State v. Chatmon , 2013 Ohio 5245 ( 2013 )

[Cite as State v. Chatmon, 2013-Ohio-5245.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 99508
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
PIERRE CHATMON
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-555805
BEFORE: Stewart, A.J., Boyle, J., and McCormack, J.
RELEASED AND JOURNALIZED: November 27, 2013
ATTORNEY FOR APPELLANT
Joseph V. Pagano
P.O. Box 16869
Rocky River, OH 44116
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Denise J. Salerno
Mahmoud Awadallah
Assistant County Prosecutors
The Justice Center
1200 Ontario Street, 8th Floor
Cleveland, OH 44113
MELODY J. STEWART, A.J.:
{¶1} A jury found defendant-appellant Pierre Chatmon guilty of murder, felonious
assault, and improperly discharging a firearm into a habitation, with associated firearm
specifications for all counts. The charges stemmed from an interfamily dispute that
escalated to riot and murder. Guns were fired at a house, and a bullet struck and killed a
16-year-old who was hiding behind the front door of the house. The state argued
Chatmon was either the primary shooter or complicit with codefendant Ramon Torres in
the shooting. In this appeal, Chatmon argues that there was no evidence to establish the
primary element of each offense — that he actually fired a gun — or that he acted in
complicity with Torres. He also argues, among other things, that the court erred by
refusing to instruct the jury on the offense of reckless homicide, that the state engaged in
misconduct during closing argument, and that the court abused its discretion by allowing
the jury to view autopsy photographs. We find no reversible error and affirm.
I
{¶2} Chatmon first argues that his convictions for murder, felonious assault, and
improperly discharging a firearm into a habitation were unsupported by sufficient
evidence to prove that he was complicit with those offenses. Although he conceded that
he was armed with a 9 mm gun when the shooting occurred, he argues that the state failed
to offer any proof that he discharged that gun. He notes that the police never found the
gun nor did they recover any 9 mm bullet casings on the scene. In addition, he notes that
the bullet recovered from the victim was a .38 caliber, so it was different from the gun he
possessed. He also argues that the state failed to offer evidence to show that he was
complicit with codefendant Ramon Torres.
A
{¶3} We decide whether the evidence is sufficient to sustain a verdict by
examining the evidence in the light most favorable to the prosecution and determining
whether any rational trier of fact could have found that the prosecution proved the
essential elements of the crime beyond a reasonable doubt. State v. Yarbrough, 95 Ohio
St.3d 227, 2002-Ohio-2126, 767 N.E.2d 216, ¶ 78, quoting Jackson v. Virginia, 443 U.S.
307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
{¶4} Viewing the evidence most favorably to the state shows that the 16-year-old
victim arrived home from school to discover that his family’s house had been ransacked
and their possessions stolen. The victim called his mother to report what he found, and
she in turn called her other children. They met at the house and learned from friends of
the victim that “word on the street” had it that one of the perpetrators was a member of a
family who lived nearby. A few of the victim’s family members drove to that home to
confront the alleged perpetrator; the remaining family members walked to the home.
{¶5} The victim’s mother testified that she told the alleged perpetrator’s mother
that her son broke into the house. Angry words were exchanged, and the alleged
perpetrator’s mother telephoned her son. At the same time, some of the alleged
perpetrator’s adult siblings appeared. When the alleged perpetrator arrived home, a fight
broke out among all those present, including the mothers. An older male who was
present at the home separated the mothers. This intervention caused everyone to stop
fighting. Some of the victim’s family ran back to their house, but the victim’s mother
and a few others remained on the scene.
{¶6} As the victim’s mother remained at the alleged perpetrator’s house, she saw a
red car occupied by Chatmon and Torres drive up. Chatmon was related to the alleged
perpetrator’s family. Chatmon and Torres exited the car and ran toward those members
of the victim’s family who were walking home. Words were exchanged and according to
the victim’s mother, Torres “made a gesture like he had a gun.” The victim’s brother
exchanged words with Chatmon, and he, too, believed that Chatmon had a gun. As the
family members retreated to their house, the victim’s brother said that he heard gunshots.
