State v. Richardson , 2013 Ohio 2068 ( 2013 )

[Cite as State v. Richardson, 2013-Ohio-2068.]
[Please see nunc pro tunc opinion at 2013-Ohio-5760.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
:
: Hon. William B. Hoffman, P.J.
Plaintiff-Appellee : Hon. John W. Wise, J.
: Hon. Craig R. Baldwin, J.
-vs- :
: Case No. 2012CA00166
LANCE RICHARDSON :
:
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Stark County Court of
Common Pleas, Case No.
2012CR0737
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: May 20, 2013
APPEARANCES:
For Appellant: For Appellee:
JACOB T. WILL KATHLEEN O. TATARSKY
116 Cleveland Ave. NW – Suite 808 Assistant Prosecuting Attorney
Canton, OH 44702 110 Central Plaza South – Suite 510
Canton, OH 44702-1413
Baldwin, J.
{¶1} Appellant Lance Richardson appeals a judgment of the Stark County
Common Pleas Court convicting him of aggravated robbery (R.C. 2911.01(A)(3)) and
felonious assault (R.C. 2903.11(A)(1)). Appellee is the State of Ohio.
STATEMENT OF FACTS AND CASE
{¶2} In December of 2011, Todd Davis placed an ad on Craig’s List for a date.
A woman named Tiffany responded to his ad and started texting Davis. On January 3,
2012, Tiffany texted Davis wanting to meet him at a bar on the corner of 15th Street
and Harrison in Canton.
{¶3} Davis went to the bar. Tiffany was not there, so he sat at the bar and
drank a few sodas. Eventually Tiffany texted Davis, asking him to pick her up at an
address in Canton.
{¶4} Davis arrived at the address Tiffany gave him around 10:30 p.m. At her
direction, he parked in a public lot near Aultman Hospital. Tiffany was waiting for him.
Davis and Tiffany began walking down an alley where there were apartments. Davis
assumed that they were walking to Tiffany’s apartment.
{¶5} A man wearing a hoodie walked up to Tiffany and asked her for a light.
He did not have his cigarette with him, and briefly walked away. When he came back,
he hit Davis in the head with bottle. While Davis was on the ground, the man kicked
him in the face several times, asking for his wallet. At this point, Davis was knocked
“totally loo-loo.” Tr. 141. Tiffany, whose real name is Maria Likouris, ran away. The
man took Davis’ cell phone and his wallet. Davis went to Aultman Hospital and was
treated for a broken nose and fractured eye socket.
{¶6} Detective Gary Cochran of the Canton Police Department was assigned
to investigate the case. He learned that appellant’s Chase credit card was used at a
Speedway gas station near the site of the robbery at 11:03 p.m. Video surveillance
tapes showed Likouris and a man wearing a black hoodie using Davis’ credit card to
make purchases. The credit card was then used at 11:43 p.m. in a Giant Eagle
grocery store, along with a Giant Eagle Advantage Card belonging to appellant.
Likouris and the man in the hoodie were also spotted holding hands on Wal-Mart
video surveillance at 3:32 a.m., using Davis’ credit card to attempt to purchase
American Express gift cards. While in the store, the pair returned a Wii game for a
cash refund, and appellant’s name was signed to the receipt.
{¶7} The video surveillance tapes were shown to Davis. Davis was “pretty
sure” that the woman in the videos was the woman he knew as Tiffany. He was not
sure if the male in the videos was the man who attacked him. Three days later, Davis
viewed a photo lineup that included appellant. On a scale of one to five, with one
being certain a photo is not of the perpetrator and five being certain that the photo is
of the perpetrator, Davis rated the photo of appellant a three and the remaining five
photos as ones.
{¶8} Det. Cochran interviewed Likouris on February 3, 2012. After waiving
her Miranda rights, she told Cochran that appellant, who was her boyfriend, set up the
meeting with Davis. Appellant asked her for a lighter and the next thing she knew,
appellant hit Davis. However, she later told a public defender that appellant attacked
Davis in self defense.
{¶9} Appellant was indicted by the Stark County Grand Jury with one count of
aggravated robbery and one count of felonious assault. Appellant filed a motion to
suppress the photo identification on the grounds that it was tainted by showing Davis
the video surveillance films of appellant using the stolen credit cards. He also moved
to suppress his statement to police on the grounds that he was not given Miranda
warnings. The court overruled the motion to suppress the photo identification, but
granted the motion to suppress the statement.
{¶10} The case proceeded to jury trial in the Stark County Common Pleas
Court. At trial, Likouris admitted that she accompanied appellant to Speedway, Giant
Eagle and Wal-Mart after the robbery, but claimed she did not know the identity of the
man who assaulted and robbed Davis. She testified that she only told Det. Cochran
that the man who assaulted and robbed Davis was appellant because she was upset
with appellant at the time.
