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State v. Smith

December 5, 2008

STATE OF OHIO PLAINTIFF-APPELLEE
v.
RONALD A. SMITH DEFENDANT-APPELLANT



(Criminal Appeal from Common Pleas Court), Trial Court Case No. 2004-CR-3554.

The opinion of the court was delivered by: Walters, J.

OPINION

{¶1} Defendant-Appellant, Ronald A. Smith, appeals a judgment of the Montgomery County Common Pleas Court finding him guilty of Aggravated Burglary and Aggravated Robbery and sentencing him to twenty years. In case number 21463, Smith asserts that the trial court erred in instructing the jury on aggravated burglary; that the verdicts were contrary to the manifest weight of the evidence; that the trial court erred in allowing previously suppressed eyewitness identification evidence; that the court erred in allowing the victim to make an in-court identification of him; that he had ineffective counsel; and that the trial court erred in sentencing him to more than minimum concurrent sentences. In case number 22334, Smith claims that the trial court erred in overruling his motion for a new trial. Smith also filed two supplemental briefs arguing that his sentence was based on convictions that were later reversed, and that the indictments for both Aggravated Burglary and Aggravated Robbery were defective.

{¶2} We determine that the jury did not lose its way in returning the guilty verdicts; that there was no error in the trial court's instructions to the jury, nor in the evidentiary issues raised; that he was not denied effective assistance of counsel, and that he waived any Blakely error in sentencing. We further determine that Smith's indictments were not defective; that he failed to establish that his sentence was based upon convictions that were subsequently reversed; that the motion for new trial was not timely filed and that he failed to establish that he was unavoidably prevented from discovering the evidence. Therefore, we affirm the judgment of conviction and sentence herein.

{¶3} During the evening hours of September 27, 2004, two African-American males, one identifying himself as "Little Ronnie," kicked in the front door of Latisha Robinson's apartment and entered. The man identifying himself as Little Ronnie,, was armed with a gun. He got in her face and demanded to know where her boyfriend, Corey Pullings, was. The other man went to her back door and opened it, allowing three additional men to enter the apartment.

{¶4} When Robinson denied any knowledge of Pullings, Little Ronnie went upstairs in the apartment, tearing the handrail off the wall, and he went into Robinson's bedroom putting the gun to her son's head. He then demanded Robinson give him something to get him to leave. Robinson gave one of the men sixty dollars and her cell phone.

{¶5} Meanwhile, the four men downstairs ransacked Robinson's apartment, toppling furniture and rummaging through boxes, throwing things to the floor. The men took additional items from the apartment, including radios and CD's. During the ransacking of the apartment, the gunman, who repeatedly identified himself as "Little Ronnie," and Robinson were engaged in a confrontation in the dining room where he attempted to force Robinson to lay on the floor "like execution style." Finally, after the other men exited the apartment, "Little Ronnie" ran out, too.

{¶6} Robinson then escaped to a neighbor's apartment, where the police were called. The next day, Detective Ward, of the Montgomery County Sheriff's Office prepared a photo spread containing a picture of Ronald Smith, the only individual the detective knew that called himself "Little Ronnie." Robinson could not identify anyone in the photo spread. Subsequently, when Robinson was viewing serial photos on the detective's computer screen, a photo of Smith came up, showing his gold teeth that were not displayed in the prior photo. Robinson indicated that this picture of Smith "could possibly be the person who was in [her] house."

{¶7} Subsequently, a neighbor, who had opened his door while Smith and the others were knocking at Robinson's door, immediately picked out Smith from a photo spread as the man at her door, and who had identified himself as Little Ronnie.

{¶8} Smith was arrested. After being Mirandized, Smith admitted that he and four others went to Robinson's apartment looking for Corey Pullings, but claimed that he left after being told that he was not there. He claimed that one of the other men kicked in the door and entered, but denied that he ever entered the apartment. Prior to trial, Smith made a number of phone calls attempting to get Robinson to take a payoff to drop the charges, and attempting to set up an excuse for why he was in the area.

{¶9} After Smith filed a suppression motion, the trial court suppressed Robinson's identification of the photo of Smith on the computer screen, finding that it was unnecessarily suggestive and unreliable.

{¶10} Smith was tried by a jury and convicted on both counts. The trial court sentenced him to ten years on each count to be served consecutively to each other and concurrent to a sentence in another case that was subsequently reversed. Smith timely filed his appeal of these convictions.

