State v. Adams , 2013 Ohio 926 ( 2013 )

[Cite as State v. Adams, 2013-Ohio-926.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-120059
TRIAL NO. B-1100833
Plaintiff-Appellee, :
vs. :
O P I N I O N.
PAUL ADAMS, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: March 15, 2013
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Scott M. Heenan,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Wendy R. Calaway, for Defendant-Appellant.
Please note: this case has been removed from the accelerated calendar.
OHIO FIRST DISTRICT COURT OF APPEALS
FISCHER, Judge.
{¶1} Defendant-appellant Paul Adams appeals the judgment of the
Hamilton County Court of Common Pleas sentencing him to 21 years in the
department of corrections for aggravated burglary and two counts of aggravated
robbery with specifications. For the reasons that follow, we affirm the judgment of
the trial court.
{¶2} On December 16, 2010, University of Cincinnati (“UC”) student and
volleyball athlete Natalie Pierce planned to entertain some of her friends for dinner
at her apartment on Straight Street near UC’s campus. Pierce’s friends, Jamie Frey,
also a volleyball player, and two UC football players, Dominick Goodman and
Quentin Hines, were all at Pierce’s apartment that day. At some point in the
afternoon, Hines left Pierce’s apartment, planning to return around 6:00 p.m. for
dinner.
{¶3} A few minutes before 6:00 p.m., Pierce heard a knock at her apartment
door. She looked through the peephole of the door, but she could not see who was
standing outside. When she asked who was there, a man replied, “Q.” She opened
the door, believing the person to be Hines returning for dinner. Instead, a large
African-American male in his early 20s with dreadlocks and wearing a knit cap
shoved the door open and put a gun in her face. He demanded that Pierce lie on the
floor. The intruder then ordered Goodman to the floor as well, putting the gun in
Goodman’s face. Goodman began moving around, and the intruder threatened, “Do
you want me to pull this?” Goodman also tried to conceal his cell phone, but the
intruder saw him and demanded that he give him the phone. The intruder then
demanded “more items” from Pierce, so Pierce told him that her iPod was on the
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kitchen countertop. The intruder left, telling Pierce and Goodman not to get up until
they heard the door close.
{¶4} In all, the intruder stole Pierce’s laptop, iPod, purse, Big East
Championship ring, and her cell phone. The intruder also stole Goodman’s
camcorder, cell phone, and cash. Frey, who had been in the bathroom during the
robbery, also had her wallet and cell phone stolen. Frey had seen the armed intruder
through the bathroom door, but had shut it and had hidden in a closet attached to
the bathroom to avoid being seen.
{¶5} Pierce suspected that an acquaintance, former UC football player
Demetrius Jones, may have had a role in the crime. Jones had transferred to another
university, but Jones had been texting Pierce the day of the robbery and had told
Pierce that he was in town and wanted to “hang out.” Just before the robbery, Jones
had asked Pierce who was at her place. She had responded that Frey and Goodman
were there, and she had told him that “Q” or Hines would be coming over for dinner.
Given her suspicions, Pierce logged into her Facebook account so that she could look
through Jones’s Facebook “friends.” She came across a picture of Adams, the
defendant. Pierce gave the picture to Cincinnati Police Detective Kip Dunagan
because she was 100 percent sure that Adams had been the armed robber.
{¶6} Meanwhile, Detective Dunagan began his own investigation.
Dunagan learned that the robber had used Pierce’s U.S. Bank debit card to make a
purchase at Amazon.com. The customer email address used for transaction was
padams17@yahoo.com, and the shipment address listed an address in Chicago,
Illinois. With the assistance of UC telecommunications employees, Dunagan was
able to pinpoint that the Amazon.com transaction was made with UC basketball
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OHIO FIRST DISTRICT COURT OF APPEALS
player Anthony McClain’s wireless Internet identification in the area of the
University Park Apartments. Dunagan learned that Jones and Adams had been
staying with McClain and his roommate, fellow basketball player Dion Dixon, at the
University Park apartments during the day of the robbery.
