State v. Ladson , 2017 Ohio 7715 ( 2017 )

[Cite as State v. Ladson, 2017-Ohio-7715.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 104642
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
MARCUS LADSON
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-16-604466-A
BEFORE: S. Gallagher, J., Keough, A.J., and Stewart, J.
RELEASED AND JOURNALIZED: September 21, 2017
ATTORNEY FOR APPELLANT
Kevin M. Cafferkey
2100 Illuminating Building
55 Public Square
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Michael C. O’Malley
Cuyahoga County Prosecutor
By: Eben McNair
Zachary M. Humphrey
Andrew J. Santoli
Assistant Prosecuting Attorneys
Justice Center - 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
SEAN C. GALLAGHER, J.:
{¶1} Marcus Ladson was found guilty, after a lengthy jury trial, of theft of a
firearm and of crimes associated with several shootings that occurred over the course of a
month, one of which resulted in the murder of Curtis Avent III. Ladson was ultimately
convicted of murder, several counts of improperly discharging a firearm into habitation,
felonious assault for shooting indiscriminately into a bar and wounding two patrons,
participating in a criminal gang, and having weapons while under disability — along with
attendant firearm, gang, and drive-by specifications. At the sentencing hearing, the trial
court imposed a 127-year aggregate sentence, comprised of all the maximum sentences
and enhancements being served consecutively to each other and to the indefinite sentence
of 15 years to life.1 In addition, the trial court ordered the aggregate sentence in this case
to be consecutively served to a 16.5-year sentence Ladson was already serving in
Cuyahoga C.P. No. CR-15-599880-A. State v. Ladson, 8th Dist. Cuyahoga No. 104091,
2016-Ohio-7781, ¶ 1. We affirm.
1
Ladson mentioned that his aggregate sentence is 124 years before being eligible for release,
but the chart provided in Ladson’s appellate brief indicates a 118-year term. The final sentencing
entry corresponds with Ladson’s chart; however, the transcript reflects a 127-year aggregate sentence
being imposed before Ladson is eligible for release. Evidently, the trial court omitted three
specifications, from the final sentencing entry, attached to Counts 1, 16, and 20, that added 9 years to
the aggregate term. Neither of the parties were bothered by this discrepancy, so neither are we; given
the practical difference between a 118- and 127-year term before parole eligibility, it is not hard to
understand the indifference. If the final sentencing entry differs from the sentence pronounced at the
sentencing hearing, we are confident the parties can correct the record to reflect that which occurred, if
necessary.
{¶2} In January 2015, a third party reported her 9 mm handgun stolen. The night
before, her significant other borrowed the car, seemingly unaware the firearm had been left
in the back. In the early morning hours, Ladson was driven from a bar in the car, and the
two stopped at a convenience store. Ladson was left unattended in the running vehicle and
was the only other person in the vehicle the night the handgun disappeared, although there
was a claim that some other individuals milled about the car in the convenience store
parking lot. Ladson at ¶ 2. The theft was discovered the next day. The stolen silver and
black 9 mm handgun is a Smith & Wesson model SD9VE.
{¶3} Late in March 2015, Ladson was arrested for shooting into an apartment. The
stolen 9 mm handgun and a smart phone in Ladson’s possession were confiscated, and
Ladson tested positive for gunshot residue. Id. Police experts were able to link the spent
9 mm casings found at the scene to the stolen firearm. Ladson at ¶ 3. This also created
the foundation to connect the weapon to a string of crimes occurring between February 21
and March 15, 2015. Officers searched Ladson’s phone for additional incriminating
evidence.
{¶4} In early March 2015, Ladson called 911, providing his telephone number,
which was then linked to Ladson’s smart phone recovered by police officers upon his
arrest, demonstrating that the phone was indeed Ladson’s. Ladson had called seeking
police assistance when his girlfriend retrieved property from his house, located at 5719
Lansing. Ladson’s girlfriend also called 911 claiming that Ladson forced her from the
property with a “silver and black” handgun, which resembled the stolen 9 mm. She later
claimed, in a statement contained in the responding officer’s report, that Ladson owned the
“silver and black” handgun but did not use or brandish the weapon at the time she called
for assistance — although the officer noted that Ladson may have had the weapon in his
pocket at the time. The hearsay in the police report never made it to the jury. Ladson’s
girlfriend did not testify at trial, but the recording of her 911 call was played for the jury.
