Court of Appeals of Ohio, Eighth District, Cuyahoga
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
BEFORE: E.A. Gallagher, A.J., Boyle, J., and Keough, J.
JOURNAL ENTRY AND OPINION
A. GALLAGHER, ADMINISTRATIVE JUDGE
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.
and Procedural Background
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
robberyand agreed to testify against Rucker. The
case against Rucker proceeded to a jury trial.
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
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.
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.
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.
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.
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
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.
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.
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.
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.
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
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.
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.
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.
The Motion for a Mistrial
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.
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).
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.
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.
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
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.
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.
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.
Rucker's first assignment of error is overruled.
Admission of Jail Phone Calls
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
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.
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