{¶7} The grand jury returned an indictment charging Adams with
aggravated burglary under R.C. 2911.11(A)(2) accompanied by firearm specifications,
two counts of aggravated robbery under R.C. 2911.01(A)(1), one for Pierce and one
for Goodman, also accompanied by specifications, and two counts of robbery under
R.C. 2911.02(A)(2), one for Pierce and one for Goodman. The matter proceeded to a
jury trial.
{¶8} At trial, the state presented the testimony of Pierce, Goodman, and
Frey, who testified as to what had happened during the robbery, and Pierce’s
discovery of Adams on Facebook. The state also presented Detective Dunagan’s
testimony about the investigation that had led him to Adams and an interview that
he had had with Adams. In the interview, Adams had admitted to using
padams17@yahoo.com as his email address, but had insisted that he had been in
Chicago, his hometown, on the day of the robbery.
{¶9} The state also presented the testimony of Henry McDavis. McDavis
testified that he had lived in the same apartment building as Pierce. The day of the
robbery, he had seen two African-American men getting out of a white car. He had
seen them trying to get through the front door of his building, which had required
them to “buzz” individual residents, who would then unlock the door. McDavis had
accessed the building through another door at the rear of the building, and then he
had seen both men inside the building. One of the men asked McDavis if he had seen
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OHIO FIRST DISTRICT COURT OF APPEALS
“Dominick.” After the robbery, McDavis had identified Demetrius Jones in a photo
lineup as one of the two men he had seen, although he admitted at trial that he had
only been “40 percent sure” it was Jones.
{¶10} Hines also testified for the prosecution. Hines stated that he had left
Pierce’s house with the intent of returning, but had not because he had spent time
with his girlfriend instead. Hines testified that he had also spoken with Jones shortly
after he had left Pierce’s apartment, and that he had told Jones that Goodman and
Frey had been at Pierce’s when he had left. Jones had told Hines that he was back in
town. Hines acknowledged that he had not called Pierce to let her know that he
would not be returning.
{¶11} The state also presented the testimony of a Verizon wireless employee,
who substantiated the ingoing and outgoing communications from Pierce’s phone to
a phone that had been linked to Jones’s phone through earlier testimony from
Pierce.
{¶12} Dixon testified that he had been living with McClain in December
2010, and that on December 16, Jones had visited their apartment with a friend.
Dixon identified Adams in court as the friend that had been with Jones. Dixon
testified that he and McClain had had basketball commitments that had required
them to be away from home from 2:00-2:30 p.m. until 7:00 p.m. that day. Jones
and Adams had been at the apartment when they had left and when they had
returned. UC basketball assistant Andrew Seidenberger’s testimony substantiated
that Dixon and McClain had been at practice and then a team meal that had started
at 5:30 p.m. Although Seidenberger acknowledged that Dixon and McClain could
have signed the sign-in sheet for the meal and then left.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶13} After the conclusion of the state’s case, Adams testified in his own
defense. Adams testified that he had been staying with Dixon and McClain on the
day of the robbery. Adams acknowledged that he had lied to Detective Dunagan
about being in Chicago at the time, stating that he had been frightened. Adams
testified that he had stayed at Dixon’s and McClain’s apartment all afternoon, talking
on the phone, while Jones had left for a short time. According to Adams, when Jones
had returned, he had used McClain’s laptop in another room. Adams admitted that
he had had an email address of padams17@yahoo.com, but Adams insisted that
Jones would have had access to his email address and password—although Adams
admitted that he had told Detective Dunagan that two people had had his email and
password combination, neither of which was Jones.
{¶14} The jury found Adams guilty of all counts and accompanying
specifications. The trial court sentenced Adams to five years in prison on the
aggravated-burglary charge, five years in prison on each of the aggravated-robbery
charges, and three years in prison on two of the underlying specifications, for a total
of 21 years in the department of corrections. This appeal ensued.
