[Cite as State v. Hughley, 2020-Ohio-4741.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, : No. 108771 v. :
SAMSON HUGHLEY, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: October 1, 2020
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-18-625169-B
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Mahmoud S. Awadallah, Assistant Prosecuting Attorney, for appellee.
Joseph V. Pagano, for appellant.
FRANK D. CELEBREZZE, JR., J.:
Defendant-appellant Samson Hughley (“appellant”) brings the instant
appeal challenging his convictions for aggravated murder, aggravated robbery,
felonious assault, and having weapons while under disability. Appellant argues that
the juvenile court erred by finding that he was not amenable to rehabilitation in the juvenile judicial system and that the trial court erred by failing to merge allied
offenses of similar import for sentencing. In addition, appellant contends that his
convictions were not supported by sufficient evidence and were against the manifest
weight of the evidence. After a thorough review of the record and law, we affirm.
I. Factual and Procedural History
On August 28, 2017, Andre Block (“Block”) was shot multiple times in
the middle of Cedar Avenue and East 28th Street in Cleveland, Ohio and ultimately
died from the wounds. The events leading up to and including his killing were
captured by video surveillance of stores in the area. The surveillance video shows
multiple individuals, including Block, loitering in and around the intersection of
East 28th and Cedar Avenue. At one point, two individuals can be seen standing in
front of a store, and one individual hands an item to the other individual. The
second individual, later identified as appellant, subsequently crosses the street and
stands behind Block. He then approaches Block and puts his arms around him.
Block breaks away and appellant goes after him, raising his right arm. Block runs
across the street with appellant chasing after him, arm still raised. Block collapses
in the street after being shot in the back. Appellant then goes toward where Block is
lying in the street, rifles through his coat, and rolls him over.
The first individual is then seen running up to Block and appellant. It
appears that the first individual and appellant exchange an item between themselves
and then leave the scene together. A witness to the incident, Dominique Coleman,
corroborated this exchange and subsequent fleeing. Officer Sean Bradley of the Cleveland Metropolitan Housing Authority
Police Department responded to the scene and examined surveillance video
obtained from a nearby store. Officer Bradley frequently patrolled the area of the
homicide and was able to immediately recognize appellant’s codefendant, Johnny
Lowe (“Lowe”), as the individual handing an item, believed to be the gun, to
appellant. Officer Bradley believed that the shooter was appellant but was only
about 75-80 percent certain at that time. He testified that he was very familiar with
appellant, because he had had multiple prior face-to-face interactions with him and
had seen pictures of him on social media. When Officer Bradley later viewed
additional surveillance footage, he was able to identify appellant as the shooter
without any doubt.
Appellant was arraigned on a complaint in juvenile court on
September 20, 2017. Appellant waived probable cause to the state’s discretionary
bindover motion and proceeded with an amenability hearing. During the hearing,
the juvenile court heard testimony from the state’s witnesses: Dr. Pinsoneault, a
psychologist who conducted the Juv.R. 30 evaluation of appellant; Christine
Thomas, a placement aftercare coordinator at the juvenile court; and Detective
Thomas Lynch, who responded to the homicide of Andre Block and testified as to
the circumstances of the crime. Appellant presented the testimony of Perry Payne,
the unit manager for the unit in the detention center where appellant was residing.
Dr. Pinsoneault testified as to appellant’s homelife, the criminal history
of appellant’s parents, the amount of violence appellant had witnessed, the physical punishment he had experienced, his legal history, and his substance abuse history.
Dr. Pinsoneault determined that appellant was diagnosed with ADHD, PTSD, and a
conduct disorder. Dr. Pinsoneault further noted that appellant did well in his
placement at Cleveland Christian Home and that he does well in a structured
environment. The doctor ultimately found four positive factors supporting
appellant remaining in the juvenile court and ten negative factors that weighed
against keeping appellant in juvenile court.
Ms. Thomas testified as to appellant’s criminal history. Appellant had
previously been placed at Cleveland Christian Home after his second arrest for
domestic violence. Appellant was released and placed home after a few weeks, but
after several additional arrests, he was again placed at Cleveland Christian Home.
Ms. Thomas was assigned to supervise appellant at this time. At the hearing, she
testified as to the activities and services provided to appellant during his placement
at Cleveland Christian Home. She stated that he was very compliant but continued
to violate the rules at Cleveland Christian Home by going AWOL on several
occasions.
Ms. Thomas further testified regarding appellant’s release from
Cleveland Christian Home in July 2017. After his discharge, appellant did not
engage in the recommended services meant to continue his rehabilitation. After
appellant’s mother reported that he left home, Ms. Thomas attempted to place
appellant on electronic monitoring. When appellant could not be found, Ms.
