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State v. Jackson

Court of Appeals of Ohio, Eighth District, Cuyahoga

April 26, 2018

STATE OF OHIO PLAINTIFF-APPELLEE
v.
ANDREW L. JACKSON DEFENDANT-APPELLANT

         Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-13-577257-A

          ATTORNEYS FOR APPELLANT Matthew M.

          ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga County Prosecutor BY: John Farley Hirschauer Daniel T. Van Assistant County Prosecutors

          BEFORE: Jones, J., E.T. Gallagher, P.J., and Keough, J.

          JOURNAL ENTRY AND OPINION

          LARRY A. JONES, SR, J.

         {¶1} This case was heard on remand from the Ohio Supreme Court. In State v. Jackson, 8th Dist. Cuyahoga No. 103035, 2016-Ohio-704, this court held that it lacked jurisdiction to hear Andrew Jackson's ("Jackson") appeal because the kidnapping counts of his indictment were dismissed without prejudice and, therefore, there was no final, appealable order. The Ohio Supreme Court disagreed, holding that "any dismissal of a count in an indictment resolves that count and does not prevent a judgment of conviction from being final and appealable." State v. Jackson, 151 Ohio St.3d 239, 2017-Ohio-7469, 87 N.E.3d 1227, ¶ 1. The court reversed the judgment of this court, reinstated Jackson's appeal, and remanded the case to this court. We now consider the merits of Jackson's appeal. For the reasons that follow, we affirm.

         {¶2} In 2013, Jackson and two codefendants, Marcian Jackson (no relation) and Cleatrice Mayo, were charged with two counts of kidnapping with one- and three-year firearm specifications, two counts of aggravated robbery with one- and three-year firearm specifications, and grand theft of a motor vehicle with one- and three-year firearm specifications. The codefendants entered into a plea agreement with the state of Ohio and pleaded guilty to amended indictments.

         {¶3} Jackson's case proceeded to trial. After the evidence was presented and the jury was deliberating, the jury informed the trial court that it could not reach a decision on Counts 1 and 3, which were the kidnapping counts with one- and three-year firearm specifications. The parties requested the court to declare a mistrial on the kidnapping counts and proceed to a verdict on the remaining counts. The court agreed and the jury returned a verdict of guilty of aggravated robbery and grand theft of a motor vehicle. The jury acquitted Jackson of the firearm specifications attendant to the aggravated robbery and grand theft charges.

         {¶4} The trial court indicated to the parties that they should try to work something out on the remaining charges before it set the case for retrial on the kidnapping charges. The state responded that it was moving to dismiss the kidnapping charges and the trial court issued a journal entry dismissing those charges. At the subsequent sentencing hearing, the trial court found that the grand-theft count and one count of aggravated robbery were allied offenses and merged those two counts. The court sentenced Jackson to a six-year term of incarceration on each aggravated robbery count to be served concurrently.

         {¶5} The following pertinent evidence was presented at trial.

         {¶6} Jeremiah Dallison ("Dallison") and his uncle, Timothy Miller ("Miller"), lived in Bergholz, Ohio. Prior to August 13, 2013, Dallison had known Jackson for approximately two months, but only knew him as "Gino." Dallison would "party" with Jackson in Salem, Ohio and occasionally get heroin from him. On the morning of August 13, 2013, Jackson called Dallison and asked for a ride from Elyria, Ohio to Bergholz in exchange for heroin and money. Dallison called Miller, who was also a heroin addict. Miller owned a 2005 Chevy Malibu and agreed to drive Dallison to pick up Jackson. Dallison and Miller left Bergholz around 9:00 a.m. for the two and one-half hours drive to Elyria. After picking Jackson up, Jackson directed Miller to pick up two more friends, Mayo and Marcian Jackson. Jackson then directed Miller to drive to Cleveland to drop them all off at someone's house. When they arrived on the westside of Cleveland, Jackson instructed Miller to pull his car down an alley. After approximately 15 minutes, Jackson and Dallison got out of the car. Miller remained inside the car with the Marcian Jackson and Mayo. Mayo got into the front passenger seat. Jackson told Dallison to get into the back seat. At this point, Jackson pulled out what appeared to be a black handgun, chambered a round, and told Dallison: "This is for real. This is going to happen. Give me all your stuff that you have." Jackson's accomplice, Mayo, had a .22 caliber handgun. Marcian Jackson had a 9 mm Makarov handgun. Jackson took Dallison's cell phone and money and also took some things from Miller. Jackson then ordered Miller and Dallison out of the car.

         {¶7} Marcian Jackson got into the driver's seat and they drove off, leaving Dallison and Miller in the alley. Dallison ran down the alley and asked a passerby to use her phone. He called 911 and reported that they had been abducted and robbed by strangers. Dallison provided a description of the vehicle and men who robbed them.

         {¶8} Miller testified that he is a drug addict who lives in Bergholz. He testified to substantially the same facts as Dallison regarding the events of August 13, 2013; he was contacted by Dallison to give Jackson a ride in exchange for drugs. Miller identified Jackson as the person who directed him throughout the ride about picking up his friends through Cleveland. Miller also described the scene and testified that each defendant had a handgun during the robbery. According to Miller, the men took his GPS, wallet, money, and car.

         {¶9} Miller and Dallison initially denied knowing Jackson when the crime was first reported but, upon further questioning by the police, came clean about the circumstances of the robbery.

         {¶10} Cleveland Police Detectives John Lally ("Detective Lally") and Elliot Landrau ("Detective Landrau") located Miller's car a few hours after the robbery, just two streets away from the scene. Detective Lally staked out the car and, several hours later, observed Jackson and two other men walk down the street toward the vehicle. The men looked around, saw Detective Lally, turned around, and started to walk away. Because the three men fit the description of the perpetrators, Detective Lally called it in, and the men were quickly arrested.

         {¶11} Detective Landrau assisted in the arrest of the three men and found Miller's GPS on Mayo. Landrau interviewed Jackson after his arrest. Jackson stated that he was there when Marcian Jackson and Mayo pulled out guns and robbed Dallison and Miller, but denied prior knowledge of the plan or possessing a gun. The police recovered the 9 mm Makarov handgun from Marcian Jackson.

         {¶12} The police went to Jackson's girlfriend's house, which was located near the crime scene, and recovered a BB gun that was similar to the gun Dallison described to police. Dallison testified that the recovered BB gun was identical to the object held by Jackson during the theft. While holding the BB gun at trial, Dallison testified that the slide functioned similarly to the gun Jackson held during the robbery.

         {¶13} As mentioned, Marcian Jackson and Mayo entered into a plea agreement with the state and were both sentenced to prison. Jackson was sentenced to a total of six years in prison. {¶14} Jackson moved for leave to file a delayed appeal, ...


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