[Cite as State v. Claggett, 2020-Ohio-4133.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, : No. 108742 v. :
LAWRENCE C. CLAGGETT, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: August 20, 2020
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-18-632751-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Lindsay Raskin, Assistant Prosecuting Attorney, for appellee.
Brian R. McGraw, for appellant.
KATHLEEN ANN KEOUGH, J.:
In this delayed appeal, defendant-appellant, Lawrence C. Claggett,
appeals his convictions and the trial court’s calculation of jail-time credit. For the
reasons that follow, we affirm. In September 2018, Claggett was named in a five-count indictment
charging him with aggravated robbery (Count 1), three counts of robbery (Counts 2,
3, and 4), and theft (Count 5). Counts 1, 2, and 3 each contained notices of prior
conviction and repeat violent offender specifications. The trial court considered the
following evidence during a bench trial.
On January 12, 2017, two masked men robbed a Citizens Bank in
Euclid, Ohio. The state introduced and played the surveillance video taken from
inside the bank.
Ashleigh Perkins, a bank employee, testified that she was standing
with a coworker when she heard someone yell “everybody get the f*** down.” (Tr.
53.) She said that she saw a male run into the bank and spray something in the
security guard’s eyes. Perkins testified that she heard the security guard yell, “You
guys are being robbed.” (Tr. 54.) She saw the other male jump over the teller
counter and try to access the teller drawers. Perkins stated that she heard the male
who jumped over the counter shout to the other male who was waiting in the lobby
that some of the teller drawers were locked. According to Perkins, the male then
yelled “Dude, let’s get the f*** out.” (Tr. 56.) After the men left, she noticed an
unfamiliar black bag by her workstation. She described the male who left the bag as
being approximately her height — five-foot and three inches, and having a slender
build. Perkins described how she felt “terrified, and that she was afraid to move
because at one point, the male ransacking the teller drawers was standing right in front of her as she was crouched underneath her desk. She testified that $2,650 was
taken from her cash drawer.
Another bank employee, Jacqueline Wroblewski, testified that she
was working in the bank when she heard a commotion by the door. She said that
she saw someone in the doorway pointing what she believed to be a gun toward
everyone while yelling “be quiet.” (Tr. 39.) She said she was “terrified” and
immediately dropped to the ground and closed her eyes, but she could hear two men
yelling back and forth at each other while one rummaged through the teller drawers
behind the counter.
Theresa Conkey, a bank teller at the bank, testified that she was
assisting a customer when the security guard alerted them that they were “being
robbed.” She got down on the ground and could hear someone shuffling through
the drawers, including her teller drawer. Conkey testified that she felt like she could
not leave and was concerned about what was going to happen and for her coworkers.
She stated $1,596 was taken from her teller drawer.
Officer Greg Costello from the Euclid police department testified that
he collected into evidence the black bag and discovered inside the bag a tinfoil-
wrapped concrete rock. Claggett’s DNA attributed to 94 percent of the mixture DNA
evidence taken from the handle of the black bag. According to Andrea Dennis, a
forensic analyst for the Ohio Bureau of Criminal Investigation, the DNA match was
rarer than one in one trillion, the highest possible match that her agency can report.
Dennis also analyzed DNA evidence taken from the concrete block found inside the black bag the men left behind. According to Dennis, the DNA profile was from a
single-source contributor and matched the DNA of Claggett. Again, the match was
rarer than one in one trillion.
Dan Richard, special agent with the FBI testified about his
involvement with the robbery investigation. He testified that he reviewed
surveillance video from the bank and confirmed that the individual who carried the
black bag into the bank and pepper sprayed the security guard stood approximately
five-foot five inches and had a slim build. Special Agent Richard stated that he
participated in the interview with Claggett and Euclid police detective, Michael
Caruso, and subsequently assisted with obtaining a federal warrant for Claggett’s
phone records.
Detective Caruso testified that he was assigned to investigate the
robbery. At trial, he identified the photographs taken of the crime scene, including
photographs of the security guard after he had been pepper sprayed and of pepper-
spray “splash-over” located on the bank’s doorway. Detective Caruso also testified
about the events recorded on the surveillance video. He described that a shorter
male carrying a black bag entered the bank and immediately pepper-sprayed the
security guard, causing the guard to drop to his knees. Additionally, he stated that
the same male was holding the black bag in the vicinity where the bag was recovered.
After learning that the DNA taken from the black bag and concrete
rock preliminarily matched that of Claggett, Detective Caruso contacted the FBI and
learned that Claggett was on federal parole for prior bank robberies. Based on a search through Ohio Law Enforcement Gateway database (“OHLEG”), he learned
that Claggett is approximately five-foot and five inches tall and weighs 135 pounds.
