State v. Cassano , 2012 Ohio 3073 ( 2012 )


Menu:
  • [Cite as State v. Cassano, 
    2012-Ohio-3073
    .]
    Court of Appeals of Ohio
    EIGHTH APPELLATE DISTRICT
    COUNTY OF CUYAHOGA
    JOURNAL ENTRY AND OPINION
    No. 97228
    STATE OF OHIO
    PLAINTIFF-APPELLEE
    vs.
    ADAM CASSANO
    DEFENDANT-APPELLANT
    JUDGMENT:
    AFFIRMED
    Criminal Appeal from the
    Cuyahoga County Court of Common Pleas
    Case No. CR-535072
    BEFORE: Stewart, P.J., Boyle, J., and Rocco, J.
    RELEASED AND JOURNALIZED:                      July 5, 2012
    ATTORNEY FOR APPELLANT
    Robert A. Dixon
    The Brownhoist Building
    4403 St. Clair Avenue
    Cleveland, OH 44103
    ATTORNEYS FOR APPELLEE
    William D. Mason
    Cuyahoga County Prosecutor
    BY: Stephanie Heibertshausen
    John Wojton
    Assistant County Prosecutors
    The Justice Center
    1200 Ontario Street, 9th Floor
    Cleveland, OH 44113
    MELODY J. STEWART, P.J.:
    {¶1} Defendant-appellant Adam Cassano was found guilty by the trial court of
    four counts of felonious assault, two counts of aggravated robbery, and two counts of
    having a weapon while under disability. The state charged that Cassano, acting on
    information provided by codefendant Jerrell Glenn, robbed a group of victims, shooting
    two of them. The issues on appeal concern the sufficiency and weight of the evidence,
    the admission of telephone text messages, ineffective assistance of counsel, and the
    court’s failure to merge firearm specifications at sentencing.
    I
    {¶2} The first and second assignments of error raise issues relating to the weight
    and sufficiency of the evidence. Cassano does not make a specific argument as to why
    there was insufficient evidence to support his convictions. Instead, he refers us to the
    arguments made in support of arguments for why the court’s judgment is against the
    manifest weight of the evidence. This fails the App.R. 16(A)(7) requirement that the
    appellant present an “argument with respect to each assignment of error presented for
    review[.]” State v. Sparent, 8th Dist. No. 96710, 
    2012-Ohio-586
    , ¶ 11. We consider
    only the argument that the court’s judgment is against the manifest weight of the
    evidence.
    {¶3} Cassano’s manifest weight of the evidence argument is simply that the court
    lost its way by finding that he was the gunman who robbed and shot two of the victims.
    His argument rests primarily on the state’s use of certain text messages sent by
    codefendant Glenn that appeared to tell the recipient the time and location that Glenn and
    the victims would arrive at a certain location. The state theorized that these messages
    were sent by Glenn to guide Cassano to a place where the robbery could be committed.
    Cassano argues that the state failed to prove that he was the recipient of Glenn’s text
    messages and, given the victims’ failure to identify him as the shooter, there was
    significant doubt whether he was correctly convicted.
    {¶4} 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). The use of the word “manifest” means that
    the trier of fact’s decision must be plainly or obviously contrary to all of the evidence.
    This is a difficult burden for an appellant to overcome because the resolution of factual
    issues resides with the trier of fact. State v. DeHass, 
    10 Ohio St.2d 230
    , 
    227 N.E.2d 212
    (1967), paragraph one of the syllabus. The trier of fact has the authority to “believe or
    disbelieve any witness or accept part of what a witness says and reject the rest.” State v.
    Antill, 
    176 Ohio St. 61
    , 67, 197 N.E .2d 548 (1964).
    {¶5} The state’s evidence showed that the victims, accompanied by Glenn, visited
    several bars during an evening out. One of those victims, Kenneth Elsleger, was known
    by Glenn to be a drug dealer who carried large amounts of cash. As the group was
    returning to Elsleger’s apartment at about 2:30 a.m., one of them noticed Glenn was
    sending text messages from his telephone, but trying to hide the telephone’s screen from
    view of the others as he did so. When they arrived and parked at Elsleger’s apartment,
    the group exited the car. One of the victims noticed that Glenn immediately ran away.
    A few minutes later a male approached Elsleger and asked for help lighting a cigarette.
    The male then pulled a gun, fired a single shot in the air, and demanded that Elsleger
    empty his pockets.      Elsleger began moving backwards and watched as his brother
    grabbed the male’s arm. The male apparently threw the brother to the ground and then
    ripped away a necklace that Elsleger was wearing. The male then shot Elsleger in the
    neck. The brother regained his footing and grappled with the male, but he, too, was shot
    in the scuffle. The male then fled.
