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State v. Chandler

Court of Appeals of Ohio, Fifth District, Stark

December 26, 2017

STATE OF OHIO Plaintiff-Appellee

         Criminal appeal from the Stark County Court of Common Pleas, Case No. 2016CR2058A


          For Defendant-Appellant AARON KOVALCHIK

          JUDGES: Hon. W. Scott Gwin, P.J. Hon. William B. Hoffman, J. Hon. Earle E. Wise, J.


          GWIN, P.J.

         {¶1} Appellant Kenyan Chandler ["Chandler] appeals his conviction and sentence after a jury trial in the Stark County Court of Common Pleas.

         Facts and Procedural History

         {¶2} Chandler was indicted on one count of Aggravated Robbery, RC 2911.01(A) with a firearm specification, RC 2941.145. The following evidence was presented during Chandler's jury trial.

         {¶3} Brandie McGowan testified that she was working at the Gameroom, a skilled game center on October 14, 2016 when two men came in the front door with a gun. McGowan testified that one of the men made the people at the Gameroom stay where they were while the other man took her into the office where he shattered the register and took the money. McGowan then testified that the man made her open the safe and he took all the money from the safe. McGowan also testified that a woman who had come into the Gameroom earlier stood out in her mind because the woman had told her she needed help playing the games and the woman received multiple phone calls. McGowan further testified that the Gameroom had a video surveillance system and the video showed that the men who had come into the Gameroom were wearing gloves and their faces were covered. Upon cross-examination, McGowan testified that she did not recognize Chandler and she did not recall seeing him on October 14, 2016.

         {¶4} Officer Chad Kanouff of the Jackson Police Department testified that he was dispatched to the Gameroom on October 14, 2016 in regards to a robbery. Officer Kanouff testified that he met Brandie McGowan and she gave him the name of Shania Summerville as someone he should talk to about his investigation. Officer Kanouff then made contact with Summerville. Summerville denied both verbally and in a written statement that she was involved in the crime or that she was familiar with the robbers. Officer Kanouff asked if he could see the call history on her cell phone. Summerville agreed and Officer Kanouff documented the numbers on his police report. One of the recent numbers was 330-356-xxxx[1] a call Summerville received at approximate 10:08 P.M. that evening. Summerville advised the officers that the cell phone number belonged to her boyfriend, Marshawn Oliver. Officer Kanouff did not process the scene for DNA or fingerprints because the men were wearing masks and gloves and no scientific evidence was likely to be found at the scene.

         {¶5} The next day, Detective Joshua Escola began his investigation. Detective Escola retrieved and reviewed the videos from the Gameroom. Escola observed that there was a significant height and weight difference between the two male perpetrators. Detective Escola also observed that they were wearing dark clothing, masks and gloves, which indicated that they were experienced and made it hard to collect any scientific evidence.

         {¶6} As part of the investigation, Detective Escola typed the cell phone number from Summerville's cell phone call history into the Facebook site. Escola found a Facebook account registered to Chandler with the same cell phone number. Chandler's Facebook account also showed that Summerville was listed as being one of his friends. Detective Escola also discovered that Marshawn Oliver is actually Summerville's family member and not her boyfriend. As a result, Detective Escola attempted to contact Summerville. Initially Detective Escola was unable to contact Summerville because she had given the officers a fake telephone number. Detective Escola then contacted Amber Walters[2]. Walters advised Escola that she knew both Summerville and Chandler. She provided Escola with Summerville's number and verified that 330-356-xxxx was the cell phone number for Chandler. At trial, Walters testified that on October 18, 2017, four days after the robbery, Chandler called Walters and told her the cell phone number was no longer good. Walters also testified that Chandler was on a GPS monitor on the night of the robbery and that the monitor had not been charged. Therefore, Chandler's whereabouts were unsupervised when the robbery occurred.

