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State v. Gordon

Court of Appeals of Ohio, Fifth District, Stark

December 29, 2017

STATE OF OHIO Plaintiff-Appellee
v.
TROY ANTHONY GORDON Defendant-Appellant

         Criminal appeal from the Stark County Court of Common Pleas, Case No. 2016CR2188(B)

          For Plaintiff-Appellee JOHN FERRERO STARK COUNTY PROSECUTOR

          For Defendant-Appellant DEREK LOWRY 610 MARKET AVENUE NORTH

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

          OPINION

          GWIN, P.J.

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

         Facts and Procedural History

         {¶2} On November 14, 2016, shortly after seven o'clock in the evening, Canton Police Detective Darrell Pierson was working an off-duty job at the Canton Walmart. For such jobs, Pierson would be in uniform, and was assigned for this particular job to stand by the general merchandise doors to handle any problems with customers walking out without paying for merchandise. Walmart had many problems with this kind of theft, and thus Pierson positioned himself by the cash register that was closest to the exit doors.

         {¶3} While working this job, Pierson saw a female identified as Erin Jean Buckley[1] walk down the action alley aisle, which is past the registers, and heading towards the exit doors, avoiding the sensors. Buckley had a large duffel bag on her shoulder, and Pierson could see merchandise inside it. In addition, Buckley was walking briskly. Suspecting a possible shoplifting, Pierson approached Buckley and asked her to come with him. As Buckley made it through the exit doors, however, she turned back, looked at Pierson, and took off running.

         {¶4} Pierson responded by running after Buckley, who headed straight for a green four-door car parked nearby. He could still see the unpaid merchandise inside Buckley's duffel bag as he caught up to her, so he grabbed her arm in order to effect an arrest. Buckley managed to slip out of her coat in trying to get away. Gordon, who was sitting in the front passenger seat of this car, got out, grabbed Pierson's wrist, and attempted to pull the detective's hand off Buckley. In response to this action, Pierson pulled his baton out and ordered Gordon not to interfere and to get back into the car. Due to the distraction, Buckley was able to get into the rear passenger seat of the car. Gordon got into the front passenger seat.

         {¶5} Pierson thought that the car might try to drive away, so he went to the rear of the car to get its license plate number. Going to the front of the vehicle would have put Pierson between the car and another parked ear. As he was reading off the license plate number, Pierson saw the reverse lights of the car go on. Pierson immediately ordered the driver to stop or he would shoot, having drawn his handgun. Pierson heard the driver of the car say that he - Pierson - would not get out of the way. Getting out of the way, Pierson holstered his gun and went to the driver's window with his baton. His repeated orders to stop the car and for all of the occupants to put their hands up were being ignored, so Pierson broke out the driver's window with is baton. During this melee, Pierson also called for backup.

         {¶6} Unbeknownst to Pierson, several bystanders observed this confrontation. George Jordan, a retired Perry Township police officer, went to assist Pierson when he saw the commotion upon leaving the store with his wife. As he approached the car, ready to draw his handgun, Jordan watched as Buckley opened the rear passenger door in an effort to pick up the duffel bag she had dropped when Pierson first grabbed her. Pierson was on the driver's side of the vehicle, trying to get the car to stop. Jordan saw that Pierson's repeated orders were being ignored.

         {¶7} John Bowman was in his electric cart when he saw the commotion involving Pierson and Buckley. He was also leaving the store and was going to get in his van, which was parked nearby in the handicap section. Bowman heard Pierson yell at the people in the car to stop, and saw the detective take out his baton, smashing the driver's window. Bowman estimated that Pierson gave some 30 commands, all of which were ignored. He also saw the car back up and almost hit Pierson, which scared Bowman quite a bit.

         {¶8} Bonnie Davis, the mother of a Canton police officer, was waiting in her parked car in the parking lot for her granddaughter to get off work at Walmart. As she was waiting, she heard the commotion at a car that was three to four feet away from her. She saw Pierson trying to stop the escape of the people in the car, which led to Pierson standing behind the car, gun drawn, ordering them to stop. Fearing for the Pierson's safety, Davis called 9-1 -1 on her cell phone. The car, she testified, could have hit Pierson, as it was initially backing up. While on the phone, she heard Pierson order the driver to put his hands on the wheel, heard glass being broken, and saw the car driving away after a cruiser pulled up and another officer joined the chase.

