Criminal Appeal from the Lake County Court of Common Pleas. Case No. 12 CR 000311.
Charles E. Coulson, Lake County Prosecutor, and Karen A. Sheppert, Assistant Prosecutor, 105 Main Street, P.O. Box 490, Painesville, OH 44077 (For Plaintiff-Appellee).
R. Paul LaPlante, Lake County Public Defender, and Vanessa R. Clapp, Assistant Public Defender, 125 East Erie Street, Painesville, OH 44077 (For Defendant-Appellant).
TIMOTHY P. CANNON, P.J.
(¶1} Appellant, Jeremy P. Tackett, appeals the judgment of conviction entered by the Lake County Court of Common Pleas, following a jury trial, on one count of aggravated robbery, one count of kidnapping, and one count of theft of drugs, each with firearm specifications. Appellant claims the trial court erred when it failed to grant a motion for a mistrial on the basis of impermissible "other acts" testimony and when it failed to deliver a cautionary instruction concerning the calling of a witness as a court's witness. Appellant further contends the verdict is against the manifest weight of the evidence. Finally, appellant argues the crimes of aggravated robbery and kidnapping are allied offenses of similar import which should have merged for the purposes of sentencing. For the following reasons, the judgment is affirmed.
(¶2} Appellant was indicted on one count of aggravated robbery, a first-degree felony in violation of R.C. 2911.01(A)(1); one count of kidnapping, a first-degree felony in violation of R.C. 2905.01(A)(2); and one count of theft of drugs, a fourth-degree felony in violation of R.C. 2913.02(A)(4). Each count contained a firearm specification pursuant to R.C. 2941.145. The matter proceeded to a jury trial where the following facts were adduced through testimony.
(¶3} Appellant, a tattoo artist, agreed to give the victim a tattoo. The victim, who lived with his aunt, arranged for appellant to come to his aunt's private residence to work on the tattoo. The victim did not have any money for the tattoo, but informed appellant he was anticipating cash gifts for his upcoming birthday. The pair agreed that the victim would subsequently tender payment once he received the cash gifts.
(¶4} Thus, on April 18, 2012, appellant and his girlfriend, Angela Prince, went to the residence to initiate the transaction, arriving in Ms. Prince's automobile, a Pontiac G5 sedan. Upon arrival, appellant explained he did not have his equipment, and the tattoo would need to be given at another location. The victim was reluctant to leave his home as he was confined to a wheelchair, having previously broken both his legs and ankles after unsuccessfully attempting a back flip on St. Patrick's Day. Nonetheless, the victim acquiesced and was lifted into the driver-side backseat of Ms. Prince's sedan. Appellant explained that the automobile did not have enough room for the wheelchair; thus, the wheelchair was not brought into the car, leaving the victim completely incapacitated.
(¶5} Testimony differs at this point. The victim testified that, as the trio started en route to appellant's residence, appellant initiated a conversation concerning the victim's injuries and whether he had been taking any pain medication. The victim confirmed that he had just been to the pharmacy earlier in the day to refill his prescription and had about 80 pain pills on his person. The victim's prescription and his receipt, dated April 18, 2012, were admitted into evidence. The victim testified that he kept these pills in his backpack or on his person on a consistent basis because he did not trust leaving them out at his aunt's house. Appellant asked to examine the pills, and the victim complied. Appellant suggested that the victim immediately tender payment for the tattoo with some of the pain pills. The victim explained this method of payment was unacceptable because he needed the pills for the immense pain in his legs.
(¶6} According to the victim, appellant directed Ms. Prince to turn around and pull over into a nearby abandoned gravel lot. Ms. Prince obeyed, pulled into the lot, and turned off the vehicle according to appellant's instruction. The victim testified that appellant turned around, brandished a firearm, and demanded his cellular phone. After appellant assured the victim that it was not a prank, the victim complied with the demand and turned over his phone. The victim testified that appellant then dragged him from the back of the automobile to the middle of the gravel lot and then left with his pills and cell phone. The victim testified he painfully trudged to a nearby roadway, eventually flagging down two cyclists who dialed 9-1-1. The 9-1-1 tape was played for the jury and admitted into evidence. On the tape, the victim detailed the above-framed narrative and informed the operator that appellant was the perpetrator.
(¶7} Appellant took the stand to offer a different version of events. According to appellant, the victim revealed himself to be a drug dealer who was attempting to sell pain pills and, at some point, brandished a box cutter while in the automobile. Appellant explained he was so upset with the victim's audacious behavior that he ejected him from the automobile. Appellant's girlfriend, Ms. Prince, testified in a similar fashion, though was impeached by her prior statements to police and her prior grand jury testimony.
(¶8} The jury returned a guilty verdict on all counts. The trial court merged the aggravated robbery and theft of drugs convictions, and sentenced appellant to an aggregate of 10 years in prison: four years for aggravated robbery and four years for kidnapping, to be served concurrently, plus two consecutive three-year terms for the respective gun charges.
(¶9} Appellant appeals and raises four assignments of error for review by this court. Appellant's first assignment of error states:
The trial court erred to the prejudice of the Defendant-Appellant when it failed to give an instruction to the jury after calling one of the state's witnesses as a court's witness, in violation of the Defendant-Appellant's due process rights and rights to fair trial as guaranteed by the Sixth and Fourteenth Amendments to the ...