STATE OF OHIO PLAINTIFF-APPELLEE.
ANTHONY ROSCOE DEFENDANT-APPELLANT.
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-563953
ATTORNEYS FOR APPELLANT William J. Day.
ATTORNEYS FOR APPELLEE Timothy J. McGinty Cuyahoga County Prosecutor, Nicole Ellis Brent C. Kirvel Assistant Prosecuting Attorneys The Justice Center.
BEFORE: E.A. Gallagher, J., Celebrezze, P.J., and Kilbane, J.
JOURNAL ENTRY AND OPINION
EILEEN A. GALLAGHER, J.
(¶1} Defendant-appellant Anthony Roscoe appeals his convictions for rape, kidnapping, aggravated robbery, and having a weapon under disability. He argues that his convictions are unsupported by sufficient evidence, are against the manifest weight of the evidence and that the trial court failed to make necessary findings before imposing consecutive sentences. After a thorough review of the record and the law, we vacate appellant's convictions for aggravated robbery under R.C. 2911.01(A)(1), Count 5; aggravated robbery under R.C. 2911.01(A)(3), Count 6; having a weapon while under disability and all firearm specifications. We enter judgment of conviction on the lesser included offense of robbery as defined in R.C. 2911.02(A)(2), under Count 5 of aggravated robbery and remand with instructions to resentence Roscoe pursuant to R.C. 2911.02(A)(2).
I. Factual and Procedural History
(¶ 2} In the early morning hours of May 14, 2010, C.B., the victim in this case, was driving around Cleveland in a quest to buy drugs. She testified that she was sober for almost three years since moving from Columbus to Cleveland but on that night she was upset about a fight that she had with her fiance and she went out drinking with a friend. After she left the bar, she wanted to find some crack cocaine. Not knowing where to buy it, she drove around looking for people to sell her drugs. She eventually arrived at a gas station on Cleveland's east side and saw three men talking. She approached the men and asked if they knew where she could get some crack and where she could smoke it. The two men offered to lead her to a location where she could make her purchase. Two of the men got into a sedan driven by a third man. Not being familiar with the area, she followed in her car until they came to a stop near a house on Hilgert Drive, a short distance from the gas station and where they had parked on the street.
(¶ 3} C.B. testified that the men with whom she talked at the gas station exited the car in which they had traveled and attempted to enter hers. She would not allow them into her vehicle but instead exited her car and followed them up a driveway to the side door of the house and one of the men rang the doorbell. No one answered after several minutes and one of the men then turned around and told her to give him her money and jewelry. The second man, whom she later identified as appellant, pressed something small, cold and hard against her neck from behind. She assumed it to be a gun and did not resist as the man in front of her took her money, credit cards, identification, car keys and jewelry. She pleaded with him to give her back her identification because she was afraid she would be killed and left unidentified. The man returned her driver's license to her and she also pleaded for them not to take her truck. The man who had been in front of her told her that he would leave her keys at the end of the driveway. While that man walked away, the man behind her began pulling her toward the backyard of the house, still pressing the object to her neck. As the two entered a darkened section of the backyard, she heard her truck drive away. She was then raped vaginally, anally and orally in the muddy yard. She was afraid she would be murdered, so when appellant ejaculated into her mouth, she spit the fluid onto her shirt in hopes that DNA evidence could be used to identify her attacker.
(¶ 4} Appellant left her in the yard where she lay and she ultimately rose and stumbled toward light, which was being shined at the driveway.
(¶ 5} Officer Neil Presta testified that he received instructions to investigate a call of two people in a backyard of a home on Hilgert Drive. He began driving on Hilgert, directing the spotlight on his patrol car into the shadows along the street and saw a woman emerge from the darkness between 10003 and 10007 Hilgert. He said she looked distraught and was sobbing hysterically. He approached her and she reported to him that she had been raped.
(¶ 6} Emergency services transported C.B. to Marymount Hospital where she was examined by a nurse with specialized sexual assault training. Several biological samples were collected and the police forwarded these samples to an independent lab, which was under contract with the state for DNA testing.
(¶7} In August 2011, Detective Robert Ford of the Cleveland Police Department received a report of a match to the suspect DNA profile from the national DNA database, CODIS. The suspect DNA profile was matched to that of appellant.