{¶5} The state’s experts were able to extract the history of internet searches
initiated on Ladson’s smart phone. Ladson had searched for information pertaining to,
and ammunition and extended-capacity magazines for, a Smith & Wesson SD9VE
handgun — the same model as the 9 mm handgun stolen in January. The earliest such
search was conducted four days after the theft was reported, and the latest internet search
associated with those items occurred near the end of February, in the midst of the shooting
spree.
{¶6} In the interim, a separate shooting that killed Ladson’s cousin had occurred
at a local barbershop. The accused shooter, Douglas Shine, was a member of the
Heartless Felons gang. Ladson’s cousin was not affiliated with any criminal organization
and appears to have been in the wrong place at the wrong time. The other victims at the
barbershop were affiliated with a rival gang. Of note relating to the barbershop events,
Ladson had bookmarked a February 24 story about the bomb squad being dispatched to
Shine’s mother’s house on his phone’s internet browser. The state theorized that Ladson
was retaliating for the barbershop shooting because all of the drive-by shootings targeted
Shine’s family members or were an attempt to target those that orchestrated the barbershop
shooting. The defense claimed that the rival gang was targeting Shine’s family in
retaliation.
{¶7} There were four drive-by shootings in all, not including the murder, three of
which directly involved Shine’s family members. The shooting at Shine’s mother’s home
occurred on February 24, the same day the bookmarked article found on Ladson’s phone
was published. The fourth shooting occurred at a bar, and three individuals were
wounded, although only two testified at trial. This led to the charges for the third victim
to be dismissed under Crim.R. 29. Testimony from bystanders at the bar indicated that a
car pulled up before the shooter began firing, for the purposes of the drive-by shooting
specifications. Police testified that Ladson’s motive for shooting into the bar stemmed
from information placing the orchestrator of the barbershop shooting at the bar.
{¶8} As it relates to the drive-by shootings and the separate murder of Avent, the
state also presented evidence that Ladson’s phone was in the vicinity of one of the
shootings and the murder, based on cell-phone mapping techniques, and spent shell
casings from the stolen 9 mm handgun were recovered from every scene. In addition to
the above, the state presented evidence that Ladson had called someone in the area of the
Avent murder immediately before the murder occurred, telling that person he was in the
area and wanted to meet up. The call corresponded to the cell tower mapping evidence
that placed Ladson in the vicinity.
{¶9} There was video surveillance of the Avent murder, but the offender’s car was
unidentifiable, and the eyewitness, self-described as being intoxicated to the point of
“blacking out,” was unable to provide any information. The video surveillance depicted
two individuals exiting a car, one of whom shot Avent at close range. Before being
murdered, Avent had been assaulting the eyewitness, Avent’s girlfriend. Avent was not
affiliated with any gang and was not related to Shine.
{¶10} The charge of participating in a criminal gang and the gang-related
specifications were tried to the bench. A detective specializing in gang activity testified
that Ladson had several tattoos indicative of membership in the Heartless Felons criminal
organization. In several photographs recovered from Ladson’s phone, Ladson was also
depicted posing with known members of the gang and flashing hand signs associated with
gang affiliation.
{¶11} Because of the series of parallel inferences derived from the submitted
evidence, Ladson was convicted of the murder of Avent, three counts of improperly
discharging a firearm into a habitation, two counts of felonious assault, six counts of
having a weapon while under disability, participating in a criminal gang, and theft — all
with associated firearm, gang, and drive-by specifications. This timely appeal followed in
which Ladson advanced 16 assignments of error, several of which are related.
{¶12} The most significant assignment of error focuses on Ladson’s claim that the
evidence was insufficient to substantiate each individual conviction. A claim of
insufficient evidence raises the question whether the evidence is legally sufficient to
support the verdict as a matter of law. Id. In reviewing a sufficiency challenge, “[t]he
relevant inquiry is 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
(1991), paragraph two of the syllabus. Although Ladson also referenced the manifest
weight of the evidence standard, his claims all focus on the sufficiency of the evidence and
present no independent argument challenging the weight of the evidence. A claim that a
jury verdict is against the manifest weight of the evidence involves a separate and distinct
test that is much broader than the test for sufficiency. State v. Drummond, 111 Ohio St. 3d
14, 2006-Ohio-5084, 854 N.E.2d 1038, ¶ 193. Accordingly, our focus is limited to the
sufficiency of the evidence.
