Court of Appeals of Ohio, Eighth District, Cuyahoga
Appeal from the Cuyahoga County Court of Common Pleas Case
ATTORNEY FOR APPELLANT Russell S. Bensing
ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga
County Prosecutor BYCarl Mazzone Assistant County Prosecutor
BEFORE: Jones, J., E.A. Gallagher, P.J., and Stewart, J.
JOURNAL ENTRY AND OPINION
A. JONES, SR., J.
Defendant-appellant, Jakwan Lash, appeals his conviction and
sentence for aggravated robbery and kidnapping. For the
reasons that follow, we affirm the conviction and sentence
but the matter is remanded to the trial court to enter a nunc
pro tunc entry setting forth the applicable consecutive
sentence findings made at the sentencing hearing.
Procedural History and Facts
In 2015, Lash was charged with aggravated robbery, robbery,
two counts of kidnapping, petty theft, and tampering with
evidence. The aggravated robbery, robbery, and kidnapping
counts contained one- and three-year firearm specifications
and forfeiture specifications. The matter proceeded to a jury
trial at which the following pertinent evidence was
Lash worked as a sales clerk at AutoZone on Mayfield Road in
Cleveland Heights in 2013 and 2014. As a clerk, his duties
included sweeping and mopping the store floor, tidying up
displays, and taking trash out to the dumpsters, which was
the routine he conducted each night at closing time. He was
familiar with the procedures for operating the cash register,
including where large bills were kept, and what remained in
the registers and store safe at closing time. He also knew
the manager could access about $1, 400 in cash at closing
Kenneth McElrath had been the sales manager at AutoZone since
the store had opened. He had worked with Lash and considered
him a friend. Lash quit Autozone in 2014, but continued to
In early August 2015, Lash, and three friends, Jeremy
Merritt, Alexander Hawkins, and Leontae Jones, began plotting
to rob AutoZone. In the weeks leading up to the robbery, the
four men texted each other to discuss plans to case the
store, transfer the title for the getaway car, purchase
handcuffs, and discuss what to wear during the robbery.
On Sunday, August 16, 2015, shortly before the 9:00 p.m.
closing time, McElrath and store employee Randy Hay began
store closing procedures. Hay, who had worked at the store
for six to eight months, swept and mopped the floor, and then
proceeded to take the trash out to the dumpster. Two men
wearing masks approached Hay as he neared the trash corral.
The men took him inside the corral at gunpoint and one man
held a gun to his neck while the other man bound him with
duct tape, and handcuffed him. The men took Hay's cell
phone and left him. Hay, who testified he was scared for his
life, did not move until police arrived.
Meanwhile, McElrath was alone inside the store when three
customers pulled up in a SUV and entered the store. The
customers told McElrath that they had seen something
happening in the back near the trash corral. McElrath
immediately locked the door with customers inside and called
Officer Robert Butler of the Cleveland Heights Police
Department was the first officer to arrive on scene. He saw
Hay on his knees, handcuffed, and covered with tape. Using
his key, Officer Butler removed the handcuffs and observed
that the serial number on the handcuffs had been scratched
beyond recognition. Officer Butler also saw items discarded
near the trash corral and used his canine partner Rocky to
find a scent. Rocky tracked a scent through the neighborhood
south of the store. The trail went cold in the middle of a
nearby street which, the officer testified, suggested that
the assailants had gotten into a car.
During the same time as the incident at AutoZone was
occurring, a call came into the Cleveland Heights Police
Department for a street fight with guns on Hollister Avenue.
Sergeant David Speece and Officer Lewis Alvis responded to
the street but found the street quiet. This led the officers
to believe the call had been a hoax. The officers then
responded to AutoZone.
Detective Michael Reese and Officer Matthew Lasker processed
the crime scene. Officer Lasker located discarded latex
gloves and additional strips of duct tape on the tree lawn
near the western entrance to the AutoZone parking lot.
Sergeant Speece interviewed the three customers who saw
commotion out by the trash corral and obtained a suspect
description, which he subsequently called out over the radio.
