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State v. Anderson

December 5, 2008

STATE OF OHIO, PLAINTIFF-APPELLEE,
v.
CLARENCE R. ANDERSON, DEFENDANT-APPELLANT.



Criminal Appeal from the Portage County Court of Common Pleas, Case No. 2006 CR 0012. Judgment: Affirmed.

The opinion of the court was delivered by: Diane V. Grendell, P. J.

OPINION

{¶1} Defendant-appellant, Clarence R. Anderson, appeals the judgment entry of the Portage County Court of Common Pleas, in which he was found guilty of two counts of Felonious Assault in violation of R.C. 2903.11(A)(2) each with a Firearm Specification, in violation of R.C. 2929.14 and R.C. 2941.145, and sentenced to twenty years in prison. For the following reasons, we affirm the decision of the trial court.

{¶2} On January 18, 2006, the Portage County Grand Jury indicted Anderson on two counts of Felonious Assault, felonies in the second degree, in violation of R.C. 2903.11. Anderson entered a not guilty plea on both counts and the matter proceeded to a jury trial.

{¶3} On October 30, 2007, a trial was held. The State presented testimony from two victims, two eyewitnesses, three Streetsboro Police Officers, and a Forensic Scientist.

{¶4} One of the victims, Aimee Ross, testified to the following at trial. On September 17, 2005, in the early morning, she was visiting her co-workers at Scorcher's bar in Streetsboro. She was not scheduled to work that night; however, she remained at the bar after closing while her friends, Daniel Molnar, Scott Weinkamer, and Hanne Muri, prepared the bar for closing. The four exited the building in the rear, where the employees park, said goodbye and Aimee went to her car. While she was looking for her keys she heard one of her co-workers say "go across the street and get a ride there, call, no one is going to give you a ride." She then testified that while she was out of her car, "leaning in and looking for something," Anderson appeared, with a gun at his side and said "give me a ride," to which she replied, "no". Anderson then put the gun on her chest and told her to "give [him] a ride or you die." She proceeded to get in her car and yell "he has a gun." She then remembers "feeling the impact from a car and two gunshots going off."

{¶5} Daniel Molnar, the second victim, testified to the following at trial. He was working at Scorcher's in the early morning hours of September 17, 2005, in Streetsboro with Hanne, Scott, and Aimee. Around 3:00 a.m., he was the last to exit the bar. Upon exiting through the rear exit, he noticed Anderson around the corner. Anderson asked for a ride and Daniel refused and told the rest of the employees to go to their cars. As he got into his car he heard Aimee scream "he's got a gun." Daniel's car was near Aimee's car; the driver's side of Aimee's car was next to the passenger side of Daniel's car. He then proceeded to move his car out of the parking spot and drive his car so it was almost perpendicular to Anderson. He then attempted to hit Anderson with his car. Daniel watched Anderson fire the gun two times, one of the shots hitting Daniel's windshield. Daniel's car hit Aimee's car. He then left his vehicle to check on Aimee. During the commotion, Anderson ran away from Daniel and Aimee. While tending to Aimee, Daniel heard a crash, which he later discovered was caused by Scott's vehicle hitting Anderson.

{¶6} Scott Weinkamer's testimony echoed the sentiment of both Aimee and Daniel's testimony in that the three employees refused Anderson's request for a ride, they later heard Aimee screaming that Anderson had a gun, and then two shots were fired. Scott subsequently, driving in reverse, hit Anderson. The four co-workers then went into the bar and called the police.

{¶7} Hanne Muri's testimony reflected the testimony of her co-workers. She heard Aimee scream that Anderson had a gun. She saw Anderson point the gun at Daniel's windshield and watched him fire two shots. She watched Scott's vehicle back into Anderson. She then called the police.

{¶8} Sergeant Powers of the Streetsboro Police Department testified that he recovered Anderson's .380 caliber semiautomatic handgun with the magazine attached and a live round in the chamber. He also testified that before Anderson was transported to the hospital, Anderson admitted that he had shot the gun because he was scared.

