
current charges and was relevant to the state’s theory of the case. As expressed by
the state, the text message conversation between Evans and codefendant Stewart
provided the trier of fact with insight into their plan to commit a series of robberies.
Contrary to Evans’s position, we do not find the text message to be speculative
because it unambiguously expresses the defendants’ intent to conduct a “robbing
spree” the day before the CVS robbery occurred. In addition, we find the images of
Evans wearing a sweatshirt that matched the clothing worn by one of the suspects
during the CVS robbery, was relevant evidence that tended to logically support
Evans’s identity and participation in the robbery.
Accordingly, we find the evidence was properly admitted in order to
describe the events that formed the immediate background of the crimes for which
Evans was charged. Evans’s fourth assignment of error is overruled.
E. Allied Offenses of Similar Import
In his fifth assignment of error, Evans argues the trial court erred by
failing to merge all allied offenses of similar import, and by imposing separate
sentences for allied offenses which violated Evans’s state and federal rights to due
process and protections against double jeopardy.
The Double Jeopardy Clauses of the Fifth Amendment to the United
States Constitution, and the Ohio Constitution, Article I, Section 10, protect a
defendant against a second prosecution for the same offense after acquittal, a second
prosecution for the same offense after conviction, and multiple punishments for the
same offense. North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 23 L.Ed.2d
656 (1969); State v. Martello, 97 Ohio St.3d 398, 2002-Ohio-6661, 780 N.E.2d 250,
¶ 7. But the Double Jeopardy Clause “does no more than prevent the sentencing
court from prescribing greater punishment than the legislature intended.” Missouri
v. Hunter, 459 U.S. 359, 366, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983). Thus, the
dispositive issue is “whether the General Assembly intended to permit multiple
punishments for the offenses at issue.” State v. Childs, 88 Ohio St.3d 558, 561, 728
N.E.2d 379 (2000).
In Ohio, this constitutional protection is codified in R.C. 2941.25.
State v. Cabrales, 118 Ohio St.3d 54, 2008-Ohio-1625, 886 N.E.2d 181, ¶ 23.
“Merger is ‘the penal philosophy that a major crime often includes as inherent
therein the component elements of other crimes and that these component
elements, in legal effect, are merged in the major crime.’” Id. at ¶ 23, fn. 3, quoting
Maumee v. Geiger, 45 Ohio St.2d 238, 344 N.E.2d 133 (1976).
Pursuant to R.C. 2941.25(A), “[w]here 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.” However,
[w]here 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.
R.C. 2941.25(B).
“At its heart, the allied-offense analysis is dependent upon the facts
of a case because R.C. 2941.25 focuses on the defendant’s conduct.” State v. Ruff,
143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, ¶ 26. In Ruff, the Supreme Court
held that if a defendant’s conduct supports multiple offenses, the defendant can be
convicted of all of the offenses if any one of the following is true (1) the conduct
constitutes offenses of dissimilar import or significance, (2) the conduct shows the
offenses were committed separately, or (3) the conduct shows the offenses were
committed with separate animus or motivation. Id. at paragraph three of the
syllabus, citing R.C. 2941.25(B).
Two or more offenses are of dissimilar import within the meaning of
R.C. 2941.25(B) “when the defendant’s conduct constitutes offenses involving
separate victims or if the harm that results from each offense is separate and
identifiable.” Id. at paragraph two of the syllabus.
When determining whether two offenses are allied offenses of
similar import, we apply a de novo standard of review. Williams, 134 Ohio St.3d
482, 2012-Ohio-5699, 983 N.E.2d 1245, ¶ 28.
In this case, the charges deriving from Evans’s participation in the
October 4, 2018, CVS robbery involved actions taken against three separate victims:
Daloisio, Watkins, and D.B. On appeal, Evans does not dispute that offenses
committed against separate victims are dissimilar in import. However, he argues
that the multiple offenses committed against each victim were committed during
“one continuing course of conduct that gave rise to all of these offenses that were not
committed separately with any separate animus or motivations.” For clarity, we
individually address the conduct committed against each victim in this case.
