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State v. Lowe

Court of Appeals of Ohio, Eighth District

September 12, 2013

STATE OF OHIO PLAINTIFF-APPELLEE
v.
ANTHONY LOWE DEFENDANT-APPELLANT

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-565293

ATTORNEY FOR APPELLANT Thomas A. Rein

ATTORNEYS FOR APPELLEE Timothy J. McGinty Cuyahoga County Prosecutor BY: Edward Fadel Daniel T. Van Assistant Prosecuting Attorneys

ALSO LISTED Anthony Lowe Inmate No. 632-723 Belmont Correctional Institution

BEFORE: Boyle, P.J., Rocco, J., and E.A. Gallagher, J.

JOURNAL ENTRY AND OPINION

MARY J. BOYLE, PRESIDING JUDGE

(¶ 1} Appellant, Anthony Lowe, appeals his conviction for kidnapping. Through counsel, he argues that the kidnapping conviction cannot stand where he was found not guilty of felonious assault and that the conviction is not supported by sufficient evidence and is against the manifest weight of the evidence. In addition, appellant individually argues that he was denied appropriate jail-time credit and was deprived of effective assistance of counsel. Finding no merit to his appeal, we affirm.

Procedural and Factual Background

(¶2} On August 9, 2012, appellant was indicted on one count of felonious assault in violation of R.C. 2903.11(A)(2) and one count of kidnapping in violation of R.C. 2905.01(A)(2). A jury trial commenced on October 9, 2012. At trial, Mahmoud Shouman and Brittany Sherrod testified to substantially the same events. In the early morning hours of July 26, 2012, after stopping for coffee, Brittany was on her way back to her house on Governor Avenue with her boyfriend, Mahmoud. They intended to go back to Brittany's house and watch a movie. After the two pulled into the drive and exited the car, a green Ford Crown Victoria pulled in behind Mahmoud's vehicle. It was approximately 2:30 a.m., and the car was playing loud music with the windows down. Brittany testified that she approached the car and recognized appellant as the driver. She asked him to leave. The two had a prior relationship that included sexual activity, but Brittany classified appellant as an "associate." The two got into an argument, and appellant hit Brittany hard in the legs with his car door. He then exited the vehicle with a beer bottle in his hand. Brittany testified that appellant was obviously intoxicated and incoherent. She continued to tell him to leave. He then knocked a coffee cup out of her hand, spilling hot coffee on her, and then punched her in the head. Mahmoud attempted to intervene but was prevented because appellant's car with its open door blocked the driveway opening between the two houses. Brittany was reeling against the inside of the open car door after being punched. She testified that appellant then broke the beer bottle and, while holding the jagged broken bottle in his hand, pointed it at Mahmoud and said he would cut Mahmoud.

(¶ 3} Brittany testified appellant then focused on her and swung the broken bottle at her. She grabbed at his hand and sustained a cut to her own hand between her thumb and index finger. She managed to grab his hand and cause him to fall backward into the car, cutting himself with the bottle. He then grabbed Brittany by the shirt, pulled her toward the car, and put the still-running car in reverse. He quickly backed the vehicle out of the driveway and down the street while still holding Brittany by her shirt. She was caught in between the door and the passenger compartment. The door struck her legs, and she tried to hang onto the roof of the car and place her feet on the sill of the doorway. Appellant backed down the road the length of approximately two houses, then put the car in drive and "floored it." Brittany could not break free because appellant was gripping her shirt. She managed to hang onto the roof for approximately the length of three houses before her shirt ripped and she tumbled onto the brick street. Shortly after the incident, Brittany called 911, and Cleveland police officers timely responded.

(¶ 4} Brittany testified that she sustained serious injuries as a result of the incident. She hit her head on the street and blacked out. She also had several bruises and scrapes on her legs, back, and arms, and a laceration on her hand. She sought medical treatment and was prescribed pain medication and advised to follow-up if she experienced dizziness or other signs of a concussion.

(¶5} Appellant also called 911 and reported that he had been stabbed. EMS responded to his house on Elsienna Avenue, but he was uncooperative. Police were then dispatched to assist EMS. On arriving, Cleveland police officer John Halkiadakis noticed a green Ford Crown Victoria in appellant's driveway. He had received a radio broadcast from Officer James Zak about such a car. Officer Zak had responded to Brittany's 911 call and put out a description of the suspect involved in Brittany's assault. This included a physical description of appellant and the description of the green car. Officer Halkiadakis assisted the EMS personnel in transporting appellant to the hospital and radioed Officer Zak to report to the hospital to speak to appellant.

(¶ 6} Officer Zak testified that he attempted to talk to appellant, but he was combative and had to be restrained. Appellant was incoherent, spit on a nurse, and assaulted a security guard. Appellant was restrained by police and did not relay how he came to be stabbed. After Officer Zak confirmed the identity of appellant as Brittany's assailant, appellant was arrested.

(¶ 7} After these police officers testified, as well as investigating detective Sean Richardson, and the state rested, appellant called one witness to testify about the severity of his injuries — one large, circular cut to his side and one slice on his forearm. Appellant then rested and requested that the charges be dismissed on his Crim.R. 29 motion. On October 12, 2012, the jury found appellant not guilty of felonious assault but guilty of kidnapping. The trial court then set sentencing for October 18, 2012.

(¶ 8} Appellant was sentenced to a prison term of four years for kidnapping. The court stated that credit for time served in jail awaiting trial would only apply to the community control violation sentence in Cuyahoga C.P. No. CR-539425 (Dec. 13, 2010). Fines and costs were waived, and appellant perfected a timely appeal.

(ΒΆ 9} Appellate counsel filed a brief asserting three errors, and this court granted leave for appellant to separately file a pro se ...


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