[Cite as State v. Rios, 2011-Ohio-3053.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 95364
STATE OF OHIO PLAINTIFF-APPELLEE
vs.
JORGE RIOS DEFENDANT-APPELLANT
JUDGMENT: AFFIRMED
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-525322
BEFORE: Rocco, J., Blackmon, P.J., and S. Gallagher
RELEASED AND JOURNALIZED: June 23, 2011
-i-
ATTORNEY FOR APPELLANT 2
Thomas A. Rein Leader Building, Suite 940 526 Superior Avenue Cleveland, Ohio 44114
ATTORNEYS FOR APPELLEE
William D. Mason Cuyahoga County Prosecutor
BY: Brian M. McDonough Sanjeev Bhasker Assistant Prosecuting Attorneys The Justice Center 1200 Ontario Street Cleveland, Ohio 44113
KENNETH A. ROCCO, J.:
{¶ 1} Defendant-appellant Jorge Rios appeals from his convictions for
aggravated murder, aggravated burglary and aggravated robbery with
firearm specifications, and kidnapping, and from the sentences imposed for
those convictions.
{¶ 2} Rios presents four assignments of error. He argues his
convictions are unsupported by sufficient evidence and the manifest weight of
the evidence. He also argues his trial counsel rendered ineffective assistance
by failing to file a motion to suppress his statements. Finally, Rios argues 3
the trial court improperly sentenced him on both the counts of aggravated
murder and aggravated burglary; he contends these were allied offenses.
{¶ 3} Upon a review of the record, this court finds his assignments of
error all lack merit. Consequently, Rios’s convictions and sentences are
affirmed.
{¶ 4} Rios’s convictions result from an incident that occurred on the
morning of August 21, 2008. According to the testimony of the state’s
witnesses, the incident unfolded in the following manner.
{¶ 5} Colleen Schade “grew up” 1 in the W. 130th Street and Bellaire
Avenue area of Cleveland with Samuel Reed, Jr., whose nickname was “Boy.”
She maintained her friendship with Reed into her adulthood. On the
afternoon of August 20, 2008, Reed called her to ask her if she would drive his
vehicle, a tan-colored Chevrolet Tahoe, for him and to take him to an
appointment; he was not supposed to be driving, since he did not have a
license. Schade obliged.
{¶ 6} That evening, Reed called Schade again, this time to invite her
out for “a drink.” When Reed arrived at Schade’s house, she noticed that he
wore bright clothing, viz., a yellow T-shirt and a hat with a blue letter “R”
stitched on the crown. Reed also brought another man with him, whom
1Quotes indicate testimony provided at trial. 4
Schade later identified as Rios. Once again, Reed asked Schade to drive the
Tahoe.
{¶ 7} The three of them stopped at a bar on Puritas Avenue, then
proceeded to another bar on Brookpark Road, and, finally, to one near W.
117th Street and Madison Avenue in Lakewood, where they remained until it
closed at approximately 2:00 a.m. During this time, Schade observed that
Rios asked Reed for his cell phone and used it often.
{¶ 8} After the bar closed, Reed directed Schade first to stop at a filling
station, where he purchased a bottle of liquor, then to a house located on
Archwood Avenue. Schade waited in the driver’s seat while Reed and Rios
exited the Tahoe to speak with another man, who eventually entered the
vehicle with the other two. Reed then used his cell phone to call someone.
After this conversation, Reed directed Schade to a house on Bernard Avenue,
near W. 105th Street (the “Bernard house”).
{¶ 9} Reed told Schade to park on the street. As she obeyed, she saw a
man and a woman emerge from a Jeep parked in front of the Bernard house.
Schade recognized the woman, Michelle O’Brien, as someone with whom she
had worked a few years previously.2
2Both women admitted they met while working at a “strip bar.” 5
{¶ 10} At that time, Schade, Reed, Rios, and the other man joined
O’Brien and her companion and proceeded indoors. Schade discovered
O’Brien’s companion was David Slaypak. Although O’Brien and Slaypak had
been living at the Bernard house for a time, they were planning on moving.
{¶ 11} Schade and O’Brien continued their conversation in the kitchen
while the men entered the master bedroom. O’Brien assumed Slaypak was
selling some powdered cocaine to them. At one point, Slaypak came out to
obtain some beers from the refrigerator, and the man that Schade did not
know returned to the kitchen and sat down at the table.