Michael Daloisio
The aggravated robbery, robbery, felonious assault, theft, and
receiving stolen property offenses charged in Counts 5, 6, 7, 8, 15, and 21 each
pertained to conduct committed against Daloisio. At the time of sentencing, the trial
court merged the aggravated robbery offense charged in Count 5 with the robbery
offense charged in Count 6. The state elected to proceed with sentencing on the
aggravated robbery offense. Here, Evans contends that the trial court erred by
failing to merge the remaining offenses with Count 5 for the purposes of sentencing.
He asserts that the aggravated robbery, felonious assault, theft, and receiving stolen
property offenses “are not dissimilar” and “were all done at the same time with the
same animus.”
We begin by addressing the theft offenses charged in Counts 8 and
15. While Count 8 refers to Daloisio in his capacity as a “CVS representative” and
Count 15 refers to him in his individual capacity, the property involved in each count
pertains to Daloisio’s personal property. The indictment reflects that Count 8
related to Evans’s purposeful deprivation of Daloisio’s “cell phone and/or wallet
and/or wallet contents or services” without his consent. In turn, Count 15 related to
Evans’s purposeful deprivation of Daloisio’s “Target and/or Sears and/or Discover
credit cards or services” without his consent. In this case, the evidence adduced at
trial established that Daloisio’s cell phone and wallet, which contained his credit
cards, were taken by Evans at the same time and with the same purpose, i.e., to
deprive Daloisio of his personal property. Absent additional testimony, there is no
evidence that the taking of Daloisio’s wallet, credit cards, and cell phone resulted in
separate, identifiable harms. State v. Skapik, 2d Dist. Champaign No. 2015-CA-5,
2015-Ohio-4404, ¶ 13 (Finding the defendant could only be convicted and sentenced
for only one theft offense in connection with the multiple items he stole from a
vehicle.); State v. Lewis, 5th Dist. Richland No. 15 CA 106, 2016-Ohio-7002, ¶ 27
(“Ruff does not require that we herein treat the theft of separate items from the same
situs as separate and identifiable offenses.”). Accordingly, we find the theft offenses
involving Daloisio’s personal property were allied offenses of similar import that
were subject to merger.
Similarly, we find the trial court erred in failing to merge the
receiving stolen property offense charged in Count 21 with the theft offense charged
in Count 15. Each offense involved the underlying deprivation of Daloisio’s credit
cards. This court has previously stated that receiving stolen property and theft of
the same property are generally allied offenses of similar import that are committed
with an identical animus during a single transaction. State v. Mitchell, 8th Dist.
Cuyahoga No. 101542, 2015-Ohio-1146, ¶ 24, citing State v. Austin, 8th Dist.
Cuyahoga No. 84142, 2004-Ohio-5736, ¶ 37. “Obviously, at the same time a thief
steals property, the thief is generally in receipt of that property and knows that it
was stolen.” Id. In this case, the theft of Daloisio’s credit cards was committed with
the same animus as Evans’s retention of the property in his home. Having stolen
the personal property, Evans also “received” the property within the definition of
R.C. 2913.51. State v. Fannin, 5th Dist. Delaware No. 10CAA030028, 2011-Ohio3211, ¶ 108. Evans’s conduct was committed with a single animus resulting in a
single harm against a single victim. Accordingly, we find Counts 15 and 21 are allied
offenses of similar import.
We now address whether the theft offenses should have merged
with the aggravated robbery offense charged in Count 5. As stated, Evans’s
aggravated robbery conviction was premised on his use of a deadly weapon during
his commission of a theft offense “upon Michael Daloisio (Representative of CVS).”
There is no information in the indictment or the trial record to suggest this
aggravated robbery offense related to a theft or attempted theft that was not charged
in the indictment. Thus, the theft offenses relating to the deprivation of Daloisio’s
personal property (Counts 8 and 15) encompassed the same conduct that supported
a necessary element of Evans’s conviction for aggravated robbery under Count 5.
See State v. McLaughlin, 5th Dist. Muskingum No. CT, 2017-0104, 2018-Ohio2333, ¶ 22 (“The thefts were part and parcel to the conduct of appellant that formed
the basis of his conviction for aggravated robbery.”); State v. Cook, 8th Dist.
Cuyahoga No. 95987, 2011-Ohio-5156, ¶ 40 (“Therefore, inherent in the aggravated
robbery committed here is the act of theft.”). Each offense was similar in import,
and was committed with the same animus, against the same victim. Accordingly,
we find the Counts 5, 8, and 15 were committed with the same conduct, and were
therefore allied offenses of similar import.
