[Cite as State v. Hughes, 2021-Ohio-2764.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, : No. 109563 v. :
DANIEL HUGHES, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: August 12, 2021
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-19-636849-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Frank Romeo Zeleznikar, Assistant Prosecuting Attorney, for appellee.
Kevin M. Cafferkey, for appellant.
MICHELLE J. SHEEHAN, J.:
Appellant Daniel Hughes appeals his convictions for involuntary
manslaughter and aggravated robbery. Hughes’s convictions are based on sufficient
evidence and are not against the manifest weight of the evidence. Hughes cannot claim error in testimony he solicited at trial. The trial court’s instruction on a
defendant’s flight was proper, and the record supported the trial court’s imposition
of consecutive sentences. For these reasons we affirm the convictions.
I. FACTS AND PROCEDURAL HISTORY
A. Procedural History
On February 13, 2019, Daniel Hughes was indicted for aggravated
murder in violation of R.C. 2903.01, aggravated robbery in violation of
R.C. 2911.01(A)(3), kidnapping in violation of R.C. 2905.01(A)(3), murder in
violation of R.C. 2903.02(B), and felonious assault in violation of R.C. 2903.11(A)(1),
following the May 10, 2018 robbery and killing of Anthony Haas in East Cleveland,
Ohio. Shannant Hamilton and Javonte Pressley were also indicted for their roles in
Haas’s murder.1 Hughes’s charges contained both one- and three-year gun
specifications.
On August 26, 2019, trial commenced for Hughes, resulting in a not
guilty finding on the charge of aggravated murder and a hung jury on the remaining
counts. A second trial commenced on January 16, 2020. The jury found Hughes
1In Cuyahoga C.P. No. CR-18-635762, Shannant Hamilton pleaded guilty to involuntary manslaughter with a one-year firearm specification and to one count of robbery. The trial court sentenced him to an aggregate 7 year prison sentence.
In Cuyahoga C.P. No. CR-19-636849, Javonte Pressley pleaded guilty to murder with a three-year firearm specification. The trial court imposed an aggregate prison sentence of 18 years to life in prison to be served consecutively to a 6 year prison sentence imposed in Cuyahoga C.P. No. CR-18-629210 on charges of robbery with a one-year firearm specification. guilty of aggravated robbery in violation of R.C. 2911.01(A)(3), a felony of the first
degree, kidnapping in violation of R.C. 2905.01(A)(3), a felony of the first degree,
involuntary manslaughter in violation of R.C. 2903.04, a felony of the first degree,
as a lesser included offense of murder, and felonious assault in violation of
R.C. 2903.11(A)(1), a felony of the second degree. The jury acquitted Hughes of all
firearm specifications attendant to the counts.
At sentencing, the state and Hughes agreed that the aggravated
robbery charge and the kidnapping charge were allied offenses. The trial court found
that the manslaughter and felonious assault charges were allied offenses. The state
elected that the trial court impose sentence on the aggravated robbery and
manslaughter charges. The trial court imposed an aggregate sentence of 18 years in
prison, sentencing Hughes to an eight-year prison sentence for aggravated robbery
to be served consecutively to a ten-year prison sentence for manslaughter.
B. Facts Adduced at Trial
On May 10, 2018, around 10:00 p.m., Anthony Haas was beaten,
robbed, and shot to death in the city of East Cleveland. The testimony of these events
given at trial indicated that Haas was to deliver marijuana to Hughes on Charles
Road. Haas and Hughes had known each other since attending middle school
together and attending the Job Corps after high school.
Shannant Hamilton was also indicted for Haas’s murder. He testified
at trial after entering into a plea bargain with the state of Ohio. Hamilton testified
he knew Hughes since he was 15 years old. On the day of the shooting, Hamilton said Hughes contacted him to get together. After Hamilton got off of work, he went
home, played a game, bought some marijuana, and later went to see Hughes on
E. 114th Street. When Hamilton met Hughes, Javonte Pressley was with Hughes.
The three were together for an hour or so before they went to Charles Road.
