Court of Appeals of Ohio, First District, Hamilton
Criminal Appeal From Hamilton County Court of Common Pleas
TRIAL NO. B-1405713
T. Deters, Hamilton County Prosecuting Attorney, and Judith
Anton Lapp, Assistant Prosecuting Attorney, for
Raymond T. Faller, Hamilton County Public Defender, and
Joshua A. Thompson, Assistant Public Defender, for
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.
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.
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.
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
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.
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.
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
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).
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."
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.
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 ...