State v. Jones , 2011 Ohio 4013 ( 2011 )

[Cite as State v. Jones, 2011-Ohio-4013.]
IN THE COURT OF APPEALS OF MONTGOMERY COUNTY, OHIO
STATE OF OHIO :
Plaintiff-Appellee : C.A. CASE NO. 24075
vs. : T.C. CASE NO. 09CR2740/1
BRANDON D. JONES : (Criminal Appeal from
Common Pleas Court)
Defendant-Appellant :
. . . . . . . . .
O P I N I O N
Rendered on the 12th day of August, 2011.
. . . . . . . . .
Mathias H. Heck, Jr., Pros. Attorney; Andrew T. French, Atty. Reg.
No.0069384, Asst. Pros. Attorney, P.O. Box 972, Dayton, OH 45422
Attorneys for Plaintiff-Appellee
Christopher W. Thompson, Atty. Reg. No.0055379, 130 W. Second
Street, Suite 2050, Dayton, OH 45402
Attorney for Defendant
. . . . . . . . .
GRADY, P.J.:
{¶ 1} Defendant, Brandon Jones, appeals from his conviction
and sentence for aggravated robbery and possession of crack
cocaine.
{¶ 2} On August 21, 2009, between 3:00 and 4:00 a.m., Antanyis
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Alston stepped outside his brother’s apartment at 2905 Wexford
Place in Dayton to smoke a cigarette. While outside, Alston was
beaten and robbed by three men. Defendant, who Alston recognized
from the neighborhood and knew only as “B,” pointed a gun at Alston
and demanded that Alston “give him everything.” Defendant and
his accomplices took Alston’s money, cigarettes, cell phone and
other items. Defendant pistol whipped Alston. Another of the
men Alston knew as “D’AK” hit Alston with a mop. The third man,
who Alston did not know, punched Alston. Finally, Defendant fired
a shot into the ground near Alston’s feet before all three suspects
ran off.
{¶ 3} Alston’s brother, Kion, was inside his apartment and
heard the gunshot. When Kion Alston opened the door, he saw
Antanyis Alston’s face was injured and that he was bleeding. Kion
Alston told his brother to run to their sister’s house in case
the assailants returned. Antanyis Alston called his sister,
Monique Boykin, told her what had happened, and then ran over to
her house, which was only ten minutes away by foot. After Alston
arrived at Boykin’s house, paramedics were called and they took
Alston to the hospital. Alston talked with Dayton police at the
hospital, and from the information Alston provided police began
searching for D’Akshun Winston, whom police found and arrested
the next day. Alston’s cell phone was found in Winston’s pocket.
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{¶ 4} Alston was subsequently shown a set of photographs by
Detective Ritchey in an effort to identify the person Alston knew
as “B.” Alston identified Defendant as “B,” the gunman who pistol
whipped him and fired the shot. After his arrest, Defendant
admitted to police that he hangs around the neighborhood where
Alston was robbed and that he knows “D’AK,” but he denied any
involvement in Alston’s robbery. Defendant was unable to recall
where he was at the time of the robbery.
{¶ 5} Defendant was indicted on one count of aggravated
robbery, R.C. 2911.01(A)(1), with a three year firearm
specification, R.C. 2941.145, and one count of possessing crack
cocaine, less than one gram, in violation of R.C. 2925.11(A).
Following a jury trial, Defendant was found guilty of the aggravated
robbery charge and the firearm specification. Defendant
subsequently entered a guilty plea to the cocaine possession
charge. The trial court sentenced Defendant to three years on
the aggravated robbery charge, plus an additional and consecutive
three years on the firearm specification. The court imposed a
concurrent six months sentence on the cocaine possession charge,
for a total sentence of six years.
{¶ 6} Defendant timely appealed to this court.
FIRST ASSIGNMENT OF ERROR
{¶ 7} “THE JURY’S VERDICT WAS AGAINST THE MANIFEST WEIGHT OF
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THE EVIDENCE.”
{¶ 8} A weight of the evidence argument challenges the
believability of the evidence and asks which of the competing
inferences suggested by the evidence is more believable or
persuasive. State v. Hufnagle (Sept. 6, 1996), Montgomery App.
No. 15563. The proper test to apply to that inquiry is the one
set forth in State v. Martin (1983), 20 Ohio App.3d 172, 175:
{¶ 9} “The court, reviewing the entire record, weighs the
evidence and all reasonable inferences, considers the credibility
of witnesses and determines whether in resolving conflicts in the
evidence, the jury lost its way and created such a manifest
miscarriage of justice that the conviction must be reversed and
a new trial ordered.” Accord: State v. Thompkins, 78 Ohio St.3d
380, 1997-Ohio-52.
