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State v. Jones

Court of Appeals of Ohio, First District, Hamilton

March 28, 2018

STATE OF OHIO, Plaintiff-Appellee,
AARON JONES, Defendant-Appellant.

          Criminal Appeal From Hamilton County Court of Common Pleas TRIAL NO. B-1405713

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

          Raymond T. Faller, Hamilton County Public Defender, and Joshua A. Thompson, Assistant Public Defender, for Defendant-Appellant.


          Mock, Presiding Judge.

         {¶1} An armed individual robbed a Sunoco store at the corner of Salem Road and Sutton Avenue in Anderson Township. He took money from the cash register and a carton of cigarettes. The gunman fled from the store, running north up Sutton Avenue. The employee, Dilbag Dilbag, testified that the gunman was five feet five inches tall, but also testified that he had stood on a platform behind the counter, so he did not know exactly how tall the gunman was. A deputy later measured the platform and determined that it was six inches high. Dilbag's testimony, and security footage from the store, demonstrated that the gunman had been wearing a white and blue hoodie, dark pants, and something red covering his face. A police dog that was brought to the scene was able to pick up the trail of the gunman, which stopped at a fence behind a nearby apartment complex.

         {¶2} After conducting the initial investigation, detectives created a wanted flyer using an image captured from the security camera. They subsequently received a Crime Stoppers tip that led them to a Subway restaurant in Mt. Washington. When the detectives arrived, they were greeted by Jennifer Hensley, the manager, who told them that she was the one who had called. She indicated that a man fitting the description had been in her store earlier on the day of the robbery. Surveillance video from the Subway revealed an individual wearing the same clothing as the gunman. The individual was seen passing the store several times, then talking to an employee. After talking to the employee, detectives were directed to the apartment of Derek Lastoria.

         {¶3} Derek Lastoria lived in an apartment complex a short distance from the location where the dog had lost the gunman's scent on Sutton Avenue. On the night of the robbery, he had seen Jones sitting on the front steps of his apartment building with Lastoria's sister, Brittany Lovell. Lovell and Jones were arguing, with Jones accusing Lovell of taking a "fist full of 20s" from a grocery bag. Jones had told Lastoria that he had "hit a lick, " admitting that he had just robbed the Sunoco. Jones also told Lastoria that he had gotten money and cigarettes, and showed him the gun he had used.

         {¶4} The next day, Lovell called the police. When detectives arrived, she showed them the cigarettes and empty carton that Jones had taken from the store. They also found a sweatshirt behind the apartment building that matched the one worn by the gunman.

         {¶5} Jones turned himself in to detectives three days after the robbery. Detectives showed him a picture captured from the Subway video, and Jones admitted that he was the one in the picture. He was arrested and subsequently indicted on one count of aggravated robbery with specifications, one count of robbery with specifications, and one count of having a weapon while under a disability. After his original jury trial resulted in a hung jury, Jones was found guilty of all three counts at the conclusion of a second trial. The trial court merged the robbery count with the aggravated-robbery count, and sentenced him accordingly. In six assignments of error, Jones now appeals.

         Unavailability of Witnesses

         {¶6} Two witnesses who testified at Jones's first trial did not testify at his second. The first witness was Dilbag, who had moved to New York. The second witness was Lovell, whom detectives were unable to find. The trial court found that both witnesses were unavailable, despite reasonable efforts having been made to secure their appearances. As a result, the trial court allowed the testimony of Dilbag and Lovell from the first trial to be read to the jury in the second trial. In his first assignment of error, Jones argues that the trial court abused its discretion by finding that the witnesses were unavailable.

         {¶7} With regard to Dilbag, Jones argues that the state did not show that it had used reasonable efforts because it failed to issue an out-of-state subpoena pursuant to R.C. 2939.26. This argument was not raised below. Since Jones failed to raise this argument below, he has waived all but plain error. See State v. Mitchell, 2d Dist. Montgomery No. 24797, 2012-Ohio-3722, ¶ 10. To establish plain error pursuant to Crim.R. 52(B), Jones must show "(1) that an error occurred, (2) that the error was obvious, and (3) that the error affected the outcome of the trial." State v. Bandy, 1st Dist. Hamilton No. C-160402, 2017-Ohio-5593, ¶ 70. "Notice of plain error under Crim.R. 52(B) is to be taken with the utmost caution, under exceptional circumstances and only to prevent a manifest miscarriage of justice." State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978), paragraph three of the syllabus.

         {¶8} A trial court may find a witness unavailable without the state having first gone through the extensive procedure outlined in R.C. 2939.26 when the witness had appeared to be otherwise willing to cooperate. "The Act is not something which must be used in every situation; it is a remedy which may be used when the situation calls for it. When a witness appears very willing to cooperate, it is not reasonable to expect the prosecution to expend the time and energy to set the wheels of the Act in motion." State v. Young, 20 Ohio App.3d 269, 272, 485 N.E.2d 814 (8th Dist.1984); see State v. Tolbert, 1st Dist. Hamilton No. C-980622, 1999 WL 283891 (May 7, 1999).

         {¶9} There was nothing in Dilbag's interaction with law enforcement up until the eve of trial that would have put the state on notice that use of the statute's procedure would have been required. Detective Shawn Cox from the Hamilton County Sheriffs Office testified that he had told Dilbag that he would need to testify at the second trial, and Dilbag indicated that he would do so if he could. He had told the detective that he would need to be compensated for the lost time at work, information Cox said he passed on to the prosecutor. Cox said that he was not able to serve a subpoena on Dilbag because his department could not pay to send him to New York City. While Cox had been in relatively consistent contact with Dilbag since the first trial, the communications dropped off about one week before the second trial was to begin. Calls to Dilbag the week before the trial went straight to voicemail. Cox said that, at that point, Dilbag was "refusing to, in my opinion, come back and refusing to even take my calls at this point."

         {¶10} In light of the fact that Cox did not have reason to suspect that Dilbag would not be cooperative until days before the trial started, the state need not have resorted to the procedures outlined in R.C. 2939.26 to satisfy the requirement that it had used reasonable efforts to secure Dilbag's appearance. Therefore, it was not plain error for the trial court not to have sua sponte considered the state's failure to utilize the procedure.

         {¶11} On the issue of Lovell's unavailability, Jones argues that the state's failure to issue a subpoena to her mother's house was the reason that the state's efforts were not reasonable. But there is no indication that this would have been effective. Cox testified that Lovell had been evicted from her apartment and was believed to be homeless. Cox had attempted to contact Lovell through social media and three different cell phone numbers without success. Cox stayed in contact with Lovell's mother, who did not know where she was and was unable to contact her. Lovell's mother had hoped to find her by attending a court hearing that Lovell had scheduled in an unrelated matter, but Lovell did not appear at that hearing. There is no indication in the record that issuing a subpoena to Lovell at her mother's address would have been ...

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