         {¶9} Canton Police Officer Brian Dougherty responded to the Walmart parking lot in response to Pierson's call for backup. Arriving in his cruiser, the uniformed officer found Pierson, gun drawn, yelling commands at the trio of suspects. Dougherty also drew his gun and barked similar commands at the suspects. Instead of complying, the car backed up and left the scene. Dougherty jumped back in his cruiser and gave chase, lights and siren on, stopping the fleeing vehicle several blocks or miles away. The occupants again did not comply with his orders about putting their hands up and getting out of the vehicle. Once Gordon was pulled out of the vehicle and handcuffed, the other two became more compliant and exited the car without incident.

         {¶10} Detective Pierson remained behind at the Walmart parking lot. Pierson retrieved the duffel bag and had Walmart personnel determine the value of the stolen merchandise. Buckley had attempted to shoplift items totaling a little over $300, mainly female apparel and clothing. Pierson also retrieved the security camera video of Buckley's activities both inside and outside the store.

         {¶11} The three individuals were all charged with one count of aggravated robbery as principal offenders or alternatively as accomplices. The charge arose from the use of their get-away car as a deadly weapon against one of the police officers who was trying to stop these individuals' escape. The other charges included in the indictment were specific to the individual defendants' conduct.

         {¶12} The driver of the car opted to plead guilty on the day of trial, and Buckley opted to plead guilty to the identity theft charge during the trial and her resisting arrest charge was dismissed.

         {¶13} Gordon and Buckley were tried together and the jury found Gordon and Buckley guilty of these offenses. The trial court thereafter sentenced Gordon to an eight-year prison term for the aggravated robbery. The court also sentenced Buckley to an aggregate prison term of eight years.

         Assignments of Error

         {¶14} Gordon raises four assignments of error, {¶15} "I. THE TRIAL COURT ERRED BY ADMITTING EVIDENCE OF AND ARGUMENT ABOUT "OTHER ACTS" PROHIBITED BY EVIDENCE RULE 404.

         {¶16} "II. THE TRIAL COURT ERRED IN ADMITTING THE OPINION TESTIMONY OF WITNESSES.

         {¶17} "III. THE APPELLANT WAS DENIED HIS RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL.

         {¶18} "IV. THE TRIAL COURT'S FINDING OF GUILTY WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AND WAS NOT SUPPORTED BY SUFFICIENT EVIDENCE."

         I.

         {¶19} Gordon argues in his first assignment of error that the trial court committed error in failing to exclude evidence of his post-arrest uncooperative conduct. He claims that the admission of this evidence violated Evid. R. 404(B) and R.C. 2945.59. Gordon did object to the admission of this testimony. 1T. at 216-222; 245.

         STANDARD OF APPELLATE REVIEW.

         {¶20} The trial court has broad discretion in the admission and exclusion of evidence, including evidence of other acts under Evid.R. 404(B). State v. Morris, 132 Ohio St.3d 337, 2012-Ohio-2407, 972 N.E.2d 528, ¶ 22. Unless the trial court has "clearly abused its discretion and the defendant has been materially prejudiced thereby, this court should be slow to interfere" with the exercise of such discretion. State v. Hymore, 9 Ohio St.2d 122, 128, 224 N.E.2d 126 (1967). We have defined "abuse of discretion" as an "unreasonable, arbitrary, or unconscionable use of discretion, or as a view or action that no conscientious judge could honestly have taken." State v. Brady, 119 Ohio St.3d 375, 2008-Ohio-4493, 894 N.E.2d 671, ¶ 23.

         ISSUE FOR APPEAL

         A. Whether the trial court abused its discretion by admitting evidence of Gordon's post-arrest conduct.

         {¶21} Evid.R. 404(A) provides that evidence of a person's character is not admissible to prove the person acted in conformity with that character. Evid.R. 404(B) sets forth an exception to the general rule against admitting evidence of a person's other bad acts. The Rule states as follows: "Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident."

         {¶22} In State v. Williams, 134 Ohio St.3d 521, 983 N.E.2d 1278, 2012-Ohio-5695, the Ohio Supreme Court stated that trial courts should conduct a three-step analysis when considering the issue of "other acts" evidence:

The first step is to consider whether the other acts evidence is relevant to making any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence. Evid.R. 401. The next step is to consider whether evidence of the other crimes, wrongs, or acts is presented to prove the character of the accused in order to show activity in conformity therewith or whether the other acts evidence is presented for a legitimate purpose, such as those stated in Evid.R. 404(B). The third step is to consider whether the probative value of the other acts evidence is substantially outweighed by the danger of unfair prejudice. See Evid.R. 403.