{¶13} The crux of Ladson’s argument is that the state generally failed to present
any direct evidence demonstrating that Ladson committed the crimes. This ignores the
general rule in Ohio that “[c]ircumstantial evidence and direct evidence inherently possess
the same probative value.” Jenks at paragraph one of the syllabus. The lack of direct
evidence is not dispositive.
{¶14} The state presented evidence that Ladson was the only person with the
opportunity to steal the 9 mm handgun, and immediately after the weapon was reported
stolen, Ladson searched for information and equipment related to that specific model.
Thus, a reasonable trier of fact could have inferred that Ladson stole and maintained
possession of the 9 mm handgun.
{¶15} Ladson’s phone contained evidence linking Ladson to the stolen firearm
during the time in which the shootings took place, placing Ladson at the scene of at least
two of the shootings, and demonstrating that Ladson was a member of the criminal gang
known as the Heartless Felons. Yet another witness claimed that Ladson was in
possession of a firearm that resembled the stolen firearm between the date of the theft and
the date the firearm was recovered in Ladson’s possession, demonstrating that Ladson had
continuous possession of the weapon. Finally, the 9 mm handgun Ladson stole,
possessed, and was arrested with was used in several shootings. In light of those facts, a
reasonable trier of fact could infer that Ladson was the shooter, and in short, the state
presented circumstantial evidence of Ladson’s guilt when all the evidence is considered as
a whole. The arguments advanced in this appeal regarding the sufficiency of the evidence
cannot be deemed reversible error. App.R. 16(A)(7).
{¶16} As it relates to the more specific arguments advanced on the sufficiency
issue, Ladson claims there was no underlying felony to support the felony murder charge
under R.C. 2903.02(B), which provides that “[n]o person shall cause the death of another
as a proximate result of the offender’s committing or attempting to commit an offense of
violence * * *.” Ladson claims that the underlying felonious assault, for which the jury
found Ladson guilty, was not supported by sufficient evidence because the only assault
that occurred was that of Avent assaulting his girlfriend. This ignores the assault that
Ladson perpetrated on Avent by shooting him. A felonious assault of a person that leads
to the victim’s death can be the basis of a felony murder charge. State v. Miller, 96 Ohio
St.3d 384, 2002-Ohio-4931, 775 N.E.2d 498, syllabus.
{¶17} Ladson also argues that there is no evidence supporting the conviction for
participating in a criminal gang because the state failed to causally connect the charges in
this case with any involvement with the Heartless Felons. R.C. 2923.42(A) provides that
“[n]o person who actively participates in a criminal gang * * * shall purposely promote,
further, or assist any criminal conduct * * * or shall purposely commit or engage in any act
that constitutes criminal conduct.” (Emphasis added.) Criminal conduct is defined as the
commission of two or more felony acts or offenses of violence. R.C. 2923.41(B)-(C).
There is no statutory requirement that the criminal conduct underlying the charges at hand
must be causally connected to gang activity to support the charge of participating in a
criminal gang, only that the offender is a member of a criminal gang and commits two or
more felony offenses or offenses of violence. State v. Taylor, 9th Dist. Lorain Nos.
10CA009922 and 10CA009915, 2012-Ohio-1263, ¶ 90.
{¶18} The state presented sufficient evidence that Ladson was a member of the
Heartless Felons criminal gang through the testimony of the officer specializing in gang
activity, who also testified that Ladson had been convicted of numerous gang-related
crimes in the past. Ladson was depicted in several photographs flashing hand signs
associated with the gang and posing with several known members. Further, Ladson had
tattoos indicative of his membership in the criminal enterprise. Coupled with the findings
of guilt for multiple felony offenses, the state met its burden. See, e.g., State v. King, 8th
Dist. Cuyahoga No. 98234, 2013-Ohio-574, ¶ 20 (logical inferences derived from the
state’s evidence that the defendant posed with known gang members who held
gang-affiliated items demonstrated participation in a criminal gang). Ladson’s arguments
pertaining to the sufficiency of the evidence are overruled.
