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State v. Ross

Court of Appeals of Ohio, Eighth District

July 18, 2013

STATE OF OHIO, PLAINTIFF-APPELLEE
v.
LARRY ROSS, DEFENDANT-APPELLANT

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-554463

ATTORNEYS FOR APPELLANT John T. Castele, Kevin M. Spellacy McGinty, Hilow & Spellacy

ATTORNEYS FOR APPELLEE Timothy J. McGinty Cuyahoga County Prosecutor Edward D. Brydle Kerry A. Sowul Assistant County Prosecutors

BEFORE: Jones, P.J., S. Gallagher, J., and McCormack, J.

JOURNAL ENTRY AND OPINION

LARRY A. JONES, SR., PRESIDING JUDGE

{¶ 1} Defendant-appellant, Larry Ross, appeals his conviction and sentence. We affirm the judgment of conviction, but reverse the sentencing judgment and remand the case for resentencing.

I. Procedural History

{¶ 2} In September 2011, Ross, along with his codefendant, Duane Chisholm, was charged with several crimes.[1] Ross was charged as follows: Count 1, aggravated robbery; Count 2, kidnapping; Count 3, grand theft of a motor vehicle; Count 4, petty theft; Count 5, felonious assault on a peace officer; Counts 6 and 7, criminal damaging or endangering; Count 8, having weapons under disability; and Count 10, tampering with evidence.[2]

{¶ 3} The aggravated robbery, kidnapping, and felonious assault charges contained one- and three-year firearm specifications, notices of prior conviction, repeat violent offender specifications, and forfeiture specifications. Additionally, the felonious assault on a peace officer charge (Count 5) contained a seven-year firearm specification.

{¶4} In June 2012, the case was tried to a jury, with the exception of the having weapons under disability charge, the notices of prior conviction, and the repeat violent offender and forfeiture specifications, which were tried to the court. The jury found Ross guilty of all counts and the firearm specifications, and the court found him guilty of the remaining charge and specifications. The trial court sentenced Ross to a 21-year prison term, which included consecutive sentences.

II. Facts

{¶5} The crime in this case took place in Cleveland. Ross's codefendant, Chisholm, testified that on the day of the incident, Ross called him and the two discussed "hitting a lick, " which means committing a robbery. After their conversation, Ross picked Chisholm up in a white Kia and they drove to Ross's uncle, Lavelle Ross's, house, where Ross got a revolver handgun and a 9 mm gun. Chisholm took the revolver, and Ross took the 9 mm gun. The two then drove around looking for a "dope boy" to rob. According to Chisholm, Ross was wearing a gray "hoodie."

{¶ 6} Chisholm testified that they did not want to commit the robbery while using Ross's vehicle, so they planned to steal a vehicle. They happened upon a minivan that was running and decided to steal it. The victim, 16-year-old Teshawn Johnson, was inside the van.

{¶ 7} Teshawn testified that he had gone to work that evening with his father, Tyrone Johnson, who was a contractor for the city of Cleveland. The father's minivan was parked outside of a house where the father was inside snaking out a drain; Teshawn stayed in the van to sleep.

{¶ 8} According to Teshawn, two men forced their way into his father's van, one on each side. They forced Teshawn to the middle and told him "shut up and not say anything." Teshawn testified that the "smaller, older" man started driving the van, and he told the "bigger, younger" man to check Teshawn's pockets.[3] The "smaller, older" man was Chisholm, and the "bigger, younger" man was Ross. Teshawn described Ross as wearing a "blue basketball type jersey."

{¶9} Ross took Teshawn's cell phone. They ordered Teshawn to take off his pants and shoes, which Teshawn did. Teshawn testified that he saw a gun.

{¶ 10} After driving a couple of blocks, Teshawn was told to get out of the minivan through the side sliding door, which he did; he still did not have his pants or shoes on. As it happened, a police car was in the vicinity as Teshawn was getting out of the van. The officers in the car, Vasile Nan and Robert Kowza, saw Teshawn being pushed out of the van without pants, and curious as to what was occurring, positioned their vehicle headlight-to-headlight with the van.

{¶ 11} Teshawn told the police that he had just been robbed, and the officers immediately pursued the vehicle, whose driver was speeding in reverse down the one-way street. The driver of the van proceeded that way for two blocks, before making a turn onto another street. During the pursuit, the police shone their mounted spotlight into the van; they saw the man driving, later identified as Ross, and the passenger, later identified as Chisholm.