{¶ 12} After approximately twenty minutes, the other men rejoined the
women. Reed’s group was preparing to leave when Reed noticed the packed
boxes. Slaypak explained the plan to move, so Reed asked whether he could
buy some of the furniture. Reed also asked if Slaypak could deliver his
purchases to his home; O’Brien heard Reed say where he lived. Slaypak
apparently was amenable; he and Reed moved a coffee table in which Reed
was interested from the lawn to the porch before Schade drove away.
{¶ 13} Upon Schade’s arrival at her home at approximately 3:30 a.m.,
Reed asked her if he could use her car, since the Tahoe’s temporary tag had
expired at midnight. Schade agreed. Reed drove off with Rios and the other
man in Schade’s silver Ford Taurus. 6
{¶ 14} According to Reed’s cell phone records, Reed received a call at
3:21 a.m. At that time, he was in the area of Schade’s home. By 4:45 a.m.,
Reed’s cell phone records indicate he had returned to the area of the Bernard
house, where he remained until at least 5:13 a.m.
{¶ 15} Reed and Rios made a second visit of the night to the Bernard
house; shortly thereafter, O’Brien noticed that some money she earlier had
placed on the kitchen table was gone. Slaypak and O’Brien believed someone
in Reed’s group had taken it. Slaypak told O’Brien to call Reed; Reed’s
number was listed on his phone’s log of contacts. Slaypak then went to bed.
{¶ 16} Angered by the missing money, O’Brien made seven separate
calls to Reed, demanding he return it. She waited on the front porch for his
arrival.
{¶ 17} Reed returned to the Bernard house driving a silver-colored car,
parking it on the street a few houses away. Rios and another man
accompanied him. When O’Brien saw them approaching, she went to inform
Slaypak of their arrival, then came back into the kitchen to see the three men
coming inside.
{¶ 18} Rios walked past O’Brien to the bedroom, turned on the light, and
told Slaypak to come out. As Slaypak complied, O’Brien went into the
bedroom, intending to let Slaypak handle the situation. However, when she 7
heard Slaypak say, “Please, no. Don’t do this,” she ran back to the kitchen to
find Slaypak “backed into a corner” surrounded by the three men. The
unknown man stood in front of Slaypak “with a gun pointed at his chest.”
{¶ 19} All three of the men demanded to know where Slaypak kept his
money. Reed then “punched him in his face and he kind of buckled, and
[Rios] started to hit him” as well. Slaypak fell to the floor.
{¶ 20} The man holding the gun turned to O’Brien, pointed it at her, and
ordered her to find the money. O’Brien saw the other two men continue to
strike Slaypak, so she attempted to comply; while the unknown man kept the
gun trained on her, she ran into the bedroom, opening drawers and turning
the mattress, but she was unable to locate the place Slaypak hid his cash.
{¶ 21} Reed began hitting Slaypak with a saucepan. Followed by Rios,
who was “flexing” as if to hit her, too, O’Brien ran past the kitchen into the
dining room, searched her bookshelf, then proceeded to the living room. She
heard Slaypak scream that the neighbors would hear, heard the sound of
glass breaking in the kitchen window, and heard Slaypak cry loudly for help.
{¶ 22} O’Brien turned to see “the guy with the gun and [Reed] come
through [her] kitchen door, * * * yelling, ‘Give us the money.’ * * * [Slaypak]
got a foot or two into the dining room” before Reed hit him again. At that
point, Slaypak told them that the money was in the couch cushions. 8
{¶ 23} O’Brien was standing behind the couch and near the front door.
Rios bent to lift the couch cushions; O’Brien took the opportunity of his
inattention to her to flee the house. Once outside, she ran to a neighbor’s
house; she heard gunshots and Slaypak’s screams as she pounded on the
neighbor’s door.
{¶ 24} Other neighbors also heard the shots and screams; some of them
looked out their windows. Subsequently, they were able to provide the police
with information about at least three men running to a silver-colored car
parked on the street. One man wore a distinctive hat and a yellow T-shirt.
Another called out, “Hurry up, Boy.”
{¶ 25} The police received several 9-1-1 calls beginning at 5:10 a.m., all
within moments of the shooting. By the time the officers and the emergency
service arrived at the Bernard house, however, Slaypak was dead on the front
porch; he had been shot twice in his torso.
{¶ 26} O’Brien returned to the Bernard house to provide information
about the assailants. Detectives used her information; first they located
Schade. After Schade described her experiences of August 20 through 21,
2008, Reed was apprehended for his part in Slaypak’s murder.