Sufficiency and Manifest Weight of the Evidence
{¶15} Adams’s first assignment of error asserts that his convictions were not
supported by sufficient evidence and were against the manifest weight of the
evidence. When reviewing a challenge to the sufficiency of the evidence, we must
determine, after viewing the evidence in a light most favorable to the prosecution,
whether any rational trier of fact could have found the essential elements of the
offenses proved beyond a reasonable doubt. State v. Jenks, 61 Ohio St.3d 259, 574
N.E.2d 492 (1991), paragraph two of the syllabus. By contrast, when reviewing a
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OHIO FIRST DISTRICT COURT OF APPEALS
challenge to the manifest weight of the evidence, we must determine whether the
jury clearly lost its way and created a manifest miscarriage of justice such that we
must reverse the convictions and order a new trial. State v. Thompkins, 78 Ohio
St.3d 380, 387, 678 N.E.2d 541 (1997).
{¶16} Adams does not argue that the facts as presented by the state fail to
establish that the crimes of aggravated burglary and aggravated robbery occurred.
Instead, Adams contends that he was not the perpetrator. Adams argues that no
physical evidence tied him to the crimes, and that the state’s case against him was
circumstantial. He also attacks the identifications made by the victims, arguing that
the victims did not have the opportunity to make a reliable identification given the
circumstances of the stressful, chaotic situation.
{¶17} Pierce testified that when she had seen Adams’s picture on Facebook,
she had been certain that Adams had been the intruder. Goodman also testified that
Adams had been the perpetrator. When Adams had been questioned by Detective
Dunagan as to his involvement, he had lied, stating that he had been in Chicago at
the time, but then admitting at trial that he had been staying at McClain’s near UC’s
campus the day of the robbery. Pierce’s stolen debit card had been used to purchase
online items using McClain’s Internet identification, and Adams’s email address.
The shipment address was an address in Chicago, Illinois, Adams’s hometown.
Adams testified at trial that Jones would have had access to his email address and
password combination, but this contradicted Adams’s statement to Detective
Dunagan that two people had had his combination, neither of which had been Jones.
The evidence presented by the state was sufficient to prove that Adams had
committed the offenses of which he was convicted. Nor can we determine that the
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OHIO FIRST DISTRICT COURT OF APPEALS
jury clearly lost its way and created a manifest miscarriage of justice in finding
Adams guilty.
{¶18} Adams’s first assignment of error is overruled.
Allied Offenses of Similar Import
{¶19} In his second assignment of error, Adams argues that the trial court
erred in sentencing Adams separately on two counts of aggravated robbery and one
count of aggravated burglary because those offenses were allied offenses of similar
import under R.C. 2941.25.
{¶20} Under R.C. 2941.25, Ohio’s multiple-count statute, a trial court, in a
single proceeding, may convict a defendant for two or more offenses having as their
genesis the same criminal conduct or transaction, if the offenses (1) were not allied
offenses of similar import, (2) were committed separately, or (3) were committed
with a separate animus as to each offense. State v. Anderson, 1st Dist. No. C-110029,
2012-Ohio-3347, 974 N.E.2d 1236, ¶ 15, citing State v. Bickerstaff, 10 Ohio St.3d 62,
65-66, 461 N.E.2d 892 (1984), and State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-
6314, 942 N.E.2d 1061, ¶ 51. Unless committed separately or with a separate animus,
allied offenses must be merged for purposes of sentencing following the state’s
election of which offense should survive. Anderson at ¶ 15, citing State v. Whitfield,
124 Ohio St.3d 319, 2010-Ohio-2, 922 N.E.2d 182, paragraph two of the syllabus.
{¶21} This court reviews allied-offense issues by examining the evidence
adduced before the trial court, and if the evidence shows that the state relied upon
the same conduct to prove the offenses, and that the offenses were committed
neither separately nor with a separate animus as to each, then the defendant is
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OHIO FIRST DISTRICT COURT OF APPEALS
afforded the protections of R.C. 2941.25, and the trial court errs by imposing
separate sentences for the offenses. Anderson at ¶ 20; Johnson at ¶ 56.
