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State of Ohio v. Larry R. Rouse

September 29, 2011

STATE OF OHIO PLAINTIFF-APPELLEE
v.
LARRY R. ROUSE DEFENDANT-APPELLANT



CHARACTER OF PROCEEDING: Appeal from the Tuscarawas County Court of Common Pleas Case No. 2007 CR 08 0287

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

JUDGES: Hon. Sheila G. Farmer, P.J. Hon. Julie A. Edwards, J. Hon. Patricia A. Delaney, J.

OPINION

JUDGMENT: AFFIRMED

{¶1} Defendant-Appellant, Larry Rouse, appeals from the judgment of the Tuscarawas County Court of Common Pleas, convicting him of one count of aggravated robbery, a felony of the first degree, in violation of R.C. 2911.01(A)(1), and petty theft, a misdemeanor of the first degree, in violation of R.C. 2913.02(A)(1). The State of Ohio is Plaintiff-Appellee.

{¶2} On July 22, 2007, Kimberly Asbury was working at the Sibley Mart Convenience Store in Strasburg, Ohio. Asbury was working by herself that evening, when at approximately 11:45 p.m., three men entered the store. Appellant approached Asbury and held a knife to her throat. A second man, wearing a yellow shirt, led her to the cash register and ordered her to "hurry up" and open the cash register. The third man stayed in the background. When she opened the register, the men took the money out of the cash register and ran out the side door to the street behind the store. They stole approximately $350.00

{¶3} Prior to the robbery, Appellant, his brother, Tommy Rouse, and his cousin, Robert Ray, were at Appellant's girlfriend's home in Dover, Ohio. Appellant's girlfriend, Delana Robison and her 15 year old daughter were present when Appellant, Tommy, and Robert discussed robbing a gas station. The three men changed clothes - Appellant put on a gray hoodie, Tommy put on a long sleeved yellow sweatshirt, and Robert put on a dark blue sweatshirt. The men also took hats from Delana's collection, including a camouflage hat with a leather bill. Tommy took Delana's daughter's sunglasses.

{¶4} Appellant took Delana's car, against her wishes. They drove away in her maroon Mercury Sable that had South Carolina license plates at approximately 9:00 p.m.

{¶5} Approximately one hour later, a college student named Cory Myers stopped at a Speedway Convenience Store in New Philadelphia, Ohio. While he was sitting in his car, he was approached by a man wearing a gray sweatshirt and white tennis shoes who offered to sell him "snow", i.e., cocaine. The man was accompanied by two other men, one of whom was wearing a yellow sweatshirt. The third man remained in the car and had a bandana on his head. Myers observed that the three men were in a maroon Mercury Sable with a South Carolina license plate.

{¶6} Myers called 911 and reported the incident. At trial, he identified Appellant as being the man in the gray sweatshirt and white tennis shoes that approached him. Myers was positive that the man who offered to sell him drugs was Appellant.

{¶7} Sergeant Kutcher was working in Strasburg, when he heard on his cruiser radio about an incident at the New Philadelphia Speedway involving three male subjects in a maroon Mercury Sable with South Carolina license plates. He also had heard about a domestic disturbance on Saltwell Road involving a maroon Mercury Sable with South Carolina license plates. He then received a dispatch at approximately 11:55 p.m. of an armed robbery at the Sibley Mart. Upon arriving at the area of the Sibley Mart, he found a camouflage hat, two pairs of sunglasses, and a dark blue sweatshirt in the alley directly behind the Sibley Mart.

{¶8} After the robbery, Delana Robinson stated that Appellant, Tommy, and Robert returned to her home and that their arguing woke her up. Appellant and Robert were yelling at Tommy for throwing the stuff he had on out of the car. Delana noted that the three men had changed clothes again. The gray sweatshirt that Appellant had been wearing was gone as was the yellow sweatshirt that Tommy had been wearing. Delana's hat and her daughter's sunglasses had not been returned.

{¶9} Delana noted that the men had started a bonfire outside. Robert left the residence to go home in his own vehicle. Appellant and Delana got into an argument and Delana's daughter called 911. The sheriff responded to the scene and began asking questions concerning Delana's maroon Mercury Sable. The sheriff asked her if she knew if it had been used in a robbery. She stated that she did not know if it had and Appellant refused to comment.

{¶10} While at Delana's residence, the sheriff found Tommy Rouse hiding in a shed on the property. The next morning, Delana found money in the shed.

{¶11} Appellant was taken into custody. The clerk at the Sibley Mart was unable to identify the robbers because their faces had been covered with bandanas; however, she did note that Appellant had the same height, build, and voice as the man who held the knife to her throat.

{¶12} Sergeant Kutcher confiscated three knives from Delana's kitchen, one of which the clerk identified as being similar to the knife that the robber had held to her throat. Delana verified that the knife came from her kitchen. The clerk was also shown a surveillance video from the New Philadelphia Speedway that was taken less than two hours prior to the Sibley Mart robbery. The video depicted two males, one in a yellow sweatshirt and one in a gray sweatshirt, both wearing white tennis shoes.

