[Cite as State v. Herring, 2017-Ohio-743.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 104441
STATE OF OHIO PLAINTIFF-APPELLEE
vs.
KRYAN B. HERRING DEFENDANT-APPELLANT
JUDGMENT: AFFIRMED
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-15-595823-A
BEFORE: S. Gallagher, J., Kilbane, P.J., and Stewart, J.
RELEASED AND JOURNALIZED: March 2, 2017 ATTORNEY FOR APPELLANT
Joseph V. Pagano P.O. Box 16869 Rocky River, Ohio 44116
ATTORNEYS FOR APPELLEE
Michael C. O’Malley Cuyahoga County Prosecutor By: Aqueelah A. Jordan Assistant Prosecuting Attorney Justice Center - 8th Floor 1200 Ontario Street Cleveland, Ohio 44113 SEAN C. GALLAGHER, J.:
{¶1} Kryan Herring appeals from a verdict finding him guilty of aggravated
burglary, two counts of robbery against separate victims, disrupting public service, grand
theft, domestic violence, and endangering a child. Herring also challenges as excessive
the resulting prison sentence of 19.5 years from consecutive service of the individual
sentences — nine years on the aggravated burglary, six years on the robbery, and 18
months each on the disrupting telephone service, grand theft, and domestic violence
convictions. We affirm the judgment of the trial court.
{¶2} The victim had a relationship with Herring in the past, and the two
maintained contact afterwards. The couple had a child together, who lived with the
victim. The victim also had two other children. Herring and the victim got into an oral
argument one night in April 2015, but Herring left the victim’s home without any
incident. He returned the next morning in an attempt to get the keys to his car. Herring
believed that the victim was hiding his keys, and he viciously attacked her when she told
him otherwise. One of the children, Herring’s child in fact, tried to intercede but only
managed to have Herring push her aside, although the child described it as being
punched. The children testified that Herring did not live in the house, and everyone
confirmed that Herring did not have keys to or possessions in the residence. Herring also
did not have any keys to the victim’s car that he took; the keys he used belonged to the
victim. {¶3} While Herring was beating her, the victim tried to call the police, but Herring
interceded. The victim threw the phone to her 8-year-old daughter who tried to call the
police. Herring grabbed the phone from the child. It is unclear what happened to the
phone. The victim ran from the house and called the police from a neighbor’s residence.
During that time, Herring stole the victim’s car and fled the scene.
{¶4} After the police arrived and took the victim to the hospital for treatment,
Herring returned to the house while the older, teenaged daughter was home. Herring
broke into the house by kicking through the back door. Herring again began searching
through the victim’s belongings for his car keys. Herring left before the daughter could
summon help.
{¶5} Herring was arrested on May 7, 2015, and the arraignment was scheduled for
June 10. Although the docket reflects that Herring was not in custody before the
arraignment, the state assumed he was in custody between May 7 and the June 10
arraignment; 102 speedy-trial days occurred. Herring absconded after June 10 and was
not brought into custody until October 29, 2015. On November 5, the state filed a
demand for discovery, and 24 more speedy-trial days occurred. Nothing in the record
indicates when Herring answered discovery. Nevertheless, Herring requested several
continuances before the pretrial conference was finally held on February 25, 2016, and
another pretrial conference was set for March 3, which actually occurred on March 10
because of Herring. Another 21 triple-counted days were added to the ongoing tally.
The March 14 trial date was pushed back for two weeks upon Herring’s request, leading to 54 additional days. At the end of March, the trial court became unavailable, and as a
result, trial did not commence until April 4. Twenty-four days were added to the final
tally. Giving Herring the benefit of every doubt, only 225 days counted toward the
state’s 270-day limit between arrest and trial. Herring turned down the state’s offer to
plead guilty to grand theft and domestic violence with all other charges, including the
aggravated burglary, to be nolled.
{¶6} At trial, the victim’s children testified that Herring did not live at their home.
The victim testified last. Despite what she had told police officers, the victim claimed
that Herring lived with her and the children. Out of the jury’s presence, the trial court
inquired into the victim’s testimony, demonstrably put off by the victim’s failure to timely
appear for trial and for claiming Herring lived with her despite the unequivocal evidence
to the contrary. The trial court reminded the victim of her oath and the consequences of
perjury and allowed the state an opportunity to privately discuss the situation with the
victim. Upon returning to the record, still outside the presence of the jury, it was
determined that during trial, Herring had used another inmate’s phone privileges to give
out the victim’s telephone number. The victim told the court she had lied about Herring
living with her because people were contacting her telling her to do so in order to create
doubt as to the aggravated burglary charge. The trial court allowed the state to recall the
victim, who then told the jury what had transpired and that Herring did not live with her.
