State v. Romeo

2016 Ohio 5657

• Court: Ohio Court of Appeals
• Decided: August 30, 2016
• Docket: 14 MA 0060
• Status: Published

Opinion

[Cite as State v. Romeo, 2016-Ohio-5657.] STATE OF OHIO, MAHONING COUNTY

IN THE COURT OF APPEALS

SEVENTH DISTRICT

STATE OF OHIO ) CASE NO. 14 MA 0060 ) PLAINTIFF-APPELLEE ) ) VS. ) OPINION ) SUMMER ROMEO ) ) DEFENDANT-APPELLANT )

CHARACTER OF PROCEEDINGS: Criminal Appeal from the Court of Common Pleas of Mahoning County, Ohio Case Nos. 12 CR 1290 & 12 CR 1292A

JUDGMENT: Affirmed.

APPEARANCES:

For Plaintiff-Appellee: Atty. Paul J. Gains Mahoning County Prosecutor Atty. Ralph M. Rivera Assistant Prosecuting Attorney 21 West Boardman Street, 6th Floor Youngstown, Ohio 44503

For Defendant-Appellant: Atty. Jan R. Mostov 4822 Market Street, Suite 230 Boardman, Ohio 44512

JUDGES:

Hon. Cheryl L. Waite Hon. Gene Donofrio Hon. Carol Ann Robb Dated: August 30, 2016 [Cite as State v. Romeo, 2016-Ohio-5657.] WAITE, J.

{¶1} Appellant Summer Romeo (“Romeo”) has filed a timely appeal after

being convicted of possession of drugs and as a complicitor to charges of

discharging a firearm at or into a habitation in the Mahoning County Common Pleas

Court. She raises issues concerning sufficiency and weight of the evidence as well

as failure to merge sentences. For the reasons that follow, the judgment of the trial

court is affirmed.

Factual History

{¶2} In early December of 2012, Romeo contacted Jesse Grate (“Grate”)

about performing repairs on her SUV. Grate arranged for his cousin to do the repairs

at Grate’s home where Grate resided with his fiancée and their three children. On

December 5, 2012 Romeo called Grate and complained that the SUV still was not

working properly. Grate had her bring the vehicle back to his house so he could look

at it himself. After a while, Romeo left with the SUV, only to call Grate later that day

to inform him that the SUV was still not getting heat and that the oil dip stick was

broken. She continued to call and text Grate throughout the day. Later that

afternoon Romeo met Grate at his house, accompanied by her friend, Damari

Rodriguez. Grate testified that it was a “friendly conversation” but that Romeo

wanted her SUV repaired. Grate added antifreeze to the SUV and Romeo eventually

left, apparently satisfied, shortly after 5:05 p.m.

{¶3} Around 7:00 p.m., Romeo and Rodriguez, now accompanied by Tiant

Bright (“Bright”) and Eric Velasquez, confronted Grate at his house about the repairs.

Bright demanded that Grate give them $40 for the broken dipstick, but Grate said he -2-

would purchase a new part himself, as it did not cost $40. Grate, Romeo and Bright

began to argue about the situation. Grate testified that Bright started threatening him

and his family. (Trial Tr., pp. 231-232.) Grate’s fiancée, Penny Yates, approached

and also entered into the conflict. She testified that Bright stated, “I will be back.”

(Trial Tr., p. 432.) Grate testified that they got back into the SUV and Bright told

Romeo to take him to “Laclede [so he could] go get [his] gun.” (Trial Tr., p. 232.)

{¶4} Shortly before 8:00 p.m., Romeo’s SUV pulled up in front of Grate’s

house. This incident has been referred to as “Incident One” throughout the

proceedings. (Two additional interactions occurred that same evening and have

been referred to as “Incident Two” and “Incident Three” for clarification purposes).

