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State of Ohio v. Gilbert Primus

October 27, 2011


Criminal Appeal from the Cuyahoga County Common Pleas Court Case No. CR-535498

The opinion of the court was delivered by: Eileen A. Gallagher, J.:

Cite as State v. Primus,




BEFORE: E. Gallagher, J., Kilbane, A.J., and Rocco, J.

{¶1} Defendant-appellant, Gilbert Primus, appeals his convictions entered in the Cuyahoga County Court of Common Pleas. Appellant argues that he was denied his right to effective assistance of counsel at trial and that his right to a fair trial was infringed due to cumulative plain errors by the trial court. For the following reasons, we affirm the judgment of the trial court.

{¶2} Appellant was indicted on March 26, 2010 and charged with three counts of felonious assault in violation of R.C. 2903.11(A)(2) (Counts 1, 10, and 11), three counts of failure to comply in violation of R.C. 2921.331(B) (Counts 2, 3, and 12), attempted felonious assault in violation of R.C. 2923.02 and R.C. 2903.11(A)(1) (Count 4), assault in violation of 2903.13(A) (Count 5), two counts of aggravated robbery in violation of R.C. 2911.01(B)(1) and R.C. 2911.01(A)(3) (Counts 6 and 7, respectively), robbery in violation of R.C. 2911.02(A)(2) (Count 8), kidnapping in violation of R.C. 2905.01(B)(1) (Count 9), two counts of theft in violation of R.C. 2913.02(A)(1) and R.C. 2913.02(A)(2) (Counts 13 and 14, respectively), having weapons under disability in violation of R.C. 2923.13(A)(3) (Count 15), improperly handling firearms in a motor vehicle in violation of R.C. 2923.16(B) (Count 16), carrying a concealed weapon in violation of R.C. 2923.12(A)(2) (Count 17), and possessing criminal tools in violation of R.C. 2923.24(A) (Count 18).

{¶3} Appellant pled not guilty to the indictment and the case proceeded to trial on October 21, 2010. Prior to trial the state dismissed counts 4, 8, 9, 10, 11, 12, 14, 16, and 17.*fn1

{¶4} It was the state's evidence at trial that on March 8, 2010, an employee of Giant Eagle on West 117th Street in Cuyahoga County, observed an unknown male exiting the store with a shopping cart loaded with meat. Suspecting that this individual was attempting to steal the merchandise, the employee notified store security. Cuyahoga County Deputy Sheriff Landry Simmons was working as a security guard at the store at the time and responded to the request for security. In the store's parking lot near a Pontiac van, Deputy Simmons confronted a man wearing a red hat with a shopping cart full of meat, identified himself, and ordered the man to stop and return the merchandise.

{¶5} The man fled on foot and Deputy Simmons returned to the van and observed the cart of food inside of the van.*fn2 The van began to move and struck Deputy Simmons on his right leg and knee. Deputy Simmons testified that he became entangled with a latch on an open passenger door of the moving van and had to pull himself inside the vehicle to avoid being run over. Once inside, Deputy Simmons ordered the driver to stop the vehicle. Deputy Simmons made an in-court identification of defendant Gilbert Primus as the driver of the van.

{¶6} Deputy Simmons testified that he and the appellant engaged in a struggle inside the vehicle. Deputy Simmons felt a metal object under the appellant's clothing that he believed to be a gun. The appellant reached for the object and Deputy Simmons struggled with the appellant until both men fell out of the driver's side door of the vehicle. On the ground, Deputy Simmons attempted to arrest the appellant and the two continued to fight. Deputy Simmons testified that the appellant tried to grab his firearm during the struggle. Eventually the appellant broke free of Deputy Simmons by slipping free of and discarding the jacket he was wearing. Appellant fled in the van leaving behind his jacket. Deputy Simmons testified that while fleeing, appellant stopped the van and extended his arm while holding a black object outside the driver's side window that the deputy believed to be a gun. Deputy Simmons responded by firing two shots from his own gun, at least one of which he believed struck the vehicle near the driver's side window.

{¶7} Appellant was identified by police through a cell phone recovered from the jacket and through a photo array identification by Deputy Simmons. Appellant's DNA was found to be consistent with DNA swabs obtained from the jacket and a hat that Deputy Simmons identified as the hat worn by appellant at the time of their struggle. Police learned that a van titled to appellant was transferred to a third party on March 10, 2010. The van was found to have a bullet hole covered with a decorative strip decal and electrician's tape. Also recovered from inside the van was paperwork and a pill bottle with appellant's name on the label.

{ΒΆ8} The jury returned a verdict of guilty as to counts 1, 2, 3, 5, 6, 7, 13, and 18. The court found appellant not guilty on Count 9. Appellant was sentenced to five years in prison. Appellant brought ...

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