Thomas filed for a violation of court order, and a warrant was issued for his arrest. Appellant was placed at Carrington Youth Academy, but soon
absconded from that placement. A warrant was again issued for his arrest. The
events leading to the instant matter occurred during this time.
Detective Lynch testified that he was assigned to investigate the
homicide of Andre Block. In doing so, he procured additional surveillance video
from a convenience store that was in the area where the homicide occurred. The
surveillance video included several different angles of the area. The state presented
as an exhibit a video created by the police department that was a compilation of
several different video angles.
Det. Lynch testified that the video showed that both appellant and
Lowe were watching Block’s actions for approximately 25 minutes. Det. Lynch
stated that Officer Sean Bradley was able to identify appellant as the shooter in the
video and Lowe as the individual who was seen handing a gun to appellant. Officer
Bradley was familiar with both appellant and Lowe from extensive prior
interactions. Det. Lynch described appellant as following Block and trying to grab
him. Block was able to get away at which time appellant shot him. Appellant then
approached Block and rifled through his pockets. Lowe ran toward appellant and
Block, and Lowe was seen being handed an item by appellant, which Det. Lynch
believed was the gun.
Mr. Payne, the unit manager for appellant’s unit at the detention
center testified that appellant was complying with services and doing well, although
he had been involved in a fight while at the detention center. At the conclusion of the amenability hearing, the juvenile court judge
stated that she had reviewed the factors under R.C. 2152.12, and specifically noted
that the court would lose jurisdiction over appellant in five years and that she did
not believe five years was enough time when dealing with a murder. The juvenile
court judge found that appellant was not amenable to rehabilitation in the juvenile
court and transferred the matter to the Court of Common Pleas of Cuyahoga County,
General Division.
On January 29, 2018, appellant and his codefendant, Lowe, were
indicted. Appellant was charged with the following: aggravated murder, in violation
of R.C. 2903.01(A) with firearm specification; two counts of aggravated murder, in
violation of R.C. 2903.01(B); murder, in violation of R.C. 2903.02(B) with firearm
specification; aggravated robbery, in violation of R.C. 2911.01(A)(1) with firearm
specification; aggravated robbery, in violation of R.C. 2911.01(A)(3) with firearm
specification; felonious assault, in violation of R.C. 2903.11(A)(1) with firearm
specification; felonious assault, in violation of R.C. 2903.11(A)(2) with firearm
specification; and having weapons while under disability, in violation of R.C.
2923.13(A)(2).
Trial to the court commenced on March 18, 2019. The state presented
the testimony of twelve witnesses, including appellant’s codefendant, Lowe. As
noted by the trial court, the value of Lowe’s testimony was questionable; he gave
many evasive and inconsistent answers before ultimately confirming that the
surveillance video depicted himself and appellant and that the item that he and appellant exchanged was a gun. Lowe acknowledged that he took a plea in exchange
for his testimony against appellant.
Appellant did not call any witnesses. At the close of the state’s case,
appellant’s counsel moved for a Crim.R. 29 judgment of acquittal on all counts,
which the court denied. Appellant renewed his motion at the close of the entire case,
which was again denied. On March 22, 2019, the trial court found appellant guilty
on all counts and specifications. Appellant was sentenced to an aggregate sentence
of life in prison with parole eligibility after 26 years.
Appellant filed the instant appeal, raising the following assignments of
error for our review:
1. The juvenile division of the common pleas court abused its discretion and denied the juvenile appellant due process of law where it improperly relinquished jurisdiction over the charges against the juvenile appellant by finding he was not amenable to rehabilitation in the juvenile justice system.
2. The trial court erred when it denied appellant’s motion for acquittal under Crim.R. 29 because the state failed to present sufficient evidence to establish beyond a reasonable doubt the elements necessary to support the convictions.
3. Appellant’s convictions are against the manifest weight of the evidence.
4. The trial court erred by failing to merge all allied offenses of similar import and by imposing separate sentences for allied offenses which violated appellant’s state and federal rights to due process and protections against double jeopardy. II. Law and Analysis
A. Amenability
In appellant’s first assignment of error, he argues that the juvenile
court abused its discretion and denied appellant due process of law where it
improperly relinquished jurisdiction over the charges against appellant by finding
he was not amenable to rehabilitation in the juvenile justice system.
The juvenile division of the court of common pleas has exclusive
original jurisdiction to hear complaints that allege a juvenile is delinquent because
he committed an offense that would be a crime if committed by an adult. State v.
Fryerson, 8th Dist. Cuyahoga No. 71683, 2000 Ohio App. LEXIS 456, 9 (Feb. 10,
2000). However, certain juvenile court cases can be transferred for criminal
prosecution to the general division of the common pleas court. This transfer is also
referred to as a bindover transfer to the adult court. R.C. 2152.12(A)(1). There are
two types of bindover transfers: mandatory and discretionary. R.C. 2152.10. The
case sub judice involves a discretionary bindover transfer.