Detective Reese learned that the two men had stolen Hay's
cell phone; the detective requested authorization from
Hay's cell phone provider to track the phone. The
detective traced the phone to Monticello Boulevard and
located a red Chevy Blazer, which was registered to a Jeremy
Merritt at 3808 Delmore. The police effectuated a traffic
stop and identified the driver of the car as Alexander
Officer Alvis canvassed the area south of AutoZone, the same
general area where Rocky had traced a scent. A witness told
Officer Alvis that he had seen a man pacing around a
"beat-up" red Blazer. Alvis took the witness to
Monticello Blvd. and the witness identified Merritt's
Blazer as the same vehicle he had earlier seen.
Detective Reese investigated the 911 call that sent officers
to Hollister Avenue at the same time as the AutoZone robbery.
He traced the 911 call to Brenda Lash, who lived at 3808
Delmore. The police went to conduct surveillance on the
residence and observed two cars, a Monte Carlo and a Lexus,
pull out of the driveway. The cars split off in separate
directions and officers followed the Monte Carlo. Sergeant
Speece set up a roadblock and the Monte Carlo was stopped.
The officers identified Lash as the driver and Jeremy Merritt
as the passenger. Lash told the officers that he was a valid
CCW permit holder and had a weapon in the center console.
During a subsequent search of the Monte Carlo, police
recovered a bag of black latex gloves, which they believed
matched those recovered at the crime scene and later at 3808
Delmore, as well as a black-hooded sweatshirt and a bucket
style hat that matched the description of a hat worn by one
of the assailants.
Officer Lasker pursued the Lexus. The officer stopped the
Lexus and identified the driver as Leontae Jones, who was
also a valid CCW permit holder. The officer recovered a gun
from the car.
Officers went to speak with Brenda Lash, Lash's mother,
who lived at 3808 Delmore with her boyfriend, children
(including Lash), and Jeremy Merritt. She denied placing the
call to 911 for the fight on Hollister, and permitted police
to photograph the call log on her phone. While photographing
the log, police were able to confirm phone numbers for both
Lash and Jeremy Merritt. Brenda then permitted the police to
search her son's bedroom and the basement, where Jeremy
Merritt stayed. Police found a pair of handcuffs with the
serial number scratched off on Lash's bed and a handgun
in Lash's dresser. Brenda testified that the handcuffs
belonged to her 13-year-old son. Police also found a shopping
bag, boxes for two pairs of handcuffs, and handcuff keys in
Detective Reese found two receipts on Lash's person from
AutoZone stores while booking him into the Cleveland Heights
jail. One receipt was from Superior Avenue near East 79
Street in Cleveland and the other was from Euclid Avenue in
East Cleveland. Both receipts were time-stamped the afternoon
of August 16, 2015, the same day as the robbery at the
AutoZone. Both receipts were for the purchase of rolls of
Lash testified at trial. He testified that he had never seen
the handcuffs the police found on his bed. He testified that
the bucket hat located in his car at the time of his arrest
belonged to Leontae Jones, and that just before they left
3808 Delmore and were pulled over by the police, Jones gave
him the hat as partial payment for $30 that Jones owed him.
Lash explained the two AutoZone receipts as follows. He
testified that he and his girlfriend went to the AutoZone on
Superior Avenue to purchase RainEx, but the store was too
crowded so they did not go inside. They then drove to the
store on Euclid Avenue where they bought the RainEx with
cash, but Lash did not have the receipt because he
"probably" left it in his girlfriend's car. He
denied ever purchasing duct tape at those two locations on
August 16, 2015, and explained that Jones gave him the
receipts for the duct tape so Lash could return the duct tape
and keep the cash for fulfillment of the $30 debt.
The jury convicted Lash of all counts, except theft. After
the court determined that the robbery and kidnapping counts
merged, the court sentenced Lash to six years for aggravated
robbery plus three years for the firearm specification
concurrent to six years for kidnapping plus three years for
the firearm specification, and 24 months for tampering with
evidence. The court ran each six year sentence on the
underlying counts concurrent to each other, but consecutive
to the 24 month sentence for tampering with evidence for a
total aggregate sentence of 14 years.
Lash now appeals, raising four assignments of ...