State v. McConnell

2019 Ohio 2838

• Court: Ohio Court of Appeals
• Decided: July 12, 2019
• Docket: 2018-CA-97
• Status: Published

Opinion

[Cite as State v. McConnell, 2019-Ohio-2838.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT CLARK COUNTY

STATE OF OHIO : : Plaintiff-Appellee : Appellate Case No. 2018-CA-97 : v. : Trial Court Case Nos. 2018-CR-270 & : 2018-CR-76B ANDY MCCONNELL, III : : (Criminal Appeal from Defendant-Appellant : Common Pleas Court) :

...........

OPINION

Rendered on the 12th day of July, 2019.

JOHN M. LINTZ, Atty. Reg. No. 0097715, Assistant Prosecuting Attorney, Clark County Prosecutor’s Office, Appellate Division, 50 East Columbia Street, Suite 449, Springfield, Ohio 45502 Attorney for Plaintiff-Appellee

KIRIAKOS G. KORDALIS, Atty. Reg. No. 0089697, 130 West Second Street, Suite 1818, Dayton, Ohio 45402 Attorney for Defendant-Appellant

.............

DONOVAN, J. -2-

{¶ 1} Defendant-appellant Andy McConnell, III, appeals his conviction and

sentence for the following offenses: one count of aggravated robbery, in violation of R.C.

2911.01(A)(1), a felony of the first degree, accompanied by a firearm specification; one

count of carrying a concealed weapon, in violation of R.C. 2923.12(A), a felony of the

fourth degree; and one count of improper handling of a firearm in a motor vehicle, in

violation of R.C. 2923.16(B), a felony of the fourth degree. McConnell filed a timely

notice of appeal with this Court on August 31, 2018.

{¶ 2} The record establishes that on the morning of January 20, 2018, Jimmarko

Shepherd was driving a white Jeep when he pulled the vehicle into the parking lot of a

Lo-Cost gas station located on Selma Road in Springfield, Ohio. Shepherd testified that

also in the vehicle at that time were defendant-appellant McConnell sitting in the front

passenger seat and an unidentified male passenger sitting in the backseat. Shepherd

testified that after parking the vehicle near the gas pumps, he got out, went inside the

store, and purchased a single cigarette. Shepherd testified that he then exited the gas

station, got back into the Jeep, and drove to a nearby apartment complex, where they

remained for a short time.

{¶ 3} Shepherd testified that, shortly thereafter, he and McConnell returned to the

gas station with the stated intention of putting air in the Jeep’s tires and buying cigars.

McConnell told Shepherd to wait in the vehicle while he went into the store. Once inside

the store, McConnell, who had covered the lower part of his face with a bandana, walked

up to the counter carrying a handgun and demanded money from the store clerk. The

clerk gave McConnell $300 from the cash register. McConnell then left the store and got

back in the vehicle with Shepherd, whom he told to “drive.” Shepherd testified that as -3-

they drove away, he observed McConnell pull out a handgun and begin counting money.

{¶ 4} After McConnell fled the scene, the store clerk called the owner of the store

in order to advise him of the robbery. The owner then called the police, who arrived at

the store shortly thereafter. The owner filled out a police report and turned over a

surveillance video containing footage of the robbery. Using the surveillance video, the

police were able to create a presentation packet regarding the robbery and the perpetrator

of the robbery to show law enforcement officers at the beginning of their shifts.

Specifically, the packet included photographs of the robbery suspect from inside the store

and photographs of the white Jeep parked outside the store. The Jeep was distinctive

because it was missing a hubcap and had out-of-state license plates. The robbery

suspect, although he had a bandana covering his mouth, was distinctive because he had

an abnormal right eye that was plainly visible in the photographs. Police detectives

distributed the packet to patrol officers before they began their shifts on January 24, 2018.

{¶ 5} Springfield Police Officer Zack Massie was one of the officers who was

shown the photographs in the packet. While on patrol on January 24, 2018, Officer

Massie observed a white Jeep matching the description of the vehicle from the robbery.

The vehicle contained four individuals. Officer Massie also observed that the Jeep was

missing one hubcap and had Georgia license plates, which were expired. On the basis

of the expired tags, Officer Massie initiated a traffic stop of the vehicle. Officer Massie

testified that, when he walked up to the vehicle, he observed that the driver, McConnell,

had an abnormal right eye identical to the robbery suspect from the surveillance

photographs. Officer Massie also testified that when he approached the vehicle, he

detected the odor of burnt marijuana. Officer Massie testified that he removed everyone -4-

from the vehicle, and he searched McConnell. Thereafter, the interior of the vehicle was

searched, and Officer Massie located a .380 caliber semi-automatic handgun under the

driver’s seat. McConnell was arrested and taken into custody.

{¶ 6} On February 5, 2018, McConnell was indicted in Clark C.P. No. 18-CR-

0076B for one count of aggravated robbery accompanied by a firearm specification. On

April 3, 2018, McConnell filed a motion to suppress any physical evidence removed from

the Jeep as well as any statements he made to police before being given Miranda

warnings. McConnell also sought suppression of the DNA test results linking him to the

handgun taken from the vehicle. On April 23, 2018, the State filed a second indictment

in Clark C.P. No. 18-CR-270 charging McConnell with carrying a concealed weapon and

improper handling of a firearm.

{¶ 7} A hearing was held regarding McConnell’s motion to suppress on May 25,

2018. On June 12, 2018, the trial court issued a decision overruling McConnell’s motion

to suppress. On August 10, 2018, the State filed a motion to consolidate Case Nos. 18-

CR-0076B and 18-CR-270 for trial. The trial court granted the State’s motion to

consolidate on August 14, 2018.