When they arrived on Charles Road, Hughes talked with Carlito
English, who lived on Charles Road. English testified that he knew Hughes and that
he was with his father outside when he saw Hughes parked on the street in
Hamilton’s car with two other men. According to Hamilton’s and English’s
testimony, Hughes told English to get off the street because something bad was
going down so English went inside. Hamilton said that Hughes then used his phone
to contact Haas, which contact was confirmed by telephone records obtained by the
East Cleveland Police Department. Hamilton testified that Hughes also sent Haas
their location from his phone so Haas could meet them. The three men waited for
25 minutes, and Hughes told Hamilton that he was going to “chalk him for his
weed,” meaning that he planned to take the drugs from Haas.
Hamilton testified that when Haas arrived, he parked two houses away
from his car. Hughes and Pressley got out of Hamilton’s car and walked up to Haas’s
car. Hamilton said he proceeded to clean his car and noticed that Hughes was sitting
in the passenger seat of Haas’s car and Haas and Pressley were fighting by the
driver’s door. When Haas fell to the ground, Pressley was “thumping him.”
Hamilton went over to the car to try to stop Pressley from beating Haas. He got
between them and as Hamilton got in front of Haas on the ground, Pressley pulled out a gun. At that time, Hughes was going through the glove compartment and
announced he “got” the weed. Hughes and Pressley proceeded to run away while
Hamilton started to walk back to his car, leaving Haas on the ground. As Hamilton
heard a gunshot coming from Hughes and Pressley’s direction, he jumped into his
car and pulled off.
Rickett, a resident of Charles Road, testified that she saw three men
beating up Haas after they pulled him out of his car. Haas was screaming and
pleading for help when he was shot.
English testified that about 5 minutes after Hughes told him to go
inside, he went back outside toward the back of his house and heard a gunshot. He
saw Hughes run up his driveway and exclaim that he was being shot at, and asked
to be let in the house. English let him inside the house. After a half hour or so,
English testified that Hughes borrowed a phone and called his mother to call for a
ride. Hughes left the area in a car about 30 minutes later, never talking to the police
that were on the street.
The East Cleveland Police Department investigated the robbery and
murder. They interviewed residents of Charles Road and developed suspects from
telephone and Instagram records, identifying Hamilton and Hughes as suspects. An
investigator from Ohio’s Bureau of Criminal Investigation helped retrieve physical
evidence, including Pressley’s palmprint from the driver’s side of Haas’s car. They
later recovered a pair of shoes from Hamilton’s car. The shoe prints could not be
excluded as a potential cause for the injuries to Haas’s head. An autopsy revealed that Haas died from a single gunshot wound
fired from a distance of more than five feet. Haas also suffered recent injuries to his
head, hand, and arms, and bruising on his head.
C. Cross-Examination of Det. Sgt. Marche
East Cleveland Police Department Det. Sgt. Joseph Marche testified
as to the details of East Cleveland’s response to the 911 call regarding the shooting.
East Cleveland was notified of the shooting at 10:15 pm. In reviewing Haas’s
telephone logs, police learned that Deontae Mahone contacted Haas at 10:01 pm.
When contacted by police, Mahone cooperated immediately and made a statement.
Det. Marche was cross-examined at trial about his interaction with Mahone. When
asked by Hughes’s trial counsel about what Mahone knew about Haas’s plans, the
following testimony occurred:
Q. Yeah. So your information was per Mahones that Mr. Haas was headed over to Terrace, or was it Crystal Towers?
A. No, no. He didn’t say the apartment building. I believe he just said he was headed to Terrace to meet D.J.
D. Jury Instructions on Consciousness of Guilt and Flight
At trial, the court gave instructions to the jury on complicity. The trial
court also instructed the jury regarding flight of a defendant. The court stated:
Consciousness of guilt. Flight of defendant. Testimony has been admitted indicating that the defendant fled the scene. You are instructed that the fact that defendant fled the scene does not raise a presumption of guilt but it may tend to indicate that -- it may tend to indicate the defendant’s consciousness of guilt. If you find that the facts do not support that the defendant fled the scene or if you find that some other motive prompted the defendant’s conduct or if you are unable to decide what the defendant’s motivation was then you should not consider this evidence for any purpose; however, if you find that the facts support that the defendant engaged in such conduct and if you find that the defendant was motivated by a consciousness of guilt you may but are not required to consider that evidence in deciding whether the defendant is guilty of the crimes charged. You alone will determine what weight if any to give this evidence.