    {¶6} The victims were unable to identify their assailant from photo arrays. Three
    of the four victims described the robber as short, white, and bald; the fourth believed that
    the robber was African-American, but allowed that she might have mistakenly reached
    that conclusion because the male was wearing a dark, hooded sweatshirt that cast a
    shadow over his face.
    {¶7} A fresh covering of snow had fallen on the evening of the robbery. The
    police discovered footprints and tire marks leading away from the scene. They followed
    the footprints to the front entrance of another apartment complex within walking distance
    of the shooting. A person later identified as Cassano was exiting the building. Cassano
    matched the general description of the robber, so a police officer asked him if he had been
    in the building all night. Cassano told them that he had just arrived at the building. The
    officer who spoke with Cassano noticed that Cassano appeared “very nervous,” was
    giving “disjointed partial answers,” and could not explain who dropped him off or how he
    arrived at the building.
    {¶8} As Cassano spoke to the police, Glenn exited the building and greeted
    Cassano. Glenn told the police that he knew Cassano. He also told the police that he
    had been inside an apartment all night. The police took Glenn up to the apartment and
    learned from the occupants that Glenn had only just arrived at the apartment and that it
    was Cassano who had been at the apartment all evening.
    {¶9} When confronted with information that he had not been in the apartment all
    evening, Glenn admitted that he had been with the group of victims that evening. He
    said that his car was parked at his residence and that he started to walk back to his
    apartment as soon as the group of victims arrived at the crime scene. The police were
    skeptical of this account because Glenn’s apartment was more than two miles away and it
    made no sense to them that Glenn would walk that distance at 2:30 a.m. in falling snow.
    As the police were preparing to give Glenn a ride to his house from the police station, one
    of the victims casually asked them if they were taking Glenn back to the scene of the
    crime so he could get his car. Glenn continued to insist that he did not drive his car that
    evening, but the police soon discovered a car at the crime scene that was registered to
    Glenn.
    {¶10} With Glenn now a person of suspicion, the police obtained a record of
    Glenn’s cell phone activity after he provided his telephone number.         These records
    showed that he sent a number of text messages shortly before the robbery to the same
    telephone number. Those messages appeared to be directing the recipient of the text
    messages to the parking lot where the robbery occurred, and more specifically to the
    location of Glenn’s car in that lot. The recipient’s text messages in reply showed that the
    recipient was having difficulty locating the car because the parked cars were covered with
    snow. A final message from Glenn was: “we on our way.”
    {¶11} Although the police knew the number of the telephone that received Glenn’s
    text messages, that telephone was registered to a “pay as you go” cell phone carrier that
    did not keep subscriber information. Looking at calling records from what we will refer
    to as the “recipient telephone,” the police discovered that the recipient telephone had
    made calls to a telephone owned by Cassano’s mother at the house where he, too, resided.
    They also learned that Cassano’s brother had called the recipient telephone. In addition,
    the police learned that the day after Cassano had been interviewed by the police, Glenn
    unsuccessfully attempted to call the recipient cell phone and then immediately called the
    Cassano residence telephone.
    {¶12} Using this information, the police obtained and executed a search warrant at
    Cassano’s residence. They found an ammunition clip from a 9mm Glock handgun. The
    discovery of the ammunition clip was significant because shell casings found at the scene
    of the robbery were thought to be most likely fired from a 9mm Glock handgun. The
    police did not find a Glock handgun, but they found a photograph of Glenn and Cassano
    posing with a female.
    {¶13} Because none of the victims could positively identify Cassano as the robber,
    the state relied on circumstantial evidence. Unlike direct evidence in which 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, circumstantial evidence requires the drawing of inferences that are
    reasonably permitted by the evidence. Although there are obvious differences between
    direct and circumstantial evidence, those differences are irrelevant to the probative value
    of the evidence — circumstantial evidence carries the same weight as direct evidence.
    State v. Treesh, 
    90 Ohio St.3d 460
    , 485, 
    739 N.E.2d 749
     (2001). The Ohio Supreme
    Court has “long held that circumstantial evidence is sufficient to sustain a conviction if
    that evidence would convince the average mind of the defendant’s guilt beyond a
    reasonable doubt.” State v. Heinish, 
    50 Ohio St.3d 231
    , 238, 
    553 N.E.2d 1026
     (1990).
    {¶14} Cassano’s argument is built on two points: the state could not definitively
    prove that he was the recipient of Glenn’s text messages on the night of the robbery and
    none of the witnesses positively identified him as the robber.