{¶19} As it relates to the evidence in support of the conviction, Ladson also
challenges the admission of several key pieces of information: (1) the security footage
depicting the murder of Avent; (2) the evidence from the detective specializing in criminal
gang activity that was heard by the jury; (3) the recordings of Ladson’s and his girlfriend’s
911 calls; and (4) the expert testimony linking the shell casings to the stolen 9 mm
handgun and providing ballistic reports. In each of the assigned errors, Ladson presents a
summary conclusion that the evidence was inadmissible. App.R. 16(A)(7) requires the
appellant to present the arguments in support of reversal and any supporting authority. It
is not this court’s responsibility to find the relevant case law in support of a party’s
argument. Citta-Pietrolungo v. Pietrolungo, 8th Dist. Cuyahoga No. 85536,
2005-Ohio-4814, ¶ 35, citing Cardone v. Cardone, 9th Dist. Summit Nos. 18349 and
18673, 1998 Ohio App. LEXIS 2028, 22 (May 6, 1998).
{¶20} We decline to address the summary conclusions presented as arguments.
App.R. 12(A)(2). “A trial court has broad discretion concerning the admission of
evidence; in the absence of an abuse of discretion that materially prejudices a defendant, a
reviewing court generally will not reverse an evidentiary ruling.” State v. Serrano,
2016-Ohio-4691, 69 N.E.3d 87, ¶ 24 (8th Dist.), citing State v. Humberto, 196 Ohio
App.3d 230, 2011-Ohio-3080, 963 N.E.2d 162, ¶ 25 (10th Dist.), and State v. Issa, 93
Ohio St. 3d 49, 64, 2001-Ohio-1290, 752 N.E.2d 904; State v. Montgomery, 148 Ohio
St.3d 347, 2016-Ohio-5487, 71 N.E.3d 180, ¶ 137. Ladson has not demonstrated that the
trial court abused its discretion by admitting the challenged evidence.
{¶21} Further, it is worth noting that Ladson benefitted from the introduction of the
video footage of the Avent murder because no one could identify anything from the video
and the sole witness to the murder was discredited by what appeared in the footage. The
defense strategy was in part to create reasonable doubt by implicating a rival gang, a
theory that required the gang detective’s testimony. Ladson has also not demonstrated
that the Confrontation Clause was violated by the admission of the recorded 911 call from
his girlfriend who did not testify at the trial. The Confrontation Clause is not implicated
solely because a witness is not present to testify. State v. Herring, 8th Dist. Cuyahoga
No. 104441, 2017-Ohio-743, ¶ 14, citing Montgomery at ¶ 88. We overrule Ladson’s
assignments of error challenging the sufficiency and admissibility of the evidence.
{¶22} Ladson next argues that the trial court erred by not dismissing the
theft-related charges pertaining to the stolen 9 mm firearm because in Cuyahoga C.P. No.
CR-15-599880, Ladson was convicted of receiving stolen property for having possession
of the same firearm. Ladson, in his oral motion to dismiss, claimed the state cannot
separate the receiving stolen property charge from the underlying theft because the
conduct underlying the offenses was the same. Tr. 7:2-5 (upon oral motion and without
citation to any case authority, Ladson’s counsel claimed that the state does not “get a
second chance to try my client for [theft-related charges pertaining to the stolen 9 mm
firearm because] that’s same conduct and we feel that jeopardy attached.”). The trial
court disagreed and held that the underlying offenses were committed with separate
conduct. Tr. 12:20-23 (“Based on the fact that there are different charges and different
dates and different circumstances, the Court is going to deny your motion.”).
{¶23} Ladson’s entire argument on appeal is that “[t]he Double Jeopardy Clause
prohibits a successive prosecution in this case because they are an allied offense of similar
import to the previous receiving stolen property and Having Weapons Under Disability in
case 599880.” The “allied offense” argument inherently relies on R.C. 2941.25, which
considers the two crimes to be allied offenses of similar import, in part, if the conduct
underlying the offenses was the same. State v. Ruff, 143 Ohio St. 3d 114, 2015-Ohio-995,
34 N.E.3d 892, paragraph three of syllabus. The state responded by discussing
Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180, 76 L. Ed. 306 (1932), which
in part sets forth a review of the elements of the crimes when the crimes are deemed to
have been committed with the same conduct. Id. at 303-304 (two offenses were
committed separately and therefore multiple convictions were valid, but because two other
crimes were committed with the same conduct and each offense required proof of a
different element, then multiple prosecutions were not prohibited). In light of the trial
court’s decision and, in addition, given that Ladson has never discussed the elements of
the offenses under Blockburger, the state’s discussion is unhelpful. Id. Nevertheless, the
sole argument presented for our review is whether the allied-offense analysis under Ohio
law precludes successive prosecutions. We conclude that it does not.