E. Sentencing
At sentencing, the trial court heard from Haas’s family members,
considered the presentence investigation report, and imposed a prison sentence of
8 years on the count of aggravated robbery and a prison sentence of 10 years on the
count of involuntary manslaughter. In imposing sentence, the court noted that
Hughes had several juvenile offenses, at least one of which was an offense of
violence. The trial court found Hughes planned the robbery and was responsible for
Haas’s death, stating that it would not have happened had Hughes not arranged the
robbery. The trial court further made the following findings:
I find that a consecutive prison sentence is necessary to protect the community and to punish you and it’s not disproportionate, and I find that the harm is so great or unusual that a single term does not adequately reflect the seriousness of your conduct, your criminal history shows that a consecutive sentence is necessary to protect the public, and I also find that at least two of the multiple offenses were committed as part of one or more courses of conduct and the harm caused by two or more of the multiple offenses so committed was so great or unusual that no single prison term for any of the offenses committed as part of any of the courses of conduct adequately reflects the seriousness of your conduct.
The trial court explained its reasoning for imposing consecutive
sentencings as: I’ve already placed on the record your participation in this senseless act of violence. You were the individual who set the wheels in motion, and as a result of your actions a life was lost. For that reason, a consecutive sentence is necessary. In addition to that, you have a lengthy history of crime in that you have a lengthy number of criminal offenses as a juvenile. So for those reasons, a consecutive prison sentence is necessary.
The journal entry of Hughes’s conviction contains the trial court’s
findings as to consecutive sentencing.
II. LAW AND ARGUMENT
Hughes raised five assignments of error. In his first and second
assignments of error, Hughes alleges that his convictions are not based on sufficient
evidence and are against the manifest weight of the evidence. In his third
assignment of error he challenges the testimony of Det. Sgt. Marche as being
improperly admitted as to statements made by Mahone. In his fourth assignment
of error, Hughes argues that the trial court erred by instructing the jury on
defendant’s flight. Finally, in his fifth assignment of error, Hughes contends that
although the trial court made the requisite findings in imposing consecutive
sentences, the record does not support consecutive sentences.
A. Sufficiency and Manifest Weigh of Evidence
1. Appellant’s First and Second Assignments of Errors
Hughes’s first assignment of error reads, “Appellant’s convictions are
not supported by sufficient evidence.” His second assignment of error reads,
“Appellant’s convictions are against the manifest weight of the evidence.” As to his claim that the convictions were not based on sufficient
evidence, Hughes argues that there was no evidence that Hughes caused or
attempted to cause harm to Haas, rather he asserts that the testimony indicates
Pressley and Hamilton physically engaged Haas and that Pressley acted alone when
he shot and killed Haas. Hughes further argues that even under a complicity theory,
there was no evidence at trial that Hughes intended to hurt Haas.
The state argues that the evidence at trial showed that Hughes
supported, assisted, cooperated with, and shared the same criminal intent as the
others in committing the offenses for which he was convicted by arranging the
robbery, finding the items to be taken while Pressley beat up Haas, then fleeing the
scene and hiding from the police in English’s home.
As to his claim that his convictions are against the manifest weight of
the evidence, Hughes argues that Hamilton’s testimony was untenable and could
not be believed. The state argues that Hamilton’s testimony was corroborated by
others’ testimony as well as telephone records and other circumstantial evidence.
As such, the state argues that the jury did not lose its way in convicting Hughes and
the evidence does not weigh heavily against conviction.
2. Standards of Review for Sufficiency and Manifest Weight of the Evidence Challenges
We review a challenge to the sufficiency of evidence by determining
whether the evidence admitted at trial, if believed, would convince the average mind
of the defendant’s guilt beyond a reasonable doubt. State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus. “The 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.” Id. When reviewing the evidence, we are mindful that
circumstantial and direct evidence “possess the same probative value.” Id. at 272.
The review of the evidence is not to determine “whether the state’s evidence is to be
believed, but whether, if believed, the evidence against a defendant would support a
conviction.” State v. Thompkins, 78 Ohio St.3d 380, 390, 678 N.E.2d 541 (1997).