Id. at ¶ 20.

         {¶23} Furthermore, "other acts" evidence is admissible only if there is substantial proof that the alleged other acts were committed by the defendant and such evidence tends to show one of the matters enumerated in Evid.R. 404(B). State v. Wagner, 5th Dist. Licking 03 CA 82, 2004-Ohio-3941, ¶ 43, citing State v. Echols, 128 Ohio App.3d 677, 692, 716 N.E.2d 728 (1st Dist. 1998). This Court has recognized that the Ohio Revised Code does not define "substantial proof in this context. See State v. Burden, 5th Dist. Stark No. 2012-CA-00074, 2013-Ohio-1628, ¶ 58. This Court also summarized as follows in State v. King, 5th Dist. Richland No. 08-CA-335, 2010-Ohio-4844: "We * * * do not believe that the substantial proof requirement necessitates that independent evidence corroborate other acts testimony. Instead, we believe that the substantial proof requirement is satisfied if at least one witness who has direct knowledge of the other act can testify to the other act. The jury may then fulfill its duty and evaluate the witness's testimony and credibility. * * *." Id. at ¶ 45.

         {¶24} In the case at bar, the state did not submit evidence of Gordon's prior acts to show Gordon acted in conformity with his prior behavior. Rather, the evidence was submitted to counter the impression that Gordon was not aware of Buckley's intent to shoplift and the trio's intent to escape apprehension.

         {¶25} In State v. Dunivant, 5th Dist. Stark App. No. 2003CA00175, 2005-Ohio-1497, the Ninth District Court of Appeals, sitting by assignment for this Court, provided a detailed analysis of the issue sub judice:

"Under the rule of curative admissibility, or the 'opening the door' doctrine, the introduction of inadmissible evidence by one party allows an opponent, in the court's discretion, to introduce evidence on the same issue to rebut any false impression that might have resulted from the earlier admission." United States v. Whitworth (C.A.9, 1988), 856 F.2d 1268, 1285. See, also, United States v. Moody (C.A.6, 1967), 371 F.2d 688, 693 ("With the door opened this widely in favor of [defendant], we cannot say that the District Judge's rulings in favor of appellee's proffered hearsay on the same subject was an abuse of judicial discretion or constituted reversible error."); State v. Croom (Jan. 18, 1996), 8th Dist. No. 67135, at *17 ("Invited error would preclude a defense counsel who induces hearsay evidence on cross-examination from precluding further hearsay testimony on re-direct examination.").

Dunivant, ¶12. Accord, State v. Scott, 4th Dist. Washington No. 15CA2, 2015-Ohio-4170, ¶42; State v. Collins, 7th Dist. Columbiana No. 10 CO 10, 2011-Ohio-6365, ¶93.

         {¶26} In this case, Gordon's defense at trial was that he just happened to be in the car without any knowledge of the criminal intent of his friends. Thus, he put his conduct before, during, and after the shoplifting and escape into play. Gordon attempted to save Buckley from the clutches of a uniformed police officer by grabbing Pierson's wrist to get him to let go of Buckley. Once Buckley was able to slip her coat and get into the car, Gordon also got back into the car. The car then went into reverse, despite Pierson standing behind the car with his baton and gun drawn, yelling for them to stay put. The car continued backing up, compelling Pierson to get out of the way and to approach the driver's window. The trio continued to ignore Pierson's repeated commands to put the car in park and not to move, as well as to put their hands in the air. When police finally stopped the car, Gordon continued not to cooperate with police and comply with their orders to raise his hands and get out. This evidence was relevant to show Gordon's state of mind and his allegiance to the cause of his comrades in committing the shoplifting and making their escape from the police. Thus, the evidence was relevant to show Gordon was not some innocent bystander to the shoplifting and the escape.

         {¶27} We cannot conclude that the trial court abused its discretion by allowing the state to elicit evidence in order to rebut the impression that may have resulted from Gordon's arguments. If the state were not permitted to do so, the jury would have been left with the impression that Gordon cooperated with the police at his first available opportunity to do so. We do not find that the trial court's ruling was erroneous. Accordingly, Gordon was not denied of ...


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