    {¶15} It is true that the state’s evidence concerning the recipient of Glenn’s text
    messages did not directly identify Cassano — the recipient number was for a prepaid
    phone that did not provide subscriber information.        But the circumstantial evidence
    allowed the court to infer reasonably that Cassano was in possession of the telephone at
    the time of the robbery. Glenn admitted that he and Cassano were friends, so it was not
    out of the question that Glenn would have messaged Cassano. Records from Glenn’s
    telephone showed that after Cassano had been interviewed and released by the police,
    Glenn first tried to call the recipient telephone number and then immediately called the
    land line number associated with Cassano’s residence.
    {¶16} The nature of the text messages were such that they could be reasonably
    interpreted as directing the recipient to the crime scene. Although none of the victims
    could specifically identify Cassano from photo arrays, they were able to give a general
    description of height, weight, and baldness that matched Cassano. When the police
    followed footprints and tire tracks leading from the crime scene to another apartment
    complex, they encountered both Cassano and Glenn.           As they were friends, it was
    plausible that Cassano and Glenn would be together. But it was implausible to suggest
    that the tire and footprints leading from the scene of the robbery to an apartment complex
    where they were both found was mere coincidence when Cassano’s appearance matched
    the general description of the robber and his nervous disposition cast doubt on his story.
    {¶17} Police suspicions further arose when it turned out that Cassano had been in
    one of the apartments contrary to his claims and that Glenn had not been in the apartment
    as he had claimed.    At trial, Cassano contradicted the statements he made to the police
    shortly after the robbery by offering a new alibi — he had been at a strip bar on the
    evening of the robbery until the bar closed at 2:30 a.m. His alibi witnesses, all of whom
    claimed to be friends with Cassano, firmly recalled his presence at the bar because of an
    incident between Cassano and a dancer who threw roses at Cassano. There was some
    uncertainty as to the exact date on which this incident occurred. One alibi witness
    testified that she had been at the strip bar on a Thursday/Friday, but this did not help
    Cassano because the robbery occurred in the very early hours of a Saturday. The witness
    later claimed (prompted by a calendar offered to her by defense counsel on redirect
    examination), that she had her dates mixed up and that the incident did occur on a
    Friday/Saturday. The dancer who threw the roses at Cassano was even more unclear as
    to the exact date this incident occurred and could only say that it may have occurred on
    either a Friday or a Saturday. Given the conflicting accounts of the alibi, from both
    Cassano and his witnesses, the court undoubtedly believed that they lacked credibility.
    {¶18} In addition to evidence suggesting that Glenn sent messages to Cassano’s
    telephone and that Cassano had been present on the scene of the robbery, the state offered
    evidence that Cassano was in possession of an ammunition clip for a Glock handgun.
    While the police did not recover the actual gun used during the commission of the
    robbery, one could reasonably believe that there would be no practical explanation for
    Cassano having ammunition for a non-existent gun.
    {¶19} As with all circumstantial evidence, nothing in the state’s case directly
    proved that Cassano was the robber. But the state’s evidence could well have convinced
    the court that the application of various facts formed a larger picture that, when viewed as
    whole, made a compelling case for Cassano’s guilt. To find otherwise would be to say
    that Cassano was the victim of circumstances that were too far beyond the realm of pure
    coincidence to be believable. The first and second assignments of error are overruled.
    II
    {¶20} A major portion of the state’s case consisted of the text messages sent from
    Glenn’s telephone on the night of the robbery. Cassano argues that, as to him, these text
    messages were inadmissible hearsay, offered for the truth of what was stated in those
    messages. Although he concedes that the text messages might have been admissible
    against Glenn as admissions, he argues that any connection between those text messages
    and himself was just “theory” at the time the court admitted them. The state maintains
    that the text messages were offered as business records.
    {¶21} Hearsay is “a statement, other than one made by the declarant while
    testifying at the trial or hearing, offered in evidence to prove the truth of the matter
    asserted.”   Evid.R. 801(C).    Even though classified as hearsay, certain evidence is
    nonetheless admissible under exceptions to the Rules of Evidence. As applicable here,
    the court admitted the telephone records under the business record exception listed in
    Evid.R. 803(6). That rule excepts business records from exclusion at trial if they are
    made in the course of a regularly conducted business activity because the courts presume
    that such records are trustworthy given the self-interest to be served by the accuracy of
    such entries. Weis v. Weis, 
    147 Ohio St. 416
    , 425-426, 
    72 N.E.2d 245
     (1947).