{¶ 8} On August 21 and 22, 2018, McConnell’s jury trial was held. McConnell was

found guilty and convicted of aggravated robbery with a firearm specification in Case No.

18-CR-0076B and carrying a concealed weapon and improper handling of a firearm in

Case No. 18-CR-270. The trial court sentenced McConnell to eleven years in prison for

aggravated robbery plus an additional three years for the attendant firearm specification.

The trial court merged McConnell’s convictions for carrying a concealed weapon and

improper handling of a firearm, and he was sentenced to one year for carrying a -5-

concealed weapon. The trial court ordered that all sentences be served consecutively

for an aggregate sentence of 15 years in prison.

{¶ 9} It is from this judgment that McConnell now appeals.

{¶ 10} McConnell’s first assignment of error is as follows:

THE TRIAL COURT ERRED IN OVERRULING THE DEFENDANT’S

MOTION TO SUPPRESS. MORE SPECIFICALLY NO PROBABLE

CAUSE EXISTED TO SEARCH THE AUTOMOBILE.

{¶ 11} In his first assignment, McConnell contends that the trial court erred when

it overruled his motion to suppress because Officer Massie did not have probable cause

to search the white Jeep. Specifically, McConnell argues that Officer Massie did not

testify that he had any experience that qualified him to detect the odor of burnt marijuana.

Thus, McConnell argues that Officer Massie did not have probable cause to perform a

warrantless search of the Jeep. However, even if Officer Massie was not qualified to

recognize the smell of burnt marijuana, he had probable cause to stop and search

McConnell’s vehicle based upon McConnell’s suspected involvement in the robbery of

the gas station, because of the similarities between the surveillance photographs and

McConnell’s vehicle and his abnormal right eye.

{¶ 12} As this Court has previously noted, appellate courts give great deference to

the factual findings of the trier of fact.

* * * At a suppression hearing, the trial court serves as the trier of

fact, and must judge the credibility of witnesses and the weight of the

evidence. * * * The trial court is in the best position to resolve questions of

fact and evaluate witness credibility. * * * In reviewing a trial court's -6-

decision on a motion to suppress, an appellate court accepts the trial court's

factual findings, relies on the trial court's ability to assess the credibility of

witnesses, and independently determines whether the trial court applied the

proper legal standard to the facts as found. * * * An appellate court is bound

to accept the trial court's factual findings as long as they are supported by

competent, credible evidence. State v. Hurt, 2d Dist. Montgomery No.

21009, 2006-Ohio-990, ¶ 16.

(Internal citations omitted.) State v. Purser, 2d Dist. Greene No. 2006 CA 14, 2007-Ohio-

192, ¶ 11.

{¶ 13} Initially, we note that the only witnesses who testified at the hearing on

McConnell's motion to suppress were Officer Massie and Detective Ronald W. Jordan.

The trial court found their testimony credible and adopted it as the court's factual findings.

The Initial Traffic Stop

{¶ 14} The Fourth Amendment to the United States Constitution protects

individuals from unreasonable searches and seizures. Terry v. Ohio, 392 U.S. 1, 88 S.Ct.

1868, 20 L.Ed.2d 889 (1968). Under Terry, police officers may briefly stop and/or

temporarily detain individuals in order to investigate possible criminal activity if the officers

have a reasonable, articulable suspicion that criminal activity may be afoot, including a

minor traffic violation. State v. Martin, 2d Dist. Montgomery No. 20270, 2004-Ohio-2738,

¶ 10, citing Terry; State v. Mays, 119 Ohio St.3d 406, 2008-Ohio-4539, 894 N.E.2d 1204,

¶ 7-8. The existence of reasonable suspicion is determined by evaluating the totality of

the circumstances, considering those circumstances “through the eyes of the reasonable

and prudent police officer on the scene who must react to events as they unfold.” State -7-

v. Heard, 2d Dist. Montgomery No. 19323, 2003-Ohio-1047, ¶ 14, quoting State v.

Andrews, 57 Ohio St.3d 86, 87-88, 565 N.E.2d 1271 (1991).

{¶ 15} “ ‘Reasonable, articulable suspicion’ is a ‘less demanding standard than

probable cause and requires a showing considerably less than preponderance of the

evidence.’ ” State v. Fears, 8th Dist. Cuyahoga No. 94997, 2011-Ohio-930, ¶ 5, citing

Illinois v. Wardlow, 528 U.S. 119, 123, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000); State v.

Scott, 2d Dist. Clark No. 2013 CA 104, 2014-Ohio-4963, ¶ 12. Where a police officer

stops a vehicle based on reasonable suspicion that a traffic violation has occurred, or was

occurring, the stop is not unreasonable under the Fourth Amendment to the United States

Constitution, even if the officer had some ulterior motive for making the stop, such as a

suspicion that the violator was engaging in more nefarious criminal activity. State v. Mays,

119 Ohio St.3d 406, 2008-Ohio-4539, 894 N.E.2d 1204, ¶ 23, citing and clarifying Dayton

v. Erickson, 76 Ohio St.3d 3, 665 N.E.2d 1091 (1996), syllabus; see also Whren v.

United States, 517 U.S. 806, 812, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996) (an ulterior

motive does not vitiate legal justification).