{¶11} Appellant was convicted as charged. He was sentenced to ten years
incarceration for aggravated robbery and five years incarceration for felonious assault,
to be served concurrently for an aggregate term of ten years. He assigns three errors
on appeal:
{¶12} “I. THE TRIAL COURT ERRED IN DENYING THE APPELLANT’S
MOTION TO SUPPRESS THE IDENTIFICATION OF THE APPELLANT DUE TO THE
SUGGESTIVE NATURE OF THE PHOTO LINEUP.”
{¶13} “II. THE TRIAL COURT ERRED IN FAILING TO GIVE THE
APPELLANT’S REQUESTED JURY INSTRUCTION REGARDING PRIOR
INCONSISTENT STATEMENTS OF A MATERIAL WITNESS.”
{¶14} III. THE APPELLANT’S CONVICTIONS FOR ONE COUNT OF
AGGRAVATED ROBBERY IN VIOLATION OF R.C. 2911.01 AND ONE COUNT OF
FELONIOUS ASSAULT IN VIOLATION OF R.C. 2903.11 WERE AGAINST THE
MANIFEST WEIGHT AND SUFFICIENCY OF THE EVIDENCE.”
I.
{¶15} In his first assignment of error, appellant argues that the court erred in
overruling his motion to suppress because the photo lineup was impermissibly tainted
by the store video surveillance tapes previously viewed by Davis.
{¶16} When a witness is shown a photograph of a suspect before trial, due
process requires a court to suppress the photo identification of the suspect if the photo
array was unnecessarily suggestive of the suspect's guilt and the identification was not
reliable. State v. Waddy, 63 Ohio St.3d 424, 438, 588 N.E.2d 819 (1992), superseded
by constitutional amendment on other grounds. The defendant has the burden to show
that the identification procedure was unduly suggestive. State v. Harris, 2nd Dist. No.
19796, 2004-Ohio-3570, ¶ 19. If the defendant meets that burden, the court must then
consider whether the identification, viewed under the totality of the circumstances, is
reliable despite its suggestive character. Id., citing State v. Wills, 120 Ohio App.3d 320,
324, 697 N.E.2d 1072 (1997). If the pretrial confrontation procedure was not unduly
suggestive, any remaining questions as to reliability go to the weight of the
identification, not its admissibility, and no further inquiry into the reliability of the
identification is required. Id. at 325, 697 N.E.2d 1072.
{¶17} The trial court found that appellant failed to meet his burden of
demonstrating that the method used by the police in the instant case was
impermissibly suggestive. We agree.
{¶18} Appellant was shown the videotape several days before the photo lineup.
He was unable to identify the man in the videotape as the man who assaulted him,
although he was “pretty sure” the woman in the videotape was the woman he knew as
Tiffany. However, when appellant viewed the photos, he was still only able to assign a
number of three out of five to his certainty that appellant was the man who assaulted
him. As the trial court noted at the end of the suppression hearing, “So if the officer
was suggesting something, he didn’t suggest it well because it was a 1 out of – it was
a 3 out of 5, you know what I’m saying?” Tr. Supp. 46. The nebulous identification of
appellant by Davis went to the weight of the evidence, not its admissibility. There is
nothing in the evidence presented at the suppression hearing to indicate that the
identification in the photo lineup was in any way tainted by the videotape.
{¶19} The first assignment of error is overruled.
II.
{¶20} Appellant argues that the court erred in failing to give his requested jury
instruction regarding prior inconsistent statements by Likouris.
{¶21} Likouris was called as a court witness and a hostile witness. She
testified at trial that she did not recognize the man who attacked appellant. She
admitted that she was with appellant, who was her boyfriend, when he used Davis’
credit cards later that night, but she testified that appellant bought the cards from
someone else.
{¶22} The state used two prior inconsistent statements by Likouris to impeach
her credibility. In one statement she told Detective Cochran that appellant attacked
and robbed Davis. She also admitted that she told the public defender that appellant
attacked Davis, but in self defense.
{¶23} Appellant requested an instruction which stated that the jury may not
consider previous statements by Likouris as substantive evidence of what actually
occurred on the day in question, and could only use these statements to judge her
credibility. Instead, the court instructed the jury that they may or may not consider
these statements as substantive evidence, or they may use statements to judge her
credibility as a witness. Tr. 294-295.
{¶24} Appellant does not argue that the statements were inadmissible to
impeach the credibility of the witness; rather, appellant argues that the statements
could not be used as substantive evidence of guilt because the statements were
hearsay. The State concedes that the statements could not be used as substantive
evidence of guilt, and argues that the court’s instruction was harmless error.