{¶13} The clerk was able to identify the two men in the video by the clothes they were wearing and their build, as being two of the men who robbed her. She also recalled that Appellant had been in the Sibley Mart approximately two weeks prior to the robbery.

{¶14} Delana was able to identify the camouflage hat that Sergeant Kutcher found in the alley behind the Sibley Market. She also identified one pair of sunglasses that Sergeant Kutcher found along with the hat as belonging to her daughter. She identified the other pair of sunglasses that the officer found as belonging to her. She stated that she commonly left those sunglasses in her car, and they were in the car when Appellant took it. Additionally, she identified the dark blue sweatshirt that Sergeant Kutcher found as belonging to her. She stated that it was in her home prior to the men leaving and that she believed that it was the sweatshirt that Robert Ray put on prior to exiting her house.

{¶15} She also viewed photos from the Speedway surveillance video and identified Appellant as being the man wearing the gray sweatshirt and white tennis shoes. She also identified the man in the yellow shirt and white shoes as Tommy Rouse. She additionally identified her camouflage hat as the one that Tommy was wearing. She finally stated that Appellant had been at her home within six months prior to his trial trying to convince her not to testify against him.

{¶16} Subsequent to the investigation, Appellant was indicted by the Tuscarawas County Grand Jury on one count of aggravated robbery, a felony of the first degree, in violation of R.C. 2911.01(A)(1), and one count of petty theft, a misdemeanor of the first degree, in violation of R.C. 2913.02(A)(1). Initially, the trial court dismissed the indictment on speedy trial grounds. This Court reversed that decision and remanded the case for trial. See State v. Rouse, 5th Dist. No. 2007-AP-12-0078, 2008- Ohio-5891. Appellant filed a motion to certify a conflict to the Ohio Supreme Court and said motion was overruled and his discretionary appeal to the Ohio Supreme Court was denied. State v. Rouse, No. 2008-2439.

{¶17} A jury trial was scheduled for June 2, 2009, but was continued because Appellant failed to appear for trial. A capias was issued for his arrest. Appellant was arrested in January, 2010. He was granted leave to file a motion to suppress, and the motion was overruled on July 15, 2010.

{¶18} Appellant exercised his right to a jury trial on July 27, 2010, and the trial lasted two days. The jury found Appellant guilty as charged in the indictment. On September 1, 2010, he was sentenced to four years in prison.

{¶19} It is from that judgment that Appellant now appeals, and raises six Assignments of Error:

{¶20} "I. THE COURT ERRED IN ALLOWING THE EVIDENCE OF OTHER CRIMES, WRONGS OR ACTS BECAUSE OF THE SUBSTANTIAL DANGER THAT THE JURY WILL CONVICT THE DEFENDANT SOLELY BECAUSE IT ASSUMES THAT THE DEFENDANT HAS A PROPENSITY TO COMMIT CRIMINAL ACTS OR DESERVES PUNISHMENT REGARDLESS OF WHETHER HE OR SHE COMMITTED THE CRIME. STATE V. SLAVEN (5TH APP. DIST., 2010), 2010-OHIO-6400, ¶29.

{¶21} "II. THE COURT ERRED IN FAILING TO FIND THAT THE IDENTIFICATION PROCEDURES USED BY OFFICER KUTCHER WITH COREY MEYERS WERE UNDULY SUGGESTIVE AND SUFFICIENTLY UNRELIABLE AS TO IMPLICATE ROUSE'S RIGHT TO DUE PROCESS.

{¶22} "III. THE COURT ERRED IN OVERRULING ROUSE'S MOTION TO SUPPRESS/MOTION IN LIMINE.

{¶23} "IV. THE JURY'S VERDICT FINDING ROUSE GUILTY SHOULD FAIL AS IT IS NOT SUSTAINED BY SUFFICIENT RELEVANT EVIDENCE.

{¶24} "V. THE JURY'S FINDING ROUSE GUILTY SHOULD FAIL AS IT IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.

{¶25} "VI. THE ALIBI TESTIMONY OF MELISSA ROUSE PROVES THAT LARRY ROUSE DID NOT RETURN TO ROBISON'S HOME UNTIL SOMETIME AFTER THE SIBLEY MART ROBBERY OCCURRED."

I.

{¶1} In his first assignment of error, Appellant argues that it was error for the trial court to allow the introduction of other acts evidence against Appellant.

{ΒΆ2} The admission or exclusion of evidence rests within the sound discretion of the trial court. Moreover, a determination as to whether evidence is unfairly prejudicial is left to the sound discretion of the trial court and will be overturned only if the discretion is abused. State v. Robb, 88 Ohio St.3d 59, 2000-Ohio-275, 723 N.E.2d 1019. "As a legal term, 'prejudice' is simply ...


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