As a result of the information identifying Claggett as a suspect,
Detective Caruso consulted with the FBI and developed a plan to obtain Claggett’s
cell phone records. He testified that based on the cell phone records, he learned that
the location service feature on Claggett’s cell phone was disabled from 9 a.m. on the
day of the bank robbery until 6 a.m. the following day. However, what he found
significant was that the day before the robbery, Claggett’s cell phone pinged off a
tower near the Citizens Bank in Euclid.
Based on this information, Detective Caruso and Special Agent
Richard coordinated with Claggett’s federal parole officer an opportunity to meet
with Claggett. Following Claggett’s scheduled parole report, the officers met with
Claggett to discuss the bank robbery. During the interview, Claggett denied having
been in Euclid around the time of the robbery. Later, after receiving the report on
the full DNA assessment, Detective Caruso and Special Agent Richard accompanied
Claggett’s federal parole officer to Claggett’s home for a previously scheduled visit;
however, he was not there. At that point, Claggett’s parole officer considered him
“AWOL.” After 16 months and with the assistance of the United States Marshalls,
Claggett was arrested on the outstanding parole violation warrant and the warrant
issued for the Citizens Bank robbery.
Following the state’s presentation of the evidence, the state dismissed
Count 1, aggravated robbery. The trial court found Claggett not guilty of Count 2, but guilty of robbery as charged in Counts 3 and 4, and theft as charged in Count 5.
The parties agreed that all counts merged for sentencing purposes, and the state
elected that the court sentence Claggett on Count 3. The trial court imposed a
sentence of five years in prison.
Claggett now appeals, raising two assignments of error.
I. Sufficiency and Manifest Weight of the Evidence
In his first assignment of error, Claggett contends the evidence was
insufficient to support his convictions, and that his convictions are against the
manifest weight of the evidence.1
The test for sufficiency requires a determination of whether the
prosecution met its burden of production at trial. State v. Bowden, 8th Dist.
Cuyahoga No. 92266, 2009-Ohio-3598, ¶ 12. An appellate court’s function when
reviewing the sufficiency of the evidence to support a criminal conviction is to
examine the evidence admitted at trial to determine whether such evidence, if
believed, would convince the average mind of the defendant’s guilt beyond a
reasonable doubt. State v. Murphy, 91 Ohio St.3d 516, 543, 747 N.E.2d 765 (2001).
“‘The relevant inquiry is whether, after viewing the evidence in a light most favorable
1 This court recognizes that the concepts of a conviction as being against the manifest weight of the evidence, and as being supported by insufficient evidence are distinct, both quantitatively and qualitatively different, and must be reviewed under different standards of review. State v. Thompkins, 78 Ohio St.3d 380, 678 N.E.2d 541 (1997), paragraph two of the syllabus. In this appeal, although Claggett set forth the legal standards for both sufficiency and manifest weight, he did not make separate identifiable arguments under each standard in violation of App.R. 16(A). to the prosecution, any rational trier of fact could have found the essential elements
of the crime proven beyond a reasonable doubt.”’ State v. Walker, 150 Ohio St. 3d
409, 2016-Ohio-8295, 82 N.E.3d 1124, ¶ 12, quoting State v. Jenks, 61 Ohio St.3d
259, 574 N.E.2d 492 (1991), paragraph two of the syllabus.
On the other hand, a manifest weight challenge questions whether the
state met its burden of persuasion. Bowden at ¶ 12. A reviewing court “weighs the
evidence and all reasonable inferences, considers the credibility of witnesses and
determines whether in resolving conflicts in the evidence, the jury clearly lost its way
and created such a manifest miscarriage of justice that the conviction must be
reversed and a new trial ordered.” Thompkins at 388. A conviction should be
reversed as against the manifest weight of the evidence only in the most “exceptional
case in which the evidence weighs heavily against the conviction.” Id.
We need not address the finding of guilt as to the robbery and theft
offenses in Counts 4 and 5 because those offenses merged with the robbery offense
in Count 3, and the state elected that the court sentence Claggett on Count 3. State
v. Rosa, 8th Dist. Cuyahoga No. 108051, 2019-Ohio-4888, ¶ 26, fn. 1, citing State v.
Ramos, 8th Dist. Cuyahoga No. 103596, 2016-Ohio-7685, ¶ 14 (when counts in an
indictment are allied offenses and there is sufficient evidence to support the offense
on which the state elects to have the defendant sentenced, the reviewing court need
not consider the sufficiency of the evidence on the count that is subject to merger
because any error would be harmless); see also State v. McFarland, Slip Opinion
No. 2020-Ohio-3343, ¶ 25, fn. 1. In Count 3, Claggett was convicted of robbery in violation of R.C.