{¶7} When the victim’s family returned to their house, they called the police to
report the break-in. After the police left, the victim’s family congregated on the front
porch. They received a visit from an aunt of the alleged perpetrator who was upset that
“everyone was fighting.” Having obtained no satisfaction, the aunt broke off the
discussion and drove away. As the aunt’s vehicle turned a corner, the victim’s mother
saw “all these guys coming” on foot. One of the victim’s family members said
something that caused all ten of those on the porch to retreat into the house and call the
police. The males outside the house gestured to those inside to come out, but the
victim’s family members remained inside for their protection. At the same time,
Chatmon and Torres drove up, but they were now driving a silver car obtained in a drug
deal. Guns were fired in two volleys, separated by only moments. A bullet went
through the front door of the house and struck the victim in the head, leading to his death.
The bullet retrieved from the victim was .38 caliber. However, a police expert testified
that two different kinds of bullets were recovered from the scene, proving that two
different guns were used.
{¶8} Some of those hiding in the house saw Torres fire a gun, but none saw
Chatmon fire a gun. There was, however, an eyewitness to the shooting who testified
that he saw a person wearing black and green clothing firing a gun. The eyewitness
testified that he had been driving down the street where the shooting occurred, close to a
local bar. He saw “someone approaching the car and just started shooting across the car,
to the house across the street from the bar.” Surveillance video from the bar verified that
Chatmon was wearing a black and green shirt and that he carried a gun.
{¶9} The same eyewitness testified that he heard two volleys of gunfire that had
distinctive sounds. The eyewitness believed the different sounds indicated two different
types of guns were fired.
{¶10} When the police questioned Chatmon about the murder, he said that he was
present at the scene, but took off running as soon as he heard gunshots. He said that he
received a call from his cousin and learned that his family members were involved in a
fight with the victim’s family. He and Torres then drove to the scene, but Chatmon
denied being in possession of a gun at any time when the shooting occurred.
{¶11} Unbeknownst to Chatmon, the surveillance video from the bar near the
scene of the shooting proved his statement to be false. The video showed Chatmon
taking a gun from the waistband of his trousers and checking it for ammunition. He then
proceeded to the street where he joined his compatriot in calling the victim’s family out of
their house. The video then showed Chatmon saying something to another person and
walking out of view of the camera. Moments later, the video showed the men apparently
reacting to gunshots because they covered for safety and then scattered. The video
showed that Chatmon was among the last to leave the scene and was carrying a gun in his
hand.
{¶12} When shown the video, Chatmon conceded that the video showed him
wearing a black and green shirt. He denied, however, that the gun he carried was
operable. At first he claimed that the gun did not have an ammunition clip, but that
explanation evaporated because the video showed him cocking the gun. Chatmon then
explained that he was only checking to see if there were bullets in the ammunition clip.
At that point, he told the police that the gun was inoperable because it lacked a firing pin,
although he admitted he did not discover this fact until after the shooting and further
provided no explanation for how he could discover the gun was inoperable but for firing
it. He claimed that Torres was the shooter, stating that Torres saw a car parked in front
of the victim’s house and, thinking it belonged to someone in the victim’s family, said
“I’m going to lite [sic] this bitch up.” He claimed that he was among the last to leave the
scene because the gun fell out of his trousers and he stopped to pick it up.
B
{¶13} The jury found Chatmon guilty of two counts of felony murder (one count
relating to felonious assault; the other relating to improperly discharging a firearm into a
habitation); ten counts of felonious assault (there were ten people in the house); and one
count of improperly discharging a firearm into a habitation. In terms of being a principal
offender, all of the counts depended on a finding that Chatmon fired the gun. But in
terms of complicity, the jury could find him guilty if he, “acting with the kind of
culpability required for the commission of an offense,” aided or abetted Torres in the
commission of the offense. See R.C. 2923.03(A)(2). So Chatmon could be found guilty
for his complicity in the charged offenses regardless of whether he fired a gun, as long as
he assisted or facilitated the commission of a crime, or promoted its accomplishment.
See State v. Johnson, 93 Ohio St.3d 240, 243, 754 N.E.2d 796 (2001). Even if we were
to assume that the evidence did not show that Chatmon acted as a principal offender, we
find sufficient evidence to show that he aided and abetted Torres such that his conviction
was proper.
{¶14} Chatmon’s involvement with the murder began after the victim’s family
went to the home of the alleged perpetrator of the burglary. In a statement to the police,
he said he received a telephone call from a cousin describing the brawl at the alleged
perpetrator’s house and that he went to his aunt’s house “to fight.” Witnesses said that
both Chatmon and Torres either carried guns or made motions indicating that they were
armed.