However, we find the felonious assault offense charged under Count
7 caused a separate and identifiable harm than the aggravated robbery offense
charged under Count 5 — namely a significant injury to Daloisio’s head.
Accordingly, we find the two offenses are not allied offenses of similar import. In re
K.P., 1st Dist. Hamilton Nos. C-180037, C-180038, and C-180039, 2018-Ohio-4972,
¶ 9 (“Where the force used during a felonious assault was greater than was necessary
to effectuate an aggravated robbery, it demonstrates that the defendant acted with a
specific intent to harm, separate from any animus to rob the victim.”).
Based on the foregoing, we find the theft offenses charged in Counts
8 and 15 are allied offenses of similar import. In addition, we find the aggravated
robbery and theft offenses charged in Counts 5, 8, and 15 are allied offenses of
similar import. We further find that the theft and receiving stolen property offenses
charged in Counts 15 and 21 are allied offenses of similar import. Given the
relationship of these offenses, the state may only elect to pursue a single sentence
on Count 5, Count 8, Count 15, or Count 21. However, Evans’s felonious assault
conviction under Count 7 is not subject to merger.
D.B.
In this case, the robbery and theft offenses charged in Counts 10 and
11 each pertained to conduct committed against D.B. on October 4, 2018. As stated,
Count 10 charged Evans with robbery in violation of R.C. 2911.02(A)(2), which
provides that “[n]o person, in attempting or committing a theft offense or in fleeing
immediately after the attempt or offense, shall * * * [i]nflict, attempt to inflict, or
threaten to inflict physical harm on another.” In turn, Evans’s conviction for theft
related to his purposeful deprivation of D.B.’s “cell phone or services” without her
consent.
Under the circumstances presented in this case, Evans’s conviction
for robbery under Count 10 was premised on the underlying theft offense charged
in Count 11.6 As stated, the evidence adduced at trial demonstrated that codefendant
Young threated to shoot D.B. after he deprived her of her two cell phones. The threat
to inflict physical harm was made in furtherance of a purpose to deprive D.B. of her
property. Under these circumstances, we find the robbery and theft offenses were
committed as part of the same course of conduct, with a single state of mind. In
addition, we are unable to conclude that the offenses were dissimilar in import.
Regarding these particular counts, Evans’s conduct “victimized one person in a
single event; thus the harm was not separate and distinct.” State v. Shelton, 1st Dist.
Hamilton No. C-170547, 2018-Ohio-3895, ¶ 53. Accordingly, we find Counts 10 and
11 are allied offenses of similar import. On remand, the state shall elect which
offense to proceed with for the purposes of sentencing.
Samuel Watkins
The aggravated robbery, robbery, and theft offenses charged in
Counts 12, 13, and 14 pertained to Watkins. The aggravated robbery offense, Count
12, and the robbery offense, Count 13, were merged by the trial court for the
purposes of sentencing. On appeal, Evans argues the trial court erred by failing to
merge the aggravated robbery offense charged in Count 12 with the theft offense
charged in Count 14.
For the reasons previously stated, we agree with Evans’s assertion.
In this case, the conduct supporting Evans’s theft conviction under Count 14 was the
6 Evans’s convictions for each offense were premised on a theory of
complicity that relied on the acts of codefendant Young during the CVS robbery.
same conduct supporting the theft element underlying Evans’s conviction for
aggravated robbery under Count 12. The firearm was brandished during the
commission of the underlying theft offense against Watkins. Each offense was
similar in import, and was committed with the same animus, against the same
victim. Accordingly, we find Counts 12 and 14 are allied offenses of similar import.
On remand, the state shall elect which offense to proceed with for the purposes of
sentencing.
Based on the forgoing, Evans’s fifth assignment of error is sustained
in part, overruled in part. The sentences imposed on Counts 5, 8, 10, 11, 12, 14, 15,
and 21 are vacated.
F. Consecutive Sentences
In his sixth assignment of error, Evans argues the record does not
support the trial court’s imposition of consecutive sentences. Evans contends that
“concurrent prison terms are adequate to accomplish the sentencing purposes and
there is nothing to support a conclusion that 25 years [in prison] is necessary.”