{¶ 10} The credibility of the witnesses and the weight to be
given to their testimony are matters for the trier of facts to
resolve. State v. DeHass (1967), 10 Ohio St.2d 230. In State
v. Lawson (August 22, 1997), Montgomery App. No. 16288, we observed:
{¶ 11} “Because the factfinder . . . has the opportunity to
see and hear the witnesses, the cautious exercise of the
discretionary power of a court of appeals to find that a judgment
is against the manifest weight of the evidence requires that
substantial deference be extended to the fact finder’s
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determinations of credibility. The decision whether, and to what
extent, to credit the testimony of particular witnesses is within
the peculiar competence of the fact finder, who has seen and heard
the witness.”
{¶ 12} This court will not substitute its judgment for that
of the trier of facts on the issue of witness credibility unless
it is patently apparent that the trier of facts lost its way in
arriving at its verdict. State v. Bradley (Oct. 24, 1997),
Champaign App. No. 97-CA-03.
{¶ 13} Defendant argues that his conviction for aggravated
robbery in violation of R.C. 2911.01(A)(1) is against the manifest
weight of the evidence because it is based entirely upon the
testimony of the victim, Antanyis Alston, which is inconsistent,
contradicts the testimony of other witnesses, and not worthy of
belief.
{¶ 14} The pivotal issue at Defendant’s trial was whether he
was one of the three assailants who robbed and beat Antanyis Alston.
Defendant argues that since there was no physical evidence or
other witnesses that corroborated Alston’s identification of
Defendant, and because Alston’s testimony was not worthy of belief,
the jury lost its way in finding Defendant guilty.
{¶ 15} Alston consistently acknowledged from the beginning that
he did not know Jones’ real name, but that he had seen him in the
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neighborhood several times, recognized him, and knew him as “B.”
In talking with police, Defendant admitted that he hangs around
the neighborhood where this robbery occurred. Alston’s sister,
Monique Boykin, confirmed that when Alston called to tell her that
he had been beaten and robbed, he said: “‘B’ hit me with a gun.”
The next day Alston positively identified Defendant from
photographs as “B,” one of the three assailants who beat and robbed
him.
{¶ 16} In attempting to discredit Alston’s identification of
him, Defendant points out that Alston’s brother, Kion, testified
that Alston never told him the names of the persons who robbed
him. That is understandable given that Alston did not know their
real names. Defendant further points to the testimony of Officer
Watkins that while speaking with Alston at the hospital, Alston
gave the name “D’AK,” but was unable to give the names of any of
the other assailants. Alston acknowledged, however, that he
provided only descriptions of the other two assailants because
he did not know their real or street names.
{¶ 17} Defendant argues that Alston’s testimony was
inconsistent regarding the place where this robbery occurred.
Alston consistently testified that he was robbed outside his
brother’s apartment, which is in the Hilltop Homes neighborhood.
Alston’s brother, Kion, testified that he heard a gunshot outside
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his door at 2905 Wexford Place, which is in the Hilltop Homes
neighborhood, and when he opened the door Alston, who had been
beaten, told him he had just been robbed. Alston’s sister, Monique
Boykin, testified that Alston told her he had been robbed outside
his brother’s apartment. It was Officer Watkins who gave
conflicting testimony regarding what Watkins remembered Alston
saying about where the robbery took place. In any event, where
the robbery took place has little or nothing to do with the
reliability of Alston’s identification of Defendant as one of the
perpetrators.
{¶ 18} With respect to the time of the robbery, Alston
consistently testified that it occurred between 3:00 and 4:00 a.m.
on August 21, 2009. Alston’s brother, Kion, testified that he
heard the gunshot around 4:00 a.m. Alston’s sister, Monique
Boykin, testified that Alston called her between 3:00 and 4:00
a.m. and told her about the robbery that had just happened. It
was Officer Watkins who created a conflict in the time frame by
testifying that he was dispatched at 8:46 a.m. Once again, this
has little or nothing to do with the reliability of Alston’s
identification of Defendant as one of the assailants.
{¶ 19} Finally, even assuming that Alston did misidentify a
person from some photographs as the third assailant, whom Alston
consistently claimed he had never seen before and did not know,
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Alston nevertheless did not misidentify Defendant or D’AK, persons
he knew and recognized.
{¶ 20} Defendant also points to other inconsistencies in
Alston’s testimony and conflicts between Alston’s testimony and
the testimony of other witnesses. Those matters are peripheral
to the critical issue: whether Alston was beaten and robbed by
Defendant. The jury resolved the issue of Alston’s credibility
in his favor. We find no basis to disturb that finding.
{¶ 21} The credibility of the witnesses and the weight to be
given to their testimony were matters for the trier of facts, the
jury, to decide. DeHass. The jury did not lose its way simply
because it chose to believe the State’s witnesses and theory of
the case, rather than Defendant’s, which it had a right to do.
