Criminal Appeal from the Lake County Court of Common Pleas, Case No. 12 CR 000307.
Charles E. Coulson, Lake County Prosecutor, Karen A. Sheppert, Assistant Prosecutor, and Jenny B. Azouri, Assistant Prosecutor, (For Plaintiff-Appellee).
Matthew C. Bangerter, (For Defendant-Appellant).
DIANE V. GRENDELL, J.
(¶1} Defendant-appellant, Raymone D. Banks, appeals his convictions, following a jury trial in the Lake County Court of Common Pleas, for Aggravated Robbery, Felonious Assault, two counts of Having Weapons While Under Disability, and Discharge of a Firearm on or near a Prohibited Premises, as well as his sentence of 27 years in prison. The issues to be determined by this court are whether convictions for the foregoing charges are supported by the weight and sufficiency of the evidence when there is testimony that the defendant pointed a gun at the victim, asked for his money, and the defendant ultimately shot the victim; whether Felonious Assault and Aggravated Robbery are allied offenses when the robbery occurred prior to the shooting; whether Felonious Assault and Discharge of a Firearm on or near a Prohibited Premises are allied offenses when a gun is fired at the victim and the bullet travels into the roadway; and whether a sentence was proper when the judge considered the seriousness and recidivism factors. For the following reasons, we affirm the trial court's judgment, as modified herein.
(¶2} On July 5, 2012, the Lake County Grand Jury issued an Indictment, charging Banks with the following: one count of Aggravated Robbery (Count One), a felony of the first degree, in violation of R.C. 2911.01(A)(1); one count of Felonious Assault (Count Two), a felony of the second degree, in violation of R.C. 2903.11(A)(2); two counts of Having Weapons While Under Disability (Counts Three and Four), felonies of the third degree, in violation of R.C. 2923.13(A)(2) and (A)(3); and one count of Discharge of a Firearm on or near a Prohibited Premises (Count Five), a felony of the third degree, in violation of R.C. 2923.162(A)(3). Each count had a firearm specification, pursuant to R.C. 2941.145. Counts One and Two also had repeat violent offender specifications, pursuant to R.C. 2941.149.
(¶3} A jury trial was held in this matter on July 17-18, 2012. The following pertinent testimony and evidence were presented.
(¶4} Reginald Hall described the April 27, 2012 incident giving rise to the charges against Banks, in which Hall was shot and robbed by Banks. Hall explained that he had known Banks since around 2006 and that they had been friends who had also spent time together while in prison. The day before the shooting, he saw Banks' friend, who stated that Banks was looking for him. On April 27, Banks called Hall several times. Hall explained that the two planned on meeting to "chill out" and smoke marijuana.
(¶5} According to Hall, he drove up to South Saint Clair Street, in Painesville, Ohio, near some apartment buildings, where Banks entered his car. As soon as Banks got in the car, he turned around and pulled out a gun, which Hall described as a black Glock. Banks told Hall to give him his money and started going through the car's glove compartment and center console. Hall testified that Banks stated, "give me everything, I'm gonna shoot you." Hall gave him everything he had, including $500, but Banks still stated, "I'm going to shoot you." Hall grabbed the gun, tried to move it away, and was shot in the leg. Hall explained that after the first shot, Banks pulled the gun back up, Hall grabbed it again, and Banks shot again, missing him and hitting the driver's side window. Banks shot at him a third time and hit him in the forearm. Hall stated that the last shot went off while he was still reaching for the gun.
(¶6} Hall described some of the money later recovered from Banks as his, and stated that he recognized it because he had a "colorful $50, " as well as an "old" $10, which he kept because it brought him luck.
(¶7} Hall admitted during cross-examination that he had sold drugs in the past, but he was not doing so on the date of the shooting. He denied meeting Banks for the purpose of selling him marijuana on that date.
(¶8} Annie Lerman, a dispatcher at the Lake County Sheriffs Office, testified regarding a 911 call she received from Hall on April 27. A tape of that call was played for the jury, in which Hall stated that he had just been shot "by a dude named Ray."
(¶9} Sergeant Toby Burgett testified that on the date of the shooting, he responded to a call at an Arby's parking lot, where Hall had parked his car after being shot. Burgett saw Hall was inside of his vehicle, "screaming in pain."