{¶ 27} The record reflects Reed’s case proceeded to trial and to his
convictions on several counts, including aggravated murder. On April 27, 9
2009, at Reed’s sentencing hearing, he produced an affidavit in mitigation
from Rios. Rios averred in this document that he had been a witness during
the incident that led to Reed’s convictions.
{¶ 28} Based upon this new information, Det. Thomas Armelli, the
assigned investigating officer, interviewed Rios. Despite being presented
with the opportunity to consult with his attorney before making any
statements, Rios proceeded to provide one without counsel’s presence. Rios
initially claimed he did not know anything about the murder, then claimed he
remained in the silver car during the incident, then claimed he tried to
prevent Reed from committing the crimes.
{¶ 29} Armelli also placed Rios into separate physical “line-ups” for
O’Brien and Schade. Both women identified Rios as one of the men who
accompanied Reed on the night of the incident.
{¶ 30} Eventually, Rios was indicted in this case, charged on eleven
counts. Counts 1, 2, and 3 charged him with aggravated murder, Counts 4,
5, and 6 charged him with aggravated burglary, Counts 7, 8, and 9 charged
him with aggravated robbery, and Counts 10 and 11 charged him with
kidnapping. Although the first three counts originally contained felony
murder specifications, the state later dismissed those specifications. Each
count contained a three-year firearm specification. 10
{¶ 31} Rios’s case proceeded to a jury trial. The jury acquitted Rios on
Count 1, but found him guilty of two counts of aggravated murder, and also
guilty of the remaining counts of aggravated burglary, aggravated robbery,
and kidnapping with firearm specifications.
{¶ 32} The trial court thereafter sentenced Rios to a prison term that
totaled twenty-six years to life, i.e., the court merged all the firearm
specifications, thus imposing a three-year term to be served prior to and
consecutive with the following: consecutive terms of twenty years on Count 2,
three years on Count 4, and three years on Count 6, and concurrent
three-year terms on Counts 7 and 9. The court merged Count 3 into Count 2,
Count 5 into Count 4, Count 8 into Count 7, and Counts 10 and 11 into
Counts 4 and 6.
{¶ 33} Rios appeals from his convictions and sentences with four
assignments of error.
{¶ 34} “I. The trial court erred in denying Appellant’s motion
for acquittal as to the charges when the state failed to present
sufficient evidence against Appellant.
{¶ 35} “II. Appellant’s convictions are against the manifest
weight of the evidence. 11
{¶ 36} “III. Appellant was denied effective assistance of counsel
as guaranteed by Section 10, Article I, of the Ohio Constitution and
the Sixth and Fourteenth Amendments when defense counsel by not
filing or requesting a a [sic] hearing on a Motion to Suppress
statements.
{¶ 37} “IV. The trial court erred by ordering convictions and a
consecutive sentence for separate counts of aggravated murder and
aggravated burglary because the offenses are allied offenses
pursuant to R.C. 2941.25 and they are part of the same transaction
under R.C. 2929.14.”
{¶ 38} Rios argues generally in his first assignment of error that the
trial court erred when it did not grant his Crim.R. 29 motion for acquittal.
Without specifically citing any elements of the crimes for which he was
convicted, he simply claims the state presented insufficient evidence to prove
his guilt. This court disagrees.
{¶ 39} Under Crim.R. 29(A), a trial court “shall not order an entry of
acquittal if the evidence is such that reasonable minds can reach different
conclusions as to whether each material element of a crime has been proven
beyond a reasonable doubt.” State v. Bridgeman (1978), 55 Ohio St.2d 261,
381 N.E.2d 184, syllabus. “In essence, sufficiency is a test of adequacy. 12
Whether the evidence is legally sufficient to sustain a verdict is a question of
law.” State v. Thompkins (1997), 78 Ohio St.3d 380, 386, 678 N.E.2d 541.
{¶ 40} In determining whether a conviction is supported by sufficient
evidence, the appellate court must 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. Jenks
(1991), 61 Ohio St.3d 259, 574 N.E.2d 492, paragraph two of the syllabus.
The evidence must be viewed in a light most favorable to the prosecution. Id.
at 273.
{¶ 41} Rios asserts the testimony lacked credibility and established
“reasonable doubt” as to his “culpability.” This court reminds him that
claims regarding credibility are not proper under a review for evidentiary
sufficiency. State v. Yarbrough, 95 Ohio St.3d 227, 2002-Ohio-2126, 767
N.E.2d 216, ¶79.