Grate testified that Romeo was driving and Bright was sitting behind her. At some

point, Bright stuck his hand, holding what appeared to be a handgun, outside of the

vehicle and shot off several rounds “kind of towards the house but mostly like at the

air.” (Trial Tr., pp. 232-233.) Grate was standing on his front porch with Yates and

three other individuals. Grate called 911 at 7:48 p.m. The police arrived and spoke

to Grate, who gave a police report including a description of the vehicle. Grate and

Yates both testified that Romeo and Bright continued driving up and down the street

in front of the house, now followed by a second vehicle, a large pickup truck. (Trial

Tr., p. 235.) Romeo continued sending threatening texts after the first incident.

Grate testified he decided that Yates and the children should leave the house for the

rest of the evening. (Trial Tr., p. 234.) -3-

{¶5} Around 8:30 p.m., both vehicles pulled up in front of Grate’s home,

although Grate was now at his neighbor’s house only a few houses away. (Trial Tr.,

p. 236.) Grate heard gunshots which he believed came from the truck as it was

stopped in front of his house. (Trial Tr., p. 316.) Grate then testified that he, his

cousin and a few others hunkered down in his house with the lights out and blankets

and garbage bags covering the windows to avoid detection by Romeo and Bright in

the event the hostilities continued. (Trial Tr., pp. 237-238.) Shortly thereafter,

Grate’s friend informed him that individuals were approaching the house through the

backyard. Grate noticed an individual wearing a hoodie similar to the one he had

seen Bright wearing earlier that evening. (Trial Tr., pp. 239-240.) Grate called 911

and was still on this call when the house was hit by several gunshots. (Trial Tr., pp.

241-242.) After the gunshots died down, Grate testified he went out on the front

porch and saw Romeo’s SUV drive down the street, make a U-turn and head back up

the street. (Trial. Tr., p. 242.)

{¶6} Police arrived shortly thereafter to investigate the scene and interview

any witnesses. Having a full description of Romeo’s SUV, the police later stopped

Romeo driving the vehicle at approximately 11:00 p.m. Romeo, the only person

inside, was detained and the vehicle was towed. Romeo was indicted by the Grand

Jury on January 3, 2013 in Case No. 12 CR 1292A on two counts of felonious

assault in violation of R.C. 2903.11(A)(2), (D); one count of improperly discharging a

firearm at or into a habitation in violation of R.C. 2923.161(A)(1), (C); three firearm

specifications in violation of R.C. 2941.145(A); and three firearm specifications in -4-

violation of R.C. 2941.146(A). Romeo was also indicted in Case No. 12 CR 1290 on

one count of possession of drugs in violation of R.C. 2925.11(A). This charge is not

at issue, here.

{¶7} Co-defendant Bright was indicted on the same offenses and their joint

trial commenced March 3, 2014. The jury ultimately found Romeo guilty as a

complicitor of improperly discharging a firearm at or into a habitation in violation of

R.C. 2923.161(A)(1), (C); a firearm specification under R.C.2941.145(A); and a

firearm specification pursuant to R.C. 2941.146(A). An oral motion seeking acquittal

notwithstanding the verdict was made by Romeo’s trial counsel after the jury verdict

was read. That motion was denied by the trial court. On March 19, 2014, Romeo

filed a “Renewed Motion for Judgment of Acquittal and Motion for a New Trial.” The

trial court denied those motions by judgment entry dated March 31, 2014.

{¶8} On May 14, 2014, the trial court sentenced Romeo. Romeo received

twelve months of incarceration on the drug possession case to be served

concurrently with a three-year sentence for improperly discharging a firearm at or into

a habitation, in violation of R.C. 2923.161(A)(1); three years to be served

consecutively for the firearm specification in violation of R.C. 2941.145(A); and five

years to be served consecutively for the firearm specification in violation of R.C.

2941.146(A), for a total of eleven years in prison. Romeo filed this appeal and sets

forth three assignments of error.

FIRST ASSIGNMENT OF ERROR -5-

THE TRIAL COURT ERRED, DEPRIVING MS. ROMEO OF HER

RIGHT TO DUE PROCESS OF LAW UNDER THE FIFTH

AMENDMENT TO THE UNITED STATES CONSTITUTION AND

ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION, WHEN IT

DENIED HER CRIM. R. 29 MOTION FOR JUDGMENT OF

ACQUITTAL NOTWITHSTANDING THE VERDICT, WHEN THE

EVIDENCE ADDUCED AT TRIAL WAS INSUFFICIENT TO SUPPORT

THE CONVICTIONS.