{¶ 12} In a broadcast call, Officer Nan described Ross as wearing a blue hooded sweatshirt; in another call to dispatch, the officer described Ross as wearing a gray hooded sweatshirt. Officer Nan testified that he confused the colors and meant that Ross had a blue shirt on under a gray hooded sweatshirt.

{¶ 13} The pursuit of the van ended when it went over a curb and crashed into a house. Both Ross and Chisholm exited the van and ran. The police pursued them on foot; Officer Nan followed Ross and Officer Kowza followed Chisholm. While running, Ross fired a gun at Officer Nan, who returned fire. A discharged bullet, determined to have been fired from Ross's gun, hit a minivan (not Tyrone's) parked on the street and shattered its rear window.

{¶ 14} Other police officers arrived to assist. Ross continued to run and, at one point, took off his gray sweatshirt and threw it in a yard. When encountered by the police on another street, Ross reversed his direction and ran back toward the yard where he had thrown his sweatshirt. He hid under a back porch. The police saw Ross and ordered him out, but he refused. Ross was dragged out from under the porch by the police.

{¶ 15} After his arrest, Ross talked to the police. He told them that he had been walking down the street when an older black man approached him with a gun and told him to run. So Ross ran, and the next thing he knew, he was being ordered to the ground. He then realized that it was the police, and they (six officers) started beating him, telling him he should not have shot at an officer.

{¶ 16} Ross denied having had a gun or wearing a gray hooded sweatshirt. Ross told the police that his cousin had dropped him off in the neighborhood and he was on his way to see a woman. Ross did not have an address or phone number for the woman he claimed he was on his way to see, however.

{¶ 17} The police recovered a set of keys from Ross and, using the remote, determined that they were the keys from a nearby-parked white Kia, the same kind of car Chisholm said Ross was driving before they stole the van. When told that his car was found nearby, Ross told the police that he did not want the woman he was on his way to see to know he had a car, out of fear that she would frequently ask him to drive her children around.

{¶ 18} Teshawn's cell phone was recovered from Ross's pocket. The police canvassed the area where Ross had been running and recovered his sweatshirt. They also recovered a gun from the same yard where the sweatshirt was. The gun was submitted for DNA testing; the testing concluded that Ross's DNA was on the weapon. The spent bullet fired at Officer Nan was recovered, and it was determined that it was fired from the gun with Ross's fingerprints. The gun's registered owner was Lavelle Ross, Ross's uncle.

{¶ 19} Another gun was recovered from inside Tyrone's van. Tyrone testified that he did not have any weapons in the van.

{¶ 20} Ross and the gray sweatshirt were tested for gunshot residue; no residue was found. The forensic expert testified that a lack of residue does not mean that a person did not fire a weapon. The expert testified that the residue may have never landed on the person's hands or clothing. The expert further testified that gunshot residue can easily come off by rubbing or washing hands.

{¶21} Ross testified at trial. He denied any involvement in the robbery. He reiterated that his cousin had dropped him off in the neighborhood that evening so that he could see a woman. Ross testified that he was married, and he, his wife and children lived in Bedford. He was having an affair, and his wife did not know. So that his wife would not see his car at his mistress's house, he always parked away from her home and walked there.

{¶ 22} Ross also maintained his prior version of events, that he was approached by a man with a gun. But, at trial he testified that the man told him not to run, but he ran anyway. Ross testified that he ran about three houses into a backyard when he heard the police say "freeze." Two officers apprehended him and then five or six more beat him, saying that he had just shot an officer.

{¶ 23} Ross testified that his DNA might have been on his uncle's gun because he frequently did work at his uncle's house and had to move the gun to do the work.

{¶ 24} Ross admitted to having a prior criminal record, which included a 2005 conviction for felonious assault with a gun.

{¶ 25} According to Ross, everyone who testified against him was lying.

{¶ 26} Ross now raises the following assignments of error for our review:

[I.] The defendant's convictions are against the manifest weight of the evidence.
[II.] The trial court erred by not providing the jury with the cautionary instructions included in ORC §2923.03(D) regarding accomplice testimony.
[III.] The defendant's convictions for aggravated robbery and for the three year firearm specification as contained in counts one and two were not supported by sufficient evidence necessary to support the conviction.
[IV.] The trial court erred in finding that the offenses of aggravated robbery and kidnapping are not allied ...

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