{¶25} In Neder v. United States, 527 U.S. 1, 119 S.Ct. 1827, 144 L.Ed.2d
35(1999), the United States Supreme Court held that because the failure to properly
instruct the jury is not in most instances structural error, the harmless error rule of
Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705, applies to a failure
to properly instruct the jury, for it does not necessarily render a trial fundamentally
unfair or an unreliable vehicle for determining guilt or innocence. Crim. R. 52(A)
defines harmless error as any “error, defect, irregularity, or variance which does not
affect substantial rights.”
{¶26} The error in the judge’s instruction was harmless in the instant case.
Video surveillance tapes show appellant using Davis’ credit cards shortly after the
robbery and in an area near the site of the robbery. Appellant used his own Giant
Eagle advantage card along with the credit card stolen from Davis, and signed a
receipt at Wal-Mart using his own name on the same visit where he used a card stolen
from Davis. Likouris admitted to posing as “Tiffany” and taking Davis to the spot
where he was robbed, although her statements varied concerning the identity of the
attacker. There is no evidence to corroborate her new statement at trial that appellant
purchased the stolen credit cards from someone else before they began going from
store to store using the cards. Although Davis could not identify appellant as the man
who attacked him with certainty, he could identify him by a three on a scale of five.
There is sufficient evidence independent of the prior statements by Likouris from
which the jury could have concluded that appellant was the man who attacked and
robbed Davis. The error in the instruction was therefore harmless.
{¶27} The second assignment of error is overruled.
III.
{¶28} Appellant argues that his convictions are against the manifest weight of
the evidence and were not supported by sufficient evidence.
{¶29} In determining whether a verdict is against the manifest weight of the
evidence, the appellate court acts as a thirteenth juror and “in reviewing the entire
record, weighs the evidence and all reasonable inferences, considers the credibility of
witnesses, and determines whether in resolving conflicts in 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.’” State v. Thompkins, 78 Ohio St. 3d 380, 387,
1997-Ohio-52, 678 N.E.2d 541, quoting State v. Martin, 20 Ohio App. 3d 172, 175,
485 N.E.2d 717 (1983).
{¶30} An appellate court's function when reviewing the sufficiency of the
evidence is to determine whether, after viewing the evidence in a light most favorable
to the prosecution, any rational trier of fact could have found the essential elements of
the crime proven beyond a reasonable doubt. State v. Jenks, 61 Ohio St. 3d 259, 574
N.E.2d 492, paragraph two of the syllabus (1991).
{¶31} Appellant does not argue that the State failed to prove any of the
statutory elements of the offenses of aggravated robbery and felonious assault, but
rather argues that his convictions were based on mistaken identity, fueled by a
suggestive photo lineup and inconsistent testimony by Likouris.
{¶32} The State presented evidence that Likouris used the name “Tiffany” to
respond to an ad appellant placed on Craig’s list. She directed him to meet her in a
public parking lot, and led him down an alley toward what Davis thought was her
apartment. In the alley, she was approached by a man who asked her for a “light.”
The man hit Davis with a bottle, kicked and beat Davis, and took his wallet and cell
phone. During the attack, the man referred to Davis as “Dave.” Because Davis was
hit from behind, he could not positively identify the man, but did state that the man was
African-American and wearing a black hoodie. He was able to assign appellant’s
picture a number three out of five when viewing the photo lineup. Davis was attacked
around 10:30 p.m., and video tapes showed appellant and Likouris using the stolen
credit cards at three places near the scene of the robbery almost immediately
thereafter: Speedway at 11:00 p.m., Giant Eagle at 11:42 p.m., and Wal-Mart at 3:32
a.m. The credit cards were later found at a doctor’s office around the corner from the
place where appellant and Likouris were staying. Further, while Likouris stated at trial
that someone other than appellant attacked Davis, her credibility was impeached by
the fact that she had given two prior statements identifying appellant as the attacker.
{¶33} The judgment is supported by sufficient evidence and is not against the
manifest weight of the evidence. The third assignment of error is overruled.
{¶34} The judgment of the Stark County Common Pleas Court is affirmed.
By: Baldwin, J.
Hoffman, P.J. and
Wise, J. concur.
HON. CRAIG R. BALDWIN
HON. WILLIAM B. HOFFMAN
HON. JOHN W. WISE
CRB:rad
IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
:
STATE OF OHIO :
:
Plaintiff - Appellee : JUDGMENT ENTRY
:
:
-vs- :
: Case No. 2012CA00166
LANCE RICHARDSON :
:
Defendant - Appellant :
:
For the reasons stated in our accompanying Opinion on file, the judgment of the
Stark County Court of Common Pleas is affirmed. Costs assessed to Appellant.
HON. CRAIG R. BALDWIN
HON. WILLIAM B. HOFFMAN
HON. JOHN W. WISE