In this case, the trial court ordered the prison terms imposed on
Counts 5, 10, and 12 to run consecutively pursuant to R.C. 2929.14(C)(4). In
addition, the trial court ordered the prison term imposed on the three-year firearm
specifications attached to Counts 5 to run consecutively with the prison term
imposed on the three-year firearm specification attached to Count 7. (Tr. 712.) See
R.C. 2929.14(B)(1)(g). The firearm specifications were ordered to run prior and
consecutive to the base sentences imposed on Counts 5, 10, and 12. (Tr. id.) All
other sentences were ordered to run concurrently. This resulted in an aggregate 25-
year prison term.
Based on our resolution of Evans’s fifth assignment of error,
however, the sentences imposed on Counts 5, 8, 10, 11, 12, 14, 15, and 21 are vacated.
As recognized by this court, the “consecutive manner in which a base sentence is to
be served is vacated * * * if that underlying sentence is reversed or vacated upon
appeal.” State v. Grayson, 8th Dist. Cuyahoga No. 106578, 2019-Ohio-864, ¶ 25.
Thus, whether the record supports the trial court’s imposition of consecutive
sentences on Counts 5, 10, and 12, pursuant to R.C. 2929.14(C)(4), is now moot.
State v. West, 8th Dist. Cuyahoga Nos. 97391 and 97900, 2013-Ohio-96, ¶ 22.
Moreover, until the state elects which allied offenses to pursue sentencing on during
the resentencing hearing, it is premature to address the trial court’s mandatory
application of R.C. 2929.14(B)(1)(g) to the multiple firearm specifications, since the
sentence imposed on Count 5 has been vacated. See State v. Roper, 9th Dist.
Summit Nos. 26631 and 26632, 2013-Ohio-2176, ¶ 11 (“it is impermissible to
sentence an offender for a specification when the underlying offense upon which the
specification is predicated has merged with another allied offense.”).
Evans’s sixth assignment of error is overruled as moot.
Judgment affirmed in part, reversed in part. The matter is
remanded for a de novo resentencing hearing on the sentences that have been
affected by our resolution of Evans’s fifth assignment of error. At the resentencing
hearing, the state shall elect which offense or offenses to pursue for sentencing. The
trial court must accept the state’s selection, merge the offenses accordingly for the
purposes of sentencing, and impose a sentence that is appropriate for the remaining
offense or offenses. State v. Wilson, 129 Ohio St.3d 214, 2011-Ohio-2669, 951
N.E.2d 381, ¶ 18. The appropriateness of consecutive sentences may be revisited
once a sentence is imposed on the offenses elected by the state. State v. Christian,
Slip Opinion No. 2020-Ohio-828, ¶ 29 (“[W]hen a portion of a defendant’s sentence
has been vacated on direct appeal, the trial court has the authority to resentence the
defendant de novo on any counts for which the original sentence was vacated.”).
However, the sentences unaffected by our decision shall not be altered on remand.7
As this court explained:
It is well settled that although a remand for a new sentencing hearing
anticipates a de novo sentencing, there are a number of limitations that
inherently narrow the scope of that particular resentencing hearing.
Wilson, 129 Ohio St.3d 214, 2011-Ohio-2669, 951 N.E.2d 381, at ¶ 15.
“[O]nly the sentences for the offenses that were affected by the
appealed error are reviewed de novo; the sentences for any offenses
that were not affected by the appealed error are not vacated and are not
subject to review” by the trial court. Id., citing State v. Saxon, 109 Ohio
St.3d 176, 2006-Ohio-1245, 846 N.E.2d 824, paragraph three of the
syllabus.
Grayson, 8th Dist. Cuyahoga No. 106578, 2019-Ohio-864, at ¶ 17. Accordingly, “any
individual sentence unaffected by a remand is final, including the consecutive or
concurrent manner in which that sentence is to be served.” Id. at ¶ 28.
It is ordered that appellee and appellant share costs herein taxed.
7 Evans raises no arguments regarding the sentences imposed on the counts
that are unaffected by our resolution of the fifth assignment of error. See Grayson
at ¶ 22.
The court finds there were reasonable grounds for this appeal.
Outcome: It is ordered that a special mandate issue out of this court directing the
common pleas court to carry this judgment into execution. The defendant’s
conviction having been affirmed, any bail pending is terminated. Case remanded to
the trial court for a limited resentencing hearing.
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