{¶15} When the events of the shooting occurred several hours later, there is no
question that both Chatmon and Torres were armed. Chatmon told the police that as he
and Torres exited their car and prepared to join others in retaliating against the victim’s
family, Torres asked about a car parked in front of the victim’s house and said that he was
going to “lite [sic] this bitch up.” Chatmon was seen in a surveillance video cocking his
gun, an act he conceded was to see if there were bullets in the clip.
{¶16} This evidence was sufficient to show that Chatmon assisted or facilitated
Torres in shooting the victim. Although one’s mere presence or proximity to an offense
is not enough to establish complicity, State v. Brewster, 157 Ohio App.3d 342,
2004-Ohio-2722, 811 N.E.2d 162, ¶ 45 (1st Dist.), Chatmon’s participation went beyond
mere presence. He and Torres were on the scene and armed for a fight. And with
Torres stating that he was going to “lite [sic] this bitch up,” the clear implication was that
he was going to shoot. Chatmon could not complain that he was unaware that Torres
would actually fire the gun. In addition, Chatmon himself was armed and shown
checking his ammunition before the shooting and then fleeing the scene with the gun in
his hand. This evidence was consistent with his assisting and aiding Torres in the
shooting.
C
{¶17} The court instructed the jury on complicity, but did not ask the jury to make
a specific finding on that point of law. It did tell the jury, in response to a question
during deliberations, that “aiding and abetting” did not apply to the firearm specification.
It is unclear why the court answered as it did — the Ohio Supreme Court has held that a
defendant is subject to a sentencing enhancement on a firearm specification regardless of
whether he was the principal or an unarmed accomplice. State v. Chapman, 21 Ohio
St.3d 41, 42-43, 487 N.E.2d 566 (1986). See also State v. Howard, 8th Dist. Cuyahoga
No. 97695, 2012-Ohio-3459, ¶ 24 (“It is well settled that an unarmed accomplice can be
convicted of an underlying felony, together with a firearm specification, based on an aider
and abettor status.”).
{¶18} Regardless of whether the court erred by telling the jury that a firearm
specification did not apply to Chatmon if the jury found he was an accomplice, there was
enough evidence to prove that the weapon he used was operable for purposes of proving
the firearm specification.
{¶19} In State v. Thompkins, 78 Ohio St.3d 380, 678 N.E.2d 541 (1997), paragraph
one of the syllabus states:
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. (State v. Murphy [1990], 49 Ohio St.3d 206, 551
N.E.2d 932, State v. Jenks [1991], 61 Ohio St.3d 259, 574 N.E.2d 492, and
State v. Dixon [1995], 71 Ohio St.3d 608, 1995-Ohio-178, 646 N.E.2d 453,
followed; R.C. 2923.11[B][1] and [2], construed and applied.)
{¶20} The police did not recover the handgun that Chatmon used, so the state had
to resort to circumstantial evidence to prove that the handgun was operable. In State v.
Hills, 8th Dist. Cuyahoga No. 98848, 2013-Ohio-2902, we stated that “[c]ircumstantial
evidence of a firearm’s operability includes the representations and actions of the
individual exercising control over the weapon.” Id. at ¶ 15.
{¶21} The video surveillance footage showed Chatmon cocking his gun. That act
alone tended to show the operability of the gun because it would have been pointless for
Chatmon to do so with an inoperable gun. In addition, the state’s ballistics expert gave
his opinion that one bullet recovered from the scene was not fired from the same gun as
the bullet that killed the victim. Although the police could not match this bullet to the
handgun carried by Chatmon because the handgun was not recovered, this evidence was
consistent with that of the eyewitness who said that the two volleys of gunshots he heard
sounded different. This indicated to the expert that two different guns were fired.
Consistent with this evidence, a rational trier of fact could have found that Chatmon fired
his gun, proving that it was operable.
D
{¶22} Chatmon also argues that the state failed to offer evidence sufficient to
establish that he had knowledge that Torres would shoot into the house.
{¶23} 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. Johnson, 93 Ohio St.3d 240, 2001-Ohio-1336, 754
N.E.2d 796, syllabus. One’s presence at the scene of a crime is not enough alone to
prove complicity, but complicity can be inferred from “presence, companionship and
conduct before and after the offense is committed.” Id. at 243-245.