{¶22} Adams argues that the two aggravated-robbery counts—one for each
victim—were part of one course of conduct, and that he should have only been
sentenced on one count of aggravated robbery. We disagree because we determine
that Adams committed the robberies with a separate animus as to each. In
determining whether a separate animus exists as to each offense, this court has
explained that animus means “immediate motive,” and where “ ‘an individual’s
immediate motive involves the commission of one offense, but in the course of
committing that crime he must, a priori, commit another, then he may well possess
but a single animus, and in that event may be convicted of only one crime.’ ” State v.
Shields, 1st Dist. No. C-100362, 2011-Ohio-1912, ¶ 16, quoting State v. Logan, 60
Ohio St.2d 126, 131, 397 N.E.2d 1345 (1979); see also Anderson at ¶ 34 (explaining
that “ordinarily * * * when there is more than one victim of the same crime” an
offender may be sentenced for more than one crime).
{¶23} In this case, the evidence adduced at trial demonstrated that Adams
had committed the robbery offense against Pierce and the robbery offense against
Goodman with separate immediate motives. After bursting through the door to
Pierce’s apartment wielding a gun, Adams had forced Pierce to lie face-down on the
ground. Adams then had insisted the same of Goodman after placing a gun in
Goodman’s face. Adams had demanded that Goodman give Adams his cell phone,
which Goodman had tried to conceal, unsuccessfully, from Adams. Adams then had
demanded “more items” from Pierce, and Pierce had told him that her iPod was on
the kitchen countertop. Adams then had fled with Pierce’s laptop computer, iPod,
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OHIO FIRST DISTRICT COURT OF APPEALS
purse, cell phone, and Big East Championship ring, as well as Goodman’s cell phone,
camcorder, and cash. This evidence supports Adams’s convictions for two counts of
aggravated robbery—one for Pierce and one for Goodman.
{¶24} Adams further argues that he should have been sentenced on either
aggravated burglary or aggravated robbery, but not both, pursuant to the multiple-
count statute. Adams asserts that the aggravated burglary “could not have been
committed in this case without the aggravated robbery.” Adams’s argument is not
well-taken.
{¶25} Adams was convicted of aggravated burglary under R.C. 2911.11(A)(2),
which provides that “[n]o person, by force, stealth, or deception, shall trespass in an
occupied structure or in a separately secured or separately occupied portion of an
occupied structure * * * with purpose to commit in the structure or in the separately
secured or separately occupied portion of the structure any criminal offense, if * * *
[t]he offender has a deadly weapon * * * .” He was also convicted of two counts of
aggravated robbery under R.C. 2911.01(A)(1), which provides that “[n]o person, in
attempting or committing a theft offense, * * * or in fleeing immediately after the
attempt or offense, shall * * * [h]ave a deadly weapon on or about the offender’s
person * * * and either display the weapon, brandish it, indicate that the offender
possesses it, or use it[.]”
{¶26} The following evidence adduced at trial supported Adams’s
aggravated-burglary offense: While armed with a gun, Adams had knocked on
Pierce’s apartment door and had stood out of the doorway to avoid being seen
through the peephole. When Pierce had asked who was there, Adams had replied,
“Q,” presumably knowing through Jones that Pierce had been expecting her friend
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OHIO FIRST DISTRICT COURT OF APPEALS
Quentin Hines to arrive for dinner. Once Pierce had unlocked the door, Adams had
forcefully pushed open the door. Through this conduct alone, the state presented
sufficient evidence from which the jury could have concluded beyond a reasonable
doubt that Adams had trespassed by force or deception into Pierce’s apartment while
possessing a gun with the purpose of committing a criminal offense once inside.
{¶27} By contrast, Adams’s conduct once inside the apartment supports the
aggravated-robbery convictions: Adams had forced both of the victims to the ground
while brandishing a gun. Adams had demanded items from both victims separately,
and had stolen multiple items from both victims. Because the state relied upon
different conduct in proving the aggravated-robbery offenses, as compared to the
aggravated-burglary offense, those offenses are not allied offenses of similar import
in this case.