Id.{¶ 22} Reviewing this record as a whole, we cannot say that
the evidence weighs heavily against a conviction, that the trier
of facts lost its way in choosing to believe the State’s witnesses,
or that a manifest miscarriage of justice has occurred.
Defendant’s conviction for aggravated robbery is not against the
manifest weight of the evidence.
{¶ 23} Defendant’s first assignment of error is overruled.
SECOND ASSIGNMENT OF ERROR
{¶ 24} “THE DEFENDANT-APPELLANT RECEIVED INEFFECTIVE
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ASSISTANCE OF COUNSEL IN VIOLATION OF HIS SIXTH AMENDMENT RIGHT
TO COUNSEL.”
{¶ 25} Counsel's performance will not be deemed ineffective
unless and until counsel's performance is proved to have fallen
below an objective standard of reasonable representation and, in
addition, prejudice arose from counsel's performance.
Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052,
80 L.Ed.2d 674. To show that a defendant has been prejudiced by
counsel’s deficient performance, the defendant must affirmatively
demonstrate to a reasonable probability that were it not for
counsel’s errors, the result of the trial would have been different.
Id., State v. Bradley (1989), 42 Ohio St.3d 136.
{¶ 26} Detective Ritchie testified on cross-examination that
when Officer Watkins showed Alston photographs in an attempt to
identify his third assailant, Alston chose an individual who turned
out not to be the correct person. Defendant claims that his trial
counsel performed deficiently by failing to introduce the
photospread that was the subject of Alston’s misidentification
of the third assailant, and further by failing to cross-examine
Alston and Officer Watkins about that misidentification.
Defendant argues that the key piece of evidence to attack Alston’s
identification of him was the photospread from which the
misidentification of the third assailant was made, because that
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exhibit undermines the reliability of the State’s only
identification witness. That evidence was never introduced at
trial, however.
{¶ 27} The jury was made aware of the fact of Alston’s
misidentification of the third assailant. Any relevance the
evidence concerning Alston’s misidentification might have in terms
of negatively impacting the reliability of Alston’s identification
of Defendant as one of his assailants would be marginal at best,
given that Defendant consistently maintained that he had never
seen the third assailant before and did not know him, but that
he had seen Defendant several times before in the neighborhood
and knew him as “B.” Defendant’s contention about what might have
happened had defense counsel introduced the photographs associated
with Alston’s misidentification of the third assailant is too
speculative to demonstrate that Defendant was prejudiced by
counsel’s failure.
{¶ 28} Defendant has failed to demonstrate deficient
performance by defense counsel, much less that but for counsel’s
failure to introduce the photographs connected to Alston’s
misidentification of the third suspect, Defendant would have been
found not guilty. No prejudice, as defined by Strickland, has
been demonstrated.
{¶ 29} Defendant’s second assignment of error is overruled.
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THIRD ASSIGNMENT OF ERROR
{¶ 30} “THE TRIAL COURT ABUSED ITS DISCRETION IN PERMITTING
PORTIONS OF THE TRANSCRIPT TO BE READ TO THE JURY DURING
DELIBERATIONS THEREBY DENYING APPELLANT’S SIXTH AMENDMENT RIGHT
TO A FAIR TRIAL.”
{¶ 31} During deliberations the jury sent a note to the trial
court asking to have read to them Alston’s testimony from the start
of his direct examination to the point where he testifies that
D’AK said: “Kill that n---a.” The jury also requested all
cross-examination of Alston concerning the gun. Over Defendant’s
objection, the trial court had the court reporter read to the jury
the requested portions of Alston’s testimony.
{¶ 32} Defendant argues that the trial court abused its
discretion because, by reading only a portion of Alston’s
testimony to the jury, the trial court unfairly emphasized that
portion of Alston’s testimony, to the exclusion of other portions
of Alston’s testimony that Defendant claims were inconsistent and
contradictory.
{¶ 33} A trial court possesses broad discretion in deciding
whether to permit a jury to re-hear all or part of a witness’s
testimony during its deliberations. State v. Frazier, Clark App.
No. 2008CA0118, 2010-Ohio-1507 at ¶53, citing State v. Leonard,
104 Ohio St.3d 54, 2004-Ohio-6235, at ¶123. Absent an abuse of
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discretion, a reviewing court may not reverse the trial court’s
decision. Id.{¶ 34} “Abuse of discretion’ has been defined as an attitude
that is unreasonable, arbitrary or unconscionable. Huffman v. Hair
Surgeon, Inc. (1985), 19 Ohio St.3d 83, 87, 19 OBR 123, 126, 482
N.E.2d 1248, 1252. It is to be expected that most instances of
abuse of discretion will result in decisions that are simply
unreasonable, rather than decisions that are unconscionable or
arbitrary.