         {¶7} Escola contacted Summerville who agreed to come to the Jackson Police Department for a second interview. Initially, Summerville denied knowing anything about the robbery. However, after being confronted with the cell phone and Facebook information, Summerville admitted that she was the lookout for the two men at the Gameroom the night of the robbery. Summerville also advised Detective Escola that the man holding the gun in the video was her boyfriend, Kenyan Chandler. Summerville also identified Taronn Jeffries as the other male accomplice. Detective Escola further testified that Jeffries and Chandler's height and weight were consistent with the men in the Gameroom video. Detective Escola placed Summerville under arrest for complicity to commit aggravated robbery.

         {¶8} Summerville was subsequently indicted for a felony five theft, in exchange for her truthful testimony against Chandler. At trial, Summerville testified that in October of 2016 she and her four-year-old son were living with Chandler. She stated that on October 14, 2016, Chandler asked her to scope out the Gameroom. She stated that when she arrived at the Gameroom the owner walked her around and taught her how to play the games. While she was there she received two calls from Chandler asking her who was there including how many men and how many women were present.

         {¶9} At approximately 10:15, she saw Chandler and Jeffries come through the front door of the Gameroom. She admitted that she saw Jeffries take the owner upstairs, while Chandler stayed at the front door holding the patrons at gunpoint. After the men left, she stayed seated until the police arrived. She testified that she told the officers that she did not know anything about the robbery, and gave them a fake name and number. She testified she did agree to let the officers look at the call history on her phone. She then left the Gameroom, picked up her son and went home.

         {¶10} Summerville testified that when Chandlers and Jeffries got to the house they were wearing different clothes. Taronn asked her what she told the police. A couple of days later she got a call from Detective Escola and agreed to meet with him at the Jackson Police Department. Summerville testified that initially she did not tell the truth but later admitted knowing about the robbery and gave Escola the names of the other two men. She stated that because of her confession she was arrested and charged with complicity to commit aggravated robbery.

         {¶11} At the time of trial, Summerville testified that she originally testified to the Grand Jury that she did not know that Chandler and Jeffries were involved with the robbery at the Gameroom until after they got home. She also admitted she told the Grand Jury that she could not recognize them by their voices. Summerville further stated that she gave the police the wrong phone number in order to hide from them.

         {¶12} After the presentation of evidence, Chandler was found guilty as charged in the indictment. Chandler was sentenced to serve a 6-year prison sentence for the aggravated robbery and a 3-year mandatory consecutive sentence for the firearm specification.

         Assignments of Error

         {¶13} Chandler raises four assignments of error, {¶14} "I. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT DID NOT GRANT APPELLANT'S MOTION FOR A CONTINUANCE.





         {¶18} In the first assignment of error, Chandler argues that the trial court abused its discretion when the court denied counsel's request for a continuance to recall Detective Escola as a State's witness who had not been subpoenaed by the defense.

         {¶19} At trial, the state rested after the testimony of Detective Escola had concluded. (1T. at 223). The court subsequently adjourned for the day, after denying Chandler's Criminal Rule 29 motion for acquittal. (1T. at 227). The following morning, defense counsel informed the court that Chandler wished to have Detective Escola recalled; however, the defense did not subpoena the detective. Therefore, the defense requested a continuance in order to procure Detective Escola. When asked by the trial judge the reason for the request, defense counsel replied, "To cross-examine him again about the phone records." (2T. at 232). The trial court denied the motion.


