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State v. Rucker

Court of Appeals of Ohio, Eighth District, Cuyahoga

May 10, 2018

STATE OF OHIO PLAINTIFF-APPELLEE
v.
GREG RUCKER DEFENDANT-APPELLANT

          Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-16-602705-B

          ATTORNEY FOR APPELLANT Joseph V. Pagano

          ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga County Prosecutor BY: Kelly N. Mason Assistant Prosecuting Attorney

          BEFORE: E.A. Gallagher, A.J., Boyle, J., and Keough, J.

          JOURNAL ENTRY AND OPINION

          EILEEN A. GALLAGHER, ADMINISTRATIVE JUDGE

         {¶1} Defendant-appellant Greg Rucker appeals his convictions from the Cuyahoga County Common Pleas Court for three counts of aggravated robbery and one count of having weapons while under disability. We affirm.

         Factual and Procedural Background

         {¶2} In 2016 Rucker and codefendant Nicholas Kraft were charged with three counts of aggravated robbery, three counts of kidnapping and one count of having weapons while under disability. Kraft plead guilty to two counts of aggravated robbery[1]and agreed to testify against Rucker. The case against Rucker proceeded to a jury trial.

         {¶3} Evidence was presented that between 3:30 a.m. and 5:00 a.m. on July 19, 2015, Jack and Victoria Maynard were using their 2012 Dodge Avenger to deliver Plain Dealer newspapers. At the corner of Almira and West Boulevard, the Maynards were approached by two men. The Maynards both testified that one man was white and the other was black. Jack Maynard described the white male as taller with a shaved head and bigger build and the black male as skinnier and wearing a hoodie over his head. Neither Maynard saw the black male's face during the incident. Nicholas Kraft was later identified as the white male.

         {¶4} Kraft and the black male demanded that the Maynards give them any money they had, ordered them to turn out their pockets, ordered them to get on the ground and patted them down for money. Kraft pointed a silver gun at Jack Maynard's head during the incident and at times swung the gun to point it at Victoria. The Maynards testified that Kraft was in charge and the black male followed his directions.

         {¶5} After realizing that the Maynards did not have any money, the men appeared to leave and the Maynards got into their car. However, the two men returned, ordered the Maynards out of the car and onto the ground. The men then drove away in the Maynards' car. The Maynards returned home and called 911 to report the robbery. Neither Maynard was able to identify Rucker at trial as being involved.

         {¶6} Bruce Page testified that at approximately 6:30 a.m. on that same date, he was riding his bicycle north on West 11th Street approaching Spring Road when he was stopped by two men. A white male, later identified Nicholas Kraft approached him in the street and a black male wearing a neutral or dark gray shirt approached him from the sidewalk. Kraft pulled out a silver gun and ordered Page to empty his pockets. Page gave the men his phone and his wallet that contained between three and five hundred dollars. When Kraft ordered Page to lay on the ground, Page testified "I just got off my bike, and I just threw it down and ran as fast as I could in reverse." Page found a nearby homeowner who assisted him in calling 911. His 911 call was played at trial and, in the call, Page described his assailants as two white males. Page explained at trial that he was "under distress" at the time of the call and that he clearly saw one white male and one black male. He did not have get a good look at the face of the black male and could not identify Rucker at trial as being involved.

         {¶7} Nicholas Kraft testified and identified Rucker as his accomplice in the above robberies. Kraft explained that he knew Rucker because, at the time of the offenses, Rucker was dating Megan Mitchell, the sister of Kraft's girlfriend, Novella Mitchell. On July 19, 2015, Novella Mitchell was sick because she was addicted to heroin and did not have the money to buy any more of the drug. After Novella threatened to kill herself, Kraft took Rucker's silver 9 mm handgun and left his house with the intent to make money by robbing people. Rucker accompanied him. Kraft's testimony was consistent with the accounts provided by the Maynards' and Page. Kraft also testified that while he and Greg were driving in the Maynards' car they encountered a motorist pulled over on the side of the road at West 98th Street and Denison Avenue. According to Kraft, Rucker exited the car and returned with a cell phone.

         {¶8} Kraft testified that after robbing Bruce Page he and Rucker were confronted by the police. Rucker was able to run away with the gun and Bruce Page's money but Kraft surrendered. Page's cell phone was recovered from Kraft's person.

         {¶9} Cleveland Police Officer Trevor Majid testified that he and his partner responded to a reported robbery in the area of Spring Road and West 11th Street on July 19, 2015, just before 7:00 a.m. He and his partner spotted two men matching the provided descriptions walking on Spring Road. When Majid exited his vehicle to confront the suspects, he made eye contact with the black male suspect from a distance of two or three feet away. Majid testified that he gave chase when the suspect fled and got a second look at the suspect's face when he turned into a driveway at 4458 South Hills Drive. Majid lost contact with the suspect in the backyard of that address and found a damaged portion of fence in the backyard through which he believed the suspect was able to escape into a neighboring yard. At trial he identified Rucker as the suspect he saw and chased on July 19, 2015. He had not made a prior identification of Rucker or noted in a police report that he had seen Rucker's face.