In contrast, a challenge to the manifest weight of the evidence after a
criminal conviction questions whether the state has met its burden of persuasion in
obtaining the conviction. Thompkins at 390. Further, the manifest weight challenge
raises factual issues:
“The court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. The discretionary power to grant a new trial should be exercised only in the exceptional case in which the evidence weighs heavily against the conviction.”
Id. at 387, quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st
Dist.1983); State v. Townsend, 8th Dist. Cuyahoga No. 107177, 2019-Ohio-544,
¶ 20. 3. Hughes’s Convictions Are Based Upon Sufficient Evidence and Are Not Against the Manifest Weight of the Evidence
Hughes was convicted and sentenced on charges of aggravated
robbery in violation of R.C. 2911.01(A)(3) and involuntary manslaughter in violation
of R.C. 2903.04. Aggravated robbery is defined in R.C. 2911.01 in pertinent part as:
(A) No person, in attempting or committing a theft offense, as defined in section 2913.01 of the Revised Code, or in fleeing immediately after the attempt or offense, shall do any of the following:
***
(3) Inflict, or attempt to inflict, serious physical harm on another.
Involuntary manslaughter is defined in R.C. 2903.04(A) as “[n]o
person shall cause the death of another or the unlawful termination of another’s
pregnancy as a proximate result of the offender’s committing or attempting to
commit a felony.”
In addition to the elements of these crimes and in accord with the
testimony, the trial court instructed the jury on complicity. Ohio’s complicity
statute, R.C. 2923.02, provides in relevant part, that, “[n]o person, acting with the
kind of culpability required for the commission of an offense, shall * * * [a]id or abet
another in committing the offense.” R.C. 2923.03(A) (2). This court has held:
The statute does not define aiding and abetting, but the Supreme Court of Ohio has held that, to support a conviction for complicity by aiding and abetting, the evidence must show that the defendant “supported, assisted, encouraged, cooperated with, advised, or incited the principal in the commission of the crime, and that the defendant shared the criminal intent of the principal.” State v. Johnson, 93 Ohio St.3d 240, 2001-Ohio-1336, 754 N.E.2d 796, syllabus. Furthermore, “[s]uch intent may be inferred from the circumstances surrounding the crime.” Id. at 246.
State v. Williams, 2019-Ohio-794, 132 N.E.3d 1233, ¶ 35 (8th Dist.). Further, the
circumstances to be considered in assessing complicit behavior “may include the
offender’s presence, companionship, and conduct before and after the crime is
committed.” State v. Crosby, 8th Dist. Cuyahoga No. 106504, 2018-Ohio-3793,
¶ 12; State v. Moore, 7th Dist. Mahoning No. 02 CA 152, 2004-Ohio-2320, ¶ 31.
Hamilton’s testimony was corroborated in part by Rickett’s and
English’s testimony as well as the telephone records obtained by the police. The
testimony indicated that Hughes called Haas to meet him, that Hughes intended to
rob Haas, and that Hughes warned English to leave the area. Further testimony
indicated that while Pressley and/or Hamilton was fighting with Haas, Hughes went
through the interior of Haas’s car to find the drugs he said he would take. Hughes
was involved in the planning and execution of the robbery in which force was used
and serious physical harm caused. There was sufficient evidence that he acted to be
both participating in and complicit in the aggravated robbery. As such, the
testimony at trial was sufficient to sustain that conviction.
Involuntary manslaughter requires a showing that a death ensued as
a proximate cause of a commission of a felony. Hughes argues that the evidence did
not show that Hughes acted with a criminal intent to cause harm; however the
evidence did show that he actively participated in a robbery where serious physical
harm was inflicted. “The culpability required for involuntary manslaughter is the mens rea of the predicate offense.” State v. Hill, 2018-Ohio-1401, 110 N.E.3d 823,
¶ 10 (8th Dist.), citing State v. Brown, 8th Dist. Cuyahoga No. 69149, 1996 Ohio
App. LEXIS 2711, 10 (June 27, 1996). “‘The proximate-cause element is satisfied
when the accused sets in motion a sequence of events that makes the death of
another a “direct, proximate, and reasonably inevitable consequence.”’” State v. Hill,
8th Dist. Cuyahoga No. 106017, 2018-Ohio-4614, ¶ 11, quoting State v. Marshall,
175 Ohio App.3d 488, 2008-Ohio-955, 887 N.E.2d 1227, ¶ 53 (1st Dist.), quoting
State v. Lovelace, 137 Ohio App.3d 206, 215, 738 N.E.2d 418 (1st Dist.1999).