2911.02(A)(2), which provides that “no person, in attempting or committing a theft
offense or in fleeing immediately after the attempt or offense, shall * * * inflict,
attempt to inflict, or threaten to inflict physical harm on another.” The indictment
specified that the victim was Theresa Conkey.
Claggett contends that his robbery conviction should be reversed
because (1) the evidence was insufficient to prove that he was present during the
robbery; (2) no force was exerted against the victim named in the indictment; and
(3) the testimony regarding force against the security guard is minimal and
insufficient to satisfy the harm element. We disagree with each of Claggett’s
assertions.
In this case, the evidence proved that Claggett was present and
committed the robbery at Citizens Bank. First and most importantly, DNA evidence
linked him directly to the black bag and the concrete rock found at the bank after
the perpetrators fled the scene. The surveillance video showed that a person
matching Claggett’s height and weight carried the black bag into the bank on the day
of the robbery. Additionally, Claggett’s cell phone records revealed that he was in
the vicinity of the bank the night before the robbery and that the location services
feature on his phone had been turned off the morning of the robbery, yet reactivated
the morning after the robbery. Accordingly, we find that the evidence was sufficient
that he was present at the time of the robbery. Claggett next contends that the state did not present evidence that he
caused harm, attempted to cause, or threatened to cause harm to the victim named
in the indictment. Therefore, he contends that his robbery conviction is
unsupported by the evidence. Although couched as a sufficiency argument,
Claggett’s argument seems to be that because the indictment identified Theresa
Conkey as the named victim, the state was required to prove the same. We disagree.
A difference between an allegation in an indictment and the evidence
presented at trial may be problematic if the difference is in “a matter essential to the
charge.” State v. Smith, 2d Dist. Montgomery No. 24402, 2012-Ohio-734, ¶ 30,
citing State v. Brozich, 108 Ohio St. 559, 141 N.E. 491 (1923), paragraph one of the
syllabus. “Ohio law does not require that a victim be named in an indictment when
the identity of the victim is not an essential element of the crime.” State v. Cicerchi,
182 Ohio App.3d 753, 2009-Ohio-2249, 915 N.E.2d 350, ¶ 35, fn. 7 (8th Dist.).
Based on the statutory language of R.C. 2911.02, the identity of the victim is not an
essential element to the crime of robbery. Accordingly, the state did not need to
prove the harm element as it pertained to the named victim.
Even if the identity of the victim were essential, Crim.R. 33 and R.C.
2945.83 provide that a conviction may not be reversed because of “[a] variance
between the allegations and the proof thereof, unless the defendant is misled or
prejudiced thereby.” Crim.R. 33(E)(2); R.C. 2945.83(B). In this case, Claggett does
not claim that the difference in evidence presented at trial misled or prejudiced him.
Accordingly, even if this court found that the evidence was insufficient to prove the harm element pertaining to the victim named in the indictment, Claggett has failed
to demonstrate prejudice.
Looking at the evidence as a whole, we find that the evidence supports
a finding that Claggett caused, attempted to cause, or threatened to cause physical
harm when he entered the Citizens Bank with his accomplice to commit the act of
robbery. When the men entered the bank, Claggett pepper sprayed the security
guard. Additionally, the men shouted for everyone to “shut the f*** up.” Jacqueline
Wroblewski testified that she saw one of the men pointing what she believed to be a
gun at the people inside the bank. Ashleigh Perkins testified that she was “terrified”
and “feared for her life.” She said that she felt like she “did not take a breath” and
that “time stood still.” Additionally, Theresa Conkey testified that she was
concerned about the situation and for her coworkers. Based on the foregoing, the
evidence supports the essential element of harm. See State v. Vore, 12th Dist.
Warren No. CA2012-07-065, 2014-Ohio-1583 (evidence supports the harm element
when the bank teller testified that she froze when the defendant handed her a note
and demanded money).
Additionally, and contrary to Claggett’s assertion, the testimony and
evidence demonstrating that the security guard was pepper sprayed was significant
and more than sufficient to satisfy the harm element for robbery. Detective Caruso
testified about the surveillance video showing that when the male entered the bank,
he immediately sprayed pepper-spray at the security guard, causing the security
guard to fall to his knees. See State v. Humphrey, 6th Dist. Lucas No. L-05-1158, 2006-Ohio-4298, ¶ 25 (robbery conviction upheld where defendant struggled with
and then pepper sprayed the victim). Accordingly, the fact that Claggett pepper-
sprayed the security guard is sufficient to prove the harm element of robbery.