The recorded jail-house calls were played to demonstrate why the victim originally lied. Herring unsuccessfully objected, claiming that the recorded calls violated Evid.R. 404(B)
and recalling the witness was a violation of his due process rights.
{¶7} This timely appeal followed, in which Herring advanced seven assignments
of error.
{¶8} Herring claims his federal and state constitutional rights to a speedy trial were
violated because he was arrested in May 2015 and trial did not commence until April
2016. Such an argument is unpersuasive because it ignores the significant tolling that
was attributed to Herring’s failure to appear at his arraignment and his repeated requests
for continuances of court dates after he was brought into custody at the end of October
2015. The state had 270 days to commence trial. R.C. 2945.71(C)-(E). At best,
considering the tolling events and Herring’s disappearance, only 225 days counted toward
that limit.
{¶9} Further, ignoring the delay in bringing Herring into custody after the missed
arraignment, less than 12 months transpired from his May 2015 arrest until the April 2016
trial under the federal speedy trial analysis. State v. Winn, 8th Dist. Cuyahoga No.
98172, 2012-Ohio-5888, ¶ 44, citing Doggett v. United States, 505 U.S. 647, 651, 112
S.Ct. 2686, 120 L.Ed.2d 520 (1992) (defendant must make a threshold showing of
presumptively prejudicial delay before triggering any further analysis, presumptively
prejudicial being defined as a period of one year). Herring’s trial occurred in a timely
fashion. {¶10} At trial, the victim initially told the jury that Herring lived with her at the
house, despite the children testifying to the contrary. The victim’s testimony was
fabricated. It was determined that Herring violated a no-contact order and had others
contact the victim inducing her false testimony. The trial court allowed the state to recall
the victim to the stand to correct her testimony and allowed the state to play the jail-house
recordings to explain the victim’s action to the jury.
{¶11} Herring claims that the recorded conversations violated Evid.R. 404(B) and
403 because the state did not have a legitimate basis for allowing the admission of the
evidence. Herring solely relies on the dissenting opinion in State v. Carter, 8th Dist.
Cuyahoga No. 90796, 2009-Ohio-226, as authority requiring the exclusion of the
recordings. We are bound to follow the majority analysis from Carter — that telephone
recordings painting the offender in a bad light are admissible for other legitimate
purposes under Evid.R. 404(B). The cited authority supports the trial court’s decision to
admit the evidence, and Herring has not presented any reasons for us to distinguish or
seek en banc review of Carter.
{¶12} Evid.R. 404(B) states the following:
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
Id. at ¶ 39. The evidence, in this case, was presented not to prove bad character of the
accused or that he acted in conformity with that character, but for the purpose of explaining to the jury why the victim lied about Herring’s living situation. State v.
Williams, 134 Ohio St.3d 521, 2012-Ohio-5695, 983 N.E.2d 1278. Herring has not
demonstrated that the evidence was unduly prejudicial; his sole focus was that the
evidence was introduced to prove conformity with other uncharged conduct.
{¶13} Furthermore, as Herring conceded, there is no error in merely warning a
witness of the consequences of perjury. United States v. Stuart, 507 F.3d 391, 398 (6th
Cir.2007). The victim ultimately testified at trial despite Herring’s actions, and the
testimony was corroborated by the victim’s children. The trial court’s admonishment
about the consequences of perjury only prejudiced Herring insomuch as his attempt to
illegally induce contrary evidence was unsuccessful. The trial court did not err when it
warned the victim of the consequences of her false testimony. Id.
{¶14} And finally on this issue, not every out-of-court statement implicates the
Confrontation Clause as Herring claims. See, e.g., State v. Montgomery, Slip Opinion
No. 2016-Ohio-5487, ¶ 88. Herring’s sole argument regarding the victim’s testimony
that implicated Herring in violating the no-contact order through third parties wrongly
presumes the existence of a per se rule that excludes any reference to another’s statement
at trial. In this case, the victim referenced the fact that other persons contacted her on
Herring’s behalf to explain to the jury why her recall testimony differed from her direct
examination. We find no error.
{¶15} Herring next seeks to overturn his convictions for aggravated burglary,
robbery, grand theft, and disrupting public service as being against the sufficiency or the manifest weight of the evidence. According to Herring, (1) the victim and he had a
relationship, so the state needed to prove Herring lacked permission to enter the house;
(2) he accidentally beat the victims and that deprived the state of evidence of an intent to
cause serious physical harm for the robbery counts; (3) he sometimes had permission
borrow the victim’s car at some indefinite point in time, so the car was not actually stolen
on April 29, 2016; and (4) he did not violate the disrupting public services statute because
“there is no evidence that he was disrupting phone services as contemplated by the
statute.”