{¶24} The facts showing that Torres and Chatmon arrived on the scene armed and
ready to fight were enough to prove Chatmon’s complicity. In addition, a rational trier of
fact could have found Torres’s statement, that he was going to “lite [sic] this bitch up,”
was a direct and present indication to Chatmon of his intent to shoot. For his part,
Chatmon carried a loaded gun and specifically checked his ammunition. He may not
have known that Torres would fire into the house, but the circumstantial evidence was
strong enough to show that Torres’s act of firing into the house was such a distinct
possibility that Chatmon could have expected it to occur under the circumstances.
II
{¶25} Chatmon also argues that his convictions were against the manifest weight
of the evidence because the state failed to present evidence from many of the felonious
assault victims who were inside the house at the time of the shooting and because his
conduct was essentially similar to that of the others who did nothing more than fight.
{¶26} The manifest weight of the evidence standard of review requires us to
review the entire record, weigh the evidence and all reasonable inferences, consider the
credibility of witnesses, and determine whether, in resolving conflicts in the evidence, the
trier of fact 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. Otten, 33 Ohio App.3d
339, 340, 515 N.E.2d 1009 (9th Dist.1986).
{¶27} The jury’s verdict was not a miscarriage of justice. The state had no
obligation to present testimony of every person present inside the house at the time of the
shooting. Persons with knowledge of the facts could competently establish who was
present in the house at the time.
{¶28} We likewise reject Chatmon’s argument that his conduct was essentially
similar to that of those persons related to the victim, who were charged with aggravated
riot. The differentiating fact is that Chatmon carried a gun and manifested the intent to
use it. Not only did the testimony from the victim’s family members uniformly show that
none of them had firearms, they ran to safety when they discovered that Chatmon carried
a handgun. Chatmon’s conduct was distinctly different from that of the other persons on
the scene at the time of the shooting and warranted that he be charged with different
offenses.
III
{¶29} At the close of evidence, Chatmon asked the court to instruct the jury on the
lesser included offense of reckless homicide. He theorized that whether acting as a
principal or in complicity with Torres, he only intended to shoot the car parked in the
front of the victim’s house, but missed the target and hit the house instead. The state
opposed the proposed instruction on grounds that Chatmon engaged in a purposeful act in
shooting. The court refused to give the instruction, finding no basis for concluding that
Chatmon, as either a principal offender or acting in complicity with Torres, was reckless
in discharging a firearm.
{¶30} There is a two-tiered analysis for determining whether a particular offense
should be submitted to the trier of fact as a lesser included offense: (1) is the offense a
lesser included offense of the charged offense, and (2) could the trier of fact reasonably
find the defendant not guilty of the charged offense, but convict the defendant of the
lesser included offense. State v. Deanda, 136 Ohio St.3d 18, 2013-Ohio-1722, 989
N.E.2d 986, ¶ 6.
{¶31} Reckless homicide is a lesser included offense of murder, State v. Benson,
8th Dist. Cuyahoga No. 87655, 2007-Ohio-830, ¶ 112, so the only question is whether the
facts presented at trial could reasonably support an acquittal on murder and a conviction
for reckless homicide. Because the decision of whether to give a lesser included offense
instruction requires the court to consider the facts, the court has discretion when
determining whether the record contains sufficient evidence to support the requested
instruction. State v. Henderson, 8th Dist. Cuyahoga No. 89377, 2008-Ohio-1631, ¶ 10,
citing State v. Wright, 4th Dist. Scioto No. 01 CA2781, 2002-Ohio-1462.
{¶32} Reckless homicide as defined in R.C. 2903.041 differs from murder only
with respect to the culpable mental state: murder in violation of R.C. 2903.02 requires
that the offender act “purposely” to cause the death of another; reckless homicide requires
proof that the accused acted “recklessly.” “A person acts recklessly when, with heedless
indifference to the consequences, he perversely disregards a known risk that his conduct
is likely to cause a certain result or is likely to be of a certain nature.” R.C. 2901.22(C).
{¶33} The court gave the following reasons as to why it would not give a reckless
homicide instruction:
If [Chatmon and Torres] went down there to feloniously assault these
people, if they went down there to shoot up the house, shoot up the car, I
mean, those are acts that are intended. And when they result in death, I
don’t believe the proper charge down [sic] is reckless homicide.
{¶34} We take the court’s reasoning to be that both Chatmon and Torres were on
the scene committed to harming the victim’s family, so their intentional act of shooting a
gun made them responsible for the natural and probable consequences of that act.