         {¶20} Ordinarily a reviewing court analyzes a denial of a continuance in terms of whether the court has abused its discretion. Ungar v. Sarafite, 376 U.S. 575, 589, 84 S.Ct. 841, 11 L.Ed.2d 921(1964). If, however, the denial of a continuance is directly linked to the deprivation of a specific constitutional right, some courts analyze the denial in terms of whether there has been a denial of due process. Bennett v. Scroggy, 793 F.2d 772 (6th Cir 1986). A defendant has an absolute right to prepare an adequate defense under the Sixth Amendment of the United States Constitution and a right to due process under the Fifth and Fourteenth Amendments. United States v. Crossley, 224 F.3d 847, 854(6th Cir. 2000). The United States Supreme Court has recognized that the right to offer the testimony of witnesses and compel their attendance is constitutionally protected. Washington v. Texas, 388 U.S. 14, 19, 87 S.Ct. 1920, 1923, 18 L.Ed.2d 1019(1967). The Ohio Supreme Court recognized that the right to present a witness to establish a defense is a fundamental element of due process of law. Lakewood v. Papadelis, 32 Ohio St.3d 1, 4-5, 511 N.E.2d 1138(1987). A trial court's failure to grant a continuance to enable a defendant to exercise his constitutionally protected right to offer the testimony of witnesses and compel their attendance may, in some circumstances, constitute a denial of due process. Mackey v. Dutton, 217 F.3d 399, 408(6th Cir 2000); Bennett v. Scroggy, supra, 793 F.2d at 774. See also, State v. Wheat, 5th Dist. Licking No. 2003-CA-00057, 2004-Ohio-2088 at ¶ 16.

         {¶21} Among the factors to be considered by the court in determining whether the continuance was properly denied are: (1) the length of the requested delay, (2) whether other continuances had been requested and granted, (3) the convenience or inconvenience to the parties, witnesses, counsel and court, (4) whether the delay was for legitimate reasons or whether it was "dilatory, purposeful or contrived", (5) whether the defendant contributed to the circumstances giving rise to the request, (6) whether denying the continuance will result in an identifiable prejudice to the defendant's case, and (7) the complexity of the case. Powell v. Collins, 332 F.3d 376, 396(6th Cir 2003); State v. Unger, 67 Ohio St.2d 65, 67-68, 423 N.E.2d 1078(1981), 1080; State v. Wheat, supra at ¶ 17.

         {¶22} On a petition for habeas corpus relief, the federal courts have enumerated a slightly different set of factors that a reviewing court should consider in determining whether an accused was deprived of his rights to compulsory process and due process of law by denial of a motion for continuance: "[1] the diligence of the defense in interviewing witnesses and procuring their testimony within a reasonable time, [2] the specificity with which the defense is able to describe their expected knowledge or testimony, [3] the degree to which such testimony is expected to be favorable to the accused and [4] the unique or cumulative nature of the testimony." Hicks v. Wainwright, 633 F.2d 1146, 1149(5th Cir 1981) (quoting United States v. Uptain, 531 F.2d 1281, 1287(5th Cir 1976); see, also, Bennett v. Scroggy, supra, 793 F.2d at 774; State v. Wheat, supra at ¶ 18.

         No evidence Chandler was prejudiced by the denial.

         {¶23} The record shows that on the day of trial, prior to the presentation of evidence, the state provided the defense with copies of cell phone records. (1T. at 128). The defense moved the court for a continuance of the trial in order to have an opportunity to review the records to see if there was anything of use in the records or if the defense needed to raise an objection. The state explained why the records were being provided at the time of trial. According to the state the records had been subpoenaed, defense was aware of the subpoena and the records had just been received by the state that day.

         {¶24} The trial court ruled that the cell phone records were not admissible in the state's case due to the lateness of the disclosure. However, the trial court gave the defense time to determine if the records contained any exculpatory information. (1T. at 130).

         {¶25} The matter proceeded to trial. Detective Escola testified. No cell phone records were discussed or introduced during his direct testimony. On cross-examination, the defense questioned the officer about the cell phone records and how cell phone calls are triangulated. The officer testified that triangulation is a complicated process wherein cell phone calls are picked up by nearby cell phone towers and then are evaluated for overlap. The overlapping of signals from several cell phone towers helps law enforcement determine the location of a particular cell phone at the time the call was made. Detective Escola testified that in this case, the cell phone signal from Chandler's phone was only picked up by one tower in Massillon, which is located at Beaumont Avenue NW. The tower is located five miles from the Gameroom. (1T. at 186-187). Detective Escola further testified that because the call was only picked up by one tower, the cell phone information was not helpful in triangulating the exact location of Chandler's cell phone on the night in question. (1T. at 188). Detective Escola stated that he ...

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