Following a hearing where the state introduces evidence showing
probable cause that the child committed the alleged crimes, the child is eligible for
a discretionary bindover pursuant to R.C. 2152.10(B). See Juv.R. 30. All children
eligible for a discretionary bindover are not transferred for prosecution in the adult
court. A juvenile court must first follow the procedures outlined in R.C. 2152.12 to
determine if transfer is appropriate. Johnson v. Sloan, 154 Ohio St.3d 476, 2018-
Ohio-2120, 116 N.E.3d 91, ¶ 6. In addition to the completion of a court-ordered investigation
pursuant to R.C. 2152.12(C), the juvenile court must hold an amenability hearing
and make the following determinations before transferring jurisdiction to the adult
court:
(1) The child was fourteen years of age or older at the time of the act charged.
(2) There is probable cause to believe that the child committed the act charged.
(3) The child is not amenable to care or rehabilitation within the juvenile system, and the safety of the community may require that the child be subject to adult sanctions.
R.C. 2152.12(B); Juv.R. 30(C).
To satisfy the third prong of R.C. 2152.12(B) and establish a child’s
amenability to the juvenile system, the juvenile court considers the applicable
factors listed in R.C. 2152.12(D) — those factors that indicate a child’s case should
be transferred — with the appropriate factors identified in R.C. 2152.12(E) that
weigh against the transfer of the juvenile case. The record must reflect the applicable
factors considered by the juvenile court. Id.
Juvenile courts have wide discretion to transfer their cases to adult
courts, and on appeal, a juvenile court’s decision to bind over a case is reviewed
under an abuse of discretion standard. State v. Poole, 8th Dist. Cuyahoga No. 98153,
2012-Ohio-5739, ¶ 6. Where the juvenile court weighed the statutory factors and
the record shows a rational basis for the court’s findings regarding those statutory
factors, an appellate court cannot conclude the trial court abused its discretion when it transferred jurisdiction. Id. “‘[I]f there is some rational and factual basis to
support the trial court’s decision, [an appellate court is] duty bound to affirm it
regardless of [its] personal views of the evidence.’” State v. Johnson, 2015-Ohio-96,
27 N.E.3d 9, ¶ 36 (8th Dist.), quoting State v. West, 167 Ohio App.3d 598, 2006-
Ohio-3518, 856 N.E.2d 285, ¶ 10 (4th Dist.).
Appellant acknowledges that the first two prongs for transfer were
met in this matter because appellant was fifteen years old and waived the probable
cause determination. Appellant contends that the juvenile court erred in its
determination of the third prong, that appellant was not amenable to rehabilitation
in juvenile court.
Appellant asserts that the evidence at the hearing supported a finding
that appellant was actually amenable to care or rehabilitation in the juvenile system.
In particular, appellant argues that the court did not appear to give any weight to
the testimony of Dr. Pinsoneault regarding the factors that weighed in favor of
retaining jurisdiction. Dr. Pinsoneault testified that appellant does well in the
structured environments provided by the juvenile justice system. He further stated
that appellant’s young age provided time for rehabilitation; appellant did well
during his placement at Cleveland Christian Home; appellant made progress in his
behavior and relationship with his mother; appellant did well in school while he was
in a structured environment; and appellant was doing well in the detention center. Appellant further contends that the court’s order did not give
sufficient, if any, weight to appellant’s family issues and the fact that he was not
emotionally, physically, or psychologically mature enough for the transfer.
The state argues that the trial court’s judgment entry clearly shows
that it considered all of the factors in R.C. 2152.12(D) and (E) and made specific
findings relative to each factor that favored a transfer and those that were against a
transfer. We agree.
In its judgment entry of January 17, 2018, the juvenile court found
that appellant was not amenable to rehabilitation in the juvenile judicial system and
specifically indicated how each of the factors in R.C. 2152.12(D) and (E) applied to
the instant matter as follows:
(1) The victim of the act charged suffered physical or psychological harm, or serious economic harm, as a result of the alleged act.
*The court found that the victim was shot in the back and subsequently died from the wound.
(2) The physical or psychological harm suffered by the victim due to the alleged act of the child was exacerbated because of the physical or psychological vulnerability or the age of the victim.
*The court found this factor was not applicable.
(3) The child’s relationship with the victim facilitated the act charged.
(4) The child allegedly committed the act charged for hire or as a part of a gang or other organized criminal activity.
*The court found there was no evidence that the act committed was part of a gang. (5) The child had a firearm on or about the child’s person or under the child’s control at the time of the act charged, the act charged is not a violation of section 2923.12 of the Revised Code, and the child, during the commission of the act charged, allegedly used or displayed the firearm, brandished the firearm, or indicated that the child possessed a firearm.