(¶10} Sergeant Burgett then went to the scene of the shooting, located around 224 South Saint Clair Street, and saw broken glass on the roadway. After being provided information from witnesses, he and other officers discovered the location of Banks, in an apartment located near the shooting. Banks had removed his clothing and was sleeping. After being asked to dress, he put on a dark pair of jeans and a black hoodie. $600 was found in his jeans pocket. A subsequent search of the apartment revealed a Glock firearm, located in a laundry basket.
(¶11} Burgett said Hall described the denominations of money that were taken from him by Banks and that they were similar to the denominations found in Banks' jeans. Hall was able to identify Banks in a lineup as well.
(¶12} Upon searching Hall's car, a phone was discovered, which matched the number that Hall said Banks had used to call him. A small bag of marijuana was also found inside of the car. A spent bullet was located on the floor of the driver's side, as well as a shell casing on the driver's seat. The driver's side window was shattered, there was a hole in the driver's side door, a hole in the driver's seat, and a mark on the driver's side door jam, which appeared to be a bullet deflection. Sergeant Burgett explained that no gunshot residue exam was performed on Hall or on his clothing, which had been returned to his family at the hospital.
(¶13} Detective Michael Bailey stated that upon responding to the 911 call, Hall stated that "Ray" had robbed and shot him. Upon arrest, Banks identified the black clothing, which was ultimately tested for gunshot residue, and where the money was located, as belonging to him. The phone used by Banks to call Hall was located inside of Hall's car, under the passenger seat. That phone showed a series of calls to Hall's phone.
(¶14} Martin Lewis, a forensic scientist at the Ohio Bureau of Criminal Identification and Investigation, testified regarding the gunshot residue test he performed in this matter. He explained that gunshot residue was found on Banks' clothing, including near the cuffs of his sweatshirt, but not on the samples taken from his hands.
(¶15} Raymond Jorz, a fingerprint and firearms examiner for the Lake County Crime Laboratory, testified that no fingerprints were found on the Glock firearm submitted for testing. Jorz explained that there were two safeties on the Glock pistol and that it is "not very difficult" to depress the trigger, although it was not a "hair trigger, " and a shooter would have to pull the trigger to fire the gun with three and a quarter pounds of pressure.
(¶16} Banks testified on his own behalf. He stated that he knew Hall from purchasing marijuana from him on approximately thirty occasions in the past. On the day prior to the incident, he purchased marijuana from Hall at a gas station. On April 27, he called Hall using a borrowed cell phone to buy more marijuana.
(¶17} On April 27, the two men met. According to Banks, when he got inside of Hall's car, Hall brought up a female that they had been talking about the previous day. Banks stated that Hall "was try[ing] to get aggressive" and he believed Hall was trying to fight. Banks then saw Hall grab a gun and point it at his face. Banks grabbed the gun and the two men began "tussling for the gun, " with Banks trying to gain control so that he would not be shot. In the struggle, he pointed the gun down, toward Hall, and Hall was shot. Banks explained that the second shot, which broke the driver's side window, and the third shot, which hit Hall's arm, also occurred during the struggle for the gun. According to Banks, after the third shot, he finally obtained control of the gun and tried to exit the car, while Hall began to drive away. Hall then let Banks out of the car and Banks took the gun with him, since he was afraid of being shot in the back. Banks admitted to putting the gun in the clothes hamper in the apartment where he was found by police.
(¶18} Banks stated that he did not tell police during subsequent interviews that Hall tried to shoot him because he felt that they would "try to turn the situation around on" him. He explained that during the struggle, Hall was the one with his finger on the trigger and Banks did not gain control of the gun until all of the shots had been fired.
(¶19} On July 19, 2012, the jury found Banks guilty of each of the counts as contained in the Indictment. This verdict was memorialized in the trial court's July 20, 2012 Judgment Entry.
(¶20} A sentencing hearing was held in this matter on August 27, 2012. The court found Banks to be a repeat violent offender, pursuant to a stipulation regarding Banks' prior crimes. Banks' counsel argued that Hall facilitated the offense through his participating in using or selling marijuana and by grabbing the gun and allowing Banks no opportunity to withdraw. The court sentenced Banks to eleven years in prison on Count One, six years on Count Two, two years on Count Three, and two years on Count Five. The court also found that Count Three merged with Count Four. The sentences on Counts One and Two were ordered to be served consecutively. The sentences on Counts Three and Five were ordered to be concurrent with each other and the other charges. Banks was also ordered to serve three years on each of the firearm specifications, two of which were ordered to be served concurrently. An additional four-year consecutive term was imposed for the repeat violent offender specification, for a total term of 27 years imprisonment. This sentence was memorialized in an August 29, 2012 Judgment Entry of Sentence.