{¶16} A claim of insufficient evidence raises the question whether the evidence is
legally sufficient to support the verdict as a matter of law. State v. Thompkins, 78 Ohio
St.3d 380, 386, 1997-Ohio-52, 678 N.E.2d 541. 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.
{¶17} The sufficiency of the evidence arguments are without merit. R.C.
2911.21(A) defines criminal trespass, the underpinnings of an aggravated burglary
charge, as remaining on the premises of another without the privilege to do so, and
nothing in the record indicates Herring had permission to remain in the home as he beat
the victim, even if the trier of fact believed he was initially allowed to enter. There is
ample evidence that the vicious attack on the victim was not accidental. The victim testified that Herring did not have permission to take her car after the beating, so the
children’s testimony that Herring sometimes was seen driving her car in the past is
irrelevant to the events on April 29, 2015. And finally, Herring has not presented any
supporting authority, as required under App.R. 16(A)(7), for his conclusion that R.C.
2909.04(A)(1) does not contemplate his conduct as being criminal. Appellate courts are
not obligated to formulate legal arguments on behalf of the parties. Risner v. Ohio Dept.
of Natural Resourses, 144 Ohio St.3d 278, 2015-Ohio-3731, 42 N.E.3d 718. Upon our
review of the arguments as presented, we can only conclude that the evidence presented at
trial sufficed.
{¶18} When reviewing a claim challenging the manifest weight of the evidence,
the court, reviewing the entire record, must 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.
Thompkins at 387. Reversing a conviction as being against the manifest weight of the
evidence should be reserved for only the exceptional case in which the evidence weighs
heavily against the conviction. Id.
{¶19} We decline the request to undertake our own extensive, independent review
of the evidence to determine whether this is that exceptional case in light of the limited
nature of the argument advanced in a single paragraph of appellate briefing that glosses
through 300 pages of transcribed trial testimony. Herring claims that this case “boils down to a dispute between two people who were in a relationship and had a child
together. There was an altercation and injuries but the record does not fairly support
convictions for burglary, robbery, grand theft or disrupting public service.” Herring has
not addressed the crux of the state’s case, in which the state demonstrated that although
invited into the home, Herring’s invitation was revoked when he viciously attacked the
victim and her children, stole her car after the beating and while the police were being
summoned, and then returned when the victim was in the hospital with only her teenaged
daughter in the home. Herring has not demonstrated a basis for us to conclude that a
manifest miscarriage of justice occurred.
{¶20} With respect to the arguments advanced challenging the aggregate sentence,
Herring claims his robbery conviction, with the indictment identifying the victim’s
daughter as the person against whom the robbery was committed, should have merged
with the aggravated burglary conviction under the Ohio Supreme Court’s analysis in State
v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892. Burglary and robbery are
committed as separate acts under the Ruff analysis; burglary is typically completed upon
entering the premises. State v. Jackson, Slip Opinion No. 2016-Ohio-5488, ¶ 129; see
also State v. Anthony, 2015-Ohio-2267, 37 N.E.3d 751, ¶ 72-73 (8th Dist.) (S. Gallagher,
J.,dissenting). Although aggravated burglary includes the element of some form of harm
to a person present in the home, Herring ignores the holding in Ruff that a crime
committed against separate victims is considered of dissimilar import as a matter of law.
Ruff at second paragraph of the syllabus. We need not dwell on the differences between burglary and the aggravated form of the crime. The aggravated burglary count in this
case was predicated on the intent to commit a robbery against the victim. The robbery
count was based on Herring’s act of assaulting the victim’s daughter while committing or
attempting a theft offense, after completing the act of entering or remaining in the home
with the intent to commit a criminal act and causing serious physical harm to the victim.
The robbery with the daughter as the named victim and the aggravated burglary were
committed by assaulting separate victims and by separate acts. The two crimes are not
allied offenses of similar import. Ruff.
{¶21} Finally, Herring’s sentence is not contrary to law. The 19.5 years of prison
imposed in this case was a product of consecutive service of the individual prison terms.
Herring’s argument against the aggregate sentence, however, is based on injecting the
R.C. 2929.11 and 2929.12 analysis of sentencing factors into review of the consecutive
sentencing. The notion that trial courts must rely on R.C. 2929.11 and 2929.12 in
considering consecutive sentences under R.C. 2929.14(C)(4) is without merit. State v.