{¶9} In her first assignment, Romeo contends the trial court erred in denying

her Crim.R. 29 motion for judgment for acquittal notwithstanding the verdict when the

prosecution failed to present sufficient evidence that she knowingly aided and

abetted Bright in discharging a firearm at or into the Grate residence.

{¶10} In State v. Bridgeman, 55 Ohio St.2d 261, 381 N.E.2d 184 (1978), the

Supreme Court of Ohio set forth the standard for determining whether a Crim.R. 29

motion for acquittal is properly denied. “Pursuant to Crim. R. 29(A), a court shall not

order an entry of judgment 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 proved beyond a reasonable doubt.” Id. at syllabus. Thus, a Crim.R. 29 motion

seeking acquittal tests the sufficiency of the evidence presented at trial. State v.

Williams, 74 Ohio St.3d 569, 576, 660 N.E.2d 724 (1996). Sufficiency of the

evidence is a legal question which involves an inquiry into whether the evidence

submitted at trial is sufficient to support the verdict as a matter of law. State v. -6-

Thompkins, 78 Ohio St.3d 380, 386-387, 678 N.E.2d 541 (1997). In essence, it asks

whether adequate evidence exists to submit the case to a jury. In determining

sufficiency, the evidence and all inferences to be drawn from the evidence must be

evaluated in the light most favorable to the prosecution. State v. Goff, 82 Ohio St.3d

123, 128, 694 N.E.2d 916 (1998). A conviction will not be reversed on sufficiency

grounds unless on review the court concludes that no rational juror could have found

the elements of the offense proven beyond a reasonable doubt. Id. at 138.

{¶11} Romeo was convicted as a complicitor of improperly discharging a

firearm at or into a habitation, in violation of R.C. 2923.161(A)(1) which states: “No

person, without privilege to do so, shall knowingly * * *(1) [d]ischarge a firearm at or

into an occupied structure that is a permanent or temporary habitation of any

individual.” “Knowingly” is defined in R.C. 2901.22(B):

A person acts knowingly, regardless of purpose, when the person is

aware that the person’s conduct will probably cause a certain result or

will probably be of a certain nature. A person has knowledge of

circumstances when the person is aware that such circumstances

probably exist. When knowledge of the existence of a particular fact is

an element of an offense, such knowledge is established if a person

subjectively believes that there is a high probability of its existence and

fails to make inquiry or acts with a conscious purpose to avoid learning

the fact. -7-

{¶12} Romeo claims her convictions were based solely on the testimony of

Grate and Yates at trial and that there was conflicting testimony about whether a

firearm was seen or discharged during Incident One. Romeo also asserts the trial

testimony of Grate and Yates differs from the testimony of a police officer who was

on the scene as to whether Grate or Yates identified the driver of the vehicle during

Incident One. Romeo cites to the 911 tape, admitted into evidence at trial, which did

not positively identify Romeo as being the driver.

{¶13} Grate testified at trial that Bright told Romeo to take him to get his gun

and that he witnessed Romeo’s vehicle pull up in front of his home as Incident One

commenced. (Trial Tr., p. 232.) Moreover, Grate and Yates both testified at trial that

they saw Romeo and Bright drive repeatedly up and down the street past their

residence. (Trial Tr., pp. 234, 437.) Detective/Sergeant Ronald Rodway testified at

trial that Romeo admitted to continually sending threatening text messages

throughout the evening and could not account for her whereabouts between

approximately 6:00 p.m. until 11:00 p.m. that evening. (Trial Tr., pp. 559-561.)

{¶14} Prior to Incident One, Bright was heard telling Romeo to take him to get

his gun. As Incident One commenced, Romeo’s car was parked in front of Grate’s

house. Evidence established that witnesses saw Romeo in the driver’s seat and that

a gun was seen protruding from the back seat window. Gunshots were heard

emanating from the vehicle. Coupled with her threatening text messages to Grate

throughout the entire evening and her failure to account for her whereabouts until

11:00 p.m., at which time she was detained by police and taken into custody, we -8-

conclude there was sufficient evidence to establish Romeo’s guilt for knowingly

aiding and abetting Bright in discharging a firearm at or into Grate’s residence.