{¶24} R.C. 2941.25 codifies the double-jeopardy protections established by the
Ohio Constitution. In re A.G., 148 Ohio St. 3d 118, 2016-Ohio-3306, 69 N.E.3d 646, ¶
11. However, R.C. 2941.25 expressly applies to multiple offenses within a single
indictment or information. The allied-offense statute does not apply to successive
indictments. State v. Workman, 4th Dist. Athens No. 14CA25, 2015-Ohio-4483, ¶ 13;
State v. Zima, 102 Ohio St. 3d 61, 2004-Ohio-1807, 806 N.E.2d 542, ¶ 40, fn. 3; see, e.g.,
State v. Ikner, 44 Ohio St. 2d 132, 133, 339 N.E.2d 633 (1975). Whether the two crimes
are allied is irrelevant with respect to successive indictments. Ladson’s argument to the
contrary is overruled.
{¶25} Ladson also challenges the state’s decision to join the separate crimes into
one indictment for the purposes of a single trial. Crim.R. 13 provides that a trial court
may order two or more indictments to be tried together “if the offenses or the defendants
could have been joined in a single indictment or information” under Crim.R. 8(A).
“‘[J]oinder and the avoidance of multiple trials is favored for many reasons, among which
are conserving time and expense, diminishing the inconvenience to witnesses and
minimizing the possibility of incongruous results in successive trials before different
juries.’” State v. Anderson, 8th Dist. Cuyahoga No. 104460, 2017-Ohio-931, ¶ 23,
quoting State v. Torres, 66 Ohio St. 2d 340, 421 N.E.2d 1288 (1981). See also State v.
Schiebel, 55 Ohio St. 3d 71, 86-87, 564 N.E.2d 54 (1990); State v. Schaim, 65 Ohio St. 3d
51, 58, 1992-Ohio-31, 600 N.E.2d 661.
{¶26} Generally, joinder is disfavored where the jury could potentially confuse the
issues and the facts essential to the elements of the distinct crimes. “To succeed on a
motion to sever, a defendant ‘must furnish the trial court with sufficient information so
that it can weigh the considerations favoring joinder against the defendant’s right to a fair
trial.’” State v. Lytle, 10th Dist. Franklin Nos. 15AP-748 and 15AP-754,
2016-Ohio-3532, ¶ 64, quoting State v. Lott, 51 Ohio St. 3d 160, 163, 555 N.E.2d 293
(1990); Torres at syllabus.
{¶27} Ladson’s sole argument, on this point, is that
the only thing that links all of the offenses in the Indictment is the firearm
that was involved in all of the offenses. Each act was committed on a
different day and has a separate and distant motives [sic]. Just because Mr.
Ladson was found in possession of a firearm was NOT sufficient to prove
that he committed every criminal act that the firearm had ever been used in.
The charges in this case were improperly bootstrapped together, and then
bootstrapped to prejudicial gang related charges and specifications that were
introduced to the jury to obtain an improper guilty verdict.
Ladson has not met his burden to demonstrate that joinder prejudiced his right to a fair
trial. The state used the same evidence for all of the crimes — notably the expert
testimony demonstrating that the shell casings were fired from the stolen 9 mm handgun
that Ladson possessed and the cell-phone mapping evidence. Joining all the incidents into
one trial conserved time and expenses, diminished the inconvenience to the same
witnesses who would have had to testify at each individual trial, and minimized the
possibility of incongruous results in successive trials before different juries analyzing the
same evidence.
{¶28} Finally, with respect to all things trial related, Ladson claims his trial
attorney was ineffective for (1) failing to review all discovery material with Ladson before
trial; (2) for failing to remove a juror who fell asleep during trial, and (3) for opening the
door to the gang-related evidence for the jury portion of the trial. We find no merit to any
of Ladson’s claims.