{¶9} Detective Brian Shaffer of the Streetsboro Police Department testified regarding his interview with Anderson. Shaffer testified that during their interview, Anderson disclosed to him his version of the events that took place on the night in question. Anderson said that he went out to purchase a fountain drink at the Circle K in Streetsboro. After leaving the store, Anderson's car was not functioning properly, he claimed that his gas gauge was not working and he was likely out of gas. Anderson then parked his car in front of Scorcher's. He started walking toward Rockne's restaurant when he noticed a light coming from behind Scorcher's. He walked toward the light and asked the people he saw for a ride to a gas station so he could get some gas. After their refusal, he asked another girl for a ride who also refused. Anderson next heard spinning tires in reverse coming at him, he panicked and shot at the car once. Anderson then started running away when another car hit him. When Shaffer asked Anderson the reason he had a gun, Anderson indicated he purchased the gun because he was suicidal. He stated that he did not leave the gun in the car and had placed it in his pocket after he parked his car.

{¶10} Jonathan Gardner, the forensic scientist from the Ohio Bureau of Criminal Identification and Investigation testified that he compared the cartridge found at the scene to a test fire cartridge he retrieved from Anderson's gun found at the scene and although he could not affirm an exact match, he did conclude that they were very similar. He testified that there was no way to deduce how many times a gun had been fired. He also concluded that Anderson's gun was operable.

{¶11} Prior to Anderson's testimony, the defense made a Crim.R. 29 Motion to Dismiss based on insufficient evidence, which was subsequently denied.

{¶12} Anderson testified about his whereabouts on the night in question. He stated that he went to the store to get a fountain pop for fifty-nine cents; he only had a dollar since his "check was due the next day." When he left, his car "started acting up." Anderson "was driving under suspension, so [he] was kind of scared." He got off the road and parked near Scorcher's. When he parked, customers were exiting the bar. He opened the hood of his car, trying to remedy the problem. After discovering he could not fix the car, the customers had already left, so Anderson attempted to walk to a gas station. At the time of the incident, Anderson was on total disability. He had injuries hampering his ability to walk long distances.

{¶13} He acknowledged that he was familiar with Scorcher's because he used to help the bouncers with their duties eight years prior to the incident. He claimed he would occasionally get paid for his services. As he walked around the rear of the building, he saw two guys and a girl standing together and asked them for a ride to the gas station. They told him to "take his fat ass and walk over there. It's not that far." Anderson testified that he did not say a word to them and next walked over to another girl who was bent over in her car. He asked her for a ride and she told him "I don't know you. I'm not giving you a ride anywhere." Anderson then heard tires squealing and saw a car moving toward him. "So [he] turned to go -- and [he] had blue sweat pants on and they actually started to fall, so [he] *** reached to grab [his] pants as [he was] trying to go to the grass *** then [he] remembered he had the gun". He pulled the gun out of his pants and shot at the oncoming car. He then attempted to run away and was hit by another car. He crawled into a grassy area and heard a man's voice say, "I probably killed that fat mother f**ker." Anderson remained hidden until the police arrived with flashlights. He then called to the police "I'm over here, I don't have a gun, I give up."

{¶14} The jury found Anderson guilty of both counts of Felonious Assault. On December 3, 2007, a sentencing hearing was held. On December 5, 2007, Anderson was sentenced to a 20 year term of incarceration, seven years for each Felonious Assault charge and three years for each Firearm Specification.

{¶15} Anderson timely appeals and raises the following assignments of error:

{¶16} "[1.] The trial court erred in failing to grant Mr. Anderson's Motion For Judgment of Acquittal on all charges as the evidence presented was not legally sufficient to support a conviction.

{¶17} "[2.] The prosecution in this matter engaged in a pervasive pattern of misconduct throughout the proceedings which combined to deprive the appellant of his right to a fair trial.

{¶18} "[3.] Mr. Anderson was denied his constitutional right as guaranteed by the United States and Ohio Constitutions to effective assistance of counsel when his attorney failed to protect Mr. Anderson's rights at trial when Mr. Anderson's trial counsel failed to object to prosecutorial statements concerning crimes which Mr. Anderson had not been charged.

{¶19} "[4.] Mr. Anderson's convictions are against the manifest weight of the evidence.

{¶20} "[5.] The trial court erred to the detriment of Mr. Anderson when it imposed sentence upon him without any review or consideration of R.C. 2929.11 and R.C. 2929.12.

{¶21} "[6.] The trial court erred to the detriment of Mr. Anderson when it failed to merge firearm specifications for purposes of sentencing when all the activity on the part of the defendant arose from a single transaction.

{¶22} "[7.] The cumulative effect of the errors committed by the trial court and by Mr. Anderson's trial counsel combined to deny Mr. Anderson due process and a fair trial as guaranteed by the United States and Ohio Constitutions."

{ΒΆ23} In his first assignment of error, Anderson claims that the evidence presented failed to prove the essential elements of the crimes charged ...


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