{¶28} Therefore, the trial court did not err in sentencing Adams separately
for two counts of aggravated robbery and one count of aggravated burglary. We
overrule Adams’s second assignment of error.
Specifications for Same Act or Transaction
{¶29} In his third assignment of error, Adams argues that the trial court
erred in convicting him of multiple firearm specifications when those convictions
arose out of the same act or transaction.
{¶30} R.C. 2929.14(B)(1)(a)(ii) requires a trial court to impose a three-year
prison term on an offender who is convicted of a firearm specification under R.C.
2941.145. R.C. 2929.14(B)(1)(b) provides that “[e]xcept as provided in division
(B)(1)(g) of this section, a court shall not impose more than one prison term on
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OHIO FIRST DISTRICT COURT OF APPEALS
an offender under division (B)(1)(a) of this section for felonies committed as part of
the same act or transaction.” (Emphasis added.) R.C. 2929.14(B)(1)(g) provides,
[i]f an offender is convicted of * * * two or more felonies,
if one or more of those felonies [is] * * * aggravated
robbery * * *, and if the offender is convicted of * * * a
specification [under R.C. 2941.145] in connection with
two or more of the felonies, the sentencing court shall
impose on the offender the prison term specified under
division (B)(1)(a) of this section for each of the two most
serious specifications of which the offender is convicted
* * * and, in its discretion, also may impose on the
offender the prison term specified under that division
for any or all of the remaining specifications.
{¶31} Because Adams was convicted of two aggravated robberies, each
accompanied by a firearm specification under R.C. 2941.145, the trial court was
required to impose at least two prison terms for those firearm specifications under
R.C. 2929.14(B)(1)(g). Therefore, the trial court’s sentence with respect to the
firearm specifications was authorized by law, and we overrule Adams’s third
assignment of error.
Specifications and Double Jeopardy
{¶32} In his fourth assignment of error, Adams argues that R.C. 2941.25 is
unconstitutional as applied to his aggravated-robbery convictions, which were each
accompanied by a firearm specification. Adams argues that his convictions under
R.C. 2911.01(A)(1) for aggravated robbery required proof beyond a reasonable doubt
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that Adams had had a deadly weapon and had displayed, brandished, indicated
possession of, or used the deadly weapon. Similarly, firearm specifications under
R.C. 2941.145 require proof that an offender had a firearm and displayed,
brandished, indicated possession of, or used the firearm. Adams contends that the
firearm specifications amount to an additional punishment in violation of the Double
Jeopardy Clause.
{¶33} The Double Jeopardy Clause “ ‘protects against multiple punishments
for the same offense.’ ” Missouri v. Hunter, 459 U.S. 359, 366, 103 S.Ct. 673, 678, 74
L.Ed.2d 535, 542 (1983), quoting North Carolina v. Pearce, 395 U.S. 711, 717, 89
S.Ct. 2072, 23 L.Ed.2d 656 (1969). The United States Supreme Court has stated that
“with respect to cumulative sentences imposed in a single trial, the Double Jeopardy
Clause does no more than prevent the sentencing court from prescribing greater
punishment than the legislature intended.” Hunter at 366.
{¶34} The Ohio Supreme Court has held that firearm specifications are not
“offenses” as that term is used in R.C. 2941.25, but “penalty enhancements,” and
therefore, specifications do not invoke Ohio’s multiple-count statute. State v. Ford,
128 Ohio St.3d 398, 2011-Ohio-765, 945 N.E.2d 498, paragraph one of the syllabus.
Thus, per the reasoning of Ford, the Ohio legislature intended that an offender
receive additional prison time for specifications as provided in R.C. 2929.14(B).
Consequently, Adams’s double-jeopardy argument is without merit. We overrule
Adams’s fourth assignment of error.
Conclusion
{¶35} Because we overrule Adams’s assignments of error, we affirm the
judgment of the trial court.
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OHIO FIRST DISTRICT COURT OF APPEALS
Judgment affirmed.
HENDON, P.J., and DINKELACKER, J., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
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