Viewed in that manner, we agree that the court did not abuse its discretion by refusing the
instruction.
{¶35} The court had uncontested evidence that Chatmon and Torres were twice on
the scene, and convincing evidence to show that on both occasions they were armed with
handguns. As Chatmon conceded to the police, he and Torres went to the scene a second
time with the intent to fight. When the victim’s family retreated into their house,
Chatmon and his compatriots were seen beckoning the victim’s family out of the house.
The family refused to exit the house and shots were fired just seconds later.
{¶36} Four shots struck the house: two in the front door, one on the second floor
porch, and one on the third floor of the house. The shooters plainly knew the house was
occupied, so the act of shooting the occupied house made them responsible for the natural
and probable consequences of doing so.
{¶37} Chatmon argued that Torres was only aiming for the car that sat between
them and the house. It was not entirely clear whether the car was parked in a direct path
between the shooter and the house (a police detective said, in reference to the position of
the car, “I can’t really say the path, but it’s in front of the house). There was some
evidence to support this argument — several months after the shooting, the police learned
for the first time that the car had a bullet hole in the driver’s door. The police were
unable to recover the bullet to match it against those bullets recovered from the scene, so
the bullet hole neither proved nor disproved Chatmon’s theory that Torres was merely
shooting at the car.
{¶38} Other evidence tended to contradict the theory that Torres was only shooting
at the car. There was evidence that shots were fired by two different guns and more
bullets struck the house than the car: bullets struck the upper levels of the house, making
it highly improbable that the shooters could have missed their target so badly. With this
evidence, the court could reasonably find that Chatmon and Torres purposely shot at the
house knowing that it was occupied. So the facts did not reasonably support an acquittal
on the murder charge and a conviction for reckless homicide.
IV
{¶39} Chatmon next argues that the court abused its discretion by allowing the
state to display gruesome autopsy photographs of the victim. He maintains that the cause
of death was uncontested so the state’s sole purpose for using the photographs was to
inflame the passions of the jury.
{¶40} At trial, Chatmon did not object to the admission of the photographs on the
basis that they were gruesome — defense counsel told the court that “[p]hotographs
depicting the wound, we do not object to.” Having waived any objection to the
admission of photographs of the wound, Chatmon cannot complain on appeal that those
photographs were gruesome. Indeed, he invited the claimed error. State v. Smith, 148
Ohio App.3d 274, 2002-Ohio-3114, 772 N.E.2d 1225, ¶ 30 (8th Dist.).
{¶41} Apart from Chatmon waiving any error relating to the gruesomeness of the
photographs, the state is entitled to offer evidence showing the cause of death, even if the
cause of death is uncontested, to give the jury an “appreciation of the nature and
circumstances of the crimes.” State v. Evans, 63 Ohio St. 3d 231, 251, 586 N.E.2d 1042(1992). Nevertheless, the admission of autopsy photographs, like all other evidence,
must pass the initial test of relevancy, and their probative value must outweigh the danger
of material prejudice to the defendant. State v. Maurer, 15 Ohio St.3d 239, 473 N.E.2d
768 (1984), paragraph seven of the syllabus.
{¶42} The five, full-body autopsy photographs of the victim were irrelevant.
They did not depict the gunshot wound so they did not serve to give the jury an
appreciation of the nature and circumstances of the crime. The court likewise should not
have admitted a close-up photograph of the victim’s face that did not show the gunshot
wound — that photograph had no evidentiary value of any kind. Finally, two
photographs showing the victim’s right and left hands, respectively, contained no
probative evidence of the crime and thus had no evidentiary value. There being no
evidentiary value whatsoever to these photographs, we can only conclude that the state
offered these photographs into evidence for the sole purpose of appealing to the jurors’
passions. On that basis, they were materially prejudicial to the defense and should not
have been admitted into evidence.
{¶43} Despite the court’s error in admitting these autopsy photographs, we cannot
say that their admission deprived Chatmon of a fair trial. When publishing the
photographs to the jury, the court explained that the photographs “are evidence of what
goes on during an autopsy, the procedure that is used, and the findings of the physician in
question.” Importantly, the court then told the jurors that they “may not find [the
photographs] particularly relevant to the decision that you must make.” Whether the jury
did find the photographs relevant is unknown. But the state did offer substantial,
relevant evidence of Chatmon’s complicity in the shooting; namely, the surveillance
video showing Chatmon holding a gun both before and after the shots were fired. This
evidence was so strong that any prejudicial effect of allowing inadmissible autopsy
photographs into evidence was harmless.
