Criminal Appeal from the Ashtabula County Court of Common Pleas, Case No. 2012 CR 080.
Thomas L Sartini, Ashtabula County Prosecutor, and Shelley M. Pratt, Assistant Prosecutor, Ashtabula (For Plaintiff-Appellee).
Judith M. Kowalski, (For Defendant-Appellant).
CYNTHIA WESTCOTT RICE, J.
(¶1} This appeal is from the sentencing judgment in a criminal action before the Ashtabula County Court of Common Pleas. Appellant, Nathaniel J. Grega, contests the merits of his conviction and sentence on charges of robbery and petty theft. In addition to challenging the state's evidence, appellant claims that he was denied a fair trial as a result of certain procedural errors.
(¶2} The case against appellant was based upon an alleged shoplifting incident at a Super K-Mart store in the City of Ashtabula, Ohio. The incident took place shortly before 1:00 p.m. on Friday, January 20, 2012. At that particular time, three members of the store's loss prevention staff were on duty: Manager Melody Rayel, David Hamilton, and Jessica Harchalk. Immediately prior to the incident, Hamilton and Harchalk were watching a monitor for the store's closed-circuited television system. This monitor received video from various cameras stationed throughout the store and was located in a private office near the front of the building. Rayel was performing other duties in her own office nearby.
(¶3} While watching the monitor, Hamilton noticed a white male engaging in suspicious behavior in the electronics department. The suspect appeared to be in his early thirties, wore a black leather jacket, and had brown hair with a receding hair line. Hamilton saw the suspect rapidly select a number of movie DVDs, two of which were identical. The suspect then placed the DVDs into a shopping basket and placed a bag of Doritos over them.
(¶4} Hamilton immediately informed Rayel and Harchalk of the situation. After obtaining a description of the suspect, Rayel left the "office" area and quickly attempted to locate the suspect in the store. Hamilton asked Harchalk to continue to observe the suspect's movements on the closed-circuit monitor so that he could go clock-in.
(¶5} Over the monitor, Harchalk watched the suspect exit the electronics area with the shopping basket, walk through the "party supplies" department, and eventually go into the "hardware" area. During this period, Harchalk could not see the suspect at all times due to the positions of the cameras. When the suspect left hardware, Harchalk noticed that he no longer had the basket and did not have any items in his hands.
(¶6} Rayel was able to locate the suspect before he exited the electronics area. Rather than confronting the suspect immediately, Rayel discreetly followed him into the "party supplies" department where she observed him placing some of the DVDs into his jacket. Upon following him to hardware, Rayel saw him place the remainder of the DVDs into his jacket and discard the shopping basket. According to Rayel, the suspect never left her eyesight during this period.
(¶7} Upon leaving hardware, the shoplifting suspect walked toward one of the primary exits to the store. As Rayel continued to "shadow" the suspect, she noticed that he never went to an available cashier so that he could pay for the DVDs. As a result, after the suspect went through the first set of automatic doors, Rayel stepped in front of him, identified herself as a member of store security, and asked him to accompany her back into the store. In response, the suspect grabbed Rayel by the shoulders, lifted her up into the air, moving her to where she was no longer blocking the second set of doors. Once he had released Rayel from his grasp, the suspect ran through the last set of doors into an adjoining mall.
(¶8} Hamilton walked through the store and saw the suspect as he walked toward the first set of exit doors. Hamilton observed the confrontation between Rayel and the suspect. When the suspect went through the second set of doors and Rayel was unable to follow, Hamilton began to chase after the suspect through the mall, yelling for him to stop. As the suspect was running, some of the DVDs fell from his jacket. Hamilton decided to give up the chase when the suspect ran by a kids' playground area in the mall. However, he was able to recover the three DVDs which the suspect had lost during the chase.
(¶9} Once the incident had ended, Harchalk contacted the Ashtabula County Sheriffs Department on behalf of the store. As part of the ensuing investigation, Deputy Ted Barger reviewed a tape of the video feed that Hamilton and Harchalk saw while the incident was occurring. When the store employees were able to stop the tape at a point which clearly showed the suspect's entire face, Deputy Barger took a still photograph of the image on his cell phone. In an effort to identify the suspect, he showed the picture to other deputies who worked the same shift. Deputy Jay Thomas was able to identify appellant as the shoplifting suspect based upon the fact that appellant was an inmate at the county jail while the deputy had worked there the previous summer.
(¶10} Appellant was indicted on charges of robbery and petty theft. Under the robbery count, appellant was initially charged with a violation of R.C. 2911.02(A)(2), a felony of the second degree. The indictment alleged that while fleeing immediately after the commission of a theft crime, appellant inflicted, or attempted to inflict, physical harm upon Melody Rayel when she tried to stop him at the store exit.
(¶11} At the close of the evidence at trial, the state moved the trial court to also instruct the jury on the offense of robbery under R.C. 2911.02(A)(3), a felony of the third degree. Pursuant to subsection (A)(3), a person can be found guilty of robbery if, while fleeing immediately after the commission of a theft crime, he uses or threatens the use of force. The state argued that robbery under R.C. 2911.02(A)(3) is a lesser included offense of robbery under 2911.02(A)(2). The trial court rejected the state's argument, but also held that the state's evidence was more relevant to the elements of the offense under subsection (A)(3) than the offense under subsection (A)(2). As a result, the court ordered that the state would be allowed to amend the first count of the indictment to the offense of robbery under R.C. 2011.02(A)(3).
(¶12} The state's trial witnesses consisted of the three Super K-Mart employees, Deputy Barger, and Deputy Thomas. As part of her testimony, Melody Rayel identified appellant as the individual whom she saw placing the DVDs inside his jacket without paying for them and then picking her up by the shoulders when she tried to stop him at the store exit. Rayel further testified that appellant twisted her back in picking her up but that the pain she experienced was minimal and that she did not miss any work as a consequence of her injury. In addition, the state submitted into evidence a copy of the store surveillance tape of the incident.
(¶13} In attempting to establish an alibi defense, appellant relied solely upon the testimony of Sellers Judkins, a worker at the Harvest Church Soup Kitchen in the City of Ashtabula. Judkins stated that on the date of the shoplifting incident, he worked at the soup kitchen/food pantry from 11:30 a.m. to 1:30 p.m. He further stated that his job that day was to hand out food boxes and that he could recall giving a food box to appellant. Moreover, it was shown that appellant's name was on a food pantry "sign-in" sheet for that day. However, during cross-examination, Judkins indicated that the distribution of the food boxes on that day was completed by 12:00 p.m.
(¶14} After deliberating for less than one hour, the jury found appellant guilty of robbery, as amended, and petty theft. Upon accepting the jury verdict and conducting a separate sentencing proceeding, the trial court sentenced him to two concurrent terms of thirty-six months and six months on the respective charges.
(¶15} In appealing his conviction and sentence, appellant raises six assignments of error for consideration:
(¶16} " The defendant was denied the effective assistance of counsel, by reason of the fact that his trial counsel failed to excuse or challenge a juror whose family member worked at the store which the defendant was accused of robbing.
(¶17} "[2.] The defendant was denied the effective assistance of counsel by reason of the fact that his attorney failed to object to testimony regarding the [defendant's] criminal history, which was highly prejudicial and impermissible under the rules of evidence.
(¶18} "[3.] The trial court erred to the prejudice of the [defendant] by allowing impermissible testimony regarding prior crimes, wrongs or acts, in violation of Evidence Rule 404(B)."
(¶19} "[4.] The trial court erred to the prejudice of the [defendant] by not finding that robbery and theft are allied offenses of similar import, and by sentencing him ...