{¶ 16} In the instant case, believing the officers' testimony that McConnell was

stopped because of a traffic violation, the trial court properly determined that Officer

Massie validly stopped the vehicle. This is true even though Officer Massie suspected

that the white Jeep was the same vehicle used in the robbery of the gas station on

January 20, 2018. Thus, even though Officer Massie may have also desired to

investigate the occupants’ potential involvement in the robbery, the stop of McConnell’s

vehicle did not violate the Fourth Amendment because Massie had observed a traffic

violation: his vehicle’s expired tags. See Mays at ¶ 23; Erickson at syllabus. -8-

Warrantless Search of Vehicle

{¶ 17} The trial court relied upon the automobile exception in denying McConnell's

motion to suppress. Under the automobile exception, police may conduct a warrantless

search of a vehicle if there is probable cause to believe that the vehicle contains

contraband, and exigent circumstances necessitate a search. State v. Mills, 62 Ohio St.3d

357, 367, 582 N.E.2d 972 (1992); Chambers v. Maroney, 399 U.S. 42, 48, 90 S.Ct. 1975,

26 L.Ed.2d 419 (1970). A vehicle's mobility is the traditional exigency for this exception

to the warrant requirement, and no other exigency is required. Mills at 367; Maryland v.

Dyson, 527 U.S. 465, 467, 119 S.Ct. 2013, 144 L.Ed.2d 442 (1999); California v. Carney,

471 U.S. 386, 393, 105 S.Ct. 2066, 85 L.Ed.2d 406 (1985). “If a car is readily mobile

and probable cause exists to believe it contains contraband, the Fourth Amendment * * *

permits police to search the vehicle without more.” Pennsylvania v. Labron, 518 U.S. 938,

940, 116 S.Ct. 2485, 135 L.Ed.2d 1031 (1996).

{¶ 18} As previously stated, prior to the beginning of his shift on January 24, 2018,

Officer Massie viewed photographs of the robbery suspect from inside the store and

photographs of the white Jeep parked outside the store. The Jeep was distinctive

because it was missing a hubcap and had out-of-state license plates. Although he had

a bandana covering his mouth, the robbery suspect was distinctive because he had an

abnormal right eye that was plainly visible in the photographs.

{¶ 19} While Officer Massie testified that he initially pulled the Jeep over because

it had expired tags,1 he already had probable cause to believe that the vehicle was the

1 The record establishes that McConnell was ultimately cited by Officer Massie for the expired license plates. -9-

same one used in the robbery of the gas station. Furthermore when he approached the

vehicle, he observed that McConnell had the same abnormal condition affecting his right

eye as did the robbery suspect from the surveillance photographs. Therefore, Officer

Massie had probable cause to believe that McConnell was the individual who robbed the

gas station four days earlier. Based upon these observations, Officer Massie possessed

the probable cause necessary to remove all of the individuals from the vehicle and to

search the passenger compartment of the vehicle which included under the driver’s seat

where the handgun was located. When probable cause is found to exist under the facts

and circumstances of a given case, law enforcement officers have the necessary

constitutional justification to explore any areas in the vehicle. State v. Shipp, 2d Dist.

Montgomery No. 24933, 2012-Ohio-6189, ¶ 33; *451 State v. Welch, 18 Ohio St.3d 88,

92, 480 N.E.2d 384 (1985).

{¶ 20} Because Officer Massie had probable cause to conduct a warrantless

search of the passenger compartment of the vehicle for contraband, his subsequent

discovery of the handgun under the driver’s seat did not violate McConnell's Fourth

Amendment rights. Accordingly, the trial court did not err when it overruled McConnell's

motion to suppress.

{¶ 21} McConnell’s first assignment of error is overruled.

{¶ 22} McConnell’s second assignment of error is as follows:

THE DEFENDANT’S RIGHTS TO DUE PROCESS AND EQUAL

PROTECTION UNDER THE OHIO AND THE UNITED STATES

CONSTITUTIONS WERE VIOLATED WHEN THE STATE EXCLUDED AN

AFRICAN-AMERICAN JUROR WITHOUT PROVIDING A -10-

SATISFACTORY RACE-NEUTRAL REASON AND WITHOUT HAVING

THE COURT CORRECTLY APPLYING THE LAW.

{¶ 23} In his second assignment, McConnell argues that the trial court erred when,

over defense counsel's objection, it permitted the State to exercise a peremptory

challenge against an African-American female juror, in violation of Batson v. Kentucky,

476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). During voir dire, the State exercised

a challenge to the juror in question for the following reasons: 1) she was a single

homeowner and would have to take vacation time from her job in order to remain on the

jury; 2) she stated that she been the victim of a violent crime in 1999 and was familiar

with one of the detectives in McConnell’s case and believed him to “be a good man”; and

3) that she was Facebook friends with a person who was potentially related to McConnell

(his father). McConnell contends that the State failed to offer a sufficiently race-neutral

explanation necessary to excuse the juror. McConnell also argues that the trial court

decision to ultimately allow the State to excuse the juror was made in error because it

failed to correctly apply the law.

{¶ 24} The Supreme Court of Ohio has addressed the appropriate standard of

review for a claim of racial discrimination in jury selection, as follows:

Review of a Batson claim largely hinges on issues of credibility.

Accordingly, we ordinarily defer to the findings of the trial court. See Batson

[v. Kentucky, 476 U.S. 79,] at 98, 106 S.Ct. at 1724, 90 L.Ed.2d at 89, fn.

21 [1986]. Whether a party intended to racially discriminate in challenging

potential jurors is a question of fact, and in the absence of clear error, we

will not reverse the trial court's determination. -11-

Hicks v. Westinghouse Materials Co., 78 Ohio St.3d 95, 101, 676 N.E.2d 872 (1997).

