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State v. Lee

Court of Appeals of Ohio, First District, Hamilton

August 30, 2017

STATE OF OHIO, Plaintiff-Appellee,
v.
LAMONT FERNANDO LEE, Defendant-Appellant.

         Criminal Appeal From: Hamilton County Court of Common Pleas No. B-1406069

          Joseph T. Deters, Hamilton County Prosecuting Attorney, and Judith Anton Lapp, Assistant Prosecuting Attorney, for Plaintiff-Appellee,

          The Farrish Law Firm and Michaela M. Stagnaro, for Defendant-Appellant.

          OPINION

          PER CURIAM.

         {¶1} Following a jury trial, defendant-appellant Lamont Fernando Lee was found guilty of aggravated robbery and robbery. The trial court merged the robbery charge with the aggravated-robbery charge and sentenced Lee to eight years. This appeal followed.

         I. Background Facts

         {¶2} Jeremiah Anderson and his wife responded to a Craigslist ad selling two iPhones. They agreed to meet the seller at an address on Bluelark Drive in Colerain. Anderson drove with his family to the address and got out of his truck. His stepdaughter, T.T., watched from the back seat on the driver's side. Two young men approached Anderson and one pulled out a gun. He shoved the gun into Anderson's groin area and demanded money. Anderson gave them the cash he had brought for the iPhones, and then the two assailants ran into a wooded area behind a nearby house. Anderson instructed his wife to dial 911. He and his family met the police to complete a police report. Then, Anderson started driving around the neighborhood slowly, and T.T. saw one of the robbers wearing different clothing in a nearby park. Anderson drove by the park again to make sure and called the police. Anderson met the police at a nearby store.

         {¶3} The police brought two suspects to the store separately. Anderson stated that the first suspect was not involved. Both Anderson and T.T. identified the second suspect as one of the robbers. That suspect was Lamont Lee. Officer Eric Renner read Lee his Miranda rights and collected two cell phones in Lee's possession. Officer Renner gave those phones to Detective David Hubbard.

         {¶4} Detective Hubbard interviewed Lee later that day. After obtaining a search warrant for the contents, Detective Hubbard recovered photos of a green iPhone 5C from Lee's phone. He testified that the scratches on the phone in the photo on Lee's phone matched the phone depicted in the Craigslist ad, except for a small mark on the photo that did not appear on the Craigslist phone. Detective Hubbard also found a photo of an unidentified man holding a handgun. Anderson testified that this gun looked similar to the gun used in the robbery. Additionally, Detective Hubbard located a note that had been saved approximately two hours before the robbery. The note appeared to be rap lyrics about robbery and needing money.

         {¶5} Lee was indicted in October 2014 for a violation of R.C. 2911.01(A)(1), aggravated robbery, with gun specifications, and for a violation of R.C. 2911.02(A)(2), robbery. Lee's case proceeded to a jury trial in October 2015. At the conclusion of the trial, the jury found Lee guilty of robbery and aggravated robbery, but found he did not have or use a firearm in the commission of the aggravated robbery. The court merged the robbery count with the aggravated-robbery count and imposed an eight-year prison sentence. Lee now appeals.

         II. The Prosecutor's Use of Irrelevant and Prejudicial Evidence

         {¶6} In his first assignment of error, Lee argues that the trial court improperly admitted a photo and a note from Lee's phone. The photo contained an unidentified individual holding a gun taken on an unidentified date. The note was typed into the "Notes" section of the phone about two hours before Anderson was robbed and included statements about trying to get money and looking in someone's pockets or wallet.

         {¶7} Lee first argues that the photograph and rap lyrics lacked probative value. He claims that, even though the photograph was found in his phone, there was no evidence that he had taken the photograph, the person in the photograph was never identified, the gun was never identified as the weapon used in the robbery, and the detective had admitted that the rap song was not evidence of Lee's guilt in the robbery. Lee further claims any probative value this evidence carried was substantially outweighed by the risk of unfair prejudice and inadmissible "other acts" evidence. See Evid.R. 403 and 404(B).