V
{¶44} During the state’s closing argument, it explained certain legal definitions
like the terms “knowingly,” “attempt,” and “impossibility” in paraphrase of the statutory
definition. Chatmon argues that the state got some of these definitions wrong; for
example, telling the jurors that his “intent is to shoot. We all know to shoot is to kill, and
that was the result there.” He argues that the state’s argument misled the jury and that
trial counsel was ineffective for failing to object.
A
{¶45} Chatmon concedes that he did not object to the state’s closing argument, so
he has forfeited all but plain error. See Crim.R. 52(B). This means that he can prevail
on this assignment of error only if the error affected Chatmon’s substantial rights and but
for the error, the outcome of the trial would clearly have been different. State v. Long,
53 Ohio St.2d 91, 372 N.E.2d 804 (1978), paragraph two of the syllabus.
{¶46} Chatmon makes no argument that the instructions given by the court on the
relevant terms defining the charged offenses were incorrect in any way. The court made
it clear to the jury that closing arguments were not evidence and that it would instruct the
jury on the applicable law. When it did give its instructions, it informed the jury that it
had to “decide the case based upon the law that I instruct you on” and that “[y]ou have to
accept the law as it is and you are to apply it throughout your entire deliberations * * *.”
The court also permitted the jury to take its instructions into deliberations. A jury is
presumed to follow the instructions given to it by the judge, State v. Henderson, 39 Ohio
St.3d 24, 33, 528 N.E.2d 1237 (1988), and nothing in this case suggests that the jury did
otherwise. Chatmon has failed to show any prejudice, so no plain error exists.
B
{¶47} To succeed on his ineffective assistance of counsel claim, Chatmon must
show that: (1) counsel’s failures fell below an objective standard of reasonableness and
(2) counsel’s deficient performance was prejudicial. See Strickland v. Washington, 466
U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To show prejudice in an
ineffective assistance of counsel claim, the defendant must demonstrate “a reasonable
probability that, were it not for counsel’s errors, the result of the trial would have been
different.” State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), paragraph three
of the syllabus.
{¶48} As previously noted, Chatmon has no complaint with the jury instructions
given by the court. Those instructions clearly told the jury that it must follow the
definitions of statutory elements given by the court, not counsel. The presumption that
the jury follows the court’s instructions holds here. We find no reasonable probability
that anything the state said in closing argument caused the jury to disregard the court’s
instructions to arrive at a verdict of guilty.
VI
{¶49} During sentencing, the court credited Chatmon with jail-time served, but did
not state the number of days credited. Chatmon argues this was error. We find no error.
At the time of his indictment, Chatmon was being held in jail on two separate cases:
CR-555151 and CR-556026. A defendant cannot receive jail-time credit when he serves
time for unrelated offenses while in jail awaiting trial on separate charges. See State v.
Logan, 71 Ohio App.3d 292, 300, 593 N.E.2d 395 (10th Dist.1991); State v. Harper, 6th
Dist. Sandusky No. S-10-005, 2010-Ohio-6518, ¶ 13. The court’s statement that
Chatmon was entitled to jail-time credit appeared to have been made by rote. The
statement was essentially meaningless because Chatmon was held on other charges and
was not entitled to any credit.
VII
{¶50} Finally, Chatmon argues that the court erred by failing to merge the ten
felonious assault counts, conceding that this court has held that felonious assault
convictions resulting from a single course of conduct that results in different named
victims do not merge. See, e.g., State v. Snuffer, 8th Dist. Cuyahoga Nos. 96480, 96481,
96482, and 96483, 2011-Ohio-6430, ¶ 4 (“[w]hen an offense is defined in terms of
conduct towards another, then there is dissimilar import for each person affected by the
conduct”). Given this concession, we overrule the assignment of error.
{¶51} Judgment affirmed.
It is ordered that appellee recover of appellant its costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the Cuyahoga
County Court of Common Pleas to carry this judgment into execution. The defendant’s
conviction having been affirmed, any bail pending appeal is terminated. Case remanded
to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
MELODY J. STEWART, ADMINISTRATIVE JUDGE
MARY J. BOYLE, J., and
TIM McCORMACK, J., CONCUR