{¶ 25} When reviewing an argument that the trial court should not have accepted

the grounds for the peremptory challenge, “[t]he finding of the trial court, because it turns

largely on the evaluation of credibility, is entitled to deference on appeal and will not be

reversed unless clearly erroneous.” State v. Jones, 2d Dist. Montgomery No. 26819,

2016-Ohio-5728, ¶ 8, citing State v. Herring, 94 Ohio St.3d 246, 257, 762 N.E.2d 940

(2002).

{¶ 26} In Batson, the U.S. Supreme Court set forth a three-part test for determining

whether a prosecutor's use of a peremptory challenge is racially motivated:

“First, the defendant must make a prima facie showing that the

prosecutor has exercised peremptory challenges on the basis of race.”

Batson, 476 U.S. at 82. “In order to establish a prima facie case of

discrimination, the defendant must point to facts and other relevant

circumstances that are sufficient to raise an inference that the prosecutor

used its peremptory challenge specifically to exclude the prospective juror

on account of his race.” State v. Carver, 2d Dist. Montgomery No. 21328,

2008-Ohio-4631, ¶ 48 (citations omitted). “The trial court must ‘consider

all relevant circumstances in determining whether a prima-facie case exists,

including statements by counsel exercising the peremptory challenge,

counsel's questions during voir dire, and whether a pattern of strikes against

minority venire members is present.’ ” Id., quoting Batson * * * at 96-97.

“Second, once the defendant establishes a prima facie case of

discrimination, the burden shifts to the prosecutor to articulate a race- -12-

neutral explanation for the peremptory challenge ‘related to the particular

case to be tried.’ ” Id. at ¶ 49, quoting Batson, supra, at 98. “Although a

simple affirmation of general good faith will not suffice, the prosecutor's

explanation ‘need not rise to the level justifying exercise of a challenge for

cause.’ ” Id., quoting Batson, supra, at 97. “In fact, the prosecutor's

explanation for striking the prospective juror is not required to be

persuasive, or even plausible.” Id. “ ‘At this [second] step of the inquiry,

the issue is the facial validity of the prosecutor's explanation. Unless a

discriminatory intent is inherent in the prosecutor's explanation, the reason

offered will be deemed race neutral.’ ” Id., quoting Purkett v. Elem, 514 U.S.

765, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995).

“Third, the trial court must determine ‘whether the defendant has

carried his burden of proving purposeful discrimination.’ ” Id. at ¶ 50, quoting

Batson, supra, at 82. “In making such a determination, the trial court must

decide whether the prosecutor's race-neutral explanation is credible, or

instead is a ‘pretext’ for unconstitutional discrimination.” Id., citing

Hernandez v. New York (1991), 500 U.S. 352, 363, 111 S.Ct. 1859, 114

L.Ed.2d 395. “Because this third stage of the analysis rests largely on the

trial court's evaluation of the prosecutor's credibility, an appellate court is

required to give the trial court's findings great deference.” Id. (Citations

omitted.)

State v. Greene, 2d Dist. Montgomery No. 24307, 2011-Ohio-4541, ¶ 7-9.

{¶ 27} During voir dire, the following exchanges occurred with Juror #2, the juror -13-

in question:

[The State]: Does anybody know or believe they know the defendant in this

matter, Andy McConnell or any of his relatives? [Juror #2]?

Juror #2: Yes.

Q: Who do you know or what do you know?

A: When you said McConnell, I was friends on Facebook with a McConnell

who recently passed. I’m not sure. I don’t recognize him, but I don’t know

if you’re related or not.

Q: Again, I don’t know. Is there anything about that that you would have

been friends or potentially friends with somebody who was related to the

defendant that you couldn’t be fair and impartial today?

A: No.

Tr. 17.

***

[The State]: [Juror #2], how are you today?

A: Good.

Q: What are your thoughts about coming down here today?

A: Well, we get paid for eight hours over a ten-hour shift or ten hours over

an eight hour and have been since August 1. I sure hate to miss all of that.

Q: So by being here, you’re literally losing money out of your pocket?

A: Yes.

Q: Is that something that’s going to weigh on you?

A: Yes. I am a single homeowner. -14-

Q: If we do keep you on the jury, do you think that you would be a good

juror for us?

A: Oh, that doesn’t reflect on the pay.

Q: No, I mean in general. Not worrying about your work, just in general,

do you think you would be a good juror?

A: Yes. Because I am a Christian first of all, and I believe in both sides of

the story.

Q: Absolutely. That’s really all we can do is hear both sides of the story

and see if we figure out the truth from that, correct?

Q: Anything else that you’re concerned about? Just the work is the main

issue for you, correct?

A: That’s it.

Tr. 32-34.

[Defense Counsel]: So the State goes through all of its witnesses. Before

I do that, I want to – [the prosecutor], you saw me go over and talk to him a

minute ago. I asked him if he was going to call Detective Dewine to testify

today, and he said maybe, maybe not. Does anyone know Detective

Dewine? [Juror #2], how do you know Detective Dewine?

Juror #2: My family, my mother and my sister or well, my mom’s sister, I

think she babysat for his kids.

Q: Anything about your knowledge of Detective Dewine prevent you from -15-

being a fair and impartial juror here today?

A: No. I also know he was involved in the case that I had the assault on in

’99.

Q: Detective Dewine was?

Q: Okay. Would that affect your ability to be fair and impartial?

Q: You don’t have any feelings about Detective Dewine one way or the other

based on his handling your case?

A: No. He’s a good man.

Tr. 53-54.

The Court: Peremptory challenge for the State?

[The State]: We would thank Juror #2, * * *, and allow her to go to work.

Defense Counsel: Judge, can we approach?