    {¶22} To qualify for the business-records exception, a record must meet the
    following criteria: (1) the record must be one recorded regularly in a regularly conducted
    activity, (2) a person with knowledge of the act, event, or condition recorded must have
    made the record, (3) it must have been recorded at or near the time of the act, event, or
    condition, and (4) the party who seeks to introduce the record must lay a foundation
    through testimony of the record custodian or some other qualified witness. State v.
    Davis, 
    116 Ohio St.3d 404
    , 
    2008-Ohio-2
    , 
    880 N.E.2d 31
    , ¶ 171.
    {¶23} Cassano argues that a representative of Verizon Wireless, the carrier for
    Glenn and the parent company of a subsidiary wireless service that acted as the carrier for
    the recipient telephone, was not allowed by the court to testify to how the cell phone
    records were compiled and whether the method of record retention was reliable. This is
    not accurate.   The representative testified that the records were maintained in the
    “normal course of business activity” through an automated computer system.            That
    testimony alone was sufficient to establish the prerequisites for admitting the text
    messages as business records.
    {¶24} The court did sustain a defense objection to the representative’s statement
    that the records were “reliable.” The reliability of evidence has two components here.
    Proper authentication of a business record under Evid.R. 901(A) requires that a proponent
    of a document produce “evidence sufficient to support a finding that the matter in
    question is what the proponent claims it to be.” State v. Easter, 
    75 Ohio App.3d 22
    , 25,
    
    598 N.E.2d 845
     (4th Dist.1991). To do this, a witness must “testify as to the regularity
    and reliability of the business activity involved in the creation of the record.” State v.
    Hirtzinger, 
    124 Ohio App.3d 40
    , 49, 
    705 N.E.2d 395
     (2d Dist. 1997). This goes to the
    fundamental reason why the courts allow certain forms of hearsay into evidence. As
    business records, the text messages are deemed inherently trustworthy because we assume
    Glenn’s cell phone carrier had a particular self-interest in the accuracy of the records it
    produced.
    {¶25} This form of reliability must not be confused with the reliability or
    credibility of the text messages as evidence that implicated Cassano in the robbery.
    When viewed in context, the court’s statement about whether the text messages were
    “reliable” was not that the text messages were not reliable as business records (they
    were), but whether they credibly showed that Cassano had been the recipient and sender
    of the text messages when there was no direct evidence to show that he received and sent
    those messages. That kind of reliability was a matter for the court to determine, so the
    court properly sustained an objection to a question that might have allowed the cell phone
    representative to give an opinion that encroached into the court’s factfinding function.
    {¶26} But whether the court was wrong to admit the text messages under the
    business record exception to the hearsay rule is of no consequence because two possible
    outcomes existed from the use of the evidence, neither of which benefit Cassano. If the
    court was to find from the circumstantial evidence that Cassano owned the recipient
    telephone, any text messages sent from the recipient telephone were nonhearsay as
    admissions under Evid.R. 801(D)(2), consistent with Cassano’s concession that the text
    messages sent from Glenn’s telephone were admissions against Glenn. Alternatively, if
    the court was to find that Cassano did not own or was not using the recipient telephone,
    the text messages would have no prejudical effect whatsoever on Cassano because they
    would not have been evidence implicating Cassano.
    {¶27} This is exactly what the court concluded after extensive discussions on
    whether to allow the text messages into evidence.          The court confirmed that if it
    concluded that Cassano did not own the recipient telephone, the text messages sent from
    that telephone would not constitute proof against Cassano and their admission would not
    “hurt” him. It ultimately allowed them as having “some relevance.”
    {¶28} Exactly what relevance and weight the court gave to the text messages is
    unclear because the court gave no reasons for its guilty finding.          Cassano finds it
    “unsettling” that the court did not alert counsel prior to delivering the verdict that it gave
    weight to the text messages in its deliberations, but the court was under no obligation to
    do so and it is unclear just how Cassano might have benefitted from prior notice. He
    claims that he would have filed a motion for a mistrial based on a Bruton violation, but as
    we address in the following section, a motion on those grounds would not have been
    viable.     While the court’s basis for admitting the text messages might have been
    equivocal, no error is manifest, so we have no basis for finding that the court abused its
    discretion by admitting the text messages.
    III
    {¶29} For his fourth assignment of error, Cassano argues that trial counsel was
    ineffective for failing to request a mistrial under the Bruton rule when the state introduced
    Glenn’s text messages.     He argues that the admission of a series of text messages
    between him and Glenn were statements of a coconspirator in furtherance of a conspiracy
    that should not have been admitted against him.