Jones, 8th Dist. Cuyahoga No. 104152, 2016-Ohio-8145, ¶ 12, citing State v. Kirkman,
8th Dist. Cuyahoga No. 103683, 2016-Ohio-5326, ¶ 7. Although a trial court may
consider the sentencing factors for the purposes of making the findings for consecutive
sentences under R.C. 2929.14(C)(4), the court is not required to do so and an appellate
court cannot weigh the individual sentencing factors in order to overturn the imposition of
consecutive service. Id. Appellate review is limited. R.C. 2953.08(G)(2). {¶22} There is no argument that the findings were not made or that the findings
were clearly and convincingly not supported by the record. The sole focus in this appeal
is on the sentencing factors and how an appellate review of those factors would lead us to
the conclusion that concurrent terms would have sufficed. The standard of appellate
review over the imposition of consecutive sentences is whether this court can clearly and
convincingly find that the record does not support the findings. R.C. 2953.08(G)(2).
Our review is not to determine whether the sentencing factors under R.C. 2929.11 or
2929.12 weigh in favor of concurrent terms. The review Herring seeks is statutorily
precluded and, therefore, overruled.
{¶23} The only other arguments with regard to the aggregate sentence advanced on
appeal was that the 19.5 years were disproportionate to Herring’s conduct and the danger
he posed to the public because the state offered a maximum of 36 months on domestic
violence and grand theft charges during plea negotiations. Proportionality under R.C.
2929.14(C)(4) refers to the offender’s conduct and the danger he poses to the public, not a
negotiated plea offer. A trial court need not consider the terms of a rejected plea offer in
considering the proportionality of consecutively served sentences.
{¶24} Further, the state’s plea offer came before the jury found Herring guilty of
seven counts, a far more extensive set of crimes than those of the plea deal, before the
trial court learned of Herring’s extensive history of felony convictions, 16 felony
convictions in 15 years in Cuyahoga County alone, and before Herring’s attempt to
intimidate a witness during trial, which was discovered by the state during trial two days after Herring was recorded on another prisoner’s jail phone account giving others the
victim’s telephone number and asking those persons to contact the victim. Herring has
not addressed the change in circumstances that occurred from the plea offer to the final
sentencing, his extensive history of criminal conduct, or the fact that the guilty plea
involved only two crimes. Even if we could consider the plea offer as a legitimate
starting point for the proportionality analysis, it would only be a starting point and not the
sole consideration.
{¶25} The convictions and consecutively imposed sentences are 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 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
MARY EILEEN KILBANE, P.J., CONCURS; MELODY J. STEWART, J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE OPINION
MELODY J. STEWART, J., CONCURRING IN PART AND DISSENTING IN PART: {¶26} I concur with the majority decision except with regard to the following
issues.
{¶27} The basis for the aggravated burglary count is unclear. During Herring’s
Crim.R. 29(A) motion, the state very clearly told the court that the aggravated burglary
was premised on the second incident in which Herring kicked the door open and entered
the house:
THE COURT: Which episode is the State pursuing here as burglary?
[THE PROSECUTOR]: It would be the second episode, your Honor, where he kicks in the door. Yes, as it’s listed in the indictment, it initially talks about [the victim], but it’s clear from the date, April 29th, the defendant is put on notice of a property that he’s attempting to enter which is clear from the indictment. And the fact that harm was present when you kick in a door and enter a home. And you heard [the daughter] testify that she didn’t know what he was going to do, she tried to call grandma, she talked to grandma on the phone. She didn’t want to let him in the house. And she testified to hearing this kick, kick, kick at the door and then seeing the door fly in. That’s more than sufficient to establish that count, your Honor.
Tr. 318-319.
{¶28} However, during closing argument to the jury, the state referenced both
incidents as the basis for the aggravated burglary:
How did the defendant get into that occupied structure? Well, at first, [the victim] lets him in, but there comes a point in time when she no longer wants him there and she tries to get him out. And the point that she tries to get him out is the point that he remains on and at that point he is trespassing. But we can take that step forward because he comes back a second time and he kicks in the door after he’s put out the first time eventually.
Tr. 328. {¶29} Not only did the state confuse when the aggravated burglary occurred, it
confused the underlying felony. Count 1 of the indictment charged that Herring
trespassed in the home with the intent to commit a robbery. The state had this to say
about it in closing argument:
With purpose to commit in this structure a criminal offense. What does the defendant do while he is in the home? Well, the first time he’s in the home, we know he punches [the victim] in her face. We know he’s pushing and shoving her. We know he leaves the home with her car keys, her cell phone, and her car. All of which are criminal offenses. We know while he’s in the home, he keeps [the victim] from calling for help by taking her cell phone. Yet another criminal offense. And we only need one. You have multiple here.