The Court: Sure. Hold on a second, [Juror #2].

(Conference at the bench without the hearing of the jury, as follows)

Defense Counsel: Judge, for the record [Juror #2] is an African-

American juror and in the entire pool there is [sic] only two African-

Americans. One is sitting as one of the potential twelve; the other has not

been called yet. Now, [Juror #2] said repeatedly that she can be fair and

impartial in this case, and that she can be fair and impartial even if she has -16-

to miss work. She has said that she has vacation time that she can take

that would enable her to miss work, so it’s a Batson challenge. There’s no

reason to excuse the only African-American juror on the jury pool.

The Court: Before the State responds, I don’t know if it makes much

difference, but I think there is one African-American present in the box, and

I think that there’s two [sic] in the back of the courtroom.

[Defense Counsel]: Oh, you’re right.

The Court: There is one juror seated over there behind the

defendant’s family, and I think she came in a little later and sat down and –

Court Reporter: Did you say she’s the defendant’s cousin?

The Court: Well, we’ll worry about that when we get there. So I think

there is [sic] three African-American prospective jurors in the back of the

courtroom, and one is in the box.

The State: Just the response of that, Your Honor, [Juror #2] brought

up the fact that just in general she had an issue for her specifically about

missing work, and when we went back and she explained that she was a

single household owner and it would hurt her but she could take vacation

time to do that.

In addition to that, Your Honor, she also was a Facebook friend with

an Andy McConnell and now, I don’t know –

In addition to that, Your Honor, the fact that she has to take vacation

time to be here, the fact that she also knew McConnell on Facebook wasn’t -17-

sure if that was a relative of McConnell and frankly, with her answering the

questions about knowing Dan Dewine and her relative was a baby-sitter and

her being a victim of a crime and Detective Dewine was on that case and

everything worked out in a positive way, I would have no issue with her

being a juror or the fact now having to miss work or taking vacation time to

do so, Your Honor, so I believe in looking at the challenge itself the State

has provided multiple race neutral reasons why this juror would be excused

at this time.

[Defense Counsel]: Except for the fact, Judge, that [Juror #2] said in

[sic] she still believes that she would be a good juror and be a fair and

impartial juror. She worked out in her own mind how to resolve the work

issue.

With regard to the Andy McConnell thing she says has no idea if

that’s who she’s talking to on the Facebook, if it’s any relationship to the

McConnell here in the courtroom, and I believe that she either said or

certainly implied that the person talking to on the Facebook is not the

defendant in this case so there is - - She has no idea who that person is,

and it was never brought out if there was anything said on Facebook that

might affect her ability to be fair and impartial.

I think had there been something such as that, but nothing was so,

the bottom line is she repeated and said she can be a good juror and fair

and impartial.

*** -18-

The Court: Before the Court makes a decision, let’s do this. Let’s

question [Juror #2] a little bit further on the Facebook issue and see if we

can make a determination one way or the other as to whether or not she is

friends with somebody in the defendant’s family or on Facebook. Do you

want me to ask her questions or –

[The State]: That’s fine.

[Defense Counsel]: Well.

The Court: Would you like to ask her?

[Defense Counsel]: No. I’d rather not ask her. Maybe [the

prosecutor] should ask her, if that’s all right with you. Inquiring further

about an issue the [the State] has brought up.

[The State]: I mean, here’s my problem at this point, and I am now

being where I have to ask someone additional questions, knowing that I

have asked for them to be removed, when I have provided the Court with

race neutral reasons why, and now inquire more about that and only to

potentially be told that I can’t remove her; and I don’t want to annoy her

more at this point that I already have.

The Court: Okay. I’ll ask her the questions then, but my reasoning

is if she is friends with somebody from the defendant’s family on Facebook

then that may very well be a challenge for cause and even though I don’t

think it’s particularly relevant, with respect to the peremptory challenge

because the State is saying that it’s concern is that she may very well be

friends with someone in the defendant’s family and if that’s a concern of the -19-

State’s, then that would be a legitimate race neutral reason for using a

peremptory challenge.

But before I even have to get to that, I’d like to know one way or

another whether or not she is friends with someone.

[The State]: That’s fine. I just have been in this court before where

after we sat it’s come to the attention that a juror knows a defendant and it

worries me they are Facebook friends. That’s a legitimate concern that I

have at this point, so that’s where I’m coming from.

The Court: Did [Juror #2] say that a McConnell she was friends with

passed away?

[The State]: Correct.

The Court: Was there some way we can find out if someone in the

defendant’s family recently passed away?

[Defense Counsel]: I know my client’s father recently passed away.

The Court: All right. Well, first of all, under the law, I don’t believe

[the State] is required to give any race neutral reasons for his peremptory

challenge unless or until the Court first finds there is a pattern on the part of

the State of excusing African-American jurors.

I don’t find there to be a pattern. So based on that I will overrule the

objection.

Tr. 65-70.

{¶ 28} Initially, we note, and the State concedes, that the trial court partially

misstated the applicable law with respect to a Batson challenge when it stated that it had -20-

to first find that there was a pattern on the part of the State of excusing African-American

jurors before the State was required to provide race neutral reasons for its peremptory

challenge of a minority juror. However, only a judgment may be reversed. See App.R.