We further find that the trial court did not lose its way in finding
Claggett guilty because, as this court has previously held, “[f]light from justice may
be indicative of a consciousness of guilt.” State v. Santiago, 8th Dist. Cuyahoga No.
95516, 2011-Ohio-3058, ¶ 30, citing State v. Taylor, 78 Ohio St.3d 15, 27, 676 N.E.2d
82 (1997). In this case, Special Agent Richard testified that following his interview
with Claggett about the robbery, Claggett stopped cooperating with his federal
parole officer and stopped living at his reported address. Additionally, Detective
Caruso testified that he learned from Claggett’s federal parole officer that Claggett
stopped reporting and was therefore classified as “AWOL.” He further testified that
an arrest warrant was issued and Claggett was apprehended sixteen months later.
Accordingly, Claggett’s flight after his initial interview with law enforcement about
his involvement with the robbery is indicative of a consciousness of guilt that the
trial court could consider in reaching its verdict
Based on the record before this court, we find that sufficient evidence
supports Claggett’s conviction, and that this is not the exceptional case where the
court lost its way in finding Claggett guilty of robbery. The assignment of error is
overruled. II. Jail-Time Credit
In his second assignment of error, Claggett contends that the trial
court failed to award him the correct amount of jail-time credit.
This court reviews the trial court’s determination as to the amount of
jail-time credit under the “clearly and convincingly” contrary-to-law standard. State
v. Perkins, 11th Dist. Lake Nos. 2018-L-084 and 2018-L-098, 2019-Ohio-2288, ¶ 12.
It is Claggett’s burden to establish that the trial court erred in its jail-time award.
State v. Haworth, 11th Dist. Portage Nos. 2019-P-0047-0049, 2020-Ohio-1341,
¶ 29, citing State v. Corpening, 2019-Ohio-4833, 137 N.E.3d 116, ¶ 27 (11th Dist.).
“Criminal defendants have a right to jail-time credit.” State v.
Thompson, 8th Dist. Cuyahoga No. 102326, 2015-Ohio-3882, ¶ 21. R.C. 2967.191
provides that a prison term shall be reduced “by the total number of days that the
prisoner was confined for any reason arising out of the offense for which the prisoner
was convicted and sentenced.” “Although the [department of rehabilitation and
correction] has a mandatory duty pursuant to R.C. 2967.191 to credit an inmate with
jail time already served, it is the trial court that makes the factual determination as
to the number of days of confinement that a defendant is entitled to have credited
toward [his or her] sentence.” State ex rel. Rankin v. Ohio Adult Parole Auth., 98
Ohio St.3d 476, 2003-Ohio-2061, 786 N.E.2d 1286, ¶ 7. Time spent in confinement,
either prison or jail, for unrelated cases or awaiting trial and sentencing on an
unrelated case cannot be counted towards another case. State v. Cupp, 156 Ohio
St.3d 207, 2018-Ohio-5211, 124 N.E.3d 811, ¶ 23. In this case, Claggett did not object to the trial court’s calculation of
jail-time credit and did not file a motion to correct jail-time credit below. On appeal,
however, Claggett summarily contends that he is entitled to at least a credit of 253
days because he was arrested on September 13, 2018, and remained in custody
throughout the entire proceedings. In this case, the trial court credited Claggett 192
days of jail-time credit. The record before this court does not reveal how the trial
court determined that Claggett was entitled to 192 days of credit.
In its appellate brief, however, the state contends that on June 20,
2017, the Northern District of Ohio issued a warrant for a federal parole violation.
Accordingly, the state contends that because Claggett also had a hold for the federal
parole violation, he was not being held solely on this case and should not be afforded
the requested jail credit.
The record before this court tends to support the state’s position, and
without any evidence to the contrary, we find that Claggett has failed to satisfy his
burden of demonstrating that the trial court erred in its jail-time award. During
trial, testimony showed that following his interview with law enforcement about the
Citizens Bank robbery, Claggett went “AWOL” with his federal parole officer.
Additionally, Detective Caruso testified that United States Marshalls apprehended
Claggett on an outstanding warrant. Accordingly, the record supports that Claggett
was being held at some point for both the federal parole violation and the underlying
case. The second assignment of error is overruled.
Judgment affirmed. 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
conviction having been affirmed, any bail pending 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.
KATHLEEN ANN KEOUGH, JUDGE
EILEEN T. GALLAGHER, A.J., and PATRICIA ANN BLACKMON, J., CONCUR