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State v. Tyler

Court of Appeals of Ohio, Eleventh District

August 5, 2013

STATE OF OHIO, Plaintiff-Appellee,
ASHLEY L. TYLER, Defendant-Appellant.

Criminal Appeal from the Portage County Court of Common Pleas, Case No. 2011 CR 0362.

Victor V. Vigluicci, Portage County Prosecutor, and Pamela J. Holder, Assistant Prosecutor, (For Plaintiff-Appellee).

Leonard J. Breiding, II, (For Defendant-Appellant).



{¶1} Appellant, Ashley L. Tyler, appeals her conviction, after a bench trial, on one count of aggravated robbery with a firearm specification and one count of carrying a concealed weapon. Appellant argues the evidence adduced at trial was insufficient to sustain a finding of guilt on aggravated robbery with a firearm specification such that her motion for directed verdict of acquittal should have been granted. Appellant additionally argues the judgment of guilt on aggravated robbery with a firearm specification is against the manifest weight of the evidence, and the trial court erred in imposing her sentence on that count. Appellant does not argue any error regarding her conviction for carrying a concealed weapon. For the following reasons, we affirm.

{¶2} At trial, the victim, Sheetim Masahu, testified he owns a pizza shop, LeDion's Pizza, in Kent, Ohio. On May 26, 2011, the pizza shop received a telephone call ordering two pizzas and 50 wings. The driver at the pizza shop twice attempted delivery of the items, to no avail. Deciding to again attempt to deliver the order, Mr. Masahu drove to 914 Carlisle, Apartment 101. When he arrived at the location, he pressed the call button for Apartment 101, but no one answered. As he walked outside, he heard a voice state, "Hold it right there, dude." As he turned around he observed a heavyset individual, dressed in black, pointing a black gun at him; he described the gun "as a small, black handgun and possibly a glock." The gun was described as an automatic, not a revolver, with a clip protruding from the handle. The individual was standing approximately 15 feet from Mr. Masahu. At this point, Mr. Masahu dropped the pizza and wings, kicked off his flip-flops, and began running in a zig-zag pattern to avoid potentially being shot. After reaching a parked vehicle, he ducked down and called 911.

{¶3} When emergency personnel arrived, they began searching for an individual that matched Mr. Masahu's description. Officer Martin Gilliland of the City of Kent Police Department testified that he and his canine started to track a scent which led to the same apartment building. At this time, Patrolman Poe, also of the City of Kent Police Department, radioed to indicate that he observed a woman matching the suspect's description. As Patrolman Poe was approaching the back entrance of the apartment building, he heard a female's voice from the ground floor apartment. In addition, Officer Gilliland testified that he smelled the odor of buffalo wings coming from this ground floor apartment.

{¶4} At this point, Officer David Marino, who was located inside the building in the laundry room, observed appellant exiting Apartment 103. Appellant was wearing a dark, heavy coat. As she matched the victim's description of the suspect, Officer Marino brought appellant into the laundry room where she was patted down. The officers found brass knuckles and a can of mace on appellant's person. Upon questioning, appellant seemed nervous and was sweating.

{¶5} The victim positively identified appellant at the crime scene.

{¶6} At trial, appellant testified and admitted that she was involved in the scheme to rob Mr. Masahu. Appellant, however, testified that she did not carry or use a firearm during the robbery. Instead, appellant maintains that she carried a black broom handle "making it seem like she had a gun." Appellant stated that after the robbery, she threw the broom handle in the woods near the apartment building. Neither the firearm nor the broom handle were recovered from the officers' search of the crime scene.

{¶7} Appellant was found guilty of the crimes charged. She was sentenced to five years on the aggravated robbery charge and three years for the firearm specification for a total of eight years. Appellant was also sentenced to 180 days in the Portage County Jail on the charge of carrying a concealed weapon which ran concurrently to the aforementioned sentence.

{¶8} Appellant appealed, and as her first assignment of error, she alleges:

{¶9} "The trial court erred in sentencing the appellant by imposing more than the minimum sentence and by imposing an improper sentence."

{¶10} Under this assigned error, appellant argues the trial court erred in imposing five years in prison for aggravated robbery and a consecutive term of three years in prison for the firearm specification.

{¶11} In State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, the Ohio Supreme Court established a two-step analysis for an appellate court reviewing a felony sentence. In the first step, we consider whether the trial court "adhered to all applicable rules and statutes in imposing the sentence." Id. at ¶25. "As a purely legal question, this is subject to review only to determine whether it is clearly and convincingly contrary to law, the standard found in R.C. 2953.08(G)." Id.

{¶12} As the Ninth Appellate District observed:

{¶13} "Kalish did not specifically provide guidance as to the laws and rules' an appellate court must consider to ensure the sentence clearly and convincingly conforms with Ohio law. The specific mandate of Kalish is that the sentence fall within the statutory range for the felony of which a defendant is convicted." State v. Gooden, 9th Dist. No. 24896, 2010-Ohio-1961, ¶48, citing Kalish at ¶15.

{¶14} Next, if the first step is satisfied, we consider whether, in selecting the actual term of imprisonment within the permissible statutory range, the trial court abused its discretion. Kalish, supra, ¶26. An abuse of discretion is the trial court's "'failure to exercise sound, reasonable, and legal decision-making.'" State v. Beechler, 2d Dist. No. 09-CA-54, 2010-Ohio-1900, ¶62, quoting Black's Law Dictionary 11 (8th Ed.2004).

{¶15} Addressing the first step of the Kalish test, appellant was convicted of one count of aggravated robbery, a felony of the first degree, in violation of R.C. 2911.01(A)(1). This count carried a firearm specification pursuant to R.C. 2929.14(D) and 2941.145. The trial court's sentence of a mandatory three-year term for the firearm specification is the mandatory term of imprisonment pursuant to R.C. 2941.145. Further, appellant's five-year term of imprisonment for the offense of aggravated robbery is within the statutory range. See former R.C. 2929.14(A)(1) (for a felony of the first degree, appellant was subject to a prison term of three, four, five, six, seven, eight, nine, or ten ...

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