(¶ 8} Detective Ford arranged a photo array with a blind administrator for C.B. She picked appellant out of the six-photo lineup as the person who had robbed and sexually assaulted her on the night of May 14, 2010.
(¶9} Appellant was indicted on June 27, 2012, on one count of kidnapping with a sexual motivation specification, three counts of rape, two counts of aggravated robbery and one count of having a weapon while under disability. These charges, except for the weapons under disability count, carried one- and three-year firearm specifications. A bench trial commenced on October 1, 2012.
(¶10} After C.B. and several police and Bureau of Criminal Investigation witnesses testified, appellant testified in his own defense. He claimed he saw C.B. as he waited at a bus stop near a gas station at approximately 2:00 a.m. He said she looked distraught. According to him, she related that she had a fight with her boyfriend and that she wanted to get back at him by having sex with another man. He offered to oblige this desire. He attempted to get into her car but she refused to allow him to enter the vehicle. Appellant testified that he gave her directions to a place on Hilgert, that she drove there, parked on the street and waited for him to arrive on foot. Once on Hilgert, he led her into the backyard of a random home and the two engaged in consensual oral sex. Appellant left when he saw lights shining into the backyard because he was afraid it was the police and he had an outstanding warrant for his arrest. Appellant claimed he did not have a gun and that the sex was consensual.
(¶ 11} The trial court found appellant guilty of all charges: kidnapping with one-and three-year firearm specifications and a sexual motivation specification; three counts of rape with one- and three-year firearm specifications; two counts of aggravated robbery with one- and three-year firearm specifications and having a weapon while under disability.
(¶ 12} At the sentencing hearing, the trial court heard statements from the state, the victim's representative, appellant, his attorney and appellant's family. After consulting with the state, the court merged the charges of kidnaping (Count 1), rape (Count 2) and aggravated robbery (Count 5) and also merged the firearm specifications for the three counts of rape (Counts 2, 3 and 4) and the two counts of aggravated robbery (Counts 5 and 6). The court then sentenced Roscoe to eight years in prison for each of the three counts of rape to run concurrently to each other; five years in prison for each charge of aggravated robbery to run concurrently to each other and twelve months in prison for the weapons while under disability charge to run concurrent with the other counts. The court ordered the sentences for the firearm specifications under Counts 2, 3 and 4 to be served consecutively to the firearm specifications for Counts 5 and 6 and that the eight-year sentence for the three counts of rape was to be served consecutively to the five-year term of imprisonment on the charges of aggravated robbery for a total prison term of 19 years. The court initially neglected to properly inform appellant of postrelease control, but remedied the advisement in open court days later.
(¶ 13} Appellant now appeals, assigning five errors for review:
I. The trial court erred in not granting Appellant's Rule 29 Motion for Acquittal and in finding Appellant guilty on all counts on the grounds that evidence submitted by the State is insufficient for a conviction.
II. The trial court erred finding Appellant guilty on all counts on the ground that the evidence is insufficient for a conviction.
III. The trial court erred in not granting Appellant's Rule 29 Motion for Acquittal and in finding Appellant guilty on all counts on the ground said court's decision is against the manifest weight of the evidence.
IV. The trial court erred finding Appellant guilty on all counts on the ground that a conviction is against the manifest weight of the evidence.
V. The trial court erred in not complying with the three-step analysis under O.R.C. 2929.14(C)(4) when consecutive sentences imposed were an integral part of Appellant's sentence, and further, a consecutive sentence was not appropriate and an abuse of discretion given the facts and circumstances in this matter.
II. Law and Analysis
Sufficiency of the Evidence
(¶ 14} In appellant's first two assignments of error, he argues that his convictions for rape, aggravated robbery and having a weapon while under disability are unsupported by sufficient evidence in the record. He also argues that there was insufficient evidence that a gun was used during the commission of these crimes and that the gun specifications cannot stand.
(¶ 15} This court has set forth a concise statement of its role when reviewing whether a conviction is supported by sufficient evidence:
An appellate court's function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt. The relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt.
State v. Boyce, 8th Dist. Cuyahoga No. 93543, 2010-Ohio-3870, ¶ 13, citing State v. Thompkins, 78 Ohio St.3d 380, ...