Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-565028
ATTORNEY FOR APPELLANT Joseph Vincent Pagano.
ATTORNEYS FOR APPELLEE Timothy J. McGinty Cuyahoga County Prosecutor, By: Holly Welsh Assistant County Prosecutor The Justice Center.
BEFORE: E.A. Gallagher, J., Stewart, A.J., and Jones, J.
JOURNAL ENTRY AND OPINION
EILEEN A. GALLAGHER, J.
(¶ 1} Antwan Quarterman appeals the judgment of the Cuyahoga County Court of Common Pleas. For the following reasons, we affirm in part, reverse in part and remand for resentencing.
(¶ 2} A true bill indictment was returned against Quarterman charging him with three counts of aggravated robbery, two counts of kidnapping, two counts of felonious assault and one count of petty theft. One- and three-year firearm specifications were attached to each of the felony counts. The case proceeded to a bench trial where the following facts were elicited.
(¶ 3} At approximately 11:00 p.m. on April 11, 2012, Eric Simmons was walking with his sister, Rayn Simmons and, as they passed a bus stop near the intersection of Superior and E. 123, they were approached by two males whom they did not know. The shorter of the two males produced a gun and ordered them to "come here." Eric and Rayn stopped and a struggle ensued when Eric attempted to grab the gun from the gunman. Eventually the two separated and the gunman began to fire the gun at Eric. Eric fled into a dark alley, pursued by the gunman who continued to fire at him. While the gunman was pursuing Eric, his accomplice was robbing Rayn of her purse and phone. The gunman then turned to Rayn and pointed his gun directly at her face to assist in the robbery at that time. Eric emerged from the alley and was shot in his left hip by the gunman. Both robbers then fled the scene.
(¶ 4} Eric suffered nerve damage when the bullet passed through his hip and into his bowels. He was hospitalized for twenty-seven days.
(¶5} In May 2012, police showed to Eric and Rayn photo arrays but they were unable to identify anyone as being involved in the robbery. Eric and Rayn viewed photo arrays again in July 2012, and both identified appellant as being involved in the robbery.
(¶ 6} At trial Eric testified that appellant was not the gunman but was the man who was robbing his sister while he was being shot. Eric admitted however, that he did not get a good look at the robber. Rayn identified appellant as the gunman and testified that she remembered his facial features, particularly his eyes and eyebrows. Rayn testified that in selecting appellant from a police photo array she indicated that she was only 60% certain of the identification because the appellant's hair in the photograph was different from the night of the robbery.
(¶ 7} At the conclusion of trial, appellant made a motion for acquittal as to all counts, pursuant to Crim.R. 29. The trial court denied the motion.
(¶ 8} At sentencing, the trial court merged several of the charges as allied offenses of similar import. The aggravated robbery, kidnapping and petty theft relating to Rayn were merged. The aggravated robbery and kidnapping charges relating to Eric were merged. Finally the two felonious assault charges relating to Eric were merged. The state elected to proceed to sentencing on the two aggravated robbery charges associated with Eric and Rayn and the felonious assault in violation of R.C. 2903.11(A)(2). The trial court imposed prison terms of four years for each of the aggravated robbery charges along with three years on the firearm specifications attached to both counts. The trial court imposed a prison term of eight years on the felonious assault conviction in addition to three years on the attached firearm specification. The trial court merged all firearm specifications for the purpose of sentencing. Finally, the trial court ordered that the four year prison term for each aggravated robbery conviction be served consecutive to one another but concurrent to the eight year sentence for felonious assault, for a cumulative prison term of 11 years.
(¶ 9} Appellant's four assignments of error are as follows:
Assignment of Error I
The trial court erred when it denied appellant's motion for acquittal under Crim.R. 29 because the state failed to present sufficient evidence to establish beyond a reasonable doubt the elements necessary to support the convictions.
Assignment of Error II
Appellant's convictions are against the manifest weight of the evidence.
Assignment of Error III
The admission of the unauthenticated pretrial photographic array identification evidence at appellant's trial was plain error or the result of ineffective assistance of counsel in violation of appellant's state and constitutional rights.
Assignment of Error IV
Appellant's sentence is contrary to law and an abuse ...