12. And if the judgment is correct, we must affirm it, even if one of the trial court's

reasons for the judgment may be incorrect. Haggerty v. Upchurch, 2d Dist. Montgomery

No. 25912, 2014-Ohio-3162, ¶ 6, citing State ex rel. McGrath v. Ohio Adult Parole Auth.,

100 Ohio St.3d 72, 2003-Ohio-5062, 796 N.E.2d 526, ¶ 8 (“Reviewing courts are not

authorized to reverse a correct judgment on the basis that some or all of the lower court's

reasons are erroneous.”); see also Baumgartner v. Duffey, 121 Ohio St.3d 356, 2009-

Ohio-1218, 904 N.E.2d 534, ¶ 4 (“[W]e will not reverse a correct judgment even if some

or all of the lower court's rationale was erroneous.”). Here, although the trial court

partially misstated the applicable law, its ultimate decision overruling McConnell’s Batson

challenge was correct.

{¶ 29} As we have previously held, a defendant must point to facts and other

relevant circumstances that are sufficient to raise an inference that the prosecutor used

its peremptory challenge specifically to exclude the prospective juror on account of his or

her race. State v. Carver, 2d Dist. Montgomery No. 21328, 2008-Ohio-4631, ¶ 48.

Apparent racial discrimination may be evident from the record by questions, remarks or

comments relating to a single peremptory strike. State v. Jenkins, 2017-Ohio-693, 85

N.E.2d 406, ¶ 27 (2d Dist.), citing Greene, 2d Dist. Montgomery No. 24307, 2011-Ohio-

4541, ¶ 7-9. In addition, or in the absence of evident discrimination, a pattern of

peremptory strikes against minorities can be sufficient to demonstrate prima facie racial

discrimination. Id. In the instant case, the record indicates that McConnell failed to -21-

establish any facts or relevant circumstances sufficient to raise an inference that the State

utilized its peremptory challenge specifically to exclude Juror #2 on account of her race.

Accordingly, the trial court correctly found that it was not obligated to proceed to the

second stage of the Batson inquiry, which is to inquire of the State whether it has a race-

neutral explanation for the peremptory challenge. Id. Nevertheless, once the

proponent explains the challenge and the trial court rules on the ultimate issue of

discrimination, whether or not a prima facie case was established becomes moot. Id.,

citing Hernandez v. New York, 500 U.S. 352, 359, 111 S.Ct. 1859, 114 L.Ed.2d 395

(1991) and State v. White, 85 Ohio St.3d 433, 437, 709 N.E.2d 140 (1999).

{¶ 30} However, even if we assume that the trial court was obligated to proceed to

the second prong of the Batson inquiry, we conclude that the record supports the State's

race-neutral explanation for exercising a peremptory challenge against Juror #2. As

previously discussed, the State provided the following race-neutral reasons for exercising

a peremptory challenge against Juror #2: 1) she was a single homeowner and would have

to take vacation time from her job in order to remain on the jury; 2) she stated that she

been the victim of a violent crime in 1999 and was familiar with one of the detectives in

McConnell’s case and believed him to “be a good man”; and 3) she was Facebook friends

with a person who was potentially McConnell’s father. In our view, we find that the

multiple reasons provided by the State for its peremptory challenge of Juror #2 were

sufficiently race-neutral to overcome a Batson challenge. Accordingly, we cannot say

that the trial court's decision to allow the State to exercise its peremptory challenge with

respect to Juror #2 was clearly erroneous.

{¶ 31} McConnell’s second assignment of error is overruled. -22-

{¶ 32} McConnell’s third assignment of error is as follows:

THE TRIAL COURT ERRED SENTENCING THE DEFENDANT TO

CONSECUTIVE SENTENCES. THE COURT FAILED TO MAKE THE

PROPORTIONALITY FINDING REQUIRED FOR THE IMPOSITION OF

CONSECUTIVE SENTENCES UNDER R.C. 2929.14(C)(4).

{¶ 33} In his third assignment, McConnell contends that the trial court failed to

make the requisite proportionality findings before imposing consecutive sentences

pursuant to R.C. 2929.14(C)(4).

{¶ 34} In reviewing felony sentences, appellate courts must apply the standard of

review set forth in R.C. 2953.08(G)(2). State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-

1002, 59 N.E.3d 1231, ¶ 9. Under R.C. 2953.08(G)(2), an appellate court may increase,

reduce, or modify a sentence, or it may vacate the sentence and remand for resentencing,

only if it “clearly and convincingly” finds either (1) that the record does not support certain

specified findings or (2) that the sentence imposed is contrary to law.

{¶ 35} As this Court has previously noted:

“The trial court has full discretion to impose any sentence within the

authorized statutory range, and the court is not required to make any

findings or give its reasons for imposing maximum or more than minimum

sentences.” State v. King, 2013-Ohio-2021, 992 N.E.2d 491, ¶ 45 (2d Dist.).

However, in exercising its discretion, a trial court must consider the statutory

policies that apply to every felony offense, including those set out in R.C.

2929.11 and R.C. 2929.12. State v. Leopard, 194 Ohio App.3d 500, 2011-

Ohio-3864, 957 N.E.2d 55, ¶ 11 (2d Dist.), citing State v. Mathis, 109 Ohio -23-

St.3d 54, 2006-Ohio-855, 846 N.E.2d 1, ¶ 38.

State v. Armstrong, 2d Dist. Champaign No. 2015-CA-31, 2016-Ohio-5263, ¶ 12.

{¶ 36} In general, it is presumed that prison terms will be served concurrently. R.C.

2929.41(A); State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 23

(“judicial fact-finding is once again required to overcome the statutory presumption in

favor of concurrent sentences”). However, R.C. 2929.14(C)(4) permits a trial court to

impose consecutive sentences if it finds that (1) consecutive sentencing is necessary to

protect the public from future crime or to punish the offender, (2) consecutive sentences

are not disproportionate to the seriousness of the offender's conduct and to the danger

the offender poses to the public, and (3) any of the following applies:

(a) The offender committed one or more of the multiple offenses while the

offender was awaiting trial or sentencing, was under a sanction imposed

pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised Code, or

was under post-release control for a prior offense.