         {¶8} "The admission or exclusion of relevant evidence rests within the sound discretion of the trial judge." State v. Powell, 132 Ohio St.3d 233, 2012-Ohio-2577, 971 N.E.2d 865, ¶ 108. An appellate court should not disturb a trial court's decision to admit evidence unless it has clearly abused its discretion and the defendant has been materially prejudiced as a result. State v. Obermiller, 147 Ohio St.3d 175, 2016-Ohio-1594, 63 N.E.3d 93, ¶ 61, quoting State v. Issa, 93 Ohio St.3d 49, 64, 752 N.E.2d 904 (2001). An abuse of discretion constitutes more than a mere error of law or judgment; instead, it means that a trial court's decision was unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).

         {¶9} Relevant evidence is "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Evid.R. 401. Here, the assistant prosecuting attorney asked whether the gun in the photo looked similar to the gun used in the robbery, and Anderson said it did. Immediately before entering that photo, the assistant prosecuting attorney admitted a different photo depicting Lee's accomplice, Caronta Lackey, holding a gun. Anderson testified that that photo appeared to have been taken in the same location as the robbery and included the same gun. The assistant prosecuting attorney then used that testimony to highlight the fact that it was Lee, not Lackey, who had actually used the gun during the robbery. Although the photo of the unidentified man may have had limited probative value, in conjunction with the first photo and witness testimony, it tended to lend credibility to the assistant prosecuting attorney's theory that Lee had access to a gun and possessed a gun during the robbery.

         {¶10} Detective Hubbard testified that Lee's phone contained a note seemingly containing rap lyrics, which he read aloud during direct examination. The note included several references to robbery and needing to get money. Detective Hubbard stated that the note was dated October 25, 2014, at 3:45 p.m. After Detective Hubbard read the note to the jury, the assistant prosecuting attorney clarified that the note had been created within two hours before Anderson was robbed. The subject of the note and its temporal proximity to Anderson's robbery is sufficient to demonstrate its probative value.

         {¶11} Lee next argues that the photo and note were unfairly prejudicial. Relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury. Evid.R. 403. The trial court is vested with broad discretion when weighing evidence under Evid.R. 403. State v. Lang, 129 Ohio St.3d 512, 2011-Ohio-4215, 954 N.E.2d 596, ¶ 87. "A reviewing court will not interfere absent a clear abuse of that discretion." State v. Bethel, 110 Ohio St.3d 416, 2006-Ohio-4853, 854 N.E.2d 150, ¶ 171.

         {¶12} "Logically, all evidence presented by a prosecutor is prejudicial, but not all evidence unfairly prejudices a defendant." State v. Wright, 48 Ohio St.3d 5, 8, 548 N.E.2d 923 (1990). Relevant evidence may be excluded only when the risk of unfair prejudice, confusion of the issues, or misleading the jury substantially outweighs its probative value. Evid.R. 403. Lee argues that the only purpose the photo could have had was to demonstrate that Lee may have associated with individuals who possessed guns and to imply that Lee committed this robbery because he had a photo of someone with a gun on his phone. But at no point did the assistant prosecuting attorney suggest that that is what the photo demonstrates. The photo was found on Lee's personal cellphone, and Anderson stated that the gun looked similar to the gun Lee had used to rob him. Lee contends that the note was prejudicial because it used the word "rob, " which the assistant prosecuting attorney used to show that Lee wanted to commit a robbery that day. However, the very nature of the prejudice of which Lee complains-his potential motive-is the same as its probative value.

         {¶13} After reviewing the disputed evidence and the record, we cannot say that the trial court's decision to admit the photo and note was arbitrary, unreasonable, or unconscionable.

         {¶14} Lee also asserts that the photo and note constitute improper "other acts" evidence. See Evid.R. 404(B). However, he did not object to the note at all and thus did not object to the photo on that basis. He has therefore forfeited all but plain error on appeal. See Crim.R. 52(B); State v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, ¶ 22-23. Lee does not explain how this evidence constitutes impermissible "other acts" evidence. He has therefore failed to meet his burden to demonstrate error, let alone plain error.

         {¶15} We overrule the first ...


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