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State v. Fomby

Court of Appeals of Ohio, Eleventh District

June 28, 2013

STATE OF OHIO, Plaintiff-Appellee,
CARVELL J. FOMBY, Defendant-Appellant.

Criminal Appeal from the Lake County Court of Common Pleas, Case No. 11 CR 000263.

Charles E. Coulson, Lake County Prosecutor, and Karen A. Sheppert, Assistant Prosecutor, (For Plaintiff-Appellee).

Ruth R. Fischbein-Cohen, (For Defendant-Appellant).



{¶1} This appeal is from the final judgment in a criminal proceeding before the Lake County Court of Common Pleas. Appellant, Carvell J. Fomby, seeks reversal of his conviction on multiple counts of aggravated burglary and aggravated robbery, and one count of felonious assault. In part, appellant contends that his conviction on all counts was either not supported by sufficient evidence, or was against the manifest weight of the evidence.

{¶2} This case concerns a home invasion during the late evening of April 5, 2011. The home is on Richmond Street in Painesville, Ohio, and was being rented by Russell Perry and Shaquetta Page. Shaquetta's three minor children also resided in the home. In addition, one of Russell's minor daughters would occasionally spend the night there.

{¶3} Even though the couple's home had two entranceways, the back door was primarily used to enter the residence. The back door leads into the kitchen. Upon exiting the kitchen and moving forward, there are the dining room and then the living room. At one side of the living room is a staircase leading to the second floor, where three bedrooms are located.

{¶4} On the evening at issue, Russell and Shaquetta had a late dinner with her three children and one of Russell's daughters. When the meal ended shortly before 11:00 p.m., Shaquetta and the four children went upstairs to prepare for bed. Russell stayed downstairs to clean the kitchen. At some point, Russell took the trash outside to a container located near the back door.

{¶5} As Russell was re-entering the home and beginning to shut the back door, two men pushed on the door and forced their way into the kitchen. Initially, the first man pushed Russell backward with his hands. Russell tried to resist. However, the second man produced a small silver firearm and placed the barrel directly on Russell's forehead. The second man then stated directly to Russell: "[Y]ou know what it is, we want everything, * * *."

{¶6} Although Russell no longer tried to resist, the two men continued to push him across the room until he fell on the floor by the refrigerator. During the course of their confrontation, the two men hit Russell on his head a number of times, and he sustained a number of scrapes and bruises on his face and skull.

{¶7} When Russell was finally subdued, he was lying on his stomach with his face pressed on the floor. The first man sat on top of Russell and held his head down. Initially, Russell thought that the first man was pressing the barrel of a firearm to the back of his head; so he made no attempt to get up for a while. While lying there, Russell saw the second man leave the kitchen and walk through the dining room and living room.

{¶8} After going through the living room, the second intruder went up the stairs and started down the hallway toward Shaquetta's bedroom. As the man came toward her, Shaquetta was talking on her cell phone to her sister. At first, Shaquetta believed that the person entering her room was her brother; hence, she told her sister goodbye and "hung up" the phone. She then turned toward the second man and quickly realized her mistake. However, before she could do anything, the second man again pulled out the small firearm, placed it against Shaquetta's head, and said that he was going to rob her.

{¶9} Immediately after making the statement to Shaquetta, the second intruder heard a police siren going off in the distance. As a result, he grabbed the phone from Shaquetta's hands, ran over to the bedroom dresser, and momentarily looked for something else to take. When he did not see anything, he ran into the hallway and down the stairs. After quickly checking upon the welfare of the children, Shaquetta followed the second man to the first floor.

{¶10} While the second man was upstairs, Russell realized that the first man did not have a gun, but was instead forcing Russell's head down with his knuckles. Russell therefore began to resist again, and was able to throw the first intruder off. Upon getting to his feet, Russell was ultimately able to shove the first man out the back door. The first man then ran through the back yard and leaped over a fence into a neighbor's yard. Although Russell followed the first man outside and saw him go over the fence, he did not try to chase him any further. Rather, he ran down his driveway, intending to go across the street and use a phone in a local store to call the police.

{¶11} After going downstairs, the second intruder ran to the kitchen and went out the back door. Russell did not see the second man leave the home. However, Shaquetta followed the second man out the back door and saw him leap over the fence on the side of their yard. She then walked toward the street at the front of the home and met Russell in the middle of the roadway. Since Russell's daughter had used her cell phone to call the police while the incident was ongoing, the police arrived at the scene within a few minutes of the second intruder leaving.

{¶12} Neither of the intruders were apprehended the evening of the incident. In speaking to the police upon their arrival at the scene, Russell stated that he previously had seen the first intruder, i.e., the man who had held him down on the kitchen floor, at various places in the neighborhood, but could only remember his first name. Similarly, Shaquetta told the police that she had recognized the intruder with the firearm from the neighborhood. Although she also tried to provide a first name for the second man, the name was not sufficient to enable the police to determine his identity. In addition, both Russell and Shaquetta stated that they had noticed during the incident that the second intruder had a "teardrop" tattoo by his eyes.

{¶13} Over the next three days, Russell and Shaquetta spoke to a number of family members or friends in an attempt to identify the correct name of the intruder who wielded the firearm. Eventually, the couple learned that the first name of the individual they were describing was "Carvell." After they relayed this new information to the police, appellant was immediately identified as a possible suspect. In light of this, the police had Shaquetta come to the police department so that she could review a photo array of possible suspects. When she first went through the array of six photos, Shaquetta did not identify appellant as the intruder with the firearm. She reviewed the photos a second time, however, and identified appellant as the man who held the firearm to her head.

{¶14} In September 2011, the county grand jury returned a six-count indictment against appellant. The charges included two counts of aggravated burglary, a felony of the first degree under R.C. 2911.11(A), three counts of aggravated robbery, a felony of the first degree under R.C. 2911.01(A), and one count of felonious assault, a felony of the second degree under R.C. 2903.11(A). Each of the counts also contained a firearm specification, under which it was alleged that appellant displayed or used a firearm while committing the underlying offense.

{¶15} Ultimately, a three-day jury trial was held in May 2012. Appellant was tried together with his co-defendant, Ricci Lewis, who was identified as the "first man" who entered the home during the incident. Russell and Shaquetta were the primary witnesses for the state. They both testified that they were certain that appellant was the individual who held the firearm to their heads. Appellant was found guilty of all six counts.

{¶16} After a presentencing report was prepared, the trial court held a sentencing hearing. At the outset, the trial court concluded that the two counts of aggravated burglary would be merged for purposes of sentencing. As to the remaining three counts relating solely to Russell, the court further held that two of the aggravated robbery counts and the sole felonious assault count would be merged. As a result, appellant was only sentenced on a single count of aggravated burglary, two counts of aggravated robbery, and two firearm specifications. In addition to imposing two three-year terms on the firearm specifications, the trial court ordered appellant to serve two concurrent terms of six years on the aggravated robbery counts, and a five-year term on the remaining aggravated burglary count, to be served consecutively to the "aggravated robbery" terms, for an aggregate prison term of 17 years.

{¶17} In appealing both his conviction and sentence, appellant has raised four assignments of error for review:

{¶18} "[1] The trial court erred in convicting Carvell Fomby as there was legally insufficient evidence to support a conviction.

{¶19} "[2.] The trial court committed prejudicial error when it failed to merge the multiple counts of aggravated robbery and aggravated burglary, as allied offenses of similar import, ...

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