*The court found that appellant was in possession of a firearm.
(6) At the time of the act charged, the child was awaiting adjudication or disposition as a delinquent child, was under a community control sanction, or was on parole for a prior delinquent child adjudication or conviction.
*The court found that appellant had a delinquent history and had been placed at Cleveland Christian Home where he was discharged successfully.
(7) The results of any previous juvenile sanctions and programs indicate that rehabilitation of the child will not occur in the juvenile system.
*The court found that it was “clear that [appellant] did not benefit from any programs in Juvenile Court.”
(8) The child is emotionally, physically, or psychologically mature enough for the transfer.
*The court found that Dr. Pinsoneault reported that appellant had the ability to logically think with an intelligence quotient that was just below average.
(9) There is not sufficient time to rehabilitate the child within the juvenile system.
*The court found that appellant was fifteen years old, which left over five years in the system; however, the murder was egregious, and appellant had not availed himself of rehabilitation services. Additionally, the court made the following findings under R.C.
2152.12(E):
(1) The victim induced or facilitated the act charged.
*The court found that this factor was inapplicable.
(2) The child acted under provocation in allegedly committing the act charged.
(3) The child was not the principal actor in the act charged, or, at the time of the act charged, the child was under the negative influence or coercion of another person.
*The court found that appellant was the principal actor, although a co-defendant was also charged.
(4) The child did not cause physical harm to any person or property, or have reasonable cause to believe that harm of that nature would occur, in allegedly committing the act charged.
*The court found that appellant pointed a firearm during the afternoon, fired into the back of the victim, and proceeded to rummage through the pockets of the victim.
(5) The child previously has not been adjudicated a delinquent child.
*The court found that appellant had not been previously charged.
(6) The child is not emotionally, physically, or psychologically mature enough for the transfer.
*The court found that appellant was intelligent and emotionally on track for his age, but that he was not sufficiently mature for transfer at 15 years and 11 months of age.
(7) The child has a mental illness or is a mentally retarded person. *The court found that appellant had been diagnosed with PTSD, ADHD, opioid and marijuana abuses, and conduct disorder.
(8) There is sufficient time to rehabilitate the child within the juvenile system and the level of security available in the juvenile system provides a reasonable assurance of public safety.
*The court found that, based on appellant’s crimogenic history, it was unlikely that he would be rehabilitated.
Consideration of the R.C. 2152.12(D) and (E) factors reflects the
court’s evaluation of how a juvenile will manage within the adult system. State v.
Crosby, 8th Dist. Cuyahoga Nos. 107392 and 107551, 2019-Ohio-2217, ¶ 51. In
addition, the severity of a crime can be a strong indicator that there remains
insufficient time to rehabilitate a child offender in the juvenile justice system.
Johnson, 2015-Ohio-96, 27 N.E.3d 9, at ¶ 43; see also State v. Amos, 1st Dist.
Hamilton No. C-150265, 2016-Ohio-1319, ¶ 43 (a juvenile court can consider the
number and nature of the committed offenses when determining if the child is
amenable to the juvenile justice system). The Supreme Court of Ohio has found
juveniles who committed a major felony may require additional time for
rehabilitation in comparison to juveniles who commit less serious offenses, and
therefore, are less amenable to the juvenile system. Johnson at ¶ 43. In this case,
the juvenile court specifically found that the five years left until it would lose
jurisdiction over appellant were not sufficient for rehabilitation.
Despite the fact that Dr. Pinsoneault’s psychological report lists factors
indicating appellant’s responsiveness to rehabilitation in the juvenile justice system, “the trial court is still the ultimate trier of fact and free to disagree with the
psychologist’s recommendation.” Johnson at ¶ 42; see also State v. McCutchen, 8th
Dist. Cuyahoga Nos. 102381, 102382, and 102383, 2016-Ohio-488, ¶ 32. In the
instant matter, Dr. Pinsoneault ultimately did not make a recommendation for or
against transfer.
In accordance with R.C. 2152.12, the juvenile court applied the
statutory considerations and determined that the factors in R.C. 2152.12(D) — in
support of retaining jurisdiction in the juvenile system — were outweighed by R.C.
2152.12(E)’s factors that endorse transfer to the adult court. We do not find the
juvenile court’s decision to grant a discretionary transfer was an abuse of discretion.
Thus, appellant’s first assignment of error is overruled.
B. Sufficiency of the Evidence
In his second assignment of error, appellant argues that the trial court
erred in denying his Crim.R. 29 motions because his convictions were not supported
by sufficient evidence.
“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. Driggins, 8th Dist. Cuyahoga No. 98073, 2012-Ohio- 5287, ¶ 101, citing State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997).