{¶ 42} When viewed in a light most favorable to the prosecution, the
evidence in this case demonstrated Rios’s complicity in the aggravated
murder, aggravated burglary, aggravated robbery, and kidnapping of the
victims. Rios accompanied Reed to the Bernard house, where they both
became aware Slaypak was peddling drugs. After getting Schade home,
Reed, Rios, and the other man borrowed her car, went back to the Bernard 13
house a second time, and took O’Brien’s money that lay on the kitchen table
before they left. Then, upon receiving angry calls from O’Brien about the
money, the three men returned to the Bernard house with the intent to obtain
more.
{¶ 43} O’Brien’s testimony proved Rios took an active part in each
offense. O’Brien saw Rios walk right into the house and into the bedroom to
order Slaypak to get up. She saw one man pointing a gun at Slaypak as all
of the men, including Rios, surrounded him demanding money. She saw Rios
hitting Slaypak. O’Brien further indicated Rios followed her in an
intimidating manner during her search for Slaypak’s money.
{¶ 44} In light of the foregoing, the trial court correctly denied Rios’s
motion for acquittal of the charges. State v. Pettway, Cuyahoga App. No.
91716, 2009-Ohio-4544; State v. James (Sept. 24, 1998), Cuyahoga App. No.
72922. Rios’s first assignment of error, accordingly, is overruled.
{¶ 45} In his second assignment of error, Rios argues his convictions are
not supported by the manifest weight of the evidence. He asserts the jury
lost its way in determining his guilt, because evidence of his intent is lacking.
A review of the record fails to support his argument.
{¶ 46} With respect to an appellate court’s function in reviewing the
weight of the evidence, this court is required to consider the entire record and 14
determine whether in resolving any conflicts in the evidence, the jury “clearly
lost its way and created such a manifest miscarriage of justice that the
conviction must be reversed and a new trial ordered.” Thompkins at 387,
citing State v. Martin (1983), 20 Ohio App.3d 172, 175, 485 N.E.2d 717. This
court must remain mindful, however, that the weight of the evidence and the
credibility of the witnesses are matters primarily for the jury to consider.
State v. DeHass (1967), 10 Ohio St.2d 230, 227 N.E.2d 212, paragraph one of
the syllabus.
{¶ 47} In this case, the state’s witnesses presented testimony that
provided a consistent and coherent version of the incident, provided a
timeline that was verified by cell phone records and 911 calls, and provided
evidence that remained unshaken on cross-examination. State v. Wilson,
Cuyahoga App. No. 90267, 2008-Ohio-3354, ¶34. Rios’s version of his actions
on the night of the incident, as he presented in his statement to Armelli, on
the other hand, were inconsistent and were belied by the physical evidence
obtained.
{¶ 48} Initially, Rios could not explain why he signed the affidavit on
Reed’s behalf without reading it. Then he provided several different versions
of his activities on the night of the murder, finally conceding he was present, 15
but asserting he tried to prevent the shooting. Rios could not provide a
believable reason for waiting until Reed was convicted before coming forward.
{¶ 49} O’Brien’s testimony contradicted all of Rios’s versions of the
incident. The jury weighed credibility and it, as the fact finder, was free to
believe all, none, or some of what the witnesses said during trial. In
addition, the jury was well aware of the way in which O’Brien and Schade
became acquainted; the jury nevertheless could determine that their
attenuated relationship lent credence to their separate but similar accounts of
what occurred on the night of the incident.
{¶ 50} This court cannot find, therefore, that the jury either lost its way
or created a manifest miscarriage of justice. James; see, also, State v.
Jenkins, Stark App. No. 2008 CA 00191, 2009-Ohio-6254. Accordingly, Rios’s
second assignment of error also is overruled.
{¶ 51} Rios argues in his third assignment of error that his trial counsel
rendered ineffective assistance by failing to either move for or obtain
suppression of Rios’s oral statement he provided to Det. Armelli. In light of
the record, his argument lacks merit.
{¶ 52} The claim of ineffective assistance of counsel requires proof that
“counsel’s performance has fallen below an objective standard of reasonable
representation” and, in addition, prejudice arises from counsel’s performance. 16
State v. Bradley (1989), 42 Ohio St.3d 136, 538 N.E.2d 373, paragraph two of
the syllabus; see, also, State v. Lytle (1976), 48 Ohio St.2d 391, 358 N.E.2d
623. The establishment of prejudice requires proof “that there exists a
reasonable probability that were it not for counsel’s errors, the result of the
trial would have been different.” Bradley, paragraph three of the syllabus.