{¶29} In order to substantiate a claim of ineffective assistance of counsel, the
appellant must show that (1) counsel’s performance was deficient and (2) the deficient
performance prejudiced the defendant so as to deprive him of a fair trial. State v. Trimble,
122 Ohio St. 3d 297, 2009-Ohio-2961, 911 N.E.2d 242, ¶ 98, citing Strickland v.
Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Judicial scrutiny
of defense counsel’s performance must be highly deferential. Strickland at 689. In Ohio,
there is a presumption that a properly licensed attorney is competent. State v. Calhoun, 86
Ohio St. 3d 279, 289, 1999-Ohio-102, 714 N.E.2d 905. The defendant has the burden of
proving his counsel rendered ineffective assistance. State v. Perez, 124 Ohio St. 3d 122,
2009-Ohio-6179, 920 N.E.2d 104, ¶ 223.
{¶30} Retaining the juror was not error. Generally, it is within the trial court’s
discretion whether a juror’s misconduct necessitates removal. State v. Sanders, 92 Ohio
St.3d 245, 253, 2001-Ohio-189, 750 N.E.2d 90, quoting United States v. Freitag, 230 F.3d
1019, 1023 (7th Cir.2000). In this case, no one observed the juror in question sleeping at
any point during the trial — although after the fact, the prosecutor mentioned that the
juror’s posture could be indicative of slumber. Another juror informed the trial court’s
bailiff that she supposedly “heard” the juror sleeping. Although Ladson paints the picture
that this juror continually fell asleep, there was only one discussion held on the record
regarding such an instance and the claim was never substantiated. Instead, the trial court
devoted considerable time to the matter and allowed both parties to question the juror, who
incidentally stated that she had not been sleeping and heard all the testimony. State v.
McKnight, 107 Ohio St. 3d 101, 2005-Ohio-6046, 837 N.E.2d 315, ¶ 187 (nothing in the
record indicated that the juror actually missed critical evidence, and therefore there was no
plain error). The trial court then allowed both sides the opportunity to dismiss the juror
after considering her credibility. Neither took the trial court up on the offer. Even if we
gave Ladson every benefit of the doubt on this issue, he has failed to demonstrate any
prejudice that resulted from the juror’s actions, based on the record presented. Id.
{¶31} As it relates to the failure to review discovery, Ladson has not identified any
prejudice that directly stemmed from the failure to review any particular evidence. In one
instance during trial, trial counsel had not been provided the police report that included
statements from Ladson’s girlfriend, the witness who claimed to have seen Ladson in
possession of a “silver and black” handgun. Ladson’s trial counsel maintained that the
state had not provided the report, which could have contradicted the 911 tape, although in
the report, the witness claimed that Ladson possessed the gun but was not brandishing it in
her presence. Defense counsel maintained that the report was not included in the state’s
discovery. Tr. 1220. The state countered that the recorded 911 conversation and
subsequent dispatch audio was provided in discovery, and those contained the information
in the police report that had been belatedly disclosed. Tr. 1228. The state never argued
that defense counsel was provided the report with the rest of the discovery.
{¶32} In the other incident, defense counsel could not locate a particular police
report being discussed in one police officer’s trial testimony. Tr. 1057. It turned out
defense counsel’s confusion was well founded — the state had “mislabeled” the report in
its discovery responses. Tr. 1108. That report was nonetheless available for the defense
during the particular officer’s testimony, and Ladson cannot demonstrate that he was
prejudiced by the minor oversight. Further, Ladson has not specifically identified, and we
are unable to find, any other instances in which trial counsel failed to review discovery
materials, and thus there is no ineffective assistance claim based on the record provided.
App.R. 16(A)(7).
{¶33} Ladson also claims his trial counsel wrongfully opened the door to the jury
hearing the detective’s testimony in reference to the evidence of criminal gangs. Ladson
claims there was no trial strategy supporting the need for the evidence, but the defense’s
closing remarks relied on much of the testimony to establish the defense’s primary theory
— that a rival gang was retaliating against Shine based on his involvement in the
barbershop shooting. The defense attempted to cast doubt on Ladson’s involvement by
implicating the rival gang whose members were also victims of the barbershop shooting.