{¶11} Approximately seventeen months after the verdict, Smith filed a motion for a new trial. Attached to the motion was an affidavit from LaQwan Scandrick who claimed that he was the "Li'l Ronnie" who committed the aggravated burglary and aggravated robbery of Robinson on September 27, 2004. The trial court overruled the motion without a hearing. Smith has also timely appealed this judgment.

{¶12} In his consolidated appeal from these judgments, Smith sets forth nine assignments of error for our consideration.

FIRST ASSIGNMENT OF ERROR-CASE NO. 21463

{¶13} THE TRIAL COURT ERRED WHEN INSTRUCTING THE JURY REGARDING AGGRAVATED BURGLARY.

{¶14} In his first assignment of error, Smith claims that the trial court erred when it failed to identify the underlying offense, which was an element of the charge of aggravated burglary, in its instructions to the jury. Smith relies on our holding in State v. Gardner, Montgomery App. No. 21357, 2007-Ohio-182, to support his proposition. However, Smith fails to note that our decision in Gardner was reversed by the Ohio Supreme Court. See State v. Gardner, 118 Ohio St.3d 420, 2008-Ohio-2787.

{¶15} Furthermore, Smith failed to object to the instructions on aggravated burglary in the trial court. And, it is well settled that "[o]n appeal, a party may not assign as error the giving or failing to give any instruction unless the party objects before the jury retires to consider its verdict, stating specifically the matter objected to and the grounds of the objection." Crim.R. 30(A). See also State v. Jones (2001), 91 Ohio St.3d. 335, 347; State v. Keenan (1998), 81 Ohio St.3d 133, 151.

{¶16} In Gardner, 118 Ohio St.3d at 433, the Supreme Court stated that " * * * Ohio's burglary statutes proscribe a single crime that may be carried out in more than one manner or method. As the court explained in State v. Hammer (1997), 216 Wis. 214, 220, 576 N.W.2d 285,'the language of the [burglary] statute indicates that the crime here is one single offense with multiple modes of commission. The pertinent language states that burglary is committed when an actor unlawfully enters a dwelling with an "intent to * * * commit a felony." The statute does not set forth any alternatives with respect to the intent element. The language indicates that the emphasis is on the fact that the defendant had the intent to commit a felony and it does not matter which felony formed the basis of that intent. There are different means of accomplishing this crime, but the different ways do not create separate and distinct offenses.' "

{¶17} Therefore, because Smith waived any error, and because we find that the trial court committed no error in this instruction, the first assignment of error is overruled.

SECOND ASSIGNMENT OF ERROR-CASE NO. 21463

{¶18} MR. SMITH'S CONVICTIONS WERE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.

{¶19} In this assignment of error, Smith claims that his convictions were against the manifest weight of the evidence because he says that the victim, Robinson, could not identify him in the first photo array, and because of this failure, the evidence clearly establishes that he was not the "Little Ronnie" who was the perpetrator of these crimes.

{¶20} Smith attempts to discount the other witness who identified him at the scene of the crime, Robinson's voice identification of him, and her in-court identification of him, as well as his admission that he was at the apartment on the evening in question.

{¶21} When an appellate court analyzes a conviction under the manifest weight standard it must review the entire record, weigh all of the evidence and all the reasonable inferences, consider the credibility of the witnesses and determine whether in resolving conflicts in the evidence, the fact finder clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. State v. Thompkins (1997), 78 Ohio St.3d 380, 387, quoting State v. Martin (1983), 20 Ohio App.3d 172, 175

{¶22} Additionally, in considering the manifest weight of the evidence, we must act, in effect, as a'"thirteenth juror,"' reconsidering the resolution of testimony and evidence as found by the trier of fact. Thompkins, 78 Ohio St.3d at 387. A reversal on the manifest weight of the evidence is reserved for the exceptional case where the evidence presented weighs heavily in favor of the defendant. State v. Otten, 33 Ohio App.3d 339, 340. "'A conviction is not against the manifest weight of the evidence merely because there is conflicting evidence before the trier of fact.' " State v. Urbin, 148 Ohio App.3d 293, 2002-Ohio-3410, at ¶ 26, quoting State v. Haydon (Dec. 22, 1999), 9th Dist. No. 19094, at 14, further appeal not allowed (2000), 88 Ohio St.3d 1482. Additionally, it is well established that "the weight to be given the evidence and the credibility of the witnesses are primarily for the trier of the facts." State v. DeHass (1967), 10 Ohio St.2d 230, paragraph one of the syllabus.

{ΒΆ23} After reviewing the entire record, we find that the jury did not clearly lose its way in convicting Smith of the charges. Accordingly, the ...


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