There was no dispute at trial that Haas died from a gunshot wound
inflicted immediately after the robbery. Hughes argues that act was committed
solely by Pressley. However, there was sufficient evidence to show that Hughes
aided and abetted Pressley’s and Hamilton’s actions and the three men acted in
concert and support of each other to commit the aggravated robbery. Further, we
find the evidence is sufficient to determine that but for the aggravated robbery,
Haas’s death would not have occurred.
Hughes argues that his conviction is against the manifest weight of
the evidence because there was no DNA evidence presented at trial that implicated
him in the crimes and as such, the conviction rested only on Hamilton’s testimony
that could not be believed. The weight and credibility to be given the evidence and
those determinations are within the province of the jury. State v. Hill, 75 Ohio St.3d
195, 205, 1996-Ohio-222, 661 N.E.2d 1068. In this case, Hamilton’s testimony was
corroborated in part by other testimony and other evidence, which evidence reasonably indicates that Hughes was involved in the planning and execution of the
robbery. As such, we cannot say that the jury lost its way, or that the conviction
created a manifest miscarriage of justice.
Accordingly, the evidence was sufficient to sustain the conviction for
involuntary manslaughter and the conviction was not against the manifest weight of
the evidence and Hughes’s first and second assignments of error are overruled.
B. Jury Instructions
1. Appellant’s Third Assignment of Error
Hughes’s third assignment of error reads, “The trial court erred in
providing a jury instruction on flight.” Hughes complains that the instruction was
given in error as there was no evidence of intent to flee police and that the
instruction, when viewed in conjunction with “weak and circumstantial” testimony
at trial, inherently affected the trial. The state argues that the instruction was
warranted under the circumstances of the case where Hughes used subterfuge and
attempted to conceal his identity in leaving the scene of the crimes.
2. Standard of Review of Jury Instructions
The trial court has discretion in fashioning jury instructions. State v.
Howard, 8th Dist. Cuyahoga No. 100094, 2014-Ohio-2176, ¶ 35, citing State v.
Martens, 90 Ohio App.3d 338, 629 N.E.2d 462 (3d Dist.1993). We review the
court’s charge for an abuse of discretion. Id. An abuse of discretion occurs where
the trial court’s decision is “unreasonable, arbitrary, or unconscionable.” Bowman
v. Cuyahoga Cty. Fiscal Officer, 8th Dist. Cuyahoga No. 102492, 2015-Ohio-2866, ¶ 9, citing Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).
“A flight instruction on consciousness of guilt based on the flight of the accused is
appropriate if there is sufficient evidence presented at trial that the defendant
attempted to avoid apprehension.” State v. Hill, 8th Dist. Cuyahoga No. 98366,
2013-Ohio-578, ¶ 49.
3. The Evidence Presented at Trial Warranted the Flight Instruction
In this case, Hughes does not contest the content of the jury
instruction, but questions the propriety of giving the instruction. He argues that the
evidence did not warrant an instruction on flight. “[T]o warrant a flight instruction,
it must be clear the defendant took affirmative steps to avoid detection and
apprehension beyond simply leaving the scene of the crime.” State v. Holland, 8th
Dist. Cuyahoga No. 109416, 2021-Ohio-705, ¶ 25. “Flight in this context requires the
defendant to appreciate that he [or she] has been identified as a person of interest
in a criminal offense and is taking active measures to avoid being found.” Id., citing
State v. Ramos, 8th Dist. Cuyahoga No. 103596, 2016-Ohio-7685, ¶ 28.
The evidence presented at trial indicated that Hughes arranged for
the robbery. After the robbery and shooting, testimony indicated that Hughes ran
from the scene to hide in English’s home, stating he was the one being shot at.
Hughes then borrowed a phone and called someone else to arrange for a ride for him
to leave the area. Further, Asha Lane, with whom Hughes has three children,
testified that she became aware of an arrest warrant for Hughes, contacted him, and encouraged him to turn himself in. Hughes never turned himself in and was
apprehended by U.S. Marshals six months later.