{¶ 53} The burden is on appellant to prove ineffectiveness of counsel.
State v. Smith (1985), 17 Ohio St.3d 98, 477 N.E.2d 1128. Trial counsel is
strongly presumed to have rendered adequate assistance. Id. Moreover,
this court will not second-guess what could be considered to be a matter of
trial strategy. Id. The record in this case with regard to trial counsel’s
actions fails to demonstrate counsel’s performance fell below an objective
standard of reasonableness.
{¶ 54} At the outset, trial counsel informed the jury that the police found
Rios only “because he told them that he was there.” The defense strategy
thus clearly was to acknowledge Rios’s statement. Trial counsel wanted the
jury to know that Rios eventually provided “his entire story” in his statement
to Armelli and another detective for two reasons.
{¶ 55} First, counsel sought to portray Rios in the best light possible.
The videotaped statement shows that Rios ultimately cooperated in the
investigation, and, during a pause in Armelli’s questioning, Rios wept as he 17
sat in the room by himself. Defense counsel sought to demonstrate Rios
lacked any direct culpability for either Reed’s or the shooter’s actions, but
remained fearful of reprisals from them.
{¶ 56} Second, counsel sought to point out that Rios made the statement
in spite of the fact that, at the outset, Armelli paid no attention to Rios’s
assertion that he had an attorney, and further failed to inform Rios that his
interview was being videotaped. The defense sought in this manner to
portray the detectives as devious; counsel’s questions of Armelli emphasized
all the untruths Armelli and his partner provided to Rios during the taped
interview.
{¶ 57} In light of the overwhelming evidence against his client, this
court cannot find trial counsel’s strategy, albeit unsuccessful, constituted
ineffective assistance. State v. Flors (1987), 38 Ohio App.3d 133, 528 N.E.2d
950. Consequently, Rios’s third assignment of error also is overruled.
{¶ 58} In his fourth assignment of error, Rios argues the trial court
erred when it sentenced him to consecutive terms for his convictions for
aggravated murder and aggravated burglary. Rios contends these offenses
should have been merged pursuant to R.C. 2941.25(A). This argument is
rejected.
{¶ 59} R.C. 2941.25 provides: 18
{¶ 60} “(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.
{¶ 61} “(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.”
{¶ 62} In State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942
N.E.2d 1061, at paragraph one of the syllabus, the Ohio Supreme Court
recently has held that in addressing an argument such as Rios’s, a reviewing
court must consider the “conduct of the accused” to determine whether the
crimes were “allied offenses of similar import subject to merger under R.C.
2941.25.”
{¶ 63} Thus, even if the defendant’s conduct occurs in a “single
transaction,” should the court find that the offenses were committed with a
“separate animus,” the defendant may be convicted of more than one of the
offenses. Id., ¶51. See, also, State v. Wynn, Cuyahoga App. No. 93057,
2010-Ohio-519. Johnson held at ¶48: 19
{¶ 64} “In determining whether offenses are allied offenses of similar
import under R.C. 2941.25(A), the question is whether it is possible to commit
one offense and commit the other with the same conduct, not whether it is
possible to commit one without committing the other. [State v.] Blankenship,
38 Ohio St.3d [116] at 119, 526 N.E.2d 816 (Whiteside, J., concurring).”
(Emphasis in original; underscoring added.)
{¶ 65} In a case such as this one, therefore, in which Rios’s conduct in
entering the house with his cohorts in order to rob Slaypak and O’Brien, then
aiding and abetting the subsequent gunshot murder of Slaypak, constituted
distinctly separate crimes, the trial court did not err in convicting and
sentencing Rios for each offense.
{¶ 66} A review of the record demonstrates the trial court “merged” all of
the firearm specifications, “merged” each offense that warranted application
of R.C. 2941.25(A), and imposed consecutive terms for Rios’s commission of
aggravated burglary and aggravated murder. Since this sentence comported
with statutory requirements, Rios’s fourth assignment of error also is
overruled.
{¶ 67} Rios’s convictions and sentences are affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal. 20
It is ordered that a special mandate issue out of this court directing the
common pleas court to carry this judgment into execution. The defendant’s
conviction having been affirmed, any bail pending appeal is terminated.
Case remanded to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
__________________________________ KENNETH A. ROCCO, JUDGE
PATRICIA ANN BLACKMON, P.J., and SEAN C. GALLAGHER, J., CONCUR