Romeo’s first assignment of error is without merit and is overruled.

SECOND ASSIGNMENT OF ERROR

THE TRIAL COURT ERRED WHEN IT FAILED TO MERGE THE

FIREARM SPECIFICATIONS, WHICH REFER TO THE SAME

CRIMINAL ACT OR TRANSACTION AND WERE NOT COMMITTED

WITH SEPARATE ANIMUS.

{¶15} Romeo argues that the trial court erred in failing to merge the three-

year and five-year firearm specifications attached to the conviction for discharging a

firearm at or into a habitation because they refer to the same criminal act and were

not committed with separate animus. Romeo cites R.C. 2929.14(D)(1)(b) for the

proposition that the trial court cannot impose more than one sentence for multiple

firearm specifications if they refer to the same criminal act. We note that there is no

part (b) contained within R.C. 2929.14(D)(1); however, R.C. 2929.14(B)(1)(b)

provides:

If a court imposes a prison term on an offender under division (B)(1)(a)

of this section, the prison term shall not be reduced pursuant to section

2967.19, section 2929.20, section 2967.193, or any other provision of

Chapter 2967. or Chapter 5120. of the Revised Code. Except as

provided in division (B)(1)(g) of this section, a court shall not impose

more than one prison term on an offender under division (B)(1)(a) of -9-

this section for felonies committed as part of the same act or

transaction.

{¶16} R.C. 2929.14(B)(1)(g) provides:

If an offender is convicted of or pleads guilty to two or more felonies, if

one or more of those felonies are aggravated murder, murder,

attempted aggravated murder, attempted murder, aggravated robbery,

felonious assault, or rape, and if the offender is convicted of or pleads

guilty to a specification of the type described under division (B)(1)(a) of

this section in connection with two or more of the felonies, the

sentencing court shall impose on the offender the prison term specified

under division (B)(1)(a) of this section for each of the two most serious

specifications of which the offender is convicted or to which the offender

pleads guilty and, in its discretion, also may impose on the offender the

prison term specified under that division for any or all of the remaining

specifications.

{¶17} Because Romeo was not convicted of “two or more felonies” as

contained within R.C. 2929.14(B)(1)(g), it is R.C. 2929.14(B)(1)(c) that applies:

Except as provided in division (B)(1)(e) of this section, if an offender

who is convicted of or pleads guilty to a violation of section 2923.161 of

the Revised Code or to a felony that includes, as an essential element,

purposely or knowingly causing or attempting to cause the death of or

physical harm to another, also is convicted of or pleads guilty to a -10-

specification of the type described in section 2941.146 of the Revised

Code that charges the offender with committing the offense by

discharging a firearm from a motor vehicle other than a manufactured

home, the court, after imposing a prison term on the offender for the

violation of section 2923.161 of the Revised Code or for the other felony

offense under division (A), (B)(2), or (B)(3) of this section, shall impose

an additional prison term of five years upon the offender that shall not

be reduced pursuant to section 2929.20, section 2967.19, section

2967.193, or any other provision of Chapter 2967. or Chapter 5120. of

the Revised Code. A court shall not impose more than one additional

prison term on an offender under division (B)(1)(c) of this section for

felonies committed as part of the same act or transaction. If a court

imposes an additional prison term on an offender under division

(B)(1)(c) of this section relative to an offense, the court also shall

impose a prison term under division (B)(1)(a) of this section relative to

the same offense, provided the criteria specified in that division for

imposing an additional prison term are satisfied relative to the offender

and the offense. (Emphasis added.)

{¶18} R.C. 2929.14(B)(1)(a) mandates a three-year term of incarceration

pursuant to R.C. 2941.145(A). Pursuant to the foregoing statutory sentencing

framework, the trial court is required to impose both the three-year and five-year

terms of incarceration for the firearm specifications. Therefore, the trial court did not -11-

err in sentencing Romeo to both the three-year and five-year sentences for the

firearm specifications attached to her conviction for discharging a firearm at or into a

habitation in violation of R.C. 2941.145(A), R.C. 2929.14(B)(1)(a) and R.C.