         {¶10} Collette McSheffrey testified that she lives at 4458 South Hills Drive and was awakened by two sets of footsteps running in her driveway in the morning hours of July 19, 2015. She saw a police officer examine the fence in her backyard and she found a cell phone in front of her garage door. She provided the phone to the police and went inside her home.

         {¶11} That same morning, between 10:00 a.m. and 11:00 a.m. McSheffrey again heard footsteps in her driveway. She saw a light skinned black or perhaps latino man searching the area around the front of her garage and the damaged portion of her fence for approximately two to four minutes. McSheffrey went outside and covertly observed the man get inside a cab with two women. She reported the license plate number of the cab to the police. At trial, she identified Rucker as the man she saw in her yard.

         {¶12} Cleveland Police Detective David Shapiro testified that he used the cell phone recovered from McSheffrey's property to locate its owner, Rafael Cardenas. Shapiro learned that Cardenas had been assaulted while walking in the area of West 98th and Denison Avenue and his phone had been stolen.

         {¶13} Using the license plate number provided by McSheffrey, police traced the cab to the Ace Taxi Company and were able to link the cab to an address in Maple Heights associated with Rucker and Kraft as well as a specific phone number. The phone number was the recipient of several phone calls placed from the Cuyahoga County jail. The state introduced recorded tapes of four calls and Kraft identified Rucker's voice in each call. In the calls Rucker discussed matters relating to the investigation of the robberies, specifically that the police thought he was Puerto Rican after speaking to Kraft's grandfather.

         {¶14} Finally, Megan Mitchell testified on Rucker's behalf and admitted that on the morning of July 19, 2015, she had taken a cab with Rucker and Novella to Spring and West 11th Street near McSheffrey's home. She testified that their purpose was to retrieve a rice cooker from her brother's home for a birthday party that day. However, her brother lived three blocks from the corner of Spring and West 11th. Mitchell claimed that she had the cab drop them off at that location because her brother was paranoid and did not like people knowing where he lives. She testified that they walked three blocks from the cab to her brother's home to get the rice cooker and then walked back to the cab to return home.

         {¶15} The jury returned a verdict of guilty on each of the aggravated robbery and kidnapping counts as well as the one- and three-year firearm specifications attached to each count. The trial court found Rucker guilty of the charge of having weapons while under disability.

         {¶16} At sentencing, the state stipulated to the merger of the kidnapping counts into the associated aggravated burglary counts, the one-year firearm specifications into the three-year firearm specifications, and the two three-year firearm specifications attached to the robberies of the Maynards into a single three-year firearm specification. The state elected to proceed to sentencing on the aggravated robbery counts. The trial court imposed prison terms of six years for each count of aggravated robbery to be served concurrently to each other but consecutive to the two three-year firearm specifications. The court also imposed a one-year sentence on the count of having weapons while under disability and ordered that count to be served consecutively to the aggravated robbery counts. Rucker's cumulative prison sentence was 13 years.

         Law and Analysis

         I. The Motion for a Mistrial

         {¶17} In his first assignment of error, Rucker argues that the trial court erred in denying his motion for a mistrial made after Cleveland Police Officer Trevor Majid identified him during trial as the suspect he had chased on July 19, 2015.

         {¶18} The decision whether to grant a mistrial rests within the sound discretion of the trial court and will not be disturbed absent an abuse of discretion. State v. Treesh, 90 Ohio St.3d 460, 480, 2001-Ohio-4, 739 N.E.2d 749; Crim.R. 33. "A mistrial should not be ordered in a criminal case merely because some error or irregularity has intervened * * *." State v. Reynolds, 49 Ohio App.3d 27, 33, 550 N.E.2d 490 (2d Dist.1988). The granting of a mistrial is necessary only when a fair trial is no longer possible. State v. Franklin, 62 Ohio St.3d 118, 127, 580 N.E.2d 1 (1991).

         {¶19} It is undisputed that the state did not disclose, prior to trial, that Officer Majid would make an in-court identification of Rucker. The state indicated at trial that it was not aware that Officer Majid would be able to recognize Rucker from their foot chase.

         {¶20} A trial court has broad discretion in regulating discovery and in determining the appropriate sanction for discovery violations. State v. Smiler, 8th Dist. Cuyahoga No. 100255, 2014-Ohio-1628, ¶ 13, citing State v. Wiles, 59 Ohio St.3d 71, 78, 571 N.E.2d 97 (1991). Upon imposing a sanction, however, the trial court must conduct an inquiry into the surrounding circumstances and impose "the least severe sanction that is consistent with the purpose of the rules of discovery." Lakewood v. Papadelis, 32 Ohio St.3d 1, 511 N.E.2d 1138 (1987), paragraph two of the syllabus.