(¶21} Banks timely appeals and raises the following assignments of error:
(¶22} "[1.] The trial court erred to the prejudice of the defendant-appellant when it returned a verdict of guilty against the manifest weight of the evidence.
(¶23} "[2.] The trial court erred to the prejudice of the defendant-appellant in denying his motion for acquittal made pursuant to Crim.R. 29(A).
(¶24} "[3.] The trial court erred to the prejudice of the defendant-appellant by failing to merge allied offenses of similar import.
(¶25} "[4.] The trial court erred by sentencing the defendant-appellant to a term of imprisonment where its findings were not supported by the record."
(¶26} Since Banks' first and second assignments of error address the sufficiency and manifest weight of the evidence, we will address them jointly.
(¶27} A trial court shall grant a motion for acquittal when there is insufficient evidence to sustain a conviction. Crim.R. 29(A). "'[S]ufficiency is a term of art meaning that legal standard which is applied to determine whether the case may go to the jury, " i.e., "whether the evidence is legally sufficient to support the jury verdict as a matter of law." State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997), quoting Black's Law Dictionary (6 Ed.1990), 1433. In reviewing the sufficiency of the evidence to support a criminal conviction, "[t]he 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. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus.
(¶28} Weight of the evidence, in contrast to its sufficiency, involves "the inclination of the greater amount of credible evidence." (Citation omitted.) (Emphasis deleted.) Thompkins at 387. Whereas the "sufficiency of the evidence is a test of adequacy as to whether the evidence is legally sufficient to support a verdict as a matter of law, * * * weight of the evidence addresses the evidence's effect of inducing belief." (Citation omitted). State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, ¶ 25. "In other words, a reviewing court asks whose evidence is more persuasive - the state's or the defendant's?" Id. The reviewing court must consider all the evidence in the record, the reasonable inferences, and the credibility of the witnesses, to determine whether, "in resolving conflicts in the evidence, the [trier of fact] clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered." (Citation omitted.) Thompkins at 387.
(¶29} "Since there must be sufficient evidence to take a case to the jury, it follows that 'a finding that a conviction is supported by the weight of the evidence necessarily must include a finding of sufficiency.'" (Citation omitted.) (Emphasis sic.) Willoughby v. Wutchiett, 11th Dist. Lake No. 2002-L-165, 2004-Ohio-1177, ¶ 8.
(¶30} In order to convict Banks of Aggravated Robbery, the State was required to prove, beyond a reasonable doubt, that, "in attempting or committing a theft offense, " he had "a deadly weapon on or about [his] person or under [his] control" and that he "either display[ed] the weapon, brandish[ed] it, * * * or use[d] it." R.C. 2911.01(A)(1). To convict Banks of Felonious Assault, the State was required to prove, beyond a reasonable doubt, that he did "knowingly * * * [c]ause or attempt to cause physical harm to another * * * by means of a deadly weapon." R.C. 2903.11(A)(2).
(¶31} Banks argues generally that his convictions were against the manifest weight and sufficiency of the evidence and raises several specific arguments regarding the weight of certain pieces of evidence. First, he argues that Hall was not a credible witness, emphasizing that he changed his story and lied to the police. Hall's credibility relates to each of the charges, since he was the only witness to the shooting and the events that occurred inside of the vehicle.
(¶32} Banks points out that Hall lied about selling marijuana to Banks both previously and at the time of the shooting. Hall did admit to using marijuana, which was consistent with the fact that some was found in his vehicle. However, there was no evidence to show that Hall was selling marijuana on the date of the shooting, other than Banks' testimony. Banks also fails to explain how these facts are relevant to establish how the shooting occurred and whether Banks was responsible.
(¶33} While Banks also asserts that Hall was not credible because he did not initially mention to police that he had been robbed, the recording of the 911 call clearly includes the statement of Hall that "he shot me [and] he robbed me." Detective Michael Bailey also testified that upon responding to ...