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. State v. Vickers, 8th Dist. Cuyahoga No. 97365, 2013-Ohio- 1337, citing State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991). Cleveland v. Battles, 8th Dist. Cuyahoga No. 104984, 2018-Ohio-267, ¶ 11-12.
First, appellant contends that the state failed to prove that appellant
caused the death of Block purposely and with prior calculation and design.
Appellant argues that (1) there is no evidence that appellant knew Block or that they
had any type of strained relationship; (2) it is unlikely that appellant chose the
location in the middle of a busy intersection at mid-day for the purpose of
committing a murder; and (3) the video demonstrated that appellant and Block’s
interaction did not occur by plan, but was a spontaneous eruption of events.
The state asserts that the video, in fact, did demonstrate Lowe handing
appellant an item from Lowe’s waistband and further showed appellant following
Block and positioning himself catty-cornered to him. Appellant then followed him
across the street, waited for a bit, then grabbed Block and shot him as he attempted
to get away from appellant. The state therefore argues that there was sufficient
evidence to demonstrate prior calculation and design beyond a reasonable doubt.
‘“Prior calculation and design’ has been defined by Ohio courts as ‘the
presence of sufficient time and opportunity for the planning of an act of homicide.”’
State v. Williams, 8th Dist. Cuyahoga No. 82364, 2003-Ohio-6342, ¶ 36, quoting
State v. Cotton, 56 Ohio St.2d 8, 381 N.E.2d 190 (1978), paragraph three of the
syllabus. “The finding of prior calculation and design turns upon the particular facts
and evidence presented at trial and must be determined on a case-by-case basis.”
Williams at id., citing State v. Taylor, 78 Ohio St.3d 15, 676 N.E.2d 82 (1997). Three inquiries may assist in determining whether prior calculation
and design exist: (1) Did the accused and the victim know each other, and if so, was
that relationship strained? (2) Did the accused give thought or preparation to
choosing the murder weapon or the murder site? (3) Was the act drawn out or an
“almost instantaneous eruption of events?” Id., citing State v. Jenkins, 48 Ohio
App.2d 99, 355 N.E.2d 825 (8th Dist.1976); see State v. Braden 98 Ohio St.3d 354,
2003-Ohio-1325, 785 N.E.2d 439.
The phrase “prior calculation and design” has been interpreted by the
Supreme Court of Ohio “to require evidence of ‘more than [a] few moments of
deliberation’” and “‘a scheme designed to implement the calculated decision to kill.’”
State v. Conway, 108 Ohio St.3d 214, 2006-Ohio-791, 842 N.E.2d 996, ¶ 38, quoting
Cotton at 11. In other words, “[i]nstantaneous deliberation is not sufficient to
constitute ‘prior calculation and design.’” Cotton at paragraph two of the syllabus.
“‘[N]either the degree of care nor the length of time the offender takes to ponder the
crime beforehand’” is a “‘critical factor’” in and of itself so long as it amounts to more
than “‘momentary deliberation.’” State v. D’Ambrosio, 67 Ohio St.3d 185, 196, 616
N.E.2d 909 (1993), quoting 1973 Legislative Service Commission Comment to R.C.
2903.01. Although “‘momentary deliberation’ is insufficient,” D’Ambrosio at 196,
“prior calculation and design can be found even when the killer quickly conceived
and executed the plan to kill within a few minutes.” State v. Coley, 93 Ohio St.3d
253, 264, 754 N.E.2d 1129 (2001). In this case, considering these factors along with the totality of the
circumstances surrounding Block’s murder, we find that, after construing the
evidence presented at trial (including all reasonable inferences that could be drawn
from that evidence) in the light most favorable to the state, there was sufficient
evidence to establish beyond a reasonable doubt that appellant acted with prior
calculation and design in murdering Block. This was not a sudden eruption of
events, but rather a precalculated drawn out event where appellant and Lowe were
watching Block for approximately 25 minutes, and appellant was seen moving closer
to Block before walking up, grabbing him, then shooting him when Block tried to get
away.
Appellant next argues that there was insufficient evidence to support
a conviction against him for purposely causing the death of Block while committing
or attempting to commit or while fleeing immediately after committing aggravated
robbery or kidnapping, as charged in Counts 5, 6, 8, and 9. Appellant contends that
there was no evidence that he was trying to take anything from Block or that he was
restraining Block’s liberty in any way.
The state argues that the video shows appellant going through Block’s
pockets after he shot Block, which shows that appellant killed Block while
attempting to commit aggravated robbery. The state further asserts that appellant
restrained Block’s liberty, thereby committing the offense of kidnapping, in the
commission of aggravated murder, aggravated robbery, and having weapons while
under a disability. After construing the evidence presented at trial (including all
reasonable inferences that could be drawn from that evidence) in the light most
favorable to the state, there was sufficient evidence to establish beyond a reasonable
doubt that appellant killed Block while attempting to commit kidnapping.