         {¶21} Three factors that govern a trial court's exercise of discretion in imposing a sanction for a discovery violation are: 1) whether the failure to disclose was a willful violation of Crim.R. 16, 2) whether foreknowledge of the undisclosed material would have benefitted the accused in the preparation of a defense, and 3) whether the accused was prejudiced. State v. Darmond, 135 Ohio St.3d 343, 2013-Ohio-966, 986 N.E.2d 971, ¶ 35, citing State v. Parson, 6 Ohio St.3d 442, 453 N.E.2d 689 (1983), syllabus. We review a trial court's sanction for a discovery violation for an abuse of discretion. Id. at ¶ 33. An abuse of discretion implies a decision that is unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).

         {¶22} In this instance, it was disclosed to the defense in discovery that Officer Majid had chased the black male suspect accompanying Nicholas Kraft, on foot, before the suspect escaped in Collette McSheffrey's backyard. It was not disclosed prior to trial that Majid had observed the suspect's face during the foot chase or that he could identify Rucker at trial. The state informed the trial court that it did not know prior to trial if Officer Majid would be able to identify Rucker. Officer Majid testified that he was not asked to identify Rucker in a photo array prior to trial or asked to confirm after Rucker was arrested that Rucker was the black male he had chased on July 19, 2015. The trial court denied Rucker's motion for a new trial but offered to provide a curative instruction to the jury pertaining to Officer Majid's testimony.

         {¶23} In applying the three-part Parson test in this instance we cannot say that the trial court abused its discretion in denying Rucker's motion for a mistrial. Although Officer Majid's observation of Rucker's face during their foot chase is imputable to the prosecution for purposes of determining a violation of Crim.R. 16, such imputed knowledge is not sufficient to constitute a willful violation of the discovery rules. State v. Clark, 8th Dist. Cuyahoga No. 88731, 2007-Ohio-3777, ¶ 47, citing State v. Wiles, 59 Ohio St.3d 71, 79, 571 N.E.2d 97 (1991). Instead, we must consider the acts of the prosecution itself in making the determination of whether the prosecution "willfully failed to disclose the statements. Id., citing Wiles; State v. Muszynec, 8th Dist Cuyahoga No. 87447, 2006-Ohio-5444. Here, the trial court found that the prosecution learned of Officer Majid's identification testimony at the same time as the defense.

         {¶24} Under the second Parson factor it is clear that Rucker would have benefitted from learning of Officer Majid's identification prior to trial. However, under the third factor we find little evidence of prejudice in the record. Rucker's identity as the black male suspect involved in these robberies was independently established by the testimony of Nicholas Kraft, Collette McSheffrey and even the defense's own witness, Megan Mitchell, who confirmed Rucker's connection to the cab that dropped Mitchell and Rucker off near McSheffrey's home. Therefore, we find no abuse of discretion in the trial court's decision to deny the motion for a mistrial.

         {¶25} Rucker's first assignment of error is overruled.

         II. Admission of Jail Phone Calls

         {¶26} In his second assignment of error, Rucker argues that the trial court erred in admitting four recordings of jail phone calls where Rucker was called from jail by either Nicholas Kraft or Heather Mitchell, the mother of Megan and Novella Mitchell. Rucker argues that the state never authenticated the phone calls and that the calls contained inadmissible hearsay.

         {¶27} The admission of evidence lies within the broad discretion of a trial court and a reviewing court should not disturb evidentiary decisions in the absence of an abuse of discretion that has created material prejudice. State v. Noling, 98 Ohio St.3d 44, 2002-Ohio-7044, 781 N.E.2d 88, ¶ 43, citing State v. Issa, 93 Ohio St.3d 49, 64, 2001-Ohio-1290, 752 N.E.2d 904. Within this broad discretion is the trial court's duty "to determine whether testimony is relevant and to balance its potential probative value against the danger of unfair prejudice." State v. Clark, 8th Dist. Cuyahoga No. 95928, 2011-Ohio-4109, ¶ 32. Evid.R. 402 allows the admission of any relevant evidence so long as the probative value of that evidence is not outweighed by its prejudicial effect, it does not confuse the issue or mislead the jury. Evid.R. 403(A).

         {¶28} Evid.R. 901 governs authentication and provides a liberal standard for the authentication of telephone calls. State v. Teague, 8th Dist. Cuyahoga No. 90801, 2009-Ohio-129. Pursuant to Evid.R. 901(A), the requirement of authentication for evidence to be admissible "is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims." "Telephone conversations are admitted where the identity of the parties ...


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