(b) 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 the offender's conduct.

(c) The offender's history of criminal conduct demonstrates that consecutive

sentences are necessary to protect the public from future crime by the

offender.

{¶ 37} At McConnell's sentencing hearing on August 24, 2018, the trial court stated -24-

the following:

* * * The Court finds that consecutive sentences are necessary to protect

the public from future crime and to punish the defendant, and are not

disproportionate to the seriousness of the defendant’s conduct and to the danger

he poses to the public.

That his history of criminal conduct demonstrates that consecutive

sentences are necessary to protect the public from future crime by the

defendant. 2 And that these two offenses were committed as part of a

course of conduct.

The harm caused was so great or unusual that no single prison term

adequately reflects the seriousness of his conduct.

(Emphasis added.) Sentencing Tr. 6-7.

{¶ 38} In light of the foregoing, it is apparent that the trial court made the requisite

proportionality findings before imposing consecutive sentences pursuant to R.C.

2929.14(C)(4). In fact, the record establishes that the trial court made all of the requisite

findings pursuant to R.C. 2929.14(C)(4) before it imposed consecutive sentences upon

McConnell.

{¶ 39} McConnell’s third assignment of error is overruled.

{¶ 40} McConnell’s fourth assignment of error is as follows:

THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN

CONVICTING APPELLANT BECAUSE THE STATE FAILED TO

2 The trial court noted that McConnell had six prior misdemeanor convictions: domestic violence and resisting arrest in 2014, and criminal trespass, aggravated menacing, possession of drugs, and theft in 2016. -25-

PRESENT SUFFICIENT EVIDENCE AND THE CONVICTION IS AGAINST

THE MANIFEST WEIGHT OF THE EVIDENCE.

{¶ 41} In his fourth assignment, McConnell argues that his conviction for

aggravated robbery was not supported by sufficient evidence and was against the

manifest weight of the evidence.

{¶ 42} “In reviewing a claim of insufficient evidence, ‘[t]he relevant inquiry is

whether, after reviewing 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.’ ” (Citations omitted). State v. Crowley, 2d Dist. Clark No. 2007 CA

99, 2008-Ohio-4636, ¶ 12.

{¶ 43} “A challenge to the sufficiency of the evidence differs from a challenge to

the manifest weight of the evidence.” State v. McKnight, 107 Ohio St.3d 101, 2005-Ohio-

6046, 837 N.E.2d 315, ¶ 69, citing State v. Scott, 101 Ohio St.3d 31, 2004-Ohio-10, 800

N.E.2d 1133, ¶ 30. “A claim that a jury verdict is against the manifest weight of the

evidence involves a different test [than the sufficiency of the evidence]. ‘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.’ ” (Internal citations omitted.) Id. at ¶ 71, quoting State v.

Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997).

{¶ 44} The credibility of the witnesses and the weight to be given to their testimony -26-

are matters for the trier of fact to resolve. State v. DeHass, 10 Ohio St.2d 230, 231, 227

N.E.2d 212 (1967). “Because the factfinder * * * has the opportunity to see and hear the

witnesses, the cautious exercise of the discretionary power of a court of appeals to find

that a judgment is against the manifest weight of the evidence requires that substantial

deference be extended to the factfinder's determinations of credibility. The decision

whether, and to what extent, to credit the testimony of particular witnesses is within the

peculiar competence of the factfinder, who has seen and heard the witness.” State v.

Lawson, 2d Dist. Montgomery No. 16288, 1997 WL 476684, *4 (Aug. 22, 1997).

{¶ 45} This court will not substitute its judgment for that of the trier of fact on the

issue of witness credibility unless it is patently apparent that the trier of fact lost its way in

arriving at its verdict. State v. Bradley, 2d Dist. Champaign No. 97-CA-03, 1997 WL

691510 (Oct. 24, 1997).

{¶ 46} With the foregoing standards in mind, we conclude that McConnell's

aggravated robbery conviction was supported by legally sufficient evidence and was not

against the manifest weight of the evidence. The aggravated robbery statute provides,

in relevant part, that no person attempting or committing a theft offense shall “[h]ave a

deadly weapon on or about the offender's person or under the offender's control and

either display the weapon, brandish it, indicate that the offender possesses it, or use it[.]”

R.C. 2911.01(A)(1). “A deadly weapon” includes “any instrument, device, or thing

capable of inflicting death, and designed or specially adapted for use as a weapon, or

possessed, carried, or used as a weapon.” R.C. 2911.01(D)(1) citing R.C. 2923.11(A).

{¶ 47} Here, McConnell argues that, because the store clerk did not testify at trial,

the evidence adduced by the State was insufficient to find him guilty of aggravated -27-

robbery beyond a reasonable doubt. McConnell’s argument is unpersuasive.

{¶ 48} As previously discussed, the robbery was recorded by surveillance cameras

located on the inside and the outside of the Lo-Cost gas station. The gas station’s owner

testified that not only were the cameras operational at the time the robbery occurred, but

also that he immediately turned the footage over to the police as soon as they arrived.

Detective Ron Jordan testified that he took the footage of the robbery and created an

information packet for patrol officers to use in their own investigations. Detective Jordan

testified that what stood out most for him in the video was the robbery suspect’s abnormal

right eye. Based upon his review of the surveillance footage, Detective Jordan identified

McConnell in court as the individual in the recording who robbed the store clerk at

gunpoint. Detective Jordan also identified McConnell as the individual getting into and

out of the white Jeep that could be seen in the video from the camera located outside of

the store.