The evidence that Hughes ran from the robbery and shooting, used
subterfuge to find haven, borrowed a phone, and then had someone else call a ride
for him to leave, and was thereafter aware of an arrest warrant all support the
propriety of the trial court’s decision to give the flight instruction. Because there
was evidence that supported the trial court’s decision, we cannot say the trial court
abused its discretion in giving the flight instruction. Hughes’s third assignment of
error is overruled.
C. Admission of Hearsay Evidence
1. Appellant’s Fourth Assignment of Error
Hughes’s fourth assignment of error reads, “The trial court erred and
denied appellant due process under the Ohio and United States Constitutions by
improperly admitting an out-of-court statement at trial.” He argues that while on
cross-examination, the state’s witness, East Cleveland Police Det. Sgt. Marche was
improperly permitted to testify as to Mahone’s statements about Haas’s plans. The
state argues that the testimony was responsive to questioning by Hughes’s trial
counsel on cross-examination and that any error was invited and Hughes cannot
now complain about the introduction of the evidence.
2. Standard of Review of the Admission of Evidence
The admission or exclusion of evidence is within the purview of the
trial court and we review these decisions for an abuse of discretion. Hearsay is an out-of-court statement that is offered to prove the truth of the matter asserted.
Evid.R. 801(C). Hearsay is generally prohibited, unless such testimony is subject to
an exception. Evid. R. 802. Where error in the admission of evidence was caused
by the party complaining of the error, the party cannot benefit from the error on
appeal. State v. Jackson, 8th Dist. Cuyahoga No. 86105, 2006-Ohio-174, ¶ 28, citing
State v. Woodruff, 10 Ohio App.3d 326, 327, 462 N.E.2d 457 (2d Dist.1983).
3. Invited Error
During cross-examination of Det. Sgt. Marche, trial counsel engaged
in questioning with respect to the police investigation of Deontae Mahones. Det.
Sgt. Marche testified that he interviewed Mahones about his meeting with Haas. On
cross-examination, the following questions and answers took place.
Q. And what time, if you were able to fix it, did that transaction occur with respect to the homicide?
A. What transaction are you referring to, sir?
Q. Well, the sale or whatever happened in the mini mart between Haas and Mahones?
A. That was actually right -- it was right before. Because, you know, he told us where Anthony was going.
Q. Okay. And that was in the area of Terrace.
A. He actually — I want to say it was, I want to say it was Terrace at an apartment building, I believe he said.
Q. And there’s a very large apartment building up on the corner of Terrace and Taylor?
A. There is, sir. Q. And is that where Crystal Towers is located?
A. Yes, sir.
Q. And Crystal Towers is a high-rise?
A. It’s a high-rise. I believe the address is 16000 Terrace, I think.
Q. How many floors in that building?
A. Oh, boy. There’s got to be maybe 18 or 20 maybe.
Q. Yeah. So your information was per Mahones that Mr. Haas was headed over to Terrace, or was it Crystal Towers?
A. No, no. He didn’t say the apartment building. I believe he just said he was headed to Terrace to meet D.J.
Counsel objected to this last answer, and the trial court overruled the
objection. We note that the statement complained of, “I believe he just said he was
headed to Terrace to meet DJ,” is hearsay. The witness testified to this statement
made by Mahones as to what Haas told him, and the witness offered it to prove his
assertion as to where Haas was going. Further, the witness corrected counsel’s
questioning that Haas was intending to go Terrace, not Charles Road.
However, the introduction of the evidence may not be considered
error if such error was invited. “The invited error doctrine prevents a party that
causes error from taking advantage of such error on appeal.” State v. Jackson, at
¶ 28. We have found that “the invited error doctrine is applied when counsel is
‘actively responsible’ for the trial court’s error.” Id., quoting State v. Campbell, 90
Ohio St.3d 320, 324, 2000-Ohio-183, 738 N.E.2d 1178. In this case, counsel pursued a line of questioning about Det. Sgt.