Tr. 329.
{¶30} While the state’s argument touched on an actual theft that could be a basis
for robbery, it also mentioned other acts like punching the victim and keeping her from
talking on her cell phone as being a basis for aggravated burglary, too. If the aggravated
burglary truly was premised on the second incident, no robbery occurred that day. I
believe that what transpired at trial was confusing enough to make the jury’s verdict
questionable.
{¶31} The conviction for disrupting public services is likewise suspect. R.C.
2909.04(A)(1) states that no person shall “interrupt or impair television, radio, telephone,
telegraph, or other mass communications service * * *.” (Emphasis added.) Appellate
courts in this state have held that under this section, “the deciding factor * * * is whether
the defendant’s conduct caused the victim to be unable to use that telephone.” State v.
Hill, 7th Dist. Mahoning No. 09MO3, 2010-Ohio-4871, ¶ 25. See also State v. Galindo, 5th Dist. Stark No. 2011CA00258, 2012-Ohio-3626, ¶17; State v. Tajblik, 6th Dist. Wood
No. WD-14-064, 2016-Ohio-977, ¶ 13.
{¶32} I submit that those cases are arguably wrong. R.C. 2909.04(A)(1) applies
to “damaging or tampering with any property” for the purpose of interrupting or
impairing “mass communications service.” This indicates more than preventing a call
— it requires disruption of a “mass communications service.” Importantly, Herring did
not interrupt an actual telephone call. The victim did not testify that she actually dialed
911, so no communication was interrupted. If R.C. 2909.04(A)(1) is interpreted to
support a conviction in this case, any taking of a cell phone would support a conviction
under R.C. 2909.04(A)(1), whether or not a call has been made. And, taken to its logical
conclusion, an interpretation that taking a cell phone from someone constitutes the
offense of disrupting mass communication services would make it a third-degree felony,
punishable by up to five years in prison, for a parent’s act of taking a cell phone from a
child who refuses to turn the phone off and go to bed as instructed.
{¶33} Although neither Count 2 nor 3 of the indictment charging robbery specified
the nature of the theft offense, during the Crim.R. 29 motion proceedings the state told
the court that both counts were premised on the cell phone, with Count 2 pertaining to the
mother and Count 3 pertaining to the daughter:
In regards [sic] to Count 2 and 3, the robbery counts, your Honor, there was testimony from [the mother] that the defendant, after punching her in her face, took her cell phone that she tried to give to [the daughter]. And [the mother] testified that she gave the cell phone to [the daughter] because she didn’t think the defendant would take it from his eight-year old daughter. And in fact, he did, and she never saw that phone again. That is evidence before this jury to consider.
Tr. 319-320.
{¶34} The mother testified at odds with herself: on direct examination she said that
Herring took the phone from her; but on cross-examination she said that Herring was
“trying to get it from me” and that she gave the phone to “daughter because I didn’t think
he would try to get it from my daughter.” The daughter very clearly testified that she
had the cell phone, but said nothing about whether Herring took it. The mother,
however, testified that Herring took the phone away from the daughter. The sister
testified that the daughter came upstairs, but said nothing about whether or not there was
a phone.
{¶35} It is difficult to understand how Herring took the phone from the mother, yet
the mother was able to give the phone to her daughter so that both sets of fact could
support a robbery conviction. At best, the mother testified that Herring was “trying to
get it from me.” She did not testify that he took the phone and that she was able to get it
back from him before giving it to the daughter.
{¶36} None of this is for naught just because the court merged one of the robbery
counts into the aggravated burglary count. Ordinarily, when the court merges one
offense into another, an appellate court has no obligation to consider whether the merged
count is supported by the sufficiency of the evidence. State v. Ramos, 8th Dist.
Cuyahoga No. 103596, 2016-Ohio-7685, ¶ 18. However, the state made it clear during
the Crim.R. 29 proceedings that the aggravated burglary in Count 1 consisted of the second incident in which Herring kicked open the door to the house. The state should be
held to that theory, meaning that the court erred by finding Herring guilty of aggravated
burglary with the robbery being the underlying crime. That being the case, the merger of
Counts 1 and 2 should not affect this court’s ability to review the sufficiency of the
evidence with respect to Count 2. Since both robbery counts are still viable, one of them
should be vacated.