{¶ 49} The State also presented the testimony of Officer Massie, the patrol officer

who initiated the traffic stop of the white Jeep matching the description of the vehicle from

the robbery. Officer Massie also observed that the Jeep was missing one hubcap and

had license plates from the state of Georgia, which were expired. On the basis of the

expired tags, Officer Massie initiated a traffic stop of the vehicle. Officer Massie testified

that, when he walked up to the vehicle, he observed that the driver, McConnell, had an

abnormal right eye identical to the robbery suspect from the surveillance photographs.

Based upon his suspicion that he had stopped the vehicle and an individual involved in

the robbery, Officer Massie removed everyone from the vehicle, and he searched

McConnell. Thereafter, the interior of the vehicle was searched, and Officer Massie -28-

located a .380 caliber semi-automatic handgun under the driver’s seat.

{¶ 50} Furthermore, the State presented the testimony of Jimmarko Shepherd.

Shepherd testified that he waited in the Jeep while McConnell went inside and robbed the

store. Upon returning to the Jeep, McConnell simply told Shepherd to “drive.”

Shepherd testified that, as they drove away, he observed McConnell pull out a handgun

and begin counting money. Shepherd also testified that McConnell was the individual

depicted in the surveillance footage who robbed the store, and he identified McConnell in

court. In light of the foregoing testimony, there was legally sufficient evidence to sustain

McConnell's aggravated robbery conviction.

{¶ 51} McConnell's manifest-weight argument is equally unpersuasive. As set

forth above, the record supports a finding that McConnell displayed or brandished a

deadly weapon while committing a theft offense. The credibility of the witnesses and the

weight to be given their testimony were matters for the jury to resolve. State v. Benton,

2d Dist. Miami No. 2010-CA-27, 2012-Ohio-4080, ¶ 7. Here, the jury quite reasonably

credited the extensive testimony provided by the State's witnesses, evaluated said

evidence and all reasonable inferences as compared to the elements of aggravated

robbery, and found McConnell guilty. The jury did not lose its way in choosing to believe

the eyewitness testimony of Shepherd who identified McConnell as the individual who

robbed the Lo-Cost gas station at gunpoint on January 20, 2018, along with the video

evidence of the crime. Having reviewed the entire record, we cannot find that the

evidence weighs heavily against conviction, or that a manifest miscarriage of justice has

occurred.

{¶ 52} McConnell’s fourth assignment of error is overruled. -29-

{¶ 53} McConnell’s fifth and final assignment of error is as follows:

THE STATE OF OHIO COMMITTED REVERSIBLE [ERROR] WHEN IT

DID NOT CALL THE CLERK AS A WITNESS, VIOLATING MR.

MCCONNELL’S CONSTITUTIONAL RIGHT TO CONFRONT THE

WITNESSES AGAINST HIM.

{¶ 54} In his final assignment, McConnell contends that the State committed

reversible error when it did not call the store clerk to testify at trial, thereby depriving him

of his Sixth Amendment right to confront his accusers.

{¶ 55} “The Confrontation Clause of the Sixth Amendment to the United States

Constitution gives the accused the right to be confronted with the witnesses against him.”

State v. Lang, 129 Ohio St.3d 512, 2011-Ohio-4215, 954 N.E.2d 596, ¶ 83. “To establish

a Confrontation Clause violation, the defendant must show that he was ‘prohibited from

engaging in otherwise appropriate cross-examination’ and ‘[a] reasonable jury might have

received a significantly different impression of [the witness's] credibility had [the

defendant's] counsel been permitted to pursue his proposed line of cross-examination.’ ”

State v. Warmus, 197 Ohio App.3d 383, 2011-Ohio-5827, 967 N.E.2d 1223, ¶ 64 (8th

Dist.), quoting Delaware v. Van Arsdall, 475 U.S. 673, 680, 106 S.Ct. 1431, 89 L.Ed.2d

674 (1986). A defendant cannot claim that he was denied the right to confront his

accuser when he has had the opportunity to cross-examine his accuser at trial. See State

v. Wickline, 50 Ohio St.3d 114,118, 552 N.E.2d 913 (1990).

{¶ 56} The Sixth Amendment to the United States Constitution and Section 10,

Article I of the Ohio Constitution guarantee a criminal defendant the right to present

witnesses on his or her own behalf and to use the power of the court to compel the -30-

attendance of those witnesses, if necessary. This right is a fundamental element of due

process of law, and in plain terms is the right to present a defense. Washington v. Texas,

388 U.S. 14, 19, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967); State v. Brown, 64 Ohio St.3d

649, 597 N.E.2d 510 (1992).

{¶ 57} In the instant case, the State was not required to call the store clerk to testify

at trial. Obviously, the State believed it could establish its case against McConnell

without the clerk’s testimony, and it did. If McConnell had wanted to call the clerk as a

witness in order to ask him questions regarding the aggravated robbery, defense counsel

could have subpoenaed him to testify at trial. The fact that the State declined to call the

clerk to testify on this record did not violate McConnell’s Sixth Amendment right to

confront his accusers as the crime was captured on surveillance video.

{¶ 58} McConnell’s fifth assignment of error is overruled.

{¶ 59} All of McConnell’s assignments of error having been overruled, the

judgment of the trial court is affirmed.

FROELICH, J. and TUCKER, J., concur.

Copies sent to:

John M. Lintz Kiriakos G. Kordalis Hon. Douglas M. Rastatter