Marche’s knowledge of Mahone’s knowledge of Haas’s plans. Det. Sgt. Marche told
counsel during questioning that Mahones told him what Haas said about where he
was going. Knowing that, counsel continued to seek information about what
Mahones said and objected only to the hearsay testimony after it was elicited. As
counsel was aware and had warning that the witness possessed information, that the
information was hearsay, and then directly elicited that information, Hughes cannot
now complain about the introduction of the hearsay statement. Accordingly,
Hughes fourth assignment of error is overruled.
D. Consecutive Sentencing
1. Appellant’s Fifth Assignment of Error
Hughes’s fifth assignment of error reads, “The trial court’s
imposition of consecutive sentences is clearly and convincingly not supported by the
record and is therefore contrary to law.” Hughes argues that the trial court erred by
imposing consecutive sentences given his lack of adult felony criminal history and a
criminal history with “only * * * a few juvenile offenses of violence.” He further
argues that the two offenses occurred in the same course of conduct, there was no
separate harm caused by the two offenses, and that a single sentence would have
addressed the seriousness of his conduct. The state argues that the trial court
properly imposed consecutive sentences based on the record and circumstances of
the cases because of Hughes’s criminal history and the harm caused by his offenses. 2. Standard of Review and Imposition of Consecutive Sentences
When imposing felony sentences consecutively, a trial court must
make the findings in R.C. 2929.14(C)(4) and incorporate those findings in the
sentencing entry. State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d
659, ¶ 37. We review felony sentences pursuant to the standard found in
R.C. 2953.08(g) and therefore “may increase, reduce, or otherwise modify a
sentence, or vacate a sentence and remand for resentencing if it ‘clearly and
convincingly finds’ that the record does not support the sentencing court’s findings
under R.C. 2929.13(B) or (D), 2929.14(B)(2)(e) or (C)(4), or 2929.20(I), or the
sentence is otherwise contrary to law.” State v. Smith, 8th Dist. Cuyahoga
No. 108793, 2020-Ohio-3666, ¶ 18. A defendant may challenge the imposition in
two ways: either the trial court failed to make the statutory findings required under
R.C. 2929.14(C) or the record before the trial court does not support consecutive
sentences. Id. at ¶ 19.
3. The Trial Court Properly Imposed Consecutive Sentences
Hughes acknowledges that pursuant to R.C. 2929.14(C), the trial
court made the findings necessary to impose consecutive sentences. However,
Hughes claims that the record did not warrant the findings where Hughes did not
have an adult felony record, but had a prior juvenile criminal history with only a “few
offenses of violence.” He argues that the harm caused by the robbery and eventual
death of Haas were not so great or unusual as to require consecutive sentences,
noting the greatest harm was the homicide offense for which a single prison sentence on the conviction for involuntary manslaughter was sufficient punishment. In this
case, the trial court made the requisite findings and further explained why it
imposed consecutive sentences:
I’ve already placed on the record your participation in this senseless act of violence. You were the individual who set the wheels in motion, and as a result of your actions a life was lost. For that reason, a consecutive sentence is necessary. In addition to that, you have a lengthy history of crime in that you have a lengthy number of criminal offenses as a juvenile. So for those reasons, a consecutive prison sentence is necessary.
The trial court’s reasons underlying its decision to impose
consecutive sentences is supported by the record. The trial court emphasized the
egregious conduct that led to Haas’s killing during the robbery, noting that but for
Hughes actions Haas would not be dead. Because we are able to discern that the
trial court engaged in the correct, requisite analysis and the record contains evidence
to support the finding, we must uphold the sentence. State v. Rodriguez, 8th Dist.
Cuyahoga No. 108998, 2020-Ohio-4464, ¶ 26. Accordingly, Hughes’s fifth
assignment of error is overruled.
III. CONCLUSION
We affirm Hughes’s convictions because they are based on sufficient
evidence and are not against the manifest weight of the evidence. We find that the
trial court properly instructed the jury on flight of a defendant and that Hughes
cannot claim error in the introduction of hearsay testimony he solicited. Further,
the trial court properly imposed consecutive sentences.
Judgment affirmed. It is ordered that appellee recover of 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.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
____________________________ MICHELLE J. SHEEHAN, JUDGE
FRANK D. CELEBREZZE, JR., P.J., and EMANUELLA D. GROVES, J., CONCUR