    {¶30} In Bruton v. United States, 
    391 U.S. 123
    , 135, 
    88 S.Ct. 1620
    , 
    20 L.Ed.2d 476
     (1968), the United States Supreme Court held that the confession of a codefendant
    who exercises his or her Fifth Amendment right not to testify is not admissible against the
    other defendant because that defendant has no opportunity to cross-examine the
    confessing codefendant. But the admission of nonhearsay is not a Bruton violation.
    United States v. Inadi, 
    475 U.S. 387
    , 398, 
    106 S.Ct. 1121
    , 1128, 
    89 L.Ed.2d 390
    , fn. 11
    (1986) (stating that nonhearsay does not violate the defendant’s right to confront
    witnesses); White v. Lewis, 
    874 F.2d 599
    , 603 (9th Cir.1989) (“Because this testimony
    was not used for the truth of the matter asserted by the out-of-court declarant, it was not
    hearsay, and Bruton is inapposite.”) If, as Cassano concedes, the text messages sent by
    Glenn constituted admissions by him, they were nonhearsay and Bruton does not apply.
    {¶31} Even if Glenn’s text messages were not considered nonhearsay, Cassano
    would have no confrontation argument because the Bruton rule applies to trials by juries.
    Cassano waived the right to a trial by jury and elected to be tried by the court. In Lee v.
    Illinois, 
    476 U.S. 530
    , 542, 
    106 S.Ct. 2056
    , 
    90 L.Ed.2d 514
     (1986), the court noted that
    the admission of a non-testifying codefendant’s confession in a joint bench trial was “not
    strictly speaking a Bruton case because we are not here concerned with the effectiveness
    of limiting instructions in preventing spill-over prejudice to a defendant.” And courts
    have held that “the Bruton rule is inapplicable to the incriminating confession of a
    non-testifying codefendant in a joint bench trial.” Johnson v. Tennis, 
    549 F.3d 296
    , 298
    (3d Cir. 2008); In re Jones, 1st Dist. Nos. C-090497 and C-090499, 
    2010-Ohio-3994
    , ¶
    24. This is because the law “recognizes the presumption that a judge in a bench trial has
    no difficulty in disregarding inadmissible evidence in reaching his verdict[.]” United
    States. v. Cardenas, 
    9 F.3d 1139
    , 1155 (5th Cir.1993).
    IV
    {¶32} Finally, Cassano complains that the court erred by sentencing him to three
    consecutive three-year terms on firearm specifications. The three firearm specifications
    related to the felonious assault and aggravated robbery counts against Elsleger and a
    single count of felonious assault against the brother. Cassano argues that the firearm
    specifications should have merged because he claims they all derived from “a continuous
    sequence of events, connected in time and space.”
    {¶33} Ordinarily, the court is forbidden from imposing sentence on multiple
    firearm specifications for “felonies committed as part of the same act or transaction.”
    See former R.C. 2929.14(D)(1)(b) [now R.C. 2929.14(B)(1)(b)]. However, that section
    applies only to the extent that former R.C. 2929.14(D)(1)(g) [now R.C. 2929.14(B)(1)(g)]
    does not apply. Former R.C. 2929.14(D)(1)(g) states:
    If an offender is convicted of or pleads guilty to two or more felonies, if one
    or more of those felonies are aggravated murder, murder, attempted
    aggravated murder, attempted murder, aggravated robbery, felonious
    assault, or rape, and if the offender is convicted of or pleads guilty to a
    specification of the type described under division (B)(1)(a) of this section 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 or to which the offender pleads guilty 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. (emphasis
    added).
    {¶34} Cassano was found guilty of committing two or more felonies. One of
    those felonies was felonious assault, and he was found guilty of firearm specifications
    under former R.C. 2929.14(D)(1)(a) [now R.C. 2929.14(B)(1)(a)]. Under former R.C.
    2929.14(D)(1)(g), the court was required to impose on Cassano prison terms for the two
    most serious specifications, and could also, in its discretion, impose sentence for any
    other specifications. State v. Worth, 10th Dist. No. 10AP-1125, 
    2012-Ohio-666
    , ¶ 96;
    State v. Beatty-Jones, 2d Dist. No. 24245, 
    2011-Ohio-3719
    , ¶ 16. The court imposed
    sentence on all three firearm specifications and Cassano makes no argument that the court
    abused its discretion by doing so. We thus have no basis for finding an abuse of
    discretion necessary to overturn the imposition of the consecutive sentence for three
    firearm specifications.
    {¶35} 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, PRESIDING JUDGE
    MARY J. BOYLE, J., and
    KENNETH A. ROCCO, J., CONCUR