2929.14(B)(1)(c).

{¶19} Appellant’s second assignment of error is without merit and is

overruled.

THIRD ASSIGNMENT OF ERROR

THE TRIAL COURT ERRED WHEN IT FAILED TO GRANT MS.

ROMEO'S CRIM. R. 29 MOTIONS FOR A DIRECTED VERDICT OF

ACCQUITAL [SIC] & MOTION FOR A NEW TRIAL, BECAUSE THE

GUILTY VERDICTS WERE AGAINST THE MANIFEST WEIGHT OF

THE EVIDENCE.

{¶20} Weight of the evidence concerns “the inclination of the greater amount

of credible evidence, offered in a trial, to support one side of the issue rather than the

other.” (Emphasis deleted.) State v. Thompkins, 78 Ohio St.3d 380, 387, 678

N.E.2d 541 (1997). “Weight is not a question of mathematics, but depends on its

effect in inducing belief.” (Emphasis deleted.) Id.

{¶21} When reviewing a manifest weight of the evidence argument, a

reviewing court must examine the entire record, consider the credibility of the

witnesses and determine 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. Id. at 387, 389. Only in -12-

exceptional circumstances will a conviction be reversed as against the manifest

weight of the evidence. Id. This strict test for manifest weight acknowledges that

credibility is generally the province of the factfinder who sits in the best position to

accurately assess the credibility of the witnesses. State v. Hill, 75 Ohio St.3d 195,

204, 661 N.E.2d 1068 (1996); State v. DeHass, 10 Ohio St.2d 230, 231, 227 N.E.2d

212 (1967).

{¶22} Romeo was convicted as a complicitor of discharging a firearm at or

into a habitation in violation of R.C. 2923.161(A)(1), (C). Romeo’s argument that the

conviction is against the manifest weight of the evidence is based on purported

conflicts in the testimony given by officers at the scene of Incident One and that of

Jesse Grate and Penny Yates.

{¶23} Officer Brad Ditullio testified that Yates and Grate did not give him

specific names of the suspects after Incident One and that there was nothing written

in the police report he drafted to indicate either Yates or Grate saw gunfire coming

from the vehicle during Incident One. Officer Christopher Staley testified that, upon

arrival after Incident One, he searched the immediate area and found no shell

casings and no bullet holes in the residence.

{¶24} Penny Yates testified at trial that she saw Romeo’s car stop in front of

their residence. Romeo was driving and Bright was sitting behind her with a gun

pointed out the window. She also acknowledged in her testimony that she had not

been able to identify Bright in a police lineup. Grate testified that it was Romeo’s car

that pulled up to the residence and that Romeo was driving with Bright seated behind -13-

her. He also testified that he saw a gun pointed out of the rear window and heard

gunshots emanating from the vehicle.

{¶25} Romeo conflates the differences in the testimony arguing that it rises to

the level necessary to determine that the trier of fact lost its way and created a

manifest miscarriage of justice. We are not so persuaded. Although the evidence

does reflect minor differences, it is not of the contradictory nature urged by Romeo.

Nor was this the only evidence presented to the jury. The jury heard testimony that

Romeo persisted in sending threatening text messages throughout the evening, that

Bright told Romeo to take him to get his gun and that Romeo could not account for

her whereabouts for most of the evening. This Court is not persuaded that the jury’s

verdict, in light of all evidence presented, is contrary to the manifest weight of the

evidence. The jury did not clearly lose its way and create a manifest miscarriage of

justice. The record reflects that the jury properly reviewed the evidence before it and

drew acceptable inferences. Therefore, Romeo’s third assignment of error is without

merit and should be overruled.

{¶26} Based on the foregoing, Appellant’s three assignments of error lack

merit and are overruled and the judgment of the trial court is affirmed.

Donofrio, P.J., concurs.

Robb, J., concurs.