Finally, appellant argues that there was insufficient evidence that
appellant (1) caused the death of Block as a proximate result of committing or
attempting to commit felonious assault; (2) knowingly caused serious physical harm
to Block; (3) knowingly caused or attempted to cause physical harm to Block by
means of a dangerous ordnance; and (4) knowingly acquired, had, carried, or used
a firearm on August 29, 2017.
The state again cites the surveillance video as showing that appellant
walked toward Block and shot him, thus causing serious physical harm. Officer
Bradley testified that he was certain that the shooter was appellant.
We find that the record reflects, as outlined above, that there was
sufficient evidence to show that appellant caused Block’s death while committing
felonious assault and knowingly caused serious physical harm to Block by using a
handgun.
Because we have determined that there was sufficient evidence to
support all of appellant’s convictions, appellant’s second assignment of error is
overruled. C. Manifest Weight of the Evidence
In his third assignment of error, appellant argues that his convictions
were against the manifest weight of the evidence.
A manifest weight challenge questions whether the state met its
burden of persuasion. State v. Bowden, 8th Dist. Cuyahoga No. 92266, 2009-Ohio-
3598, ¶ 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,
78 Ohio St.3d at 387, 678 N.E.2d 541, quoting State v. Martin, 20 Ohio App.3d 172,
175, 485 N.E.2d 717 (1st Dist.1983). “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.’” State v. Burks, 8th Dist. Cuyahoga
No. 106639, 2018-Ohio-4777, ¶ 47, quoting Thompkins at 387.
In our manifest weight review of a bench trial verdict, we recognize
that the trial court is serving as the factfinder, and not a jury:
“Accordingly, to warrant reversal from a bench trial under a manifest weight of the evidence claim, this court must review the entire record, weigh the evidence and all reasonable inferences, consider the credibility of witnesses and determine whether in resolving conflicts in evidence, the trial court clearly lost its way and created such a manifest miscarriage of justice that the judgment must be reversed and a new trial ordered.”
State v. Strickland, 183 Ohio App.3d 602, 2009-Ohio-3906, 918 N.E.2d 170, ¶ 25
(8th Dist.), quoting Cleveland v. Welms, 169 Ohio App.3d 600, 2006-Ohio-6441, 863 N.E.2d 1125 (8th Dist.), citing Thompkins at 390. See also State v. Kessler, 8th
Dist. Cuyahoga No. 93340, 2010-Ohio-2094, ¶ 13.
Appellant argues that the quality of the evidence against him was poor
and unreliable. First, he contends that no weight should be given to the
untrustworthy testimony of codefendant Lowe. In addition, appellant maintains
that the surveillance video is grainy, and Officer Bradley expressed some doubt as to
whether it was definitively appellant. Moreover, appellant argues that there was no
DNA evidence, the firearm utilized in the crime was never recovered, and the state
did not demonstrate that appellant had any intention or reason to kill Block.
In response, the state asserts that the surveillance video, while from a
distant shot, was not “grainy” as appellant describes. The video depicts multiple
angles where appellant and Lowe were definitively identified by Officer Bradley. The
state maintains that the video shows appellant approach and attempt to grab Block,
shoot Block after he tried to get away, and then go through his pockets after he was
shot down. Furthermore, the state presented appellant’s jail phone calls, which
included a call from appellant’s father, where he stated, “You’re on video. You could
see them hand you a gun.” Finally, the state argues that it was not required to
demonstrate motive as an element of the murder charges.
Upon a thorough review of the record, we cannot find that appellant’s
convictions were against the manifest weight of the evidence. Officer Bradley was
unequivocal in his testimony identifying appellant as the shooter and his
codefendant as Lowe, who handed appellant the gun. The video showed appellant’s actions in watching, approaching, and shooting Block, and subsequently going
through his pockets. Further, the state presented the testimony of Tom Ciula, a
forensic video specialist with the Cleveland Police Department, who compiled the
surveillance video that was played during appellant’s trial. While the video played,
Mr. Ciula narrated what was occurring and how both appellant and Lowe could be
identified throughout.
While we agree that the testimony of Lowe was dubious given his
contradictory and evasive answers, there was still enough evidence to support
appellant’s convictions. We therefore cannot say that the trial court lost its way and
created a manifest miscarriage of justice. Accordingly, appellant’s third assignment
of error is overruled.
D. Merger of Allied Offenses
In his fourth assignment of error, appellant argues that the court erred
by failing to merge the offenses of aggravated murder and aggravated robbery.
R.C. 2941.25 codifies the protections of the Double Jeopardy Clause of
the Fifth Amendment to the United States Constitution and Section 10, Article I of
the Ohio Constitution, prohibiting multiple punishments for the same offense, and
states as follows:
(A) Where the same conduct by defendant can be construed to constitute two or more allied offenses of similar import, the indictment or information may contain counts for all such offenses, but the defendant may be convicted of only one.