The detective’s testimony was a necessary foundation for that theory, and because Ladson
has cast his entire ineffective-assistance argument based on the alleged lack of trial
strategy for introducing the gang evidence to the jury, we must overrule it. See State v.
Webster, 8th Dist. Cuyahoga No. 102833, 2016-Ohio-2624, ¶ 121.
{¶34} Finally, Ladson challenges the sentences imposed on the specifications as
being allied offenses of similar import with the underlying charges and also claims it is
inequitable to impose consecutive service of all the maximum sentences. Neither
argument has merit.
{¶35} Ladson likened the imposition of the sentences on the gang specifications
and the participating in a criminal gang offense to imposing sentences on having a weapon
while under disability and a firearm specification. The analogy is appropriate; however,
the outcome is not in his favor. In Ohio, courts cannot apply the allied-offense analysis to
specifications because the sentence imposed for a specification is a sentencing
enhancement. State v. Dean, 146 Ohio St. 3d 106, 2015-Ohio-4347, 54 N.E.3d 80, ¶ 219
(R.C. 2941.25 and the attendant allied-offense analysis do not apply to sentencing
enhancements such as firearm specifications). R.C. 2941.25 only applies to the merger of
“two or more allied offenses.” There is no merit to the claim that the sentences imposed
on the specifications must merge with any of the counts.
{¶36} We also find no error with respect to the consecutive sentences as argued;
there is no requirement in Ohio that consecutive sentences must be “equitable” or that the
trial court must provide reasons in support of the findings. The “equities” of imposing
consecutive sentences statutorily rests with the trial court’s ability to make the necessary
findings under R.C. 2929.14(C)(4) before imposing the terms, and it is well settled that a
trial court need not provide reasons in support of its consecutive-sentence findings. State
v. Bonnell, 140 Ohio St. 3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 37.
{¶37} Having overruled all of Ladson’s assigned errors, we affirm his convictions.
It is ordered that appellee recover from appellant 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 common
pleas court to carry this judgment into execution. The defendant’s convictions 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.
SEAN C. GALLAGHER, JUDGE
KATHLEEN ANN KEOUGH, A.J., CONCURS;
MELODY J. STEWART, J., CONCURS IN JUDGMENT ONLY WITH SEPARATE
OPINION
MELODY J. STEWART, J., CONCURRING IN JUDGMENT ONLY:
{¶38} I concur with the judgment reached by the majority, but write separately for
two reasons: first, I am troubled by the stacking of inferences to prove that Ladson stole
the firearm and committed murder; second, that a double jeopardy analysis should apply to
Ladson’s argument that the court erred by denying his motion to dismiss the grand theft
count.
{¶39} The state can rely on circumstantial evidence to prove an essential element of
a crime. State v. Kulig, 37 Ohio St. 2d 157, 159, 309 N.E.2d 897 (1974), syllabus. At
bottom, circumstantial evidence is evidence that requires an inference to connect it to a
conclusion of fact. State v. Cassano, 8th Dist. Cuyahoga No. 97228, 2012-Ohio-4047, ¶
13. An inference can only be derived from an established fact; “[a]n inference of fact
cannot be predicated upon another inference, but must be predicated upon a fact supported
by evidence.” Sobolovitz v. Lubric Oil Co., 107 Ohio St. 204, 205, 140 N.E. 634 (1923),
paragraph two of the syllabus.
{¶40} The only “fact” established by direct evidence was that at the time of his
arrest (some ten days after the murder), Ladson was in possession of a gun that a forensic
analysis determined to be the weapon that fired two shell casings found at the murder
scene. All other “facts” had to be inferred: the jury had to infer that Ladson stole the
firearm; that he was at the scene of the murder; that he was in possession of the firearm at
the time of the murder; and that he used the firearm to kill the victim. The only other
evidence offered to prove that Ladson shot and killed the victim was that Ladson’s cell
phone had been in an approximate three- to four-square mile area that encompassed the
murder scene. But the area was also one that encompassed Ladson’s home, and the
homes of his girlfriend and another female friend, at least one of whom Ladson was trying
to visit in the early morning hours: calls were verified using mapping of Ladson’s cell
phone.