{¶ 35} “A decision is unreasonable if there is no sound
reasoning process that would support that decision. It is not
enough that the reviewing court, were it deciding the issue de
novo, would not have found that reasoning process to be persuasive,
perhaps in view of countervailing reasoning processes that would
support a contrary result.” AAAA Enterprises, Inc. v. River Place
Community Redevelopment (1990), 50 Ohio St.3d 157, 161.
{¶ 36} Defendant argues that the testimony read to the jury
unfairly prejudiced him because it clearly implies that Alston
knew Defendant’s name, when other portions of Alston’s testimony
that were not read to the jury clearly demonstrate that Alston
did not know Defendant’s name until after he had identified
Defendant from photographs and Detective Ritchie told Alston
Defendant’s name.
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{¶ 37} The critical issue was whether Alston recognized
Defendant as one of the perpetrators of this crime and could
identify him as such, not whether he knew Defendant’s real or street
name. Furthermore, the request to have this portion of Alston’s
testimony re-read was made by the jury, which determined that it
would be helpful to their deliberations. This is not a case where
the trial court on its own emphasized or pointed the jury to anything
particular in Alston’s testimony.
{¶ 38} The jury’s request was detailed, seeking very specific
parts of Alston’s testimony, and the trial court strictly limited
its response to what was requested by the jury. The trial court
acted well within its discretion in allowing the portions of
Alston’s testimony requested by the jury to be re-read to the jury.
No abuse of discretion is demonstrated.
{¶ 39} Defendant’s third assignment of error is overruled.
FOURTH ASSIGNMENT OF ERROR
{¶ 40} “THE TRIAL COURT ERRED IN DISAPPROVING SHOCK
INCARCERATION, INTENSIVE PROGRAM PRISON AND TRANSITIONAL CONTROL
ARGUMENT.”
{¶ 41} Defendant argues that the trial court erred in
disapproving shock incarceration, intensive program prison, and
transitional control, and that the court further erred in not
putting its reasons for the disapproval on the record. See: State
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v. Howard, Montgomery App. No. 23815, 2010-Ohio-5283.
{¶ 42} At the sentencing hearing and again in its judgment entry
of conviction, the trial court did not “disapprove” Defendant for
shock incarceration, intensive program prison and transitional
control, and then fail to put its reasons for the disapproval on
the record. Rather, the court concluded that Defendant was “not
eligible” for shock incarceration, intensive program prison, or
transitional control.
{¶ 43} R.C. 5120.032(B)(2)(a) provides that a prisoner who is
serving a prison term for a felony of the first degree is not
eligible to participate in an intensive program prison. Defendant
was convicted and sentenced for aggravated robbery, a felony of
the first degree. R.C. 2911.01(C). Therefore, as the trial court
correctly found, Defendant is not eligible for intensive program
prison.
{¶ 44} R.C. 5120.031(A)(4) indicates that a person is not
eligible for shock incarceration if he is ineligible to participate
in an intensive program prison under R.C. 5120.032. As stated
above, Defendant is not eligible to participate in an intensive
program prison. Therefore, as the trial court correctly found,
Defendant is not eligible for shock incarceration.
{¶ 45} R.C. 2967.26(A)(1)(b) provides that no prisoner who is
serving a mandatory prison term is eligible for the transitional
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control program until after expiration of the mandatory term.
Defendant was sentenced to a mandatory three year prison term on
the firearm specification attached to the aggravated robbery
charge. Accordingly, Defendant is not eligible for transitional
control until after his completion of the mandatory three year
term, and therefore at the time of sentencing Defendant was, as
the trial court correctly found, ineligible for transitional
control.
{¶ 46} In State v. Howard, supra, we held that the trial court
erred by disapproving transitional control in the judgment entry
of conviction because the court is able to approve or disapprove
transitional control only after a person has been incarcerated
and the adult parole authority sends the required three weeks’
notice to the trial court indicating its intention to grant
transitional control. Id., at ¶2, 40-44. In the present case,
the court instead held that Defendant is not eligible, which is
correct. After Defendant completes his mandatory three year
prison term on the firearm specification, and if and when the trial
court receives notice that the adult parole authority intends to
grant Defendant transitional control, the trial court will have
an opportunity at that appropriate time to approve or disapprove
transitional control.
{¶ 47} Defendant’s fourth assignment of error is overruled.
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The judgment of the trial court will be affirmed.
HALL, J. And DONOFRIO, J., concur.
(Hon. Gene Donofrio, Seventh District Court of Appeals, sitting
by assignment of the Chief Justice of the Supreme Court of Ohio.)
Copies mailed to:
Andrew T. French, Esq.
Christopher W. Thompson, Esq.
Hon. Dennis J. Langer