(B) Where the defendant’s conduct constitutes two or more offenses of dissimilar import, or where his conduct results in two or more offenses of the same or similar kind committed separately or with a separate animus as to each, the indictment or information may contain counts for all such offenses, and the defendant may be convicted of all of them.
In State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892,
the Supreme Court of Ohio identified the proper analysis in determining whether
the offenses merge or whether the defendant may be convicted of separate offenses
under R.C. 2941.25(B):
A trial court and the reviewing court on appeal when considering whether there are allied offenses that merge into a single conviction under R.C. 2941.25(A) must first take into account the conduct of the defendant. In other words, how were the offenses committed? If any of the following is true, the offenses cannot merge and the defendant may be convicted and sentenced for multiple offenses: (1) the offenses are dissimilar in import or significance — in other words, each offense caused separate, identifiable harm, (2) the offenses were committed separately, and (3) the offenses were committed with separate animus or motivation.
At its heart, the allied-offense analysis is dependent upon the facts of
a case because R.C. 2941.25 focuses on the defendant’s conduct. The evidence at
trial or during a plea or sentencing hearing will reveal whether the offenses have
similar import. Also, a defendant’s conduct that constitutes two or more offenses
against a single victim can support multiple convictions if the harm that results from
each offense is separate and identifiable from the harm of the other offense.
Accordingly, two or more offenses of dissimilar import exist within the meaning of
R.C. 2941.25(B) when the harm that results from each offense is separate and
identifiable. Appellant contends that the offenses committed were the result of a
single act and animus. Appellant therefore argues that the aggravated robbery and
aggravated murder charges should have merged and that the firearm specifications
should also have merged for the same reason. Appellant’s minimum sentence would
have been reduced from 26 years to life to 23 years to life.
In response, the state argues that the two offenses do not correspond
to such a degree that the commission of one offense will result in the commission of
the other. Therefore, the state asserts that the trial court properly did not merge the
aggravated murder and aggravated robbery charges for purposes of sentencing.
In addition, the state maintains that the firearm specifications for all
counts should not merge under R.C. 2929.14(B)(1)(g). This statute provides that
when an offender is convicted of two or more felonies that included aggravated
murder and aggravated robbery, the court shall impose on the offender two of the
most serious specifications. The state cites State v. Nelson, 2017-Ohio-5568, 93
N.E.3d 472 (8th Dist.), where this court held that R.C. 2929.14(B)(1)(g) allows for
multiple consecutive firearm specifications to be imposed for a single incident.
With respect to the merger of offenses for purpose of sentencing, an
appellate court applies a de novo standard of review when reviewing whether two
offenses are allied offenses of similar import. State v. Boczek, 8th Dist. Cuyahoga
No. 103811, 2016-Ohio-5708, ¶ 4.
With regard to appellant’s claim that the aggravated murder and
aggravated robbery counts should have merged, we note that the Supreme Court of Ohio has held that these two offenses are not allied offenses of similar import. State
v. Coley, 93 Ohio St.3d 253, 265, 754 N.E.2d 1129 (2001); State v. Bickerstaff, 10
Ohio St.3d 62, 66, 461 N.E.2d 892 (1984).
‘“[A]ggravated murder, as defined in R.C. 2903.01, is not an allied
offense of similar import to aggravated robbery, as defined in R.C. 2911.01, for
purposes of R.C. 2941.25(A).”’ State v. Humphrey, 8th Dist. Cuyahoga No. 89476,
2008-Ohio-685, ¶ 40, quoting Bickerstaff at syllabus. As stated by the Supreme
Court of Ohio, “[c]learly, the crimes and their elements do not correspond to such a
degree that commission of one offense constitutes commission of the other, nor is
the commission of one merely incidental to the other.” Bickerstaff at 66.
Thus, the trial judge acted within the sentencing authority of R.C.
2941.25(B) when he sentenced appellant separately on the convictions for
aggravated robbery and aggravated murder.
Further, appellant’s assertion that the firearm specifications should
merge is not well taken. Pursuant to R.C. 2929.14(B)(1)(g), when an offender is
convicted of two or more felonies that include aggravated murder and aggravated
robbery, the court shall impose on the offender two of the most serious
specifications. Moreover, this court has previously acknowledged that R.C.
2929.14(B)(1)(g) “allow[s] for multiple, consecutive firearm specifications to be
imposed for a single incident.” See, e.g., State v. Lawrence, 8th Dist. Cuyahoga Nos.
100371 and 100387, 2014-Ohio-4797, ¶ 12-16.
Appellant’s fourth assignment of error is overruled. III. Conclusion
After thoroughly reviewing the record, we affirm appellant’s
convictions. The juvenile court properly considered the factors under R.C.