{¶41} Proof that Ladson committed the murder, however, was tenuous. The jury
had to essentially infer Ladson’s guilt based on his being in possession of the firearm
before the murder (the charge of theft of the gun), and the fact that he was in possession of
the firearm when he was arrested more than a week after the murder. This left an
inferential gap. The state tried to fill that gap with motive — that Ladson had a motive to
kill as revenge for his cousin being a victim of the barbershop shootings. But there was
no evidence that tied the murder victim to any aspect of a revenge killing. Even more
troubling was the fact that there were witnesses to the murder, or people on the scene
when the murder occurred, who did not seem to be alarmed or even bothered by the early
morning shooting — including the victim’s girlfriend.
{¶42} These observations notwithstanding, I cannot say, however, that the
inferences available to the jury were so unreasonable that no rational trier of fact could
have made them. I thus agree that for purposes of this appeal, the state presented
sufficient evidence for the murder conviction.
{¶43} Regarding Ladson’s fourth assignment of error: that the court erred by
refusing to dismiss Count 7, which charged Ladson with grand theft relating to the firearm
he possessed and that was stolen from the car, Ladson based his motion to dismiss Count 7
on double jeopardy grounds, arguing that he was being subjected to successive
prosecutions. The lead opinion latches on to language that Ladson used stating that
“[t]he Double Jeopardy Clause prohibits a successive prosecution in this case because they
are an allied offense of similar import to the previous receiving stolen property and Having
Weapons Under Disability in case 599880.” The use of the phrase “allied offenses of
similar import” was meant to indicate Ladson’s belief that grand theft of the gun and
receiving stolen property (the gun) were in essence the same offense for purposes of
successive prosecution. The state obviously understood Ladson’s meaning — its
argument, too, focuses solely on double jeopardy.
{¶44} Nevertheless, Ladson cannot prevail under a proper double jeopardy analysis.
One aspect of double jeopardy is that it precludes successive prosecutions for greater and
lesser-included offenses. Payne v. Virginia, 468 U.S. 1062, 104 S. Ct. 3573, 82 L. Ed. 2d
801 (1984). Ohio courts use the test set forth in Blockburger v. United States, 284 U.S.
299, 304, 52 S. Ct. 180, 76 L. Ed. 306 (1932), to determine whether the same act or
transaction constitutes a violation of two distinct statutory provisions: “‘whether each
offense contains an element not contained in the other; if not, they are the “same offence”
and double jeopardy bars additional punishment and successive prosecution.’” State v.
Mutter, Slip Opinion No. 2017-Ohio-2928, ¶ 17, quoting United States v. Dixon, 509 U.S.
688, 696, 113 S. Ct. 2849, 125 L. Ed. 2d 556 (1993).
{¶45} “[R]eceiving stolen property is technically not a lesser included offense of
theft * * *.” State v. Yarbrough, 104 Ohio St. 3d 1, 2004-Ohio-6087, 817 N.E.2d 845, ¶
99. See also State v. Workman, 4th Dist. Athens No. 14CA25, 2015-Ohio-4483, ¶ 28
(“because receiving stolen property is not a lesser included offense of either theft or
unauthorized use, the Double Jeopardy Clause does not bar a successive prosecution for
receiving stolen property”). So Ladson’s successive prosecution for theft was not barred
by double jeopardy.
{¶46} This raises an anomaly, however: there is no doubt that had the state brought
both the grand theft and receiving stolen property counts in a single prosecution, the
receiving stolen property count would merge for sentencing with the theft count under
R.C. 2941.25(A). See Committee Comment to R.C. 2941.25 (using crimes of theft and
receiving stolen property as examples of the kind of “shotgun” convictions barred by the
statute). Double jeopardy claims relating to the protection against successive
prosecutions are controlled by the Blockburger test, not the allied offenses statute. See,
e.g., State v. Zima, 102 Ohio St. 3d 61, 2004-Ohio-1807, 806 N.E.2d 542, ¶ 40, fn. 3
(“since the present case involves only the issue of successive prosecutions, it is not
controlled by R.C. 2941.25”); State v. Lamp, 9th Dist. Summit No. 26602,
2013-Ohio-1219, ¶ 7. By charging the theft and receiving stolen property counts in
separate cases, the state made a legal, but perhaps unfair, end-run around the allied
offenses statute. This resulted in Ladson receiving an 18-month sentence for receiving
stolen property (the gun) in CR-15-599880, and being sentenced to three years in prison on
the theft count in this case for stealing the same gun.