2152.12(D) and (E) in determining that appellant was not amenable to rehabilitation
in the juvenile justice system. Further, appellant’s convictions were supported by
sufficient evidence and were not against the manifest weight of the evidence.
Finally, the trial court correctly refused to merge appellant’s convictions for
aggravated murder and aggravated robbery because they were not allied offenses of
similar import, and the court was permitted to impose multiple firearm
specifications for a single incident.
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
convictions 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.
FRANK D. CELEBREZZE, JR., JUDGE
ANITA LASTER MAYS, P.J., CONCURS; LARRY A. JONES, SR., J., DISSENTS WITH SEPARATE OPINION
LARRY A. JONES, SR., J., DISSENTING:
The child in this case was alleged to have committed the most heinous
crime imaginable — murder. He is, however, a child, only 15 years old at the time of
his acts. And now he has been sentenced to life in prison with parole eligibility after
26 years. I dissent because I believe that he was amenable to rehabilitation in the
juvenile justice system and the trial court abused its discretion in granting a
discretionary bindover.
R.C. 2152.01 outlines the overarching principles a juvenile court
should keep in mind when rendering its dispositions. The statute provides in
relevant part as follows:
(A) The overriding purposes for dispositions under this chapter are to provide for the care, protection, and mental and physical development of children subject to this chapter, protect the public interest and safety, hold the offender accountable for the offender’s actions, restore the victim, and rehabilitate the offender. These purposes shall be achieved by a system of graduated sanctions and services.
(B) Dispositions under this chapter shall be reasonably calculated to achieve the overriding purposes set forth in this section, commensurate with and not demeaning to the seriousness of the delinquent child’s or the juvenile traffic offender’s conduct and its impact on the victim, and consistent with dispositions for similar acts committed by similar delinquent children and juvenile traffic offenders. The court shall not base the disposition on the race, ethnic background, gender, or religion of the delinquent child or juvenile traffic offender.
(Emphasis added.) R.C. 2152.01(A) and (B).
I disagree that the juvenile court’s bindover in this case achieved the
above-stated purposes.
Both Dr. Pinsoneault and Hughley’s placement aftercare coordinator,
Christine Thomas, testified that he did well when in the structured environments
provided by the juvenile justice system; it was only when he was released into the
community that problems occurred. One could argue that this is evidence that he
belongs imprisoned for life, but I disagree.
Dr. Pinsoneault found numerous factors that were positive indicators
that Hughley should remain in juvenile custody including: (1) his young age, which
gives him time to be rehabilitated; (2) he did well when placed at Cleveland Christian
Home; (3) he has made progress in behavior and his relationship with his mother;
(3) he did well in school while in a structured environment; and (4) he was doing
well in the detention center.
While the doctor noted several negative factors as well, the doctor
admitted some of the negative factors could be grouped together, i.e., the first four
negative factors dealt with behavior. The doctor also noted that there is a significant
difference between how Hughley acted when he was in a structured setting and how
he acted in the community. The doctor discussed Hughley’s chaotic home environment, his parents’ history of incarceration, his substance abuse issues, and
that Hughley had been a victim of, and witness to, significant violence throughout
his young life.
Thomas testified that Hughley completed his programming and
treatment goals while placed at Cleveland Christian Home and was successful with
service in a structured environment. She further testified that Hughley got “great”
grades, “A’s and B’s.” But when he was released from Cleveland Christian Home,
“they [Cleveland Christian Home] did not address the family issues as we expected
them to” and did not “prepare for his discharge successfully.”
At the time of the amenability hearing, Hughley had five years to be
rehabilitated in the juvenile justice system — that, in my opinion, is a significant
period of time. Because this was a discretionary bindover, the juvenile court was
able to look at Hughley as a whole, and not just the crimes and his age as would be
the case in a mandatory bindover. I believe that
[t]he juvenile justice system should look for reform that “aims to enable juveniles to make a successful, prosocial transition to adulthood, while holding them accountable for their wrongdoing, treating them fairly, and protecting society from further offending.”
State v. Kimbrough, 8th Dist. Cuyahoga Nos. 108172 and 108173, 2020-Ohio-
3175, ¶ 140 (Jones, J., dissenting), quoting Morris, 47 Cap. U.L. Rev. at 669,
quoting National Research Council, Reforming Juvenile Justice: A
Developmental Approach 89 (2013). I do not believe the juvenile court looked at Hughley as a whole, with
his “care, protection, and mental and physical development” in mind, with the
purpose of protecting the “public interest and safety,” while holding him
“accountable for [his] actions” and restoring and rehabilitating him. R.C.
2152.01(A). Thus, I believe the juvenile court abused its